The Mutual Recognition of Criminal Financial Penalties in the European Union (Scotland) Order 2009

Made: 5th October 2009

Coming into force: 12th October 2009

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PART I — GENERAL

Citation, commencement and interpretation

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Application

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PART II — AMENDMENT OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995

The mutual recognition of criminal financial penalties

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Requests for recognition of financial penalties to other member States: fines enforcement officers and their functions

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Requests for recognition of financial penalties from other member States: fines enforcement officers and their functions

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Consequential amendment: fines enforcement officers and their functions

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Amendment of the Criminal Procedure (Scotland) Act 1995: supplementary provisions

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Signed

KENNY MACASKILL — A member of the Scottish Executive — 2009-10-05

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order, which extends only to Scotland, implements in Scotland the European Union Framework Decision on the Application of the Principle of Mutual Recognition to Financial Penalties (2005/214/JHA) (“the Framework Decision”). It does so by the amendment of the Criminal Procedure (Scotland) Act 1995.

The Framework Decision applies the principle of mutual recognition of financial penalties imposed by the judicial or administrative authorities of the Member States to recognise and enforce judgements without any further formality being required by the member State of the European Union to which the request has been passed for the purposes of the enforcement of the financial penalty. It is available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:076:0016:0030:EN:PDF

Article2 specifies that the financial penalties in respect of which the provisions contained within the Order apply are those financial penalties which on or after 1 October 2008 were imposed by a court on conviction of an offence, or accrued otherwise than on conviction and which, on default, are enforced in the same manner as fines imposed by a court.

Article3 amends the Criminal Procedure (Scotland) Act1995 (“the 1995 Act“) by the insertion of sections223A to 223T. Sections223A to 223E make provision in respect of financial penalties imposed, or otherwise accrued, in Scotland which are transferred for enforcement to other member States of the European Union. Sections223F to 223O make provision in respect of such financial penalties from member States, other than the UnitedKingdom (“other member States”), which have been given to Scotland for enforcement. Section 223P makes provision in respect of the transfer of such cases between Scotland, England and Wales, and Northern Ireland. Sections223Q to 223T make general provision regarding the enforcement scheme providing for the mutual recognition of financial penalties and apply both to outgoing financial penalties from, and those penalties incoming to, Scotland.

Section223A specifies the circumstances which must exist before a financial penalty may be issued for enforcement from Scotland to a member State, other than the United Kingdom. The meaning of financial penalty is given in subsection (5).

Section223B prescribes the procedure by which financial penalties imposed, or otherwise accrued, in Scotland are issued to the member State, other than the United Kingdom, in which the penalty is to be enforced. The designated officer of the competent authority for Scotland issues a certificate and gives it to the central authority for Scotland for onward transfer to that member State for enforcement. Definitions for “designated officer” and “central authority for Scotland” are given in section 223T and for “the competent authority for Scotland” in section 223Q. Subsection(4) of section 223B provides that on the transfer of the financial penalty to that member State no further enforcement action may be taken in Scotland and no further requests for enforcement may be given by Scotland for enforcement unless subsection (5) applies. Subsection(5) provides that where any of the events mentioned in Article 15(2) of the Framework Decision occurs then the right to enforce the financial penalty reverts to Scotland.

Section223C provides that where the designated officer of the competent authority for Scotland has issued a certificate to a member State, other than the United Kingdom, for enforcement of a fine, or expenses imposed in connection with proceedings relating to a conviction of a fine, the application of section217(3) of the1995 Act shall be modified and qualified.

Section223D provides that where the designated officer of the competent authority for Scotland has issued a certificate in relation to a compensation order imposed under section249 of the 1995 Act the application of section252 of that Act (enforcement of compensation orders) shall be modified.

Section223E provides that where the designated officer of the competent authority for Scotland has issued a certificate in respect of certain fixed penalty offers issued under sections302(1) and302A(1) of the 1995 Act and both having been accepted, or deemed to have been accepted, that the application of section303 (fixed penalty: enforcement) of that Act applies with modification. Section 303(1) of the 1995 Act provides that where a fixed penalty offer or a compensation offer under section 302 or 302A, respectively, of the 1995 Act is accepted by the alleged offender then outstanding sums shall be treated as if the penalty or offer were a fine imposed by the court. The modification to the application of section 303 of the 1995 Act provides that section 217(3) (supervision pending payment of fine) of the 1995 Act which, by section223C(2)(b) of that Act, applies modified in respect of outgoing fines also applies, so modified, in respect of those specified fixed penalties to which sections 302 and 302A make provision and which are issued by Scotland for enforcement in a member State, other than the United Kingdom.

Section223F, and Schedule11, specify when a financial penalty issued by the other member State is suitable for enforcement in Scotland. Section 223F sets out the procedures to be followed when the certificate is issued by the competent authority, or central authority of that other member State. Subsection(6) makes provision regarding the application of the section where a certificate is received initially by the central authority of England and Wales or, as the case may be, Northern Ireland and is subsequently passed to Scotland for enforcement.

Section223G makes provision for the return of requests for enforcement to the other member State in certain specified circumstances. In such cases no enforcement action will be carried out in Scotland following the return of the enforcement request.

Section223H sets out the procedures to be followed following the receipt by Scotland of a certificate seeking the enforcement of the financial penalty from the other member State. Schedule12 specifies grounds by which the enforcement of the financial penalty may be refused. It provides that the competent authority is to decide whether it is satisfied that any grounds for refusal apply.

