Legalize / United Kingdom / Public General Act

Criminal Justice (Scotland) Act 1995

Type Public General Act

Publication 1995-07-19

Last updated 1995-09-26

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(1A) For the purpose of hearing and determining any appeal under section 228(1)(b), (bb), (bc) or (bd) of this Act, or any proceeding connected therewith, two of the Lords Commissioners of Justiciary shall be a quorum of the High Court, and each judge shall be entitled to pronounce a separate opinion; but where the two Lords Commissioners of Justiciary are unable to reach agreement on the disposal of the appeal, or where they consider it appropriate, the appeal shall be heard and determined in accordance with subsection (1) above.

(2) After section 451 of that Act there shall be inserted the following section—

(451A) (1) For the purpose of hearing and determining any appeal under this Part of this Act, or any proceeding connected therewith, three of the Lords Commissioners of Justiciary shall be a quorum of the High Court, and the determination of any question under this Part of this Act by the court shall be according to the votes of the majority of the members of the court sitting, including the presiding judge, and each judge so sitting shall be entitled to pronounce a separate opinion. (2) For the purpose of hearing and determining appeals under section 442(1)(a)(ii) or (iia) of this Act, or any proceeding connected therewith, two of the Lords Commissioners of Justiciary shall be a quorum of the High Court, and each judge shall be entitled to pronounce a separate opinion; but where the two Lords Commissioners of Justiciary are unable to reach agreement on the disposal of the appeal, or where they consider it appropriate, the appeal shall be heard and determined in accordance with subsection (1) above.

Trial judge’s report.

44

(1) Without prejudice to sections 236A and 453B(3)(b) of the 1975 Act, the High Court may, in relation to any appeal—

(a) under section 228(1), 228A or 442(1) of the 1975 Act;

(b) by way of bill of suspension or advocation; or

at any time before the appeal is finally determined, order the judge who presided at the trial, passed sentence or otherwise disposed of the case to provide to the Clerk of Justiciary a report in writing giving the judge’s opinion on the case generally or in relation to any particular matter specified in the order.

(2) The Clerk of Justiciary shall send a copy of a report provided under subsection (1) above to the convicted person or his solicitor, the Crown Agent and, in relation to cases referred under section 263(1) of the 1975 Act, the Secretary of State.

(3) Subject to subsection (2) above, the report of the judge shall be available only to the High Court, the parties and, on such conditions as may be prescribed by Act of Adjournal, such other persons or classes of persons as may be so prescribed.

(4) Expressions used in this section and in the 1975 Act have the same meaning in this section as in that Act.

Extension of certain time limits with respect to appeals.

45

(1) In section 451(2) of the 1975 Act (power of sheriff principal to extend certain time limits with respect to appeal by stated case), for the words from “taken” to “the sheriff” there shall be substituted

taken— (a) is temporarily absent from duty for any cause; (b) is a temporary sheriff; or (c) is a justice of the peace, the sheriff

(2) In the proviso to subsection (4) of section 453B of that Act (power of sheriff principal to extend time limit with respect to appeal against sentence), for the words from “judge” to “extend” there shall be substituted

judge— (a) is temporarily absent from duty for any cause; (b) is a temporary sheriff; or (c) is a justice of the peace, extend

New prosecution for same or similar offence.

46

(1) In section 255 of the 1975 Act (supplementary provisions where High Court authorises new prosecution)—

(a) at the beginning of subsection (1) there shall be inserted “ Subject to subsection (1A) below, ”;

(b) after subsection (1) there shall be inserted the following subsections—

(1A) In a new prosecution under this section the accused shall not be charged with an offence more serious than that of which he was convicted in the earlier proceedings. (1B) In proceedings in a new prosecution under this section it shall, subject to subsection (1C) below, be competent for either party to lead any evidence which it was competent for him to lead in the earlier proceedings. (1C) The indictment in a new prosecution under this section shall identify any matters as respects which the prosecutor intends to lead evidence by virtue of subsection (1B) above which would not have been competent but for that subsection.

; and

(5) On granting authority under section 254(1)(c) of this Act to bring a new prosecution, the High Court shall, after giving the parties an opportunity of being heard, order the detention of the accused person in custody or admit him to bail. (6) Subsections (2)(b) and (4) to (6) of section 101 of this Act (prevention of delay in trials) shall apply to an accused person who is detained under subsection (5) above as they apply to an accused person detained by virtue of being committed until liberated in due course of law.

(2) In section 452B of the 1975 Act (corresponding provision in relation to summary proceedings)—

(a) at the beginning of subsection (1) there shall be inserted “ Subject to subsection (1A) below, ”;

(b) after subsection (1) there shall be inserted the following subsections—

(1A) In a new prosecution under this section the accused shall not be charged with an offence more serious than that of which he was convicted in the earlier proceedings. (1B) In proceedings in a new prosecution under this section it shall, subject to subsection (1C) below, be competent for either party to lead any evidence which it was competent for him to lead in the earlier proceedings. (1C) The complaint in a new prosecution under this section shall identify any matters as respects which the prosecutor intends to lead evidence by virtue of subsection (1B) above which would not have been competent but for that subsection.

; and

(5) On granting authority under section 452A(1)(d) of this Act to bring a new prosecution, the High Court may, after giving the parties an opportunity of being heard, order the detention of the accused person in custody; but an accused person may not be detained by virtue of this subsection for a period of more than 40 days.

Mental disorder and criminal proceedings

Insanity in bar of trial.

47

(1) For subsection (1) of section 174 of the 1975 Act (finding of insanity in bar of trial in solemn proceedings) there shall be substituted the following subsections—

(1) Where the court is satisfied, on the written or oral evidence of two medical practitioners, that a person charged on indictment with the commission of an offence is insane so that his trial cannot proceed or, if it has commenced, cannot continue, the court shall, subject to subsection (1A) below— (a) make a finding to that effect and state the reasons for that finding; (b) discharge the trial diet and order that a diet (in this Act referred to as an “an examination of facts”) be held under section 174ZA of this Act; and (c) remand the person in custody or on bail or, where the court is satisfied— (i) on the written or oral evidence of two medical practitioners, that he is suffering from mental disorder of a nature or degree which warrants his admission to hospital under Part V of the Mental Health (Scotland) Act 1984; and (ii) that a hospital is available for his admission and suitable for his detention, make an order (in this section referred to as a “temporary hospital order”) committing him to that hospital until the conclusion of the examination of facts. (1A) Subsection (1) above is without prejudice to the power of the court, on an application by the prosecutor, to desert the diet pro loco et tempore. (1B) The court may, before making a finding under subsection (1) above as to the insanity of a person, adjourn the case in order that investigation of his mental condition may be carried out. (1C) The court which made a temporary hospital order may, at any time while the order is in force, review the order on the ground that there has been a change of circumstances since the order was made and, on such review— (a) where the court considers that such an order is no longer required in relation to a person, it shall revoke the order and may remand him in custody or on bail; (b) in any other case, the court may— (i) confirm or vary the order; or (ii) revoke the order and make such other order, under subsection (1)(c) above or any other provision of this Part of this Act, as the court considers appropriate.

(2) For subsection (2) of section 375 of the 1975 Act (finding of insanity in bar of trial in summary proceedings) there shall be substituted the following subsections—

(2) Where the court is satisfied, on the written or oral evidence of two medical practitioners, that a person charged summarily in the sheriff court with the commission of an offence is insane so that his trial cannot proceed or, if it has commenced, cannot continue, the court shall, subject to subsection (2A) below— (a) make a finding to that effect and state the reasons for that finding; (b) discharge the trial diet and order that a diet (in this Act referred to as an “examination of facts”) be held in accordance with section 375ZA of this Act; and (c) remand the person in custody or on bail or, where the court is satisfied— (i) on the written or oral evidence of two medical practitioners, that he is suffering from mental disorder of a nature or degree which warrants his admission to hospital under Part V of the Mental Health (Scotland) Act 1984; and (ii) that a hospital is available for his admission and suitable for his detention, make an order (in this section referred to as a “temporary hospital order”) committing him to that hospital until the conclusion of the examination of facts. (2A) Subsection (2) above is without prejudice to the power of the court, on an application by the prosecutor, to desert the diet pro loco et tempore. (2B) The court may, before making a finding under subsection (2) above as to the insanity of a person, adjourn the case in order that investigation of his mental condition may be carried out. (2C) The court which made a temporary hospital order may, at any time while the order is in force, review the order on the ground that there has been a change of circumstances since the order was made and, on such review— (a) where the court considers that such an order is no longer required in relation to a person, it shall revoke the order and may remand him in custody or on bail; (b) in any other case, the court may— (i) confirm or vary the order; or (ii) revoke the order and make such other order, under subsection (2)(c) above or any other provision of this Part of this Act, as the court considers appropriate.

