Criminal Justice (Scotland) Act 1995

(179A) Where a person specified in section 27(1)(b)(i) to (vi) of the Social Work (Scotland) Act 1968 commits an offence, the court shall not dispose of the case without obtaining from the local authority in whose area the person resides a report as to— (a) the circumstances of the offence; and (b) the character of the offender, including his behaviour while under the supervision, or as the case may be subject to the order, so specified in relation to him.

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• (2) After section 380 of that Act there shall be inserted the following section—

(380A) (1) Where a person specified in section 27(1)(b)(i) to (vi) of the Social Work (Scotland) Act 1968 commits an offence, the court shall not dispose of the case without obtaining from the local authority in whose area the person resides a report as to— (a) the circumstances of the offence; and (b) the character of the offender, including his behaviour while under the supervision, or as the case may be subject to the order, so specified in relation to him. (2) In subsection (1) above, “the court” does not include a district court.

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Probation orders to be made only after conviction.

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• (1) In section 183(5A) of the 1975 Act (probation order)—

• (a) after the word “where” there shall be inserted “ an offender has been convicted of an offence punishable by imprisonment and ”; and

• (b) in paragraph (a), the words “has committed an offence punishable by imprisonment and” shall cease to have effect.

• (2) For paragraph (b) of subsection (2) of each of sections 186 and 387 of that Act (failure to comply with requirement of probation orders) there shall be substituted the following paragraph—

(b) sentence the offender for the offence for which the order was made;

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• (3) In section 384 of that Act (probation)—

• (a) in subsection (1)—

• (i) for the words “charged before a court of summary jurisdiction with” there shall be substituted “ convicted of ”;

• (ii) the words from “and”, where it first occurs, to “offence”, in the third place where it occurs, shall cease to have effect; and

• (iii) for the words from “, without” to “applies),” there shall be substituted “ instead of sentencing him ”;

• (b) in subsection (5A)—

• (i) after the word “where” there shall be inserted “ an offender has been convicted of an offence punishable by imprisonment and ”; and

• (ii) in paragraph (a), the words “has committed an offence punishable by imprisonment and” shall cease to have effect; and

• (c) in subsection (6), the words “convicted of and” shall cease to have effect.

Probation orders requiring treatment for mental condition.

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• (1) In each of sections 184 and 385 of the 1975 Act (probation orders requiring treatment for mental condition)—

• (a) in subsection (1), after the word “practitioner”, in the second place where it occurs, there shall be inserted “ or chartered psychologist ”; and

• (b) in each of subsections (2)(c), (5) and (5B)(b), after the word “practitioner” there shall be inserted “ or chartered psychologist ”.

• (2) In section 462(1) of that Act (interpretation), at the appropriate place, there shall be inserted the following definition—

• “chartered psychologist” means a person for the time being listed in the British Psychological Society’s Register of Chartered Psychologists;

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Sentence for offence committed while subject to requirement to perform unpaid work.

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• (1) After subsection (2) of section 187 of the 1975 Act (commission of further offence while on probation) there shall be inserted the following subsections—

(3) Where— (a) a court has, under section 183(5A) of this Act, included in a probation order a requirement that an offender shall perform unpaid work; and (b) the offender is convicted of an offence committed in the circumstances mentioned in subsection (4) below, the court which sentences him for the offence shall, in determining the appropriate sentence for that offence, have regard to the fact that the offence was committed in those circumstances. (4) The circumstances referred to in subsection (3) above are that the offence was committed— (a) during the period that the offender was subject to a requirement to perform unpaid work or within the period of three months following the expiry of that period; and (b) in any place where the unpaid work was being or had previously been performed. (5) The court shall not, under subsection (3) above, have regard to the fact that the offence was committed in the circumstances mentioned in subsection (4) above unless that fact is libelled in the indictment or, as the case may be, specified in the complaint.

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• (2) After subsection (2) of section 388 of that Act (commission of further offence while on probation) there shall be inserted the following subsections—

(3) Where— (a) a court has, under section 384(5A) of this Act, included in a probation order a requirement that an offender shall perform unpaid work; and (b) the offender is convicted of an offence committed in the circumstances mentioned in subsection (4) below, the court which sentences him for the offence shall, in determining the appropriate sentence for that offence, have regard to the fact that the offence was committed in those circumstances. (4) The circumstances referred to in subsection (3) above are that the offence was committed— (a) during the period that the offender was subject to a requirement to perform unpaid work or within the period of three months following the expiry of that period; and (b) in any place where the unpaid work was being or had previously been performed. (5) The court shall not, under subsection (3) above, have regard to the fact that the offence was committed in the circumstances mentioned in subsection (4) above unless that fact is libelled in the indictment or, as the case may be, specified in the complaint.

