Crime and Punishment (Scotland) Act 1997

(19A) (1) This section applies where a person— (a) is convicted on or after the relevant date of a relevant offence and is sentenced to imprisonment; (b) was convicted before the relevant date of a relevant offence, was sentenced to imprisonment and is serving that sentence on or after the relevant date; (c) was convicted before the relevant date of a specified relevant offence, was sentenced to imprisonment, is not serving that sentence on that date or at any time after that date but was serving it at any time during the period of five years ending with the day before that date. (2) Subject to subsections (3) and (4) below, where this section applies a constable may— (a) take from the person or require the person to provide him with such relevant physical data as the constable reasonably considers appropriate; 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 (6) of section 18 of this Act by the means specified in that paragraph in relation to that sample. (3) The power conferred by subsection (2) above shall not be exercised where the person has previously had taken from him or been required to provide relevant physical data or any sample under section 19(1)(a) of this Act or under this section unless the data so taken or required have been or, as the case may be, the sample so taken or required has been lost or destroyed. (4) Where this section applies by virtue of— (a) paragraph (a) or (b) of subsection (1) above, the powers conferred by subsection (2) above may be exercised at any time when the person is serving his sentence; and (b) paragraph (c) of the said subsection (1), those powers may only be exercised within a period of three months beginning on the relevant date. (5) Where a person in respect of whom the power conferred by subsection (2) above may be exercised— (a) is no longer serving his sentence of imprisonment, subsections (3)(a), (5) and (6); (b) is serving his sentence of imprisonment, subsection (3)(b), of section 19 of this Act shall apply for the purposes of subsection (2) above as they apply for the purposes of subsection (2) of that section. (6) In this section— - “conviction” includes— 1. an acquittal, by virtue of section 54(6) or 55(3) of this Act, on the ground of the person’s insanity at the time at which he committed the act constituting the relevant offence; 2. a finding under section 55(2) of this Act, - “relevant date” means the date on which section 48 of the Crime and Punishment (Scotland) Act 1997 is commenced; - “relevant offence” means any relevant sexual offence or any relevant violent offence; - “relevant sexual offence” means any of the following offences— 1. rape; 2. clandestine injury to women; 3. abduction of a woman with intent to rape; 4. assault with intent to rape or ravish; 5. indecent assault; 6. lewd, indecent or libidinous behaviour or practices; 7. shameless indecency; 8. sodomy; and 9. any offence which consists of a contravention of any of the following statutory provisions— 1. section 52 of the Civic Government (Scotland) Act 1982 (taking and distribution of indecent images of children); 2. section 52A of that Act (possession of indecent images of children); 3. section 106 of the Mental Health (Scotland) Act 1984 (protection of mentally handicapped females); 4. section 107 of that Act (protection of patients); 5. section 1 of the Criminal Law (Consolidation)(Scotland) Act 1995 (incest); 6. section 2 of that Act (intercourse with step-child); 