Insanity as ground of acquittal in summary proceedings.

48

After subsection (3) of section 375 of the 1975 Act (insanity in bar of trial) there shall be inserted the following subsection—

(3A) Where, in the case of any person charged summarily in the sheriff court, evidence is brought before the court that the person was insane at the time of doing the act or making the omission constituting the offence with which he is charged and the person is acquitted, the court shall state whether the person was insane at that time and, if so, whether he was acquitted on that ground.

Examination of facts.

49

(1) After section 174 of the 1975 Act there shall be inserted the following sections—

(174ZA) (1) At an examination of facts ordered under section 174(1)(b) of this Act the court shall, on the basis of the evidence (if any) already given in the trial and such evidence, or further evidence, as may be led by either party, determine whether it is satisfied— (a) beyond reasonable doubt, as respects any charge on indictment in respect of which the accused was being or was to be tried, that he did the act or made the omission constituting the offence; and (b) on the balance of probabilities, that there are no grounds for acquitting him. (2) Where the court is satisfied as mentioned in subsection (1) above, it shall make a finding to that effect. (3) Where the court is not so satisfied it shall, subject to subsection (4) below, acquit the person of the charge. (4) Where, as respects a person acquitted under subsection (3) above, the court is satisfied as to the matter mentioned in subsection (1)(a) above but it appears to the court that the person was insane at the time of doing the act or making the omission constituting the offence, the court shall state whether the acquittal is on the ground of such insanity. (5) Where it appears to the court that it is not practicable or appropriate for the accused to attend an examination of facts the court may, if no objection is taken by or on behalf of the accused, order that the examination of facts shall proceed in his absence. (6) Subject to the provisions of this section, section 174ZB of this Act and any Act of Adjournal, the rules of evidence and procedure and the powers of the court shall, in respect of an examination of facts, be as nearly as possible those applicable in respect of a trial. (7) For the purposes of the application to an examination of facts of the rules and powers mentioned in subsection (6) above, an examination of facts— (a) commences when the indictment is called; and (b) concludes when the court— (i) acquits the person under subsection (3) above; (ii) makes an order under subsection (2) of section 174ZC of this Act; or (iii) decides, under paragraph (e) of that subsection, not to make an order. (174ZB) (1) An examination of facts ordered under section 174(1)(b) of this Act may, where the order is made at the trial diet, be held immediately following the making of the order and, where it is so held, the citation of the accused and any witness to the trial diet shall be a valid citation to the examination of facts. (2) A warrant for citation of an accused and witnesses under section 69 of this Act shall be sufficient warrant for citation to an examination of facts. (3) Where an accused person is not legally represented at an examination of facts the court shall appoint counsel or a solicitor to represent his interests. (4) The court may, on the motion of the prosecutor and after hearing the accused, order that the examination of facts shall proceed in relation to a particular charge, or particular charges, in the indictment in priority to other such charges. (5) The court may, on the motion of the prosecutor and after hearing the accused, at any time desert the examination of facts pro loco et tempore as respects either the whole indictment or any charge therein. (6) Where, and to the extent that, an examination of facts has, under subsection (5) above, been deserted pro loco et tempore, the Lord Advocate may, at any time, raise and insist in a new indictment notwithstanding any time limit which would otherwise apply in respect of prosecution of the alleged offence. (7) If, in a case where a court has made a finding under subsection (2) of section 174ZA above, a person is subsequently charged, whether on indictment or on a complaint, with an offence arising out of the same act or omission as is referred to in subsection (1) of that section, any order made under section 174ZC(2) of this Act shall, with effect from the commencement of the later proceedings, cease to have effect. (8) For the purposes of subsection (7) above, the later proceedings are commenced when the indictment or, as the case may be, the complaint is served.

(2) After section 375 of the 1975 Act there shall be inserted the following sections—

(375ZA) (1) At an examination of facts ordered under section 375(2)(b) of this Act the court shall, on the basis of the evidence (if any) already given in the trial and such evidence, or further evidence, as may be led by either party, determine whether it is satisfied— (a) beyond reasonable doubt, as respects any charge in a complaint in respect of which the accused was being or was to be tried, that he did the act or made the omission constituting the offence; and (b) on the balance of probabilities, that there are no grounds for acquitting him. (2) Where the court is satisfied as mentioned in subsection (1) above, it shall make a finding to that effect. (3) Where the court is not so satisfied it shall, subject to subsection (4) below, acquit the person of the charge. (4) Where, as respects a person acquitted under subsection (3) above, the court is satisfied as to the matter mentioned in subsection (1)(a) above but it appears to the court that the person was insane at the time of doing the act or making the omission constituting the offence, the court shall state whether the acquittal is on the ground of such insanity. (5) Where it appears to the court that it is not practicable or appropriate for the accused to attend an examination of facts the court may, if no objection is taken by or on behalf of the accused, order that the examination of facts shall proceed in his absence. (6) Subject to the provisions of this section, section 375ZB of this Act and any Act of Adjournal, the rules of evidence and procedure and the powers of the court in respect of an examination of facts shall be as nearly as possible those applicable in respect of a trial. (7) For the purposes of the application to an examination of facts of the rules and powers mentioned in subsection (6) above, an examination of facts— (a) commences when the diet is called; and (b) concludes when the court— (i) acquits the person under subsection (3) above; (ii) makes an order under subsection (2) of section 375ZC of this Act; or (iii) decides, under paragraph (e) of that subsection, not to make an order. (375ZB) (1) An examination of facts ordered under section 375(2)(b) of this Act may, where the order is made at the trial diet, be held immediately following the making of the order and, where it is so held, the citation of the accused and any witness to the trial diet shall be a valid citation to the examination of facts. (2) Where an accused person is not legally represented at an examination of facts the court shall appoint counsel or a solicitor to represent his interests. (3) The court may, on the motion of the prosecutor and after hearing the accused, order that the examination of facts shall proceed in relation to a particular charge, or particular charges, in the complaint in priority to other such charges. (4) The court may, on the motion of the prosecutor and after hearing the accused, at any time desert the examination of facts pro loco et tempore as respects the whole complaint or any charge in the complaint. (5) Where, and to the extent that, an examination of facts has, under subsection (4) above, been deserted pro loco et tempore, the prosecutor may, at any time, raise a fresh libel notwithstanding any time limit which would otherwise apply in respect of prosecution of the alleged offence. (6) If, in a case where a court has made a finding under subsection (2) of section 375ZA of this Act, a person is subsequently charged, whether on indictment or on a complaint, with an offence arising out of the same act or omission as is referred to in subsection (1) of that section, any order made under section 375ZC(2) of this Act shall, with effect from the commencement of the later proceedings, cease to have effect. (7) For the purposes of subsection (6) above, the later proceedings are commenced when the indictment or, as the case may be, the complaint is served.

Disposal of case where accused found to be insane.

50

(1) After section 174ZB of the 1975 Act (inserted by section 49(1) of this Act) there shall be inserted the following section—

(174ZC) (1) This section applies where— (a) a person is, by virtue of section 174(2) or 174ZA(3) of this Act, acquitted on the ground of his insanity at the time of the act or omission; or (b) following an examination of facts under section 174ZA, a court makes a finding under subsection (2) of that section. (2) Subject to subsection (3) below, where this section applies the court may, as it thinks fit— (a) make an order (which shall have the same effect as a hospital order) that the person be detained in such hospital as the court may specify; (b) in addition to making an order under paragraph (a) above, make an order (which shall have the same effect as a restriction order) that the person shall, without limit of time, be subject to the special restrictions set out in section 62(1) of the Mental Health (Scotland) Act 1984; (c) make an order (which shall have the same effect as a guardianship order) placing the person under the guardianship of a local authority or of a person approved by a local authority; (d) make a supervision and treatment order (within the meaning of paragraph 1(1) of Schedule 5A to this Act); or (e) make no order. (3) Where the offence with which the person was charged is murder, the court shall make orders under both paragraphs (a) and (b) of subsection (2) above in respect of that person. (4) Sections 175(1) and (3) to (6) and 176 to 178 of this Act shall have effect in relation to the making, terms and effect of an order under paragraph (a), (b) or (c) of subsection (2) above as those provisions have effect in relation to the making, terms and effect of, respectively, a hospital order, a restriction order and a guardianship order as respects a person convicted of an offence, other than an offence the sentence for which is fixed by law, punishable by imprisonment.

