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Criminal Justice (Scotland) Act 1995

Type Public General Act
Publication 1995-07-19
State In force
Department Statute Law Database
Source legislation.gov.uk
Reform history JSON API

PART I — The Course of Justice

Bail

Bail conditions.

1

For subsection (2) of section 1 of the Bail etc. (Scotland) Act 1980 (release on bail subject to conditions) there shall be substituted the following subsections—

(2) In granting bail the court or, as the case may be, the Lord Advocate shall impose on the accused— (a) the standard conditions; and (b) such further conditions as the court or, as the case may be, the Lord Advocate considers necessary to secure— (i) that the standard conditions are observed; and (ii) that the accused makes himself available for the purpose of participating in an identification parade or of enabling any print, impression or sample to be taken from him. (2A) The standard conditions referred to in subsection (2) above are conditions that the accused— (a) appears at the appointed time at every diet relating to the offence with which he is charged of which he is given due notice; (b) does not commit an offence while on bail; (c) does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person; and (d) makes himself available for the purpose of enabling enquiries or a report to be made to assist the court in dealing with him for the offence with which he is charged.

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Breach of bail conditions.

2

(2A) Where, and to the extent that, the failure referred to in subsection (1)(b) above consists in the accused having committed an offence while on bail (in this section referred to as “the subsequent offence”), he shall not be guilty of an offence under that subsection but, subject to subsection (2B) below, the court which sentences him for the subsequent offence shall, in determining the appropriate sentence or disposal for that offence, have regard to— (a) the fact that the offence was committed by him while on bail and the number of bail orders to which he was subject when the offence was committed; (b) any previous conviction of the accused of an offence under subsection (1)(b) above; and (c) the extent to which the sentence or disposal in respect of any previous conviction of the accused differed, by virtue of this subsection, from that which the court would have imposed but for this subsection. (2B) The court shall not, under subsection (2A) above, have regard to the fact that the subsequent offence was committed while the accused was on bail unless that fact is libelled in the indictment or, as the case may be, specified in the complaint. (2C) Where the maximum penalty in respect of the subsequent offence is specified by or by virtue of any enactment, that maximum penalty shall, for the purposes of the court’s determination, by virtue of subsection (2A) above, of the appropriate sentence or disposal in respect of that offence, be increased— (a) where it is a fine, by the amount for the time being equivalent to level 3 on the standard scale; and (b) where it is a period of imprisonment— (i) as respects a conviction in the High Court or the sheriff court, by 6 months; and (ii) as respects a conviction in the district court, by 60 days, notwithstanding that the maximum penalty as so increased exceeds the penalty which it would otherwise be competent for the court to impose. (2D) Where the sentence or disposal in respect of the subsequent offence is, by virtue of subsection (2A) above, different from that which the court would have imposed but for that subsection, the court shall state the extent of and the reasons for that difference.

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No bail in homicide or rape proceedings after previous conviction of such offences.

3

After section 28 of the Criminal Procedure (Scotland) Act 1975 (in this Act referred to as “the 1975 Act”) there shall be inserted the following section—

(28A) (1) Notwithstanding sections 26 to 33 and 238 of this Act, a person who in any proceedings has been charged with or convicted of— (a) attempted murder; (b) culpable homicide; (c) rape; or (d) attempted rape, in circumstances where this section applies shall not be granted bail in those proceedings. (2) This section applies where— (a) the person has previously been convicted by or before a court in any part of the United Kingdom of any offence specified in subsection (1) above or of murder or manslaughter; and (b) in the case of a previous conviction of culpable homicide or of manslaughter— (i) he was sentenced to imprisonment or, if he was then a child or young person, to detention under any of the relevant enactments; (ii) a hospital order was imposed in respect of him; (iii) an order having the same effect as a hospital order was made in respect of him under section 174ZC(2)(a) of this Act; or (iv) an order having equivalent effect to an order referred to in sub-paragraph (ii) or (iii) above has been made in respect of him by a court in England and Wales. (3) This section applies whether or not an appeal is pending against conviction or sentence or both. (4) In this section— - “conviction” includes— (a) a finding that a person is not guilty by reason of insanity; (b) a finding under section 174ZA(2) of this Act; (c) a finding under section 4A(3) of the Criminal Procedure (Insanity) Act 1964 (cases of unfitness to plead) that a person did the act or made the omission charged against him; and (d) a conviction of an offence for which an order is made placing the offender on probation or discharging him absolutely or conditionally; and “convicted” shall be construed accordingly; and - “the relevant enactments” means— (a) as respects Scotland, sections 205 and 206 of this Act; (b) as respects England and Wales, section 53(2) of the Children and Young Persons Act 1933; and (c) as respects Northern Ireland, section 73(2) of the Children and Young Persons Act (Northern Ireland) 1968.

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Right of prosecutor to seek review of grant of bail.

4

After each of sections 30 and 299 of the 1975 Act there shall be inserted the following section as, respectively, section 30A and section 299A—

(0) (1) On an application by the prosecutor at any time after a court has granted bail to a person the court may, where the prosecutor puts before the court material information which was not available to it when it granted bail to that person, review its decision. (2) On receipt of an application under subsection (1) above the court shall— (a) intimate the application to the person granted bail; (b) fix a diet for hearing the application and cite that person to attend the diet; and (c) where it considers that the interests of justice so require, grant warrant to arrest that person. (3) On hearing an application under subsection (1) above the court may— (a) withdraw the grant of bail and remand the person in question in custody; or (b) grant bail, or continue the grant of bail, either on the same or on different conditions. (4) Nothing in the foregoing provisions of this section shall affect any right of appeal against the decision of a court in relation to bail.