7. section 3 of that Act (intercourse with child under 16 years by person in position of trust); 8. section 5(1) or (2) of that Act (unlawful intercourse with girl under 13 years); 9. section 5(3) of that Act (unlawful intercourse with girl aged between 13 and 16 years); 10. section 6 of that Act (indecent behaviour towards girl between 12 and 16 years); 11. section 7 of that Act (procuring); 12. section 8 of that Act (abduction and unlawful detention of women and girls); 13. section 9 of that Act (permitting use of premises for unlawful sexual intercourse); 14. section 10 of that Act (liability of parents etc in respect of offences against girls under 16 years); 15. section 11(1)(b) of that Act (soliciting for immoral purpose); 16. section 13(5)(b) and (c) of that Act (homosexual offences); - “relevant violent offence” means any of the following offences— 1. murder or culpable homicide; 2. uttering a threat to the life of another person; 3. perverting the course of justice in connection with an offence of murder; 4. fire raising; 5. assault; 6. reckless conduct causing actual injury; 7. abduction; and 8. any offence which consists of a contravention of any of the following statutory provisions— 1. sections 2 (causing explosion likely to endanger life) or 3 (attempting to cause such an explosion) of the Explosive Substances Act 1883; 2. section 12 of the Children and Young Persons (Scotland) Act 1937 (cruelty to children); 3. sections 16 (possession of firearm with intent to endanger life or cause serious injury), 17 (use of firearm to resist arrest) or 18 (having a firearm for purpose of committing an offence listed in Schedule 2) of the Firearms Act 1968; 4. section 6 of the Child Abduction Act 1984 (taking or sending child out of the United Kingdom); and - “sentence of imprisonment” means the sentence imposed in respect of the relevant offence and includes— 1. a hospital order, a restriction order, a hospital direction and any order under section 57(2)(a) or (b) of this Act; and 2. a sentence of detention imposed under section 207 or 208 of this Act, - “specified relevant offence” means— 1. any relevant sexual offence mentioned in paragraphs (a), (b), (f) and (i)(viii) of the definition of that expression and any such offence as is mentioned in paragraph (h) of that definition where the person against whom the offence was committed did not consent; and 2. any relevant violent offence mentioned in paragraph (a) or (g) of the definition of that expression and any such offence as is mentioned in paragraph (e) of that definition where the assault is to the victim’s severe injury, 1. conspiracy or incitement to commit; and 2. aiding and abetting, counselling or procuring the commission of, (7) In this section— (a) any reference to a relevant offence includes a reference to any attempt, conspiracy or incitement to commit such an offence; and (b) any reference to— (i) a relevant sexual offence mentioned in paragraph (i); or (ii) a relevant violent offence mentioned in paragraph (h), of the definition of those expressions in subsection (6) above includes a reference to aiding and abetting, counselling or procuring the commission of such an offence. (19B) A constable may use reasonable force in— (a) taking any relevant physical data from a person or securing a person’s compliance with a requirement made under section 18(2), 19(2)(a) or 19A(2)(a) of this Act; (b) exercising any power conferred by section 18(6), 19(2)(b) or 19A(2)(b) of this Act.