(2) After section 375ZB of the 1975 Act (inserted by section 49(2) of this Act) there shall be inserted the following section—

(375ZC) (1) This section applies where— (a) a person is, by virtue of section 375(3A) or 375ZA(3) of this Act, acquitted on the ground of his insanity at the time of the act or omission; or (b) following an examination of facts under section 375ZA, a court makes a finding under subsection (2) of that section. (2) Where this section applies the court may, as it thinks fit— (a) make an order (which shall have the same effect as a hospital order) that the person be detained in such hospital as the court may specify; (b) in addition to making an order under paragraph (a) above, make an order (which shall have the same effect as a restriction order) that the person shall, without limit of time, be subject to the special restrictions set out in section 62(1) of the Mental Health (Scotland) Act 1984; (c) make an order (which shall have the same effect as a guardianship order) placing the person under the guardianship of a local authority or of a person approved by a local authority; (d) make a supervision and treatment order (within the meaning of paragraph 1(1) of Schedule 5A to this Act); or (e) make no order. (3) Sections 376(1) and (6) to (9) and 377 to 379 of this Act shall have effect in relation to the making, terms and effect of an order under paragraph (a), (b) or (c) of subsection (2) above as those provisions have effect in relation to the making, terms and effect of, respectively, a hospital order, a restriction order and a guardianship order as respects a person convicted of an offence, other than an offence the sentence for which is fixed by law, punishable by imprisonment.

(3) The Schedule set out in Schedule 2 to this Act (which makes provision as respects supervision and treatment orders) shall be inserted in the 1975 Act as Schedule 5A to that Act.

Appeal by accused in case involving insanity.

51

(1) After section 174ZC of the 1975 Act (inserted by section 50(1) of this Act) there shall be inserted the following section—

(174ZD) (1) A person may appeal to the High Court against— (a) a finding made under section 174(1) of this Act that he is insane so that his trial cannot proceed or continue, or the refusal of the court to make such a finding; (b) a finding under section 174ZA(2) of this Act; or (c) an order made under section 174ZC(2) of this Act. (2) An appeal under subsection (1) above shall be— (a) in writing; and (b) lodged— (i) in the case of an appeal under paragraph (a) of that subsection, not later than seven days after the date of the finding or refusal which is the subject of the appeal; (ii) in the case of an appeal under paragraph (b), or both paragraphs (b) and (c), of that subsection, not later than 28 days after the conclusion of the examination of facts; (iii) in the case of an appeal under paragraph (c) of that subsection against an order made on an acquittal, by virtue of section 174(2) or 174ZA(3) of this Act, on the ground of insanity at the time of the act or omission, not later than 14 days after the date of the acquittal; (iv) in the case of an appeal under that paragraph against an order made on a finding under section 174ZA(2), not later than 14 days after the conclusion of the examination of facts, or within such longer period as the High Court may, on cause shown, allow. (3) Subsections (1)(a) and (2)(b)(i) above are without prejudice to section 76A(1) of this Act. (4) Where an appeal is taken under subsection (1) above, the period from the date on which the appeal was lodged until it is withdrawn or disposed of shall not count towards any time limit applying in respect of the case. (5) An appellant in an appeal under this section shall be entitled to be present at the hearing of the appeal unless the High Court determines that his presence is not practicable or appropriate. (6) In disposing of an appeal under subsection (1) above the High Court may— (a) affirm the decision of the court of first instance; (b) make any other finding or order which that court could have made at the time when it made the finding or order which is the subject of the appeal; or (c) remit the case to that court with such directions in the matter as the High Court thinks fit. (7) Section 280 of this Act shall not apply in relation to any order as respects which a person has a right of appeal under subsection (1)(c) above.

(2) After section 375ZC of that Act (inserted by section 50(2) of this Act) there shall be inserted the following section—

(375ZD) (1) A person may appeal to the High Court against— (a) a finding made under section 375(2) of this Act that he is insane so that his trial cannot proceed or continue, or the refusal of the court to make such a finding; (b) a finding under section 375ZA(2) of this Act; or (c) an order made under section 375ZC(2) of this Act. (2) An appeal under subsection (1) above shall be— (a) in writing; and (b) lodged— (i) in the case of an appeal under paragraph (a) of that subsection, not later than seven days after the date of the finding or refusal which is the subject of the appeal; (ii) in the case of an appeal under paragraph (b), or both paragraphs (b) and (c), of that subsection, not later than 28 days after the conclusion of the examination of facts; (iii) in the case of an appeal under paragraph (c) of that subsection against an order made on an acquittal, by virtue of section 375(3A) or 375ZA(3) of this Act, on the ground of insanity at the time of the act or omission, not later than 14 days after the date of the acquittal; (iv) in the case of an appeal under that paragraph against an order made on a finding under section 375ZA(2), not later than 14 days after the conclusion of the examination of facts, or within such longer period as the High Court may, on cause shown, allow. (3) Where an appeal is taken under subsection (1) above, the period from the date on which the appeal was lodged until it is withdrawn or disposed of shall not count towards any time limit applying in respect of the case. (4) An appellant in an appeal under this section shall be entitled to be present at the hearing of the appeal unless the High Court determines that his presence is not practicable or appropriate. (5) In disposing of an appeal under subsection (1) above the High Court may— (a) affirm the decision of the court of first instance; (b) make any other finding or order which that court could have made at the time when it made the finding or order which is the subject of the appeal; or (c) remit the case to that court with such directions in the matter as the High Court thinks fit. (6) Section 443 of this Act shall not apply in relation to any order as respects which a person has a right of appeal under subsection (1)(c) above.

Appeal by prosecutor in case involving insanity.

52

(1) After section 174ZD of the 1975 Act (inserted by section 51(1) of this Act) there shall be inserted the following section—

(174ZE) (1) The Lord Advocate may appeal to the High Court on a point of law against— (a) a finding under subsection (1) of section 174 of this Act that an accused is insane so that his trial cannot proceed or continue; (b) an acquittal on the ground of insanity at the time of the act or omission by virtue of subsection (2) of that section; (c) an acquittal under section 174ZA(3) of this Act (whether or not on the ground of insanity at the time of the act or omission); or (d) any order made under section 174ZC(2) of this Act. (2) An appeal under subsection (1) above shall be— (a) in writing; and (b) lodged— (i) in the case of an appeal under paragraph (a) or (b) of that subsection, not later than seven days after the finding or, as the case may be, the acquittal which is the subject of the appeal; (ii) in the case of an appeal under paragraph (c) or (d) of that subsection, not later than seven days after the conclusion of the examination of facts, or within such longer period as the High Court may, on cause shown, allow. (3) Subsection (1)(a) and (2)(b)(i) above are without prejudice to section 76A(1) of this Act. (4) A respondent in an appeal under this section shall be entitled to be present at the hearing of the appeal unless the High Court determines that his presence is not practicable or appropriate. (5) In disposing of an appeal under subsection (1) above the High Court may— (a) affirm the decision of the court of first instance; (b) make any other finding or order which that court could have made at the time when it made the finding or order which is the subject of the appeal; or (c) remit the case to that court with such directions in the matter as the High Court thinks fit.

(2) After section 375ZD of that Act (inserted by section 51(2) of this Act) there shall be inserted the following section—

(375ZE) (1) The prosecutor may appeal to the High Court on a point of law against— (a) a finding under subsection (2) of section 375 of this Act that an accused is insane so that his trial cannot proceed or continue; (b) an acquittal on the ground of insanity at the time of the act or omission by virtue of subsection (3A) of that section; (c) an acquittal under section 375ZA(3) of this Act (whether or not on the ground of insanity at the time of the act or omission); or (d) any order made under section 375ZC(2) of this Act. (2) An appeal under subsection (1) above shall be— (a) in writing; and (b) lodged— (i) in the case of an appeal under paragraph (a) or (b) of that subsection, not later than seven days after the finding or, as the case may be, the acquittal which is the subject of the appeal; (ii) in the case of an appeal under paragraph (c) or (d) of that subsection, not later than seven days after the conclusion of the examination of facts, or within such longer period as the High Court may, on cause shown, allow. (3) A respondent in an appeal under this section shall be entitled to be present at the hearing of the appeal unless the High Court determines that his presence is not practicable or appropriate. (4) In disposing of an appeal under subsection (1) above the High Court may— (a) affirm the decision of the court of first instance; (b) make any other finding or order which that court could have made at the time when it made the finding or order which is the subject of the appeal; or (c) remit the case to that court with such directions in the matter as the High Court thinks fit.

Review of committal of mentally disordered accused to hospital.