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Bail pending appeal.

5

(1A) The High Court shall not admit a convicted person to bail under subsection (1) above unless— (a) where he is the appellant and has not lodged a note of appeal in accordance with section 233(1)(a) of this Act, the application for bail states reasons why it should be granted and sets out the proposed grounds of appeal; or (b) where the Lord Advocate is the appellant, the application for bail states reasons why it should be granted; and, in either case, the High Court considers there to be exceptional circumstances justifying admitting the convicted person to bail.

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Juries

Lists of potential jurors.

6

In section 3 of the Jurors (Scotland) Act 1825 (sheriff principal to maintain lists of potential jurors)—

(2) For the purpose of maintaining lists of potential jurors under subsection (1) above, a sheriff principal may require any person in the sheriff court district in question who appears to him to be qualified and liable to serve as a juror to provide such information, and in such form, as the Secretary of State may by order prescribe. (3) A statutory instrument containing an order by virtue of subsection (2) above shall be subject to annulment pursuant to a resolution of either House of Parliament. (4) Any person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 1 on the standard scale. (5) In proceedings against a person for an offence under subsection (4) above it is a defence to prove that he had reasonable excuse for the failure.

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Jury service.

7

(5A) Where the clerk of court has, under subsection (5) above, excused a person from jury service in any criminal proceedings he shall, unless he considers there to be exceptional circumstances which make it inappropriate to do so, within one year of the date of that excusal cite that person to attend for jury service in criminal proceedings.

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(c) in respect of jury service in any criminal proceedings, persons who are on bail in or in connection with criminal proceedings in any part of the United Kingdom.

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In respect of jury service in any criminal proceedings, practising members of religious societies or orders the tenets or beliefs of which are incompatible with jury service.

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Challenges to jurors.

8

In section 130 of the 1975 Act (challenges and objections to jurors)—

(3A) Where, before a juror is sworn to serve, the parties jointly apply for him to be excused the court shall, notwithstanding that no reason is given in the application, excuse that juror from service.

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Pre-trial procedure

Execution of warrants granted by sheriff, etc.

9

For each of sections 15 and 327 of the 1975 Act (certain warrants granted by sheriff may be executed throughout Scotland), there shall be substituted the following section—

(0) Any warrant granted by a justice may, without being backed or endorsed by any other justice, be executed throughout Scotland in the same way as it may be executed within the jurisdiction of the justice who granted it.

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Judicial examination.

10

(3A) The accused shall be told by the sheriff that if he answers any question put to him at the examination under this section in such a way as to disclose an ostensible defence, the prosecutor shall be under the duty imposed by subsection (7) below.

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(7) Without prejudice to any rule of law, on the conclusion of an examination under this section the prosecutor shall secure the investigation, to such extent as is reasonably practicable, of any ostensible defence disclosed in the course of the examination. (8) The duty imposed by subsection (7) above shall not apply as respects any ostensible defence which is not reasonably capable of being investigated.

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Requirement to give notice of defence of automatism or coercion.

11

After subsection (1) of section 82 of the 1975 Act (requirement to give notice of plea of special defence, etc.) there shall be inserted the following subsection—

(1A) Subsection (1) above shall apply to a defence of automatism or coercion as if it were a special defence.

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Agreement of evidence.

12

(84A) (1) Subject to subsection (2) below, the prosecutor and the accused (or each accused if more than one) shall each identify any facts which are facts— (a) which he would, apart from this section, be seeking to prove; (b) which he considers unlikely to be disputed by the other party (or by any of the other parties); and (c) in proof of which he does not wish to lead oral evidence, and shall (without prejudice to section 16 of the Criminal Justice (Scotland) Act 1995 (procedure for proving uncontroversial evidence)) take all reasonable steps to secure the agreement of the other party (or each of the other parties) to them; and the other party (or each of the other parties) shall take all reasonable steps to reach such agreement. (2) Subsection (1) above shall not apply in relation to proceedings as respects which the accused (or any of the accused if more than one) is not legally represented. (3) The duty under subsection (1) above applies from the date of service of the indictment until the swearing of the jury or, where intimation is given under section 102 of this Act, the date of that intimation.

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(333B) (1) Subject to subsection (2) below, the prosecutor and the accused (or each accused if more than one) shall each identify any facts which are facts— (a) which he would, apart from this section, be seeking to prove; (b) which he considers unlikely to be disputed by the other party (or by any of the other parties); and (c) in proof of which he does not wish to lead oral evidence, and shall (without prejudice to section 16 of the Criminal Justice (Scotland) Act 1995 (procedure for proving uncontroversial evidence)) take all reasonable steps to secure the agreement of the other party (or each of the other parties) to them; and the other party (or each of the other parties) shall take all reasonable steps to reach such agreement. (2) Subsection (1) above shall not apply in relation to proceedings as respects which the accused (or any of the accused if more than one) is not legally represented. (3) The duty under subsection (1) above applies from the date on which the accused pleads not guilty until the swearing of the first witness or, where the accused tenders a plea of guilty at any time before the first witness is sworn, the date when he does so.

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First and preliminary diets in solemn proceedings.

13

(a) where the case is to be tried in the sheriff court, a first diet not less than 15 clear days after the service of the indictment and not less than 10 clear days before the trial diet; and (b)

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