Section223I specifies the procedure to be followed subsequent to the competent authority for Scotland being satisfied that none of the grounds for refusal to enforce the financial penalty apply. In such cases the competent authority for Scotland shall seek the enforcement in Scotland of the financial penalty. Where one or more of the grounds for refusal apply then, by subsections (2) and (3), the request for enforcement shall be returned to the other member State and no enforcement action shall be carried out in Scotland.

Section223J provides that the provisions specified in section 223K will apply to certain financial penalties which are given to Scotland for enforcement as they apply in relation to fines in respect of which the 1995 Act makes provision, but subject to certain modifications and qualifications.

Section223K lists those provisions mentioned in section 223J, the application of which are necessarily modified and qualified. Certain specified modifications and qualifications listed in the section apply only where section223L applies.

Section223L provides that the enforcement action which may be undertaken by Scotland on the failure to recover the financial penalty may not exceed any maximum level for such disposal as specified by the other member State which made the request for enforcement to Scotland.

Section223M provides that the provisions of the 1995Act specified in section 223N apply to certain financial penalties received by Scotland from other member States as they apply in relation to any sum payable under compensation orders imposed under section249 of the 1995Act but subject to those necessary modifications and qualifications which are set out in section 223N.

Section223N specifies those provisions for which section223M makes provision. Modifications and qualifications to the application of certain specified provisions of the 1995 Act are made by the provision.

Section223O provides that certain provisions of the 1995 Act apply to certain financial penalties which are received by Scotland from other member States as they apply in relation to fixed penalties issued under the 1995Act. Subsection(2) specifies the provision of the 1995Act which is modified and qualified for the purposes of enforcing such financial penalties in Scotland.

Section223P makes provision regarding the transfer of certificates received by Scotland from other member States to the central authority for England and Wales, or to the central authority for NorthernIreland, in those cases in which it is clear that the enforcement action should be undertaken there rather than in Scotland.

Section223Q defines “the competent authority for Scotland”.

Section223R makes provision for the treatment of the monies obtained following the enforcement of financial penalties in respect of which the Order applies.

Section223S provides that those financial penalties which are payments of compensation and which have been issued for enforcement by Scotland to a member State, other than the UnitedKingdom, shall be paid by the central authority for Scotland or, as the case may be, the competent authority for Scotland to the central authority of that member State where the victim of the offence to which the financial penalty relates, resides.

Section223T is an interpretation provision.

Article4 of the Order amends the1995 Act by inserting section226HA after section226H of that Act. The provision specifies the circumstances in which a fines enforcement officer may issue a certificate to a member State, other than the UnitedKingdom, for enforcement action of a relevant penalty (as defined in section 226I). By subsection(5) a fines enforcement officer may not issue such a certificate where the designated officer of the competent authority for Scotland has already done so. Procedural requirements are set down by the provision.

Article5 of the Order amends section226B by the insertion of subsection(6A) and the amendment of subsection(7) of that provision. Subsection(6A) of section226B provides that in relation to a request from the other member State seeking enforcement of a financial penalty in Scotland, the relevant court (which is defined in section226I ) may make an enforcement order in relation to the enforcement of the financial penalty. The amendment made to subsection(7) of section226B allows an enforcement order under subsection(6A) to be made on the oral or written application of the clerk of court and without the offender being present.

Article6 of the Order makes consequential amendments to section226I. Section 226I is the interpretation provision for those provisions concerning the enforcement of fines and fines enforcement officers.

Article 7 of the Order amends section 211(6) of the 1995 Act to make it clear that that sub-section does not apply where a financial penalty is enforced by virtue of a certificate issued under sections 223A or 226HA(4).

Article8 of the Order makes a number of amendments to the 1995 Act. In particular, it inserts Schedules11 and 12 to that Act. Schedule 11 makes provision concerning financial penalties which are suitable for enforcement in Scotland and sets out the procedure to be followed where the person to whom a financial penalty relates has property not only in Scotland but in other parts of the United Kingdom too. Schedule 12 makes provision concerning the grounds for refusal to enforce financial penalties in Scotland.

Footnotes

[^f00001]: 2007 asp 6; section 56 was amended by S.I. 2007/1655, Schedule 1(1), paragraph 19(2).

[^f00002]: O.J.L76, 22.3.05, p.16.

[^f00003]: 1995 c.46; section 223A is inserted by article 3 of this Order.

[^f00004]: 1995 c.46; section 223F is inserted by article 3 of this Order.

[^f00005]: 1980 c.43; section 90 was amended by the Criminal Justice and Public Order Act 1994 (c.33), section 47(2); the Access to Justice Act 1999 (c.22), section 90, Schedule 13, paragraphs 95, 108 (with section 107, Schedule 14, paragraph 7(2)); S.I.1995/127 and S.I. 2001/916.

[^f00006]: S.I.1981/1675 (N.I.26).

[^f00007]: 1988 c.53; section 54 was amended by the Road Traffic Act 1991 (c.40), sections 48 and 83, Schedule 4, paragraph103(2) and (3) and Schedule 8; the Police Reform Act 2002 (c.30), sections 38, 41, 76(2), 108(2) to (5), Schedule 4, paragraph1(2)(b) and Schedule 5, paragraph 1(2)(a); S.I. 1990/144; S.I. 1992/1286; S.I. 2002/2750; S.I.2002/2306 and section 62 was amended by the Road Safety Act 2006 (c.49), section 5, Schedule 1, paragraph 7.

[^f00008]: 2004 asp 8.

[^f00009]: 1988 c.53; section 71 was amended by the Access to Justice Act 1999 (c.22), section90, Schedule 13, paragraph 150(2).

Editorial notes

[^key-7f87945550340a4d31c94d585b06afa1]: Order revoked (31.12.2020) by The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/339), regs. 1(3), 5(b)