53

In each of sections 25 and 330 of the 1975 Act (power of court to commit to hospital person suffering from mental disorder), after subsection (4) there shall be inserted the following subsections—

(5) Without prejudice to subsection (3) above, the court may review an order under subsection (1) above on the ground that there has been a change of circumstances since the order was made and, on such review— (a) where the court considers that such an order is no longer required in relation to a person, it shall revoke the order and may deal with him in such way mentioned in subsection (3) above as the court thinks appropriate; (b) in any other case, the court may— (i) confirm or vary the order; or (ii) revoke the order and deal with him in such way mentioned in subsection (3) above as the court considers appropriate. (6) Subsections (1) to (4) above shall apply to the review of an order under subsection (5) above as they apply to the making of an order under subsection (1) above.

Restriction orders to be without limit of time.

54

(1) In subsection (1) of each of sections 178 and 379 of the 1975 Act (power of court to impose restriction order in addition to hospital order), the words “either” and “or during such period as may be specified in the order” shall cease to have effect.

(2) The amendments made by subsection (1) above shall not have effect in relation to any restriction order made before the coming into force of this section.

Committal to hospital for inquiry into mental condition.

55

(1) Each of sections 180 and 381 of the 1975 Act (remand for inquiry into physical or mental condition) shall be amended as follows.

(2) In subsection (1) for the words “shall remand him in custody or on bail for” there shall be substituted—

shall— (a) for the purpose of inquiry solely into his physical condition, remand him in custody or on bail; (b) for the purpose of inquiry into his mental condition (whether or not in addition to his physical condition), remand him in custody or on bail or, where the court is satisfied— (i) on the written or oral evidence of a medical practitioner, that the person appears to be suffering from a mental disorder; and (ii) that a hospital is available for his admission and suitable for his detention, make an order committing him to that hospital, for

(3) After subsection (1) there shall be inserted the following subsections—

(1A) Where the court is of the opinion that a person ought to continue to be committed to hospital for the purpose of inquiry into his mental condition following the expiry of the period specified in an order for committal to hospital under paragraph (b) of subsection (1) above, the court may— (a) if the condition in sub-paragraph (i) of that paragraph continues to be satisfied and a suitable hospital is available for his continued detention, renew the order for such further period not exceeding three weeks as the court thinks necessary to enable a medical examination and report to be made; and (b) in any other case, remand the person in custody or on bail in accordance with subsection (1) above. (1B) An order under subsection (1A)(a) above may, unless objection is made by or on behalf of the person to whom it relates, be made in his absence. (1C) Where, before the expiry of the period specified in an order for committal to hospital under subsection (1)(b) above, the court considers, on an application made to it, that committal to hospital is no longer required in relation to the person, the court shall revoke the order and may make such other order, under subsection (1)(a) above or any other provision of this Part of this Act, as the court considers appropriate.

(4) In subsection (4), after the word “section” there shall be inserted “ to remand in custody or on bail ”.

(5) After subsection (4) there shall be inserted the following subsection—

(4A) On making an order of committal to hospital under subsection (1)(b) above the court shall send to the hospital specified in the order a statement of the reasons for which the court is of the opinion that an inquiry ought to be made into the mental condition of the person to whom it relates, and of any information before the court about his mental condition.

(6) In subsection (5)—

(a) after the word “imposed” there shall be inserted “ , and a person committed to hospital under this section may appeal against the order of committal, ”;

(b) after the word “remand” there shall be inserted “ or, as the case may be, committal ”; and

; or (c) in the case of an appeal against an order of committal to hospital, revoke the order and remand the person in custody.

(7) After subsection (5) there shall be inserted the following subsections—

(6) The court may, on cause shown, vary an order for committal to hospital under subsection (1)(b) above by substituting another hospital for the hospital specified in the order. (7) Subsection (1)(b) above shall apply to the variation of an order under subsection (6) above as it applies to the making of an order for committal to hospital.

Miscellaneous

Criminal Courts Rules Council.

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(1) There shall be established a body, to be known as the Criminal Courts Rules Council (in this section referred to as “the Council”) which shall have the functions conferred on it by subsection (9) below.

(2) The Council shall consist of—

(a) the Lord Justice General, the Lord Justice Clerk and the Clerk of Justiciary;

(b) a further Lord Commissioner of Justiciary appointed by the Lord Justice General;

(i) two sheriffs;

(ii) two members of the Faculty of Advocates;

(iii) two solicitors;

(iv) one sheriff clerk; and

(v) one person appearing to him to have a knowledge of the procedures and practices of the district court;

(d) two persons appointed by the Lord Justice General after consultation with the Lord Advocate, at least one of whom must be a procurator fiscal;

(e) two persons appointed by the Lord Justice General after consultation with the Secretary of State, at least one of whom must be a person appearing to the Lord Justice General to have—

(i) a knowledge of the procedures and practices of the courts exercising criminal jurisdiction in Scotland; and

(ii) an awareness of the interests of victims of crime and of witnesses in criminal proceedings; and

(f) any persons appointed under subsection (3) below.

(3) The Lord Justice General may appoint not more than two further persons, and the Secretary of State may appoint one person, to membership of the Council.

(4) The chairman of the Council shall be the Lord Justice General or such other member of the Council, being a Lord Commissioner of Justiciary, as the Lord Justice General may nominate.

(5) The members of the Council appointed under paragraphs (b) to (f) of subsection (2) above shall, so long as they retain the respective qualifications (if any) mentioned in those paragraphs, hold office for three years and be eligible for reappointment.

(6) Any vacancy in the membership of the Council by reason of the death or demission of office, prior to the expiry of the period for which he was appointed, of a member appointed under any of paragraphs (b) to (f) of subsection (2) above shall be filled by the appointment by the Lord Justice General or, as the case may be, the Secretary of State, after such consultation (if any) as is required by the paragraph in question, of another person having the qualifications (if any) required by that paragraph, and a person so appointed shall hold office only until the expiry of that period.

(7) The Council shall meet—

(a) at intervals of not more than 12 months; and

(b) at any time when summoned by the chairman or by three members of the Council,

but shall, subject to the foregoing, have power to regulate the summoning of its meetings and the procedure at such meetings.

(8) At any meeting of the Council six members shall be a quorum.

(9) The functions of the Council shall be—

(a) to keep under general review the procedures and practices of the courts exercising criminal jurisdiction in Scotland (including any matters incidental or relating to those procedures or practices); and

(b) to consider and comment on any draft Act of Adjournal submitted to it by the High Court, which shall, in making the Act of Adjournal, take account to such extent as it considers appropriate of any comments made by the Council under this paragraph.

(10) In the discharge of its functions under subsection (9) above the Council may invite representations on any aspect of the procedures and practices of the courts exercising criminal jurisdiction in Scotland (including any matters incidental or relating to those procedures or practices) and shall consider any such representations received by it, whether or not submitted in response to such an invitation.

(11) Except where the context otherwise requires, expressions used in this section and in the 1975 Act have the same meaning in this section as in that Act.

Information for financial and other purposes.

57

(1) The Secretary of State shall in each year publish such information as he considers expedient for the purpose of—

(a) enabling persons engaged in the administration of criminal justice to become aware of the financial implications of their decisions; or

(b) facilitating the performance by such persons of their duty to avoid discriminating against any persons on the ground of race or sex or any other improper ground.

(2) Publication under subsection (1) above shall be effected in such manner as the Secretary of State considers appropriate for the purpose of bringing the information to the attention of the persons concerned.

Prints, samples etc. in criminal investigations.

58

(1) Section 28 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (prints, samples etc. in criminal investigations) shall be amended in accordance with subsections (2) to (4) below.

(2) In subsection (3)—

(a) at the beginning there shall be inserted the words “ Subject to subsection (3A) below, ”;

(b) after the words “subsection (2) above” there shall be inserted “ , all samples taken under subsection (4) below and all information derived from such samples ”; and

(3) After subsection (3) there shall be inserted the following subsections—

(3A) The duty under subsection (3) above to destroy samples taken under subsection (4) below and information derived from such samples shall not apply where the destruction of the sample or the information could have the effect of destroying any sample, or any information derived therefrom, lawfully held in relation to a person other than the person from whom the sample was taken. (3B) No sample, or information derived from a sample, retained by virtue of subsection (3A) above shall be used— (a) in evidence against the person from whom the sample was taken; or (b) for the purposes of the investigation of any offence. (3C) The duty under subsection (3) above shall not apply where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held by or on behalf of any police force in relation to the person.