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Part V — Criminal Legal Assistance

Criminal legal assistance

49

After Part IV of the 1986 Act there shall be inserted the following Part—

(25A) (1) The Board shall, in accordance with the provisions of this section, establish and maintain a Criminal Legal Assistance Register (“the Register”) of— (a) solicitors who are eligible to provide criminal legal assistance; and (b) subject to subsection (4) below, the firms with which the solicitors mentioned in paragraph (a) above are connected. (2) A sole solicitor who wishes to provide criminal legal assistance shall require to be registered both as a solicitor and as a firm. (3) Only those solicitors whose names appear on the Register may provide criminal legal assistance; and, subject to subsection (4) below, a solicitor may provide criminal legal assistance only when working in the course of a connection with a registered firm. (4) A solicitor employed by the Board under section 28A of this Act shall require to be registered, and the entry relating to his name on the Register shall include a note that he is so employed; but the Board shall not be regarded as a firm for the purposes of this section, and shall not itself require to be registered. (5) An application for entry on the Register shall be made in such form as the Board may determine, and shall be accompanied by such documents as the Board may specify, which shall include, in the case of a solicitor, a copy of his practising certificate. (6) Before making any decisions as to the matters mentioned in subsection (5) above the Board shall— (a) send to the Law Society and to such other persons and bodies as it considers appropriate a draft of its proposals in that regard, inviting their comments on those proposals within such period, being not less than 8 weeks from the date on which the draft is sent, as it may specify; and (b) consider any such comments timeously received by it, but, where it amends those proposals in the light of any such comments, it shall not be required to re-intimate the amended proposals to any of those who were invited to comment. (7) Subject to subsection (15) below, where a solicitor is connected with a firm the Board shall not consider his application unless the firm— (a) is already registered; or (b) has also applied for registration. (8) On receipt of an application the Board shall make such enquiries as it thinks appropriate for the purpose of determining whether the applicant complies with the relevant provisions of the code; and it may for that purpose use the powers conferred on it by section 35A of this Act. (9) Subject to subsection (10) below, where the Board is satisfied that an applicant complies with the code and, in the case of a solicitor, is not otherwise disqualified from providing criminal legal assistance, it shall make the appropriate entry on the Register. (10) Subject to subsection (15) below, where a solicitor is connected with a firm, the Board shall not enter his name on the Register unless the firm’s name is already entered on the Register. (11) Where a solicitor is connected with a firm or firms, the name or names of which appear on the Register, the entry relating to that solicitor shall include the name of that firm or those firms. (12) Where the Board decides to refuse an application it shall forthwith intimate that decision to the applicant, and shall as soon as practicable thereafter send him or them, by recorded delivery, a written note of its reasons. (13) An applicant aggrieved by a decision of the Board to refuse registration may, within 21 days of the receipt of the notification of the Board’s reasons under subsection (12) above, appeal to the Court of Session against that decision. (14) An appeal under subsection (13) above may be on questions of both fact and law and the court, after hearing such evidence and representations as it considers appropriate, may make such order as it thinks fit. (15) Where a solicitor who is seeking registration, or is registered, is connected with more than one firm the requirements of subsections (7) and (10) above shall be satisfied if one of those firms has applied for registration or, as the case may be, is registered. (25B) (1) The Board shall prepare a draft code of practice in relation to the carrying out by solicitors of their functions with regard to the provision of criminal legal assistance and, without prejudice to the generality of the foregoing, the code may include provision as to— (a) the conditions to be complied with in order to qualify for registration, including— (i) the attendance by the solicitor at a sufficient number of specified courses relevant to the provision of criminal legal assistance, including courses in criminal law, evidence and pleading and professional ethics; (ii) the keeping of records in a particular format; (b) the standards of conduct expected of a solicitor providing or proposing to provide criminal legal assistance; (c) the manner in which a solicitor should conduct a case and represent his client, including— (i) the passage of timeous and accurate information to the client in relation to his case; (ii) the frequency of meetings with the client; (iii) the giving of advice to the client as to the consequences of any decision made by the client in relation to his defence; (iv) the taking of such precognitions as may be necessary; (v) the conduct of relations with the prosecution; (d) the manner in which applications for criminal legal assistance are to be presented; (e) the monitoring of a solicitor’s performance with a view to a decision by the Board as to whether he should continue to be registered, including— (i) periodic review of his handling of particular cases by other solicitors or by the Board; (ii) the extent to which he attends courses relevant to the provision of criminal legal assistance, including courses in criminal law, evidence and pleading and professional ethics; (f) the manner in which records are kept, including— (i) maintaining books of account, and presentation of accounts to the Board, in a specified format; (ii) office procedures; (iii) time recording systems; (iv) instructions given to the staff, and any other matter relating to the organisation of or accounting for criminal legal assistance which appears to the Board to be relevant. (2) The code may make different provision in relation to firms and solicitors including, in