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• (3) After section 5 of the Community Service by Offenders (Scotland) Act 1978 there shall be inserted the following section—

(5A) (1) Where— (a) a court has made a community service order under section 1(1) of this Act in respect of an offender; and (b) the offender is convicted of an offence committed in the circumstances mentioned in subsection (2) below, the court which sentences him for that offence shall, in determining the appropriate sentence for that offence, have regard to the fact that the offence was committed in those circumstances. (2) The circumstances referred to in subsection (1) above are that the offence was committed— (a) during the period when the community service order was in force or within the period of three months following the expiry of that order; and (b) in any place where unpaid work under the order was being or had previously been performed. (3) The court shall not, under subsection (1) above, have regard to the fact that the offence was committed in the circumstances mentioned in subsection (2) above unless that fact is libelled in the indictment or, as the case may be, specified in the complaint.

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Amendment of records of conviction and sentence in summary proceedings.

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After section 439 of the 1975 Act there shall be inserted the following section—

(439A) (1) Without prejudice to section 439 of this Act, where, on an application in accordance with subsection (2) below, the High Court is satisfied that a record of conviction or sentence in summary proceedings inaccurately records the identity of any person, it may authorise the clerk of the court which convicted or, as the case may be, sentenced the person to correct the record. (2) An application under subsection (1) above shall be made after the determination of the summary prosecution and may be made by any party to the summary proceedings or any other person having an interest in the correction of the alleged inaccuracy. (3) The High Court shall order intimation of an application under subsection (1) above to such persons as it considers appropriate and shall not determine the application without affording to the parties to the summary proceedings and to any other person having an interest in the correction of the alleged inaccuracy an opportunity to be heard. (4) The power of the High Court under this section may be exercised by a single judge of the High Court in the same manner as it may be exercised by the High Court, and subject to the same provisions.

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Appeals

Leave to appeal.

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• (1) In section 228(1) of the 1975 Act (right of appeal), after the word “may” there shall be inserted “ , with leave granted in accordance with section 230A of this Act, ”.

• (2) After section 230 of that Act there shall be inserted the following section—

(230A) (1) The decision whether to grant leave to appeal for the purposes of section 228(1) of this Act shall be made by a judge of the High Court who shall— (a) if he considers that the documents mentioned in subsection (2) below disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and (b) in any other case— (i) refuse leave to appeal and give reasons in writing for the refusal; and (ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him. (2) The documents referred to in subsection (1) above are— (a) the note of appeal lodged under section 233(1)(a) of this Act; (b) in a case to which section 236 of this Act applies, the certified copy or, as the case may be, the record of the proceedings at the trial; (c) where the judge who presided at the trial furnishes a report under section 236A of this Act, that report; and (d) where, by virtue of section 275(1) of this Act, a transcript of the charge to the jury of the judge who presided at the trial is delivered to the Clerk of Justiciary, that transcript. (3) A warrant granted under subsection (1)(b)(ii) above shall not take effect until the expiry of the period of 14 days mentioned in subsection (4) below without an application to the High Court for leave to appeal having been lodged by the appellant under that subsection. (4) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 days of intimation under subsection (10) below, apply to the High Court for leave to appeal. (5) In deciding an application under subsection (4) above the High Court shall— (a) if, after considering the documents mentioned in subsection (2) above and the reasons for the refusal, the court is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as the court considers appropriate; and (b) in any other case— (i) refuse leave to appeal and give reasons in writing for the refusal; and (ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him. (6) Consideration whether to grant leave to appeal under subsection (1) or (5) above shall take place in chambers without the parties being present. (7) Comments in writing made under subsection (1)(a) or (5)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted. (8) Where the arguable grounds of appeal are specified by virtue of subsection (7) above it shall not, except by leave of the High Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified. (9) Any application by the appellant for the leave of the High Court under subsection (8) above— (a) shall be made not less than seven days before the date fixed for the hearing of the appeal; and (b) shall, not less than seven days before that date, be intimated by the appellant to the Crown Agent. (10) The Clerk of Justiciary shall forthwith intimate— (a) a decision under subsection (1) or (5) above; and (b) in the case of a refusal of leave to appeal, the reasons for the decision, to the appellant or his solicitor and to the Crown Agent.

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• (3) After subsection (3) of section 233 of that Act (restriction on arguing ground not in note of appeal) there shall be inserted the following subsection—

(3A) Subsection (3) above shall not apply as respects any ground of appeal specified as an arguable ground of appeal by virtue of subsection (7) of section 230A of this Act.

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• (4) In section 442(1)(a) of that Act (right of appeal), after the word “may” there shall be inserted “ , with leave granted in accordance with section 442ZA or, as the case may be, 453AA of this Act, ”.