(4) In subsection (4)—

(a) in paragraph (a)—

(i) after the word “body” there shall be inserted “ , other than pubic hair, ”; and

(ii) for the words “or combing” there shall be substituted “ , combing or plucking ”; and

(b) at the end there shall be inserted the following paragraph—

(d) from the inside of the mouth, by means of swabbing, a sample of saliva or other material

(5) After section 28 of that Act of 1993 there shall be inserted the following sections—

(28A) (1) This section applies where a person convicted of an offence— (a) has not, since the conviction, had a sample, print or impression taken from him; or (b) has (whether before or after the conviction) had a sample, print or impression taken from him but it was not suitable for the means of analysis for which it was taken or, though suitable, was insufficient (either in quantity or in quality) to enable information to be obtained by that means of analysis. (2) Where this section applies, a constable may, within the permitted period— (a) take from the convicted person fingerprints, palmprints and such other prints and impressions of an external part of the body as the constable reasonably considers it appropriate to take; and (b) with the authority of an officer of a rank no lower than inspector, take from the person any sample mentioned in any of paragraphs (a) to (d) of subsection (4) of section 28 of this Act by the means specified in that paragraph in relation to that sample. (3) A constable— (a) may require the convicted person to attend a police station for the purposes of subsection (2) above; (b) may, where the convicted person is in legal custody within the meaning of the 1975 Act, exercise the powers conferred by subsection (2) above in relation to the person in the place where he is for the time being. (4) In subsection (2) above, “the permitted period” means— (a) in a case to which paragraph (a) of subsection (1) above applies, the period of one month beginning with the date of the conviction; (b) in a case to which paragraph (b) of that subsection applies, the period of one month beginning with the date on which a constable of the police force which instructed the analysis receives written intimation that the sample, print or impression was unsuitable or, as the case may be, insufficient as mentioned in that paragraph. (5) A requirement under subsection (3)(a) above— (a) shall give the person at least seven days’ notice of the date on which he is required to attend; (b) may direct him to attend at a specified time of day or between specified times of day. (6) Any constable may arrest without warrant a person who fails to comply with a requirement under subsection (3)(a) above. (28B) Without prejudice to any power to do so apart from this section, prints, impressions and samples lawfully held by or on behalf of any police force or in connection with or as a result of an investigation of an offence and information derived therefrom may be checked against other such prints, impressions, samples and information.

Calculation of period of detention at police station where person previously detained under another enactment etc.

59

In section 2(3A) of the Criminal Justice (Scotland) Act 1980 (detention and questioning at police station)—

(a) for the words from “he” to “be” there shall be substituted “ and is ”; and

(b) after the word “detention” there shall be inserted “ , the period of six hours mentioned in subsection (2) above shall be reduced by the length of that earlier detention ”.

Jurisdiction of district court in relation to statutory offences.

60

For subsection (1) of section 7 of the Criminal Justice (Scotland) Act 1980 (jurisdiction of district courts in relation to statutory offences) there shall be substituted the following subsections—

(1) Except in so far as any enactment (including this Act and an enactment passed after this Act) otherwise provides, it shall be competent for a district court to try any statutory offence which is triable summarily. (1A) Without prejudice to any other or wider power conferred by any enactment, it shall not be competent for a district court, as respects any statutory offence— (a) to impose a sentence of imprisonment for a period exceeding 60 days; (b) to impose a fine of an amount exceeding level 4 on the standard scale; or (c) to ordain an accused person to find caution for any period exceeding six months or to an amount exceeding level 4 on the standard scale.

Conditional offer of fixed penalty by procurator fiscal.

61

(1) Section 56 of the Criminal Justice (Scotland) Act 1987 (conditional offer of fixed penalty by procurator fiscal) shall be amended as follows.

(2) After subsection (2) there shall be inserted the following subsection—

(2A) In this section “the appropriate fixed penalty” means such fixed penalty on the scale prescribed under subsection (7) below as the procurator fiscal thinks fit having regard to the circumstances of the case.

(3) In subsection (3)(b)(i), after the word “the” in the second place where it occurs there shall be inserted “ appropriate ”.

(4) After subsection (3) there shall be inserted the following subsection—

(3A) A conditional offer may be made in respect of more than one relevant offence and shall, in such a case, state the amount of the appropriate fixed penalty for all the offences in respect of which it is made.

(5) In each of subsections (4) and (6), after the words “payment of the” there shall be inserted “ appropriate ”.

(6) For subsection (7) there shall be substituted the following subsections—

(7) The Secretary of State shall, by order, prescribe a scale of fixed penalties for the purposes of this section, the amount of the maximum penalty on the scale being a sum not exceeding level 1 on the standard scale. (7A) An order under subsection (7) above— (a) may contain provision as to the payment of fixed penalties by instalments; and (b) shall be made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(7) In subsection (8), after the words “instalment of the” there shall be inserted “ appropriate ”.

Time limit for summary prosecution of statutory offences.

62

(1) Section 331 of the 1975 Act (time limit for summary prosecution of statutory offences) shall be amended as follows.

(2) In subsection (1), after the words “in respect of” there shall be inserted “ any offence triable only summarily and consisting of ”.

(3) Subsection (2) shall cease to have effect.

Abolition of private summary prosecutions.

63

After section 310 of the 1975 Act there shall be inserted the following section—

(310A) Except where any enactment otherwise expressly provides, all prosecutions under this Part of this Act shall be brought at the instance of the procurator fiscal.

Legal aid in case involving insanity in bar of trial.

64

In subsection (1) of section 22 of the Legal Aid (Scotland) Act 1986 (circumstances in which criminal legal aid automatically available), after paragraph (d) there shall be inserted the following paragraphs—

(da) in relation to any proceedings under solemn or summary procedure whereby the court determines (whether or not on a plea by the accused person) whether he is insane so that his trial cannot proceed or continue; (db) in relation to an examination of facts held under section 174ZA or 375ZA of the Criminal Procedure (Scotland) Act 1975 and the disposal of the case following such examination of facts; (dc) in relation to any appeal under section 174ZD (appeal by accused in case involving insanity) or 174ZE (appeal by Lord Advocate in case involving insanity) or section 375ZD or 375ZE (equivalent provisions as respects summary procedure) of that Act of 1975;

Legal aid in criminal appeals.

65

(1) Section 25 of the Legal Aid (Scotland) Act 1986 (legal aid in criminal appeals) shall be amended in accordance with subsections (2) to (5) below.

(2) In subsection (1)—

(a) after the word “sentence” there shall be inserted “ , other disposal ”; and

(b) at the end there shall be inserted the words “ other than an appeal in relation to which section 22(1)(dc) of this Act applies. ”.

(3) In subsection (2)—

(a) the words “the Board is satisfied” shall cease to have effect;

(b) in paragraph (a), after the word “below,” there shall be inserted “ the Board is satisfied ”; and

(b) in the case of an appeal under section 228(1) or 442(1)(a) of the Criminal Procedure (Scotland) Act 1975, leave to appeal is granted; and (c) in the case of an appeal under any provision of that Act other than sections 228(1) and 442(1)(a), where the applicant is the appellant, the Board is satisfied that in all the circumstances of the case it is in the interests of justice that the applicant should receive criminal legal aid.

(4) After subsection (2) there shall be inserted the following subsection—

(2A) Where the Board has refused an application for criminal legal aid on the ground that it is not satisfied as mentioned in subsection (2)(c) above the High Court may, at any time prior to the disposal of an appeal, whether or not on application made to it, notwithstanding such refusal determine that it is in the interests of justice that the applicant should receive criminal legal aid in connection with the appeal, and the Board shall forthwith make such legal aid available to him.

(5) For subsection (5) there shall be substituted the following subsections—

(5) Subsections (2)(a), (3) and (4) above shall apply to an application for criminal legal aid in connection with consideration under section 230A, 442ZA or 453AA of the Criminal Procedure (Scotland) Act 1975 whether to grant leave to appeal as if— (a) in subsection (2)(a), for the words “of the appeal” there were substituted “in connection with consideration whether to grant leave to appeal”; and (b) in subsection (4), after the word “is” there were inserted “, subject to leave being granted,”. (6) Subsections (2)(a) and (c) and (2A) to (4) above shall apply to an application for criminal legal aid in connection with a petition to the nobile officium of the High Court of Justiciary (whether arising in the course of any proceedings or otherwise) as they apply for the purposes of subsection (1) above. (7) Subsections (2)(a), (3) and (4) above shall apply to an application for criminal legal aid in connection with a reference by the Secretary of State under section 263 of the Criminal Procedure (Scotland) Act 1975 as they apply for the purposes of subsection (1) above.

(6) In section 30(3) of that Act (application of section 25 of that Act to legal aid in contempt proceedings)—

(a) before the words “Section 25” there shall be inserted “ Subsections (2)(a) and (c), (2A) to (4) and (6) of ”;

(b) for the words “it applies” there shall be substituted “ they apply ”;

(d) after the word “application” there shall be inserted the following paragraph—

(za) in subsection (2A) of that section, the reference to the High Court shall include a reference to the Court of Session;

; and

(e) in paragraph (b), for the word “(5)” there shall be substituted “ (6) ”.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

66

Transfer of fine orders.