relation to solicitors employed by the Board by virtue of section 28A of this Act, different provision to reflect the fact that they are so employed. (3) The Board shall— (a) send a copy of the draft code prepared by it under subsection (1) above to the Law Society and to such other persons and bodies as it considers appropriate, inviting their comments on the draft within such period, being not less than 8 weeks from the date on which the draft is sent, as it may specify; and (b) consider any such comments timeously received by it, but, where it amends the draft code in the light of any such comments, it shall not be required to re-intimate the amended code to any of those who were invited to comment. (4) After carrying out the consultation mentioned in subsection (3) above the Board shall submit the draft code to the Secretary of State for his approval. (5) The Secretary of State may approve the draft code, with or without modifications. (6) When the Secretary of State has approved the draft code under subsection (5) above he shall— (a) return the draft to the Board; and (b) specify the date upon which it is to come into force and how the Board is to publish it. (7) The Board— (a) shall make and publish the code by the date and in the manner specified by the Secretary of State under subsection (6) above; and (b) may make a copy of the code available to any person requesting one, on payment of such sum, if any, towards the cost of preparation, publication and, where relevant, postage, as it considers appropriate. (8) The Board shall keep under review the code prepared under this section and may from time to time revise it, and the provisions of this section shall apply in relation to any revision of the code as they apply in relation to the version originally prepared. (25C) (1) Solicitors and firms whose names appear on the Register (“registered solicitors” and “registered firms”) shall comply with the requirements of the code. (2) The Board shall monitor the carrying out by registered solicitors and firms of their duty under subsection (1) above. (3) For the purpose of carrying out its duty under subsection (2) above the Board may use the powers conferred on it by sections 35A and 35B of this Act. (25D) (1) Where it appears to the Board (whether or not following a complaint made to it) that a registered firm or solicitor may not be complying with the code, it shall investigate the matter in such manner as it thinks fit, and shall give the firm or solicitor concerned an opportunity to make representations. (2) For the purpose of carrying out its duty under subsection (1) above the Board may use the powers conferred on it by sections 35A and 35B of this Act. (3) Following an investigation under subsection (1) above, the Board may give the firm or solicitor concerned an opportunity, within such time as it may specify, to remedy any defect in their or his compliance with the code. (4) Where, after carrying out the procedures mentioned in subsection (1) above and, where a time limit has been set under subsection (3) above, after the expiry of that time limit, the Board is satisfied that— (a) the firm are not complying with the code, it shall remove the names of the firm and, subject to subsection (5) below, of any registered solicitors connected with the firm from the Register; (b) the solicitor is not complying with the code, it shall remove his name from the Register. (5) Where a registered solicitor mentioned in subsection (4)(a) above is also connected with another registered firm, the Board shall not remove his name from the Register, but shall alter the entry against his name in the Register so as to remove therefrom the name of the firm whose name has been removed from the Register. (6) Where the Board removes the name of a solicitor from the Register the solicitor shall— (a) in accordance with arrangements approved by the Board, forthwith, and without waiting for the resolution of any appeal, transfer— (i) any work currently being undertaken by him for any client by way of criminal legal assistance; and (ii) notwithstanding any lien to which he might otherwise be entitled, any documents connected with any such work, to a registered solicitor; and (b) in accordance with section 25A(3) of this Act, stop providing criminal legal assistance. (7) Where the Board removes the name of a firm or solicitor from the Register it shall forthwith intimate that removal to the firm or solicitor concerned, and shall as soon as practicable thereafter send them or him, by recorded delivery, a written note of its reasons for its decision. (8) A firm or solicitor aggrieved by a decision of the Board under subsection (4) above may, within 21 days of the receipt of the notification under subsection (7) above, appeal to the Court of Session against that decision. (9) An appeal under subsection (8) above may be on questions of both fact and law and the court, after hearing such evidence and representations as it considers appropriate, may make such order as it thinks fit; but the making of such an appeal shall not have the effect of restoring the firm’s or solicitor’s name to the Register. (25E) (1) Where the Board is satisfied, whether on being so informed by the solicitor concerned or not, that a registered solicitor— (a) has become connected with an unregistered firm; and (b) is no longer connected with a registered firm, it shall remove his name from the Register. (2) Subsections (6) to (9) of section 25D of this Act apply in relation to a solicitor whose name is removed from the Register under subsection (1) above as they apply in relation to a solicitor whose name is removed from the Register under subsection (4) of that section. (25F) (1) The Board shall make available for inspection, without charge— (a) the Register; (b) any decision refusing an application for entry on the Register; and (c) any decision removing the name of a firm or solicitor from the Register, and the publication of a decision such as is mentioned in paragraphs (b) or (c) above shall be accompanied by a statement of the reasons for the decision. (2) The Board shall, as soon as is practicable after 1st December in each year, send a copy of the current Register to the Secretary of the Law Society. (3) When any change is made to the Register in the course of a year, the Board shall, as soon as is practicable, send written notice of that change to the Secretary of the Law Society.

