Act of Adjournal (Criminal Procedure Rules Amendment No. 4) (Miscellaneous) 2010

Made: 24th November 2010

Coming into force in accordance with paragraph

The Lord Justice General, the Lord Justice Clerk and the Lords Commissioners of Justiciary, under and by virtue of the powers conferred on them by section305 of the Criminal Procedure (Scotland) Act 1995[^f00001], and of all other powers enabling them in that behalf do hereby enact and declare:

Citation, commencement etc.

1

• (1) This Act of Adjournal may be cited as the Act of Adjournal (Criminal Procedure Rules Amendment No.4) (Miscellaneous) 2010.

• (2) Subject to subparagraph(3), this Act of Adjournal comes into force on 13th December 2010.

• (3) Paragraph2 comes into force on 1stFebruary 2011.

• (4) A certified copy of this Act of Adjournal is to be inserted in the Books of Adjournal.

• (5) Unless the context requires otherwise, in this Act of Adjournal a reference to a numbered provision or form is to the provision or form of that number in the Criminal Procedure Rules 1996[^f00002].

Community payback orders

2

• (1) In rule2.6 (forms of execution of service)[^f00003] in paragraph(5)—

• (a) omit subparagraphs(b), (c) and (d);

• (b) for subparagraph(g) substitute—

(h) rule20.22(2) (community payback orders: failure to attend progress review) shall be in Form2.6-EH; (i) rule20.22(4) (community payback orders: breach of community payback order) shall be in Form2.6-EI.

• (2) In the appendix, after Form2.6-EF insert Form2.6-EH and Form2.6-EI set out in Part 1 of the Schedule to this Act of Adjournal and omit Form2.6-EB, Form2.6-EC and Form2.6-ED.

• (3) Omit rule6.5 (failure to comply with probation order).

• (4) In rule19A.1 (power of Clerk of Justiciary to alter place where case to be heard)[^f00004], in paragraph(1)(c)—

• (a) omit paragraphs(i) and (ii);

• (b) for paragraph(iv) substitute—

(v) a community payback order.

• (5) In Chapter20 (sentencing)[^f00005] omit—

• (a) rule20.10 (probation orders)[^f00006];

• (b) rule20.11 (supervised attendance orders)[^f00007];

• (c) rule20.12 (community service orders);

• (d) rule20.12C (community reparation orders)[^f00008].

• (6) After rule20.21 (orders for lifelong restriction)[^f00009] insert—

(20.22) (1) A community payback order made under section227A of the Act of 1995 shall be in Form20.22-A. (2) The citation of an offender to appear before a court under section227X(7)(a) (failure to attend progress review) of the Act of 1995 shall be in Form20.22-B. (3) An application under section227Y(1) (applications to vary, revoke and discharge community payback orders) of the Act of 1995 shall be in Form20.22-C. (4) The citation of an offender to appear before a court under section227ZC(2)(b) (breach of community payback order) of the Act of 1995 shall be in Form20.22-D.

• (7) In the appendix, after Form20.21[^f00010] insert Form20.22-A, Form20.22-B, Form20.22-C and Form20.22-D set out in Part 1 of the Schedule to this Act of Adjournal.

• (8) Rules2.6, 6.5 and 19A.1, and Chapter20 as they applied immediately before 13December 2011 continue to have effect where necessary in consequence of article3 of the Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No.6, Transitional and Savings Provisions) Order 2010[^f00011].

Crown bail appeals

3

After rule4.1 (application to alter address in bail order)[^f00012], insert—

(4.2) (1) Where an appeal is made under section32(2) of the Act of 1995 the accused may attend the hearing of the appeal. (2) Where the accused wishes to attend the hearing of the appeal, he shall inform the Clerk of Justiciary not later than 24hours before the hearing is due to take place.

Interruption of proceedings

4

After rule14.8 (interruption of trial for other proceedings), insert—

(14.8A) (1) Where a case has called the presiding judge may, on a motion made jointly, without adjourning those proceedings interrupt them by calling other proceedings. (2) Such a motion is competent only where in making the motion parties inform the court that— (a) one or more of the accused in the proceedings is also an accused in other proceedings; (b) none of the proceedings are going to trial, because (either or both)— (i) the accused persons are intending to plead guilty as libelled; (ii) the accused persons are intending to tender pleas which the Crown intends to accept; and (c) in the interests of justice it is appropriate that the other proceedings be called in order that they be dealt with simultaneously. (3) Where the judge has interrupted any proceedings under paragraph (1), the proceedings are to be regarded as being before the court simultaneously and pleas shall be recorded in this way. (4) Where pleas have been recorded in accordance with paragraph(3) the clerk of court may on any subsequent occasion call the proceedings together and they shall be regarded as being before the court simultaneously.

Form of application for extension of time

5

In the appendix, in Form15.2-C, before the space for signature insert—

• Note: in an application for extension of the period mentioned in section109(1) of the Act of 1995, this form must also include the proposed grounds of appeal (see section111(2A))[^f00013].

Scottish Criminal Cases Review Commission

6

• (1) For Chapter19B[^f00014] substitute—

(19B.1) (1) This rule applies to a reference by the Scottish Criminal Cases Review Commission to the High Court under section 194B of the Act of 1995. (2) The Clerk of Justiciary shall— (a) assign the reference to a procedural hearing fixed for a date not earlier than 21days after receipt of the reference; and (b) as soon as possible thereafter, intimate the diet to every party and to the governor of any institution in which any accused is detained. (3) At the procedural hearing the High Court shall consider and make orders in respect of— (a) the Court’s power to reject the reference under section194DA of the Act of 1995[^f00015]; (b) any application under section194D(4B) of the Act of 1995[^f00016]; (c) any application under section194D(4D) of the Act of 1995[^f00017]; (d) the procedure to be followed in the determination of the reference; (e) any other matter which the Court considers appropriate in respect of the reference. (19B.2) (1) An application under section194IA of the Act of 1995 shall be in Form19B.2 and shall be lodged with the Clerk of Justiciary. (2) The High Court shall— (a) without requiring intimation to any other party, proceed to consider the application; (b) after considering it shall grant it, with or without any modifications which it deems appropriate, or shall refuse it. (3) The application shall be registered by the Clerk of Justiciary as if it were an application made under section7(1) of the Crime (International Co-operation) Act 2003 and rule36.6[^f00018] applied.