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(1) Section 403 of the 1975 Act (transfer of fine orders), shall be amended as follows.

(2) In subsection (3), at the beginning there shall be inserted the words “ Subject to subsections (3A) and (3B) below, ”.

(3) After subsection (3) there shall be inserted the following subsections—

(3A) Where— (a) the court specified in a transfer of fine order is satisfied, after inquiry, that the offender is not residing within the jurisdiction of that court; and (b) the clerk of that court, within 14 days of receiving the notice required by section 404(1) of this Act, sends to the clerk of the court which made the order notice to that effect, the order shall cease to have effect. (3B) Where a transfer of fine order ceases to have effect by virtue of subsection (3A) above, the functions referred to in subsection (3) above shall again be exercisable by the court which made the order or, as the case may be, by the clerk of that court.

Liability of bankrupt to pay fines and compensation orders.

68

In section 55(2) of the Bankruptcy (Scotland) Act 1985 (effect of discharge of bankrupt on certain liabilities), after paragraph (a) there shall be inserted the following paragraphs—

(aa) any liability to pay a fine imposed in a district court; (ab) any liability under a compensation order within the meaning of section 58 of the Criminal Justice (Scotland) Act 1980;

Child detainees unlawfully at large.

69

For subsection (3) of section 40 of the Prisons (Scotland) Act 1989 (persons unlawfully at large) there shall be substituted the following subsection—

(3) In this section— (a) any reference to a person sentenced to imprisonment shall be construed as including a reference to any person sentenced or ordered to be detained under section 205, 206 or 413 of the 1975 Act; (b) any reference to a prison shall be construed as including a reference to a place where the person is liable to be detained under the sentence or order; and (c) any reference to a sentence shall be construed as including a reference to an order under section 413 of that Act.

Part II — Proceeds of Crime and Property used in Crime

Chapter I — Confiscation of the Proceeds of Crime

Confiscation orders

General provision.

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(1) Subject to the provisions of this Chapter, where in respect of any offence to which this Chapter applies—

(a) the accused is convicted, whether in solemn or summary proceedings; or

(b) in the case of summary proceedings (without proceeding to conviction) an order is made discharging him absolutely,

the court, on the application of the prosecutor, may make an order (a “confiscation order”) requiring the accused to pay such sum as the court thinks fit.

(2) This Chapter applies to any offence which has been prosecuted—

(a) on indictment; or

(b) on summary complaint if the offence is punishable by a fine of an amount greater than the amount corresponding to level 5 on the standard scale or by imprisonment for a period longer than 3 months or by both such fine and imprisonment,

but it does not apply to an offence to which section 1 of the 1987 Act (offences relating to drug trafficking) relates or to an offence under Part III of the 1989 Act (financial assistance for terrorism).

(3) A confiscation order shall not be made unless the court orders some other disposal (including an absolute discharge) in respect of the accused.

(4) The court may make a confiscation order against an accused only if it is satisfied that he has benefited from the commission of the offence concerned.

(5) The sum which a confiscation order requires an accused to pay must not exceed the lesser of—

(a) the amount of the benefit—

(i) from the commission of the offence; or

(ii) where section 71(4) of this Act applies, from the commission of the offence and any other offence to which this Chapter applies; or

(b) the amount that might be realised at the time the order is made.

(6) Any application under this section shall be made—

(a) in proceedings on indictment, when the prosecutor moves for sentence or, if the accused is remitted for sentence under section 104 of the 1975 Act, before sentence is pronounced; and

(b) in summary proceedings, following the conviction of the accused.

(7) For the purposes of any appeal or review, a confiscation order is a sentence.

Benefit from commission of offence.

71

(1) For the purposes of this Chapter, an accused shall be held to have benefited from the commission of an offence if in connection with its commission he has obtained, directly or indirectly, any property or other economic advantage.

(2) Subject to subsection (4) below, in determining whether an accused has benefited from the commission of an offence and, if he has, the amount referred to in section 70(5)(a)(i) of this Act, the court may make the following assumptions, except in so far as he proves either of them, on the balance of probabilities, to be incorrect—

(a) that any property or other economic advantage which has been obtained by him since the relevant date has been obtained in connection with the commission of the offence; and

(b) that any expenditure by him since the relevant date was met out of property or other economic advantage obtained in connection with the commission of the offence.

(3) In subsection (2) above “the relevant date” means—

(a) the date of the offence; or

(b) if the offence is found to have been committed over a period of time, the date occurring at the beginning of that period.

(4) Where—

(a) the application for the confiscation order has been made in respect of two or more offences; or

(b) during the relevant period the accused has been convicted of at least one other offence to which this Chapter applies, being an offence committed after the coming into force of this Chapter,

the court may, in determining the amount referred to in section 70(5)(a)(ii) of this Act, make the assumptions set out in subsection (5) below, except in so far as the accused proves either of those assumptions, on the balance of probabilities, to be incorrect.

(5) Those assumptions are—

(a) that any property or economic advantage which has been obtained by the accused during the relevant period has been obtained in connection with the commission of an offence to which this Chapter applies; and

(b) that any expenditure by him during the relevant period was met out of property or other economic advantage obtained in connection with the commission of such an offence.

(6) In subsections (4) and (5) above, “the relevant period” means the period of six years ending with the date on which proceedings were instituted against the accused for the offence in respect of which the application for the confiscation order has been made.

(7) In this Part of this Act, “property” means any property wherever situated, whether heritable or moveable or whether corporeal or incorporeal.

Realisable property.

72

(1) In this Part of this Act “realisable property” means, subject to subsection (2) below—

(a) the whole estate wherever situated of a person—

(i) against whom proceedings have been instituted for an offence to which this Chapter applies; or

(ii) in respect of whom a restraint order has been made by virtue of section 95(3) of this Act;

(b) the whole estate wherever situated of a person to whom any person whose whole estate is realisable by virtue of paragraph (a) above has (directly or indirectly and whether in one transaction or in a series of transactions) made a gift caught by this Chapter;

(d) any income or estate vesting in a person mentioned in paragraph (a) or (b) above.

(2) Property is not realisable if—

(a) held on trust by a person mentioned in subsection (1)(a) or (b) above for a person not so mentioned;

(b) a suspended forfeiture order is in force in respect of the property; or

(3) Subject to section 73(4) of this Act, for the purposes of this Chapter, the amount that might be realised at the time a confiscation order is made in respect of a person is the total value at that time of all his realisable property, and of all gifts caught by this Chapter which have been made by him, less any amount due by him at that time in respect of any compensation order under section 58 of the Criminal Justice (Scotland) Act 1980 made before the confiscation order.

(4) In assessing the value of realisable property (other than money) of a person in respect of whom it proposes to make a confiscation order, the court shall have regard to the likely market value of the property at the date on which the order would be made; but it may also have regard to any security or real burden which would require to be discharged in realising the property or to any other factors which might reduce the amount recoverable by such realisation.

(5) In assessing the value of realisable property of a person whose estate has been sequestrated, or who has been adjudged bankrupt in England and Wales or Northern Ireland, the court shall take into account the extent to which the property is subject to, as the case may be, sequestration or bankruptcy procedure by virtue of paragraph 1 or 2 of Schedule 4 to this Act.

(6) In subsection (4) above, “money” includes cheques, banknotes, postal orders, money orders and foreign currency.

Gifts.

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(1) A gift is caught by this Chapter if—

(a) it was made by the accused in contemplation of, or after, the commission of the offence or, if more than one, in contemplation of any of the offences or after the commission of the earlier or the earliest of the offences to which the proceedings mentioned in section 72(1)(a)(i) of this Act for the time being relate; or

(b) where subsection (4) of section 71 of this Act applies, it was made by the accused within the relevant period within the meaning of subsection (6) of that section.

(2) In assessing the value of a gift caught by this Chapter, the court shall, subject to subsections (3) to (5) below, take it to be the greater of—

(a) the value of the gift when received adjusted to take account of subsequent changes in the value of money; or

(b) both of the following—

(i) the likely market value, on the date on which the confiscation order is to be made, of—

(A) the gift, if retained; or

(B) where the recipient of the gift retains only part of it, the retained part, and any property or part of any property which, directly or indirectly, represents the gift; or

(C) where the recipient of the gift retains no part of it, any property or part of any property which, directly or indirectly, represents the gift; and

(ii) the value of any other property and any other economic advantage which by reason of the making of the gift the recipient of the gift has obtained, directly or indirectly, prior to the date on which the confiscation order is to be made, adjusted to take account of subsequent changes in the value of money.