• (5) After section 442 of that Act there shall be inserted the following section—

(442ZA) (1) The decision whether to grant leave to appeal for the purposes of section 442(1)(a)(i) or (iii) of this Act shall be made by a judge of the High Court who shall— (a) if he considers that the documents mentioned in subsection (2) below disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and (b) in any other case— (i) refuse leave to appeal and give reasons in writing for the refusal; and (ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him. (2) The documents referred to in subsection (1) above are— (a) the stated case lodged under subsection (4) of section 448 of this Act; and (b) the documents transmitted to the Clerk of Justiciary under subsection (3)(b) of that section. (3) A warrant granted under subsection (1)(b)(ii) above shall not take effect until the expiry of the period of 14 days mentioned in subsection (4) below without an application to the High Court for leave to appeal having been lodged by the appellant under that subsection. (4) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 days of intimation under subsection (10) below, apply to the High Court for leave to appeal. (5) In deciding an application under subsection (4) above the High Court shall— (a) if, after considering the documents mentioned in subsection (2) above and the reasons for the refusal, the court is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as the court considers appropriate; and (b) in any other case— (i) refuse leave to appeal and give reasons in writing for the refusal; and (ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him. (6) Consideration whether to grant leave to appeal under subsection (1) or (5) above shall take place in chambers without the parties being present. (7) Comments in writing made under subsection (1)(a) or (5)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the stated case) on the basis of which leave to appeal is granted. (8) Where the arguable grounds of appeal are specified by virtue of subsection (7) above it shall not, except by leave of the High Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the stated case but not so specified. (9) Any application by the appellant for the leave of the High Court under subsection (8) above— (a) shall be made not less than seven days before the date fixed for the hearing of the appeal; and (b) shall, not less than seven days before that date, be intimated by the appellant to the Crown Agent. (10) The Clerk of Justiciary shall forthwith intimate— (a) a decision under subsection (1) or (5) above; and (b) in the case of a refusal of leave to appeal, the reasons for the decision, to the appellant or his solicitor and to the Crown Agent.

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• (6) After subsection (3) of section 452 of that Act (restriction on arguing ground not in stated case) there shall be inserted the following subsection—

(3A) Subsection (3) above shall not apply as respects any ground of appeal specified as an arguable ground of appeal by virtue of subsection (7) of section 442ZA of this Act.

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• (7) After section 453A of that Act there shall be inserted the following section—

(453AA) (1) The decision whether to grant leave to appeal for the purposes of section 442(1)(a)(ii) or (iia) of this Act shall be made by a judge of the High Court who shall— (a) if he considers that the note of appeal and other documents sent to the Clerk of Justiciary under section 453B(4)(a) of this Act disclose arguable grounds of appeal, grant leave to appeal; and (b) in any other case— (i) refuse leave to appeal and give reasons in writing for the refusal; and (ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him. (2) A warrant granted under subsection (1)(b)(ii) above shall not take effect until the expiry of the period of 14 days mentioned in subsection (3) below without an application to the High Court for leave to appeal having been lodged by the appellant under that subsection. (3) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 days of intimation under subsection (9) below, apply to the High Court for leave to appeal. (4) In deciding an application under subsection (3) above the High Court shall— (a) if, after considering the note of appeal and other documents mentioned in subsection (1) above and the reasons for the refusal, the court is of the opinion that there are arguable grounds of appeal, grant leave to appeal; and (b) in any other case— (i) refuse leave to appeal and give reasons in writing for the refusal; and (ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him. (5) Consideration whether to grant leave to appeal under subsection (1) or (4) above shall take place in chambers without the parties being present. (6) Comments in writing made under subsection (1)(a) or (4)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted. (7) Where the arguable grounds of appeal are specified by virtue of subsection (6) above it shall not, except by leave of the High Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified. (8) Any application by the appellant for the leave of the High Court under subsection (7) above— (a) shall be made not less than seven days before the date fixed for the hearing of the appeal; and (b) shall, not less than seven days before that date, be intimated by the appellant to the Crown Agent. (9) The Clerk of Justiciary shall forthwith intimate— (a) a decision under subsection (1) or (4) above; and (b) in the case of a refusal of leave to appeal, the reasons for the decision, to the appellant or his solicitor and to the Crown Agent.

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Reduction in quorum of High Court for appeals against sentence etc.

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• (1) In section 245 of the 1975 Act (quorum of High Court in relation to appeals)—

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

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

(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.

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• (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.

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Trial judge’s report.

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• (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

• (c) by way of petition to the nobile officium,

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.

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• (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

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• (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

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New prosecution for same or similar offence.

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• (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

• (c) after subsection (4) there shall be inserted the following subsections—

(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.

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• (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

• (c) after subsection (4) there shall be inserted the following subsection—

(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.

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Mental disorder and criminal proceedings

Insanity in bar of trial.

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• (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.

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• (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.

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Insanity as ground of acquittal in summary proceedings.

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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.

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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.

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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.

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• (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

• (c) at the end of paragraph (b) there shall be inserted—

; 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.

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Miscellaneous

Criminal Courts Rules Council.

56

• (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;

• (c) the following persons appointed by the Lord Justice General after such consultation as he considers appropriate—

• (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

• (c) for the word “immediately” there shall be substituted “ as soon as possible ”.

• (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.

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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—