• (2) In the appendix, after Form19.18[^f00019] insert Form19B.2 set out in Part2 of the Schedule to this Act of Adjournal.

• (3) The amendments made by subparagraphs(2) and (3) do not affect a reference under section194B of the Criminal Procedure (Scotland) Act 1995[^f00020] made before 13thDecember 2010.

Short periods of detention

7

• (1) Omit rule18.6 (detention in precincts of court) and Form18.6.

• (2) Omit rule20.2 (detention in police custody instead of imprisonment) and Form20.2.

• (3) Despite paragraphs(1) and (2), rules18.6 and 20.2 and Form18.6 and Form20.2 continue to have effect where, despite their repeal by section 16 of the Criminal Justice and Licensing (Scotland) Act 2010[^f00021], sections169 and 206(2) of the Criminal Procedure (Scotland) Act 1995 continue to have effect for any purpose [^f00022].

Legal aid

8

• (1) In rule33.1 (interpretation of Chapter) for the definition of “the Regulations” substitute—

• “the Regulations” means the Criminal Legal Aid (Scotland) Regulations 1996[^f00023].

• (2) Omit rule33.2 (legal aid in High Court).

Financial reporting orders

9

• (1) In rule49.1 (interpretation)[^f00024], at the end insert—

• “the prosecutor” means the prosecutor at whose instance the order was made.

• (2) In rule49.3 (variation or revocation of financial reporting orders) in paragraph(2)(a), at the end, after “be” insert “and to the prosecutor”.

SCHEDULE

PART 1

PART 2

Signed

A.C. HAMILTON — Lord Justice General — I.P.D. — 24th November 2010

Explanatory note

(This note is not part of the Act of Adjournal)

EXPLANATORY NOTE

This Act of Adjournal amends the Criminal Procedure Rules 1996.

Paragraph 2 makes provision in consequence of the introduction, by section14 of the Criminal Justice and Licensing (Scotland) Act 2010, of community payback orders.

Paragraph3 inserts new rule4.2 providing that an accused can attend the hearing of a Crown bail appeal.

Paragraph4 inserts new rule14.8A making provision for the interruption of solemn proceedings for the tendering of pleas.

Paragraph5 amends Form15.2-C in consequence of section5 of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010.

Paragraph6 substitutes Chapter 19B in relation to the Scottish Criminal Cases Review Commission in consequence of section105 of the Criminal Justice and Licensing (Scotland) Act 2010 and section7(4) of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010.

Paragraph7 omits rules18.6 and 20.2 and related Forms in consequence of section16 of the Criminal Justice and Licensing (Scotland) Act 2010.

Paragraph8 amends Chapter33 (Legal Aid) in consequence of section64 of the Legal Aid and Legal Profession (Scotland) Act 2007.

Paragraph9 amends Chapter49 (financial reporting orders) so as to require intimation of an application for variation or revocation of a financial reporting order to be made to the prosecutor.

Footnotes

[^f00001]: 1995 c.46.

[^f00002]: The Criminal Procedure Rules 1996 are contained in Schedule2 to the Act of Adjournal (Criminal Procedure Rules) 1996 (S.I. 1996/513, last amended by S.S.I. 2010/386).

[^f00003]: Rule 2.6, last amended by S.S.I. 2005/160.

[^f00004]: Rule19A.1 was inserted by S.S.I. 2003/468, last amended by S.S.I. 2010/184.

[^f00005]: Chapter20, last amended by S.S.I. 2008/61.

[^f00006]: Rule20.10, last amended by S.S.I. 2003/468.

[^f00007]: Rule20.11 was substituted by S.S.I. 2003/468.

[^f00008]: Rule20.12C was inserted by S.S.I. 2005/160.

[^f00009]: Rule20.21 was inserted by S.S.I. 2006/302.

[^f00010]: Form20.21 was inserted by S.S.I. 2006/302.

[^f00011]: S.S.I. 2010/413.

[^f00012]: Rule4.1, last amended by S.S.I. 2005/44.

[^f00013]: Section111(2A) was inserted by section5(2) of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (asp 15).

[^f00014]: Chapter19B was inserted by S.S.I. 2003/468 and amended by S.S.I. 2010/386.

[^f00015]: Section194DA was inserted by section7(4) of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (asp 15).

[^f00016]: Section194D(4C) was inserted by section 83 of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13).

[^f00017]: Section194D(4D) was inserted by section 83 of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13).

[^f00018]: Chapter36 was substituted by S.S.I. 2004/195.

[^f00019]: Form 19.18 was inserted by S.S.I. 2003/387.

[^f00020]: 1995 c .46.

[^f00021]: 2010 asp 13.

[^f00022]: Section16 of the 2010 Act is brought into force for the purpose of offences committed on or after 13December 2010 by article2 of the Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No.6, Transition and Savings Provisions) Order 2010 (S.S.I. 2010/413).

[^f00023]: The Criminal Legal Aid (Scotland) Regulations 1996 (S.I. 1996/2555) revoked the Criminal Legal Aid (Scotland) Regulations 1987 (S.I. 1987/307).

[^f00024]: Chapter49 was inserted by S.S.I. 2006/205.