(3) The circumstances in which the accused is to be treated as making a gift include those where he transfers an interest in property to another person directly or indirectly for a consideration the value of which is significantly less than the value of that interest at the time of transfer; and in those circumstances the value of the gift shall be the difference between the value of that consideration and the value of that interest at the time of transfer adjusted to take account of subsequent changes in the value of money.

(4) Where a gift caught by this Chapter was in the form of money and the recipient of the gift shows that, on the balance of probabilities, the money or any of it has not been used to purchase goods or services or to earn interest or any other return, the value of the gift or such part of it as has not been so used shall be taken to be the face value of the money or, as the case may be, unused amount of the money; and in this subsection, “money” includes cheques, banknotes, postal orders, money orders and foreign currency.

(5) The court may, notwithstanding the foregoing provisions of this section, disregard the amount (or part of the amount) of a gift caught by this Chapter if it considers it improbable that such amount (or part) could be realised.

(6) At any time before the realisation of property which is or represents a gift caught by this Chapter, the recipient of the gift may apply to the court for an order under this subsection, and, if the court is satisfied, on the balance of probabilities—

(a) that the person received the gift not knowing, not suspecting and not having reasonable grounds to suspect that the gift was made in contemplation of, or after, the commission of the offence or, if more than one, in contemplation of any of the offences or after the commission of the earlier or the earliest of the offences to which the proceedings for the time being relate; and

(b) that he was not associated with the giver in the commission of the offence; and

it may make an order declaring that the gift or a part of the gift shall not be caught by this Chapter and that the property or part of the property of the recipient of the gift shall not be, or shall cease to be, realisable for the purposes of this Chapter and, if a confiscation order has already been made, varying that order accordingly, where necessary.

(7) An appeal shall lie to the High Court at the instance of—

(a) the applicant against the refusal;

(b) the prosecutor against the granting,

of an application under subsection (6) above, and the High Court in determining such an appeal may make such order as could have been made by the court on an application under subsection (6) above.

(8) The procedure in an appeal under this section shall be the same as the procedure in an appeal against sentence.

Making of confiscation orders.

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(1) If the court decides to make a confiscation order, it shall determine the amount to be payable thereunder before making any decision as to—

(a) imposing a fine on the accused;

(b) making any order involving any payment by him.

(2) Where a court makes a confiscation order against an accused in any proceedings, it shall, in respect of any offence of which he is convicted in those proceedings, take account of the order before—

(a) imposing any fine on him;

(b) making any order involving any other payment by him,

but subject to that, the court shall leave the order out of account in determining the appropriate sentence or other manner of dealing with the accused.

(3) No enactment restricting the power of a court which deals with an accused in a particular way from dealing with him also in any other way shall, by reason only of the making of a confiscation order (or the postponement of a decision as regards making such an order), have the effect of restricting the court in dealing with the accused in any way it considers appropriate in respect of an offence.

(4) Where a court makes both a confiscation order and a compensation order under section 58 of the Criminal Justice (Scotland) Act 1980 against the same person in the same proceedings in relation to the same offence and the offence involves the misappropriation of property, it shall direct that the compensation shall be paid first out of any sums applied towards the satisfaction of the confiscation order.

Statements relevant to making confiscation orders.

75

(1) Where the prosecutor applies for the making of a confiscation order, the prosecutor may lodge with the clerk of court a statement as to any matters relevant—

(a) to determining whether the accused has benefited from the commission of the offence; or

(b) to an assessment of the value of the accused’s benefit for the purposes of section 70(5)(a) of this Act.

(2) Without prejudice to section 150 (or as the case may be section 354) of the 1975 Act, if the accused accepts to any extent any allegation in the statement lodged under subsection (1) above, the court may, for the purpose of such determination or assessment as is mentioned in paragraph (a) or (b) of that subsection, treat his acceptance as conclusive of the matters to which it relates.

(3) Where—

(a) a statement is lodged under subsection (1) above; and

(b) the court is satisfied that a copy of that statement has been served on the accused,

the court may require the accused to indicate, within such period as the court may specify, to what extent he accepts each allegation in the statement and, in so far as he does not accept any such allegation, to indicate the basis of such non-acceptance.

(4) If the accused fails in any respect to comply with a requirement under subsection (3) above, he may be treated for the purposes of this section as accepting every allegation in the statement apart from any allegation in respect of which he has complied with the requirement.

(5) Without prejudice to section 150 (or as the case may be section 354) of the 1975 Act, where—

(a) there is lodged with the clerk of court by the accused a statement as to any matters relevant to determining the amount that might be realised at the time the confiscation order is made; and

(b) the prosecutor accepts to any extent any allegation in the statement,

the court may, for the purposes of that determination, treat that acceptance as conclusive of the matters to which it relates.

(6) Without prejudice to section 76(1) of this Act, where—

(a) any allegation in the statement lodged under subsection (1) above is challenged by the accused, or

(b) the basis of the non-acceptance by the accused of any such allegation is challenged by the prosecutor,

the court shall consider the matters being challenged at a hearing.

(7) Where the judge presiding at a hearing held under subsection (6) above is not the trial judge he may, on the application of either party, if he considers that it would be in the interests of justice to do so, adjourn the hearing to a date when the trial judge is available.

Postponed confiscation orders.

76

(1) If the court considers that it has some, but not sufficient, relevant information for the purpose of enabling it to come to a decision as to whether to make a confiscation order or that it does not have sufficient relevant information to enable it to come to a decision as to the amount to be payable under the confiscation order, it may, subject as the case may be to subsection (6) or (10) below, postpone that decision for a period not exceeding 6 months after the date of conviction for the purpose of enabling further information to be obtained.

(2) Without prejudice to sections 179 and 219 (or as the case may be sections 380 and 432) of the 1975 Act, the court may, notwithstanding postponement under subsection (1) above and subject to subsection (3) below, proceed, on the prosecutor’s motion therefor, to sentence or to otherwise deal with the accused in respect of the conviction.

(3) Where the court proceeds as mentioned in subsection (2) above—

(a) no fine shall be imposed on the accused; and

(b) no order shall be made involving any other payment by him,

in relation to the conviction before the decision whether to make a confiscation order is taken.

(4) Where in the case of conviction on indictment a decision has been postponed under subsection (1) above for a period, any intention to appeal under section 228 of the 1975 Act against conviction or against both conviction and any sentence passed during that period in respect of the conviction, shall be intimated under section 231(1) of the 1975 Act not within 2 weeks of the final determination of the proceedings but within 2 weeks of—

(a) in the case of an appeal against conviction where there has been no such sentence, the day on which the period of postponement commences;

(b) in any other case, the day on which such sentence is passed in open court.

(5) Notwithstanding any appeal of which intimation has been given by virtue of subsection (4) above, a person may appeal under section 228 of the 1975 Act against the confiscation order (if the decision is to make one) or against any other sentence passed, after the period of postponement, in respect of the conviction.

(6) If during the period of postponement intimation is given by virtue of subsection (4) above by the person, the High Court may, on the application of the prosecutor, extend that period to a date up to 3 months after the date of disposal of the appeal.

(7) This subsection applies where in the case of summary conviction a decision has been postponed under subsection (1) above for a period.

(8) Where subsection (7) above applies and the offender appeals under section 442 of the 1975 Act against conviction or against both conviction and any sentence passed during the period of postponement—

(a) his application for a stated case shall be made not within one week of the final determination of the proceedings but within one week of the day mentioned in paragraph (a) or (b) of subsection (4) above;

(b) his draft stated case shall be prepared and issued not within 3 weeks of the final determination of the proceedings but within 3 weeks of the said day.

(9) Where subsection (7) above applies, then, notwithstanding any appeal against conviction or sentence or both the offender may appeal under section 442(1)(a)(ii), and the prosecutor may appeal under section 442(1)(b)(ii), of the 1975 Act against any confiscation order or against any other sentence passed, after the period of postponement, in respect of the conviction.

(10) Where subsection (7) above applies, then, if during the period of postponement the offender applies for a stated case or lodges a note of appeal, the High Court may, on the application of the prosecutor, extend the period of postponement to a date up to 3 months after the date of disposal of the appeal.

Increase in benefit or realisable property.

77

(1) This section applies where the court which made a confiscation order is satisfied, on an application made by the prosecutor, that at the time the application is made the benefit for the purposes of section 70(5)(a) of this Act, or the amount that might be realised, is greater than—

(a) the benefit; or, as the case may be,

(b) the amount that might be realised,

which was taken into account when the order was made.

(2) The considerations by reference to which the court may be satisfied as mentioned in subsection (1) above shall include—

(a) the benefit was greater than was taken into account when the confiscation order was made or has increased in value since the confiscation order was made; or

(b) further benefit has been obtained since the confiscation order was made; or

(d) any realisable property taken into account at the time when the confiscation order was made has subsequently increased in value; or

(e) that the amount, or part of the amount, of a gift which was disregarded under section 73(5) of this Act could now be realised.

(3) An application under subsection (1) above shall be made as soon as is reasonably practicable after the relevant information becomes available to the prosecutor but in any event within 6 years commencing with the date when the person was convicted of the offence.

(4) Where this section applies, and notwithstanding that any matters in relation to the making of the confiscation order are, by virtue of section 75(2) or (5) of this Act, to be treated as conclusive—

(a) the court may make a new confiscation order for the payment of such sum as appears to the court to be appropriate having regard to what is now shown to be the benefit or the amount that might be realised; and

(b) if the earlier confiscation order has not been satisfied then the court, in making the new confiscation order, shall recall the earlier order and may take into account the amount unpaid (including any interest payable by virtue of section 81(1) of this Act) under the earlier order.

(5) Section 75 of this Act shall, subject to any necessary modifications, apply in relation to the making of a new confiscation order in pursuance of this section as it applies where the prosecutor has applied for the making of a confiscation order under section 70 of this Act.

(6) The assumptions mentioned in section 71(2) and (5) of this Act shall not apply for the purposes of this section.

Realisable property inadequate to meet payments under confiscation order.

78

(1) This section applies where the court which made a confiscation order is satisfied on the balance of probabilities, on an application made to it by the accused or the prosecutor, that the value of the realisable property is inadequate to meet any amount unpaid (including any interest payable by virtue of section 81(1) of this Act) under the confiscation order.

(2) When considering whether the value of the realisable property is inadequate the court—

(a) shall, unless already taken into account under section 72(5) of this Act, take into account the extent to which property of a person whose estate has been sequestrated or who has been adjudged bankrupt is or has been included in the bankrupt’s estate for the purposes of the Bankruptcy (Scotland) Act 1985 or Part IX of the Insolvency Act 1986; and

(b) may disregard any inadequacy which appears to it to be attributable, wholly or partly, to anything done by the accused for the purpose of protecting the realisable property from realisation.

(3) Where this section applies, the court shall recall the confiscation order and make a new confiscation order for the payment of such sum of a lesser amount than that for which the original order was made which appears to the court to be appropriate having regard to—

(a) the value of the realisable property as determined under subsection (1) above; and

(b) any amount paid in pursuance of the original order.

(4) Section 75 of this Act shall, subject to any necessary modifications, apply in relation to an application under this section as it applies where the prosecutor has applied for the making of a confiscation order under section 70 of this Act.

Confiscation orders where proceeds of crime discovered at later date.

79

(1) This section applies where no confiscation order has been made in relation to an offence under section 70 or 76 of this Act.

(2) Where the court, on an application made to it by the prosecutor under this section, is satisfied—

(a) that a person convicted of an offence to which this Chapter applies has benefited in connection with the commission of the offence concerned;

(b) that the information necessary to enable a confiscation order to be made on the date on which an application under section 70 of this Act was or could have been made was not available to the prosecutor,

it may make a confiscation order in relation to that person.

(3) An application under this section shall be made as soon as is reasonably practicable after the relevant information becomes available to the prosecutor but in any event not later than 6 years after the date when the person was convicted of the offence.

(4) In determining the sum to be payable under a confiscation order made in pursuance of this section, the court shall take into account—

(a) any order involving any payment by the offender;

(b) any suspended forfeiture order or an order for forfeiture under any other enactment made in respect of the offender,

which forms part of the sentence already imposed for the offence concerned.

(5) Sections 70(3) and 74(1), (2) and (4) of this Act shall not apply in relation to a confiscation order made in pursuance of this section.

(6) Section 75 of this Act shall, subject to any necessary modifications, apply in relation to the making of a confiscation order in pursuance of this section as it applies where the prosecutor has moved for a confiscation order under section 70 of this Act.

(7) Where the court makes a confiscation order in pursuance of this section and a compensation order has been made under section 58 of the Criminal Justice (Scotland) Act 1980 in respect of misappropriation of property by the offender, the court shall direct that compensation shall first be paid out of any sums applied towards the satisfaction of the confiscation order to the extent of any sums outstanding in respect of the compensation order.

(8) The assumptions mentioned in section 71(2) and (5) of this Act shall not apply for the purposes of this section.

(9) In this section “the court” means the court which had jurisdiction in respect of the offence concerned to make a confiscation order under section 70 of this Act.

Application of provisions relating to fines to enforcement of confiscation orders.

80

(1) Sections 196 and 203, or sections 402 and 412, of the 1975 Act and the provisions of that Act specified in subsection (2) below (or those provisions as applied by section 194 of that Act) shall, subject to the qualifications mentioned in subsection (2) below, apply in relation to confiscation orders as they apply in relation to fines; and section 91 of the Magistrates’ Courts Act 1980 and Article 96 of the Magistrates’ Courts (Northern Ireland) Order 1981 (provisions relating to transfer of fines from Scotland etc.) shall be construed accordingly.

(2) The provisions mentioned in subsection (1) above are—

(a) section 396, provided that any allowance under that section of time (or further time) for payment shall be without prejudice to the exercise by any administrator appointed in relation to the confiscation order of his powers and duties under this Act; and the court may, pending such exercise, postpone any decision as to refusing or allowing time (or further time) for payment;

(b) section 397, subject to the like proviso as in paragraph (a) above;

(i) gave the prosecutor an opportunity to be heard at any enquiry thereunder; and

(ii) applied whether the offender was in prison or not;

(d) section 399, provided that any order of payment by instalments shall be without prejudice to such exercise as is mentioned in paragraph (a) above;

(e) section 400;

(f) section 401(2) and (3);

(g) section 403;

(h) section 404;

(i) section 406;

(j) section 407, provided that—

(i) where a court imposes a period of imprisonment both in respect of a fine and of a confiscation order the amounts in respect of which the period is imposed shall, for the purposes of subsection (1A) of that section, be aggregated; and

(ii) before imposing a period of imprisonment to which there is a liability by virtue of that section the court shall, if an administrator has been appointed in relation to the confiscation order, require a report from him as to whether and in what way he is likely to exercise his powers and duties under this Act and shall take that report into account; and the court may, pending such exercise, postpone any decision as to such imposition;

(k) section 408;

(l) section 409, except that the reference in subsection (1) of that section to the person paying a sum to the governor of the prison under conditions prescribed by rules made under the Prisons (Scotland) Act 1989 shall be construed as including a reference to an administrator appointed in relation to the confiscation order making such payment under this Act in respect of the person;

(m) section 411, provided that an order of recovery by civil diligence shall not be made under the section where an administrator is appointed in relation to the confiscation order;

(n) Schedule 7.

(3) Where a court, by virtue of subsection (1) above, orders the sum due under a confiscation order to be recovered by civil diligence under section 411 of the 1975 Act, any arrestment executed by a prosecutor under subsection (2) of section 99 of this Act shall be deemed to have been executed by the court as if that subsection authorised such execution.

(4) Where in any proceedings a confiscation order has been made as regards a person and a period of imprisonment or detention is imposed on him in default of payment of its amount (or as the case may be of an instalment thereof), that period shall run from the expiry of any other period of imprisonment or detention (not being one of life imprisonment or detention for life) imposed on him in the proceedings.

(5) The reference in subsection (4) above to “any other period of imprisonment or detention imposed” includes (without prejudice to the generality of the expression) a reference to such a period on default of payment of a fine (or instalment thereof); but only where that default had occurred before the warrant for imprisonment is issued for the default in relation to the order.

Interest on sums unpaid under confiscation orders.

81

(1) If any sum required to be paid by a person under a confiscation order is not paid when it is required to be paid (whether forthwith on the making of the order or at a time specified under section 396(1) of the 1975 Act) that person shall be liable to pay interest on that sum for the period for which it remains unpaid and the amount of the interest shall for the purposes of enforcement be treated as part of the amount to be recovered from him under the confiscation order.

(2) The sheriff may, on the application of the prosecutor, increase the term of imprisonment or detention fixed in respect of the confiscation order under section 396(2) of the 1975 Act if the effect of subsection (1) above is to increase the maximum period applicable in relation to the order under section 407(1A) of the 1975 Act.

(3) The rate of interest under subsection (1) above shall be the rate payable under a decree of the Court of Session.

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