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Employment of solicitors

Employment of solicitors in relation to criminal legal assistance

50

After section 28 of the 1986 Act there shall be inserted the following section—

(28A) (1) The Secretary of State may, in accordance with the provisions of this section, provide for the carrying out of a study into the feasibility of providing criminal legal assistance by means of solicitors employed directly by the Board and, accordingly, may by regulations made under this section empower the Board to employ solicitors for the purpose of providing criminal legal assistance. (2) The Board shall not, by virtue of this section, employ more solicitors than are necessary to enable it to maintain at all times a working staff of such number of full-time or part-time solicitors as will equal six full-time solicitors; and any solicitor employed by the Board on a casual or temporary basis to fill a vacancy left by the absence on leave or because of illness of a permanent appointee shall require to be a registered solicitor. (3) The Secretary of State may authorise the Board to make such preparations for the feasibility study as will enable it to begin the study as soon as regulations under subsection (1) above come into force; and such preparations may relate to the purchase and equipping of heritable and moveable property and the employment of staff including, but only for the purposes of training, solicitors. (4) The provisions of paragraph 8 of Schedule 1 to this Act shall apply to solicitors employed by the Board by virtue of this section as they apply to employees appointed by the Board under that paragraph. (5) Regulations made by the Secretary of State under this section may make such provision as appears to him to be appropriate for the purposes of this section and, without prejudice to the generality of the foregoing, may— (a) specify in which area or areas employed solicitors are to be used; and (b) make different provision in relation to different areas. (6) Regulations under this section may provide that where the Board has by virtue of this section employed solicitors to provide criminal legal assistance in any area, the Board may, subject to subsection (7) below, require as many of the persons seeking criminal legal assistance in that area as it considers appropriate to instruct the solicitors employed by it. (7) In requiring persons seeking criminal legal assistance to instruct solicitors employed by the Board, the Board shall, where there is or may be a conflict of interest, make provision for any particular person to be re-allocated to another solicitor or, where registration is in force, to a registered solicitor in the area. (8) Regulations made under this section may make such transitional and consequential provisions and savings as appear to the Secretary of State to be necessary or expedient. (9) Sections 26, 27 and 28 of this Act shall not apply in relation to solicitors employed by the Board by virtue of this section. (10) Within three years of the date on which regulations made under subsection (1) above first come into effect, the Secretary of State shall lay before each House of Parliament a report on the results of the feasibility study. (11) This section, and the provisions of this Act mentioned in subsection (12) below, shall cease to have effect five years after the date on which regulations made under subsection (1) above first come into effect. (12) The provisions referred to in subsection (11) above are— (a) in section 4, subsection (2)(aa) and (3)(ab); (b) in section 11— (i) in subsection (1) the words “or (3)”; and (ii) subsections (3) and (4); (c) in section 12(2), the words “; but does not apply to the salary payable to a solicitor employed by the Board by virtue of section 28A of this Act.”; (d) section 25A(4); (e) in section 25B(2), the words from “including” to the end; and (f) in section 31(1A), paragraph (c). (13) Prior to the date on which this section ceases to have effect the Board shall make arrangements for the transfer to solicitors or, where registration is in force, registered solicitors not employed by it of any work currently being undertaken by way of criminal legal assistance by solicitors employed by it by virtue of this section. (14) On the date when this section ceases to have effect the Board shall remove from the Register the name of any solicitor employed by it by virtue of this section who is not otherwise entitled to be registered.

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Fixed payments for criminal legal assistance

Fixed payments

51

In section 33 of the 1986 Act (fees and outlays of counsel and solicitors), after subsection (3) there shall be inserted the following subsections—

(3A) The Secretary of State may by regulations under this section prescribe fixed payments to be made to a solicitor in respect of— (a) his professional services in providing criminal legal assistance; and (b) such outlays as may be so prescribed. (3B) A solicitor who provides any criminal legal assistance in respect of which a fixed payment has been prescribed in regulations made under subsection (3A) above shall not be entitled to any other payment out of the Fund in respect of the professional services and outlays mentioned in that subsection, but shall be entitled to reimbursement of any other outlays which he has properly incurred.

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Contracts for the provision of criminal legal assistance

52

After section 33 of the 1986 Act there shall be inserted the following section—

(33A) (1) The Secretary of State may by regulations made under this section empower the Board to enter into contracts with registered firms for the provision by registered solicitors connected with those firms of criminal legal assistance. (2) Regulations under this section may prescribe— (a) the procedures to be followed by the Board in awarding any such contract; and (b) subject to subsection (3) below, any terms and conditions which are to be included in any such contract. (3) Regulations under this section shall provide that any contract entered into by virtue of this section shall include a provision that, in the event of the termination of the contract, or a breach of it by the registered firm concerned, the Board may— (a) withhold payments under the contract; and (b) require the firm to secure the transfer of— (i) any work currently being undertaken by any solicitor connected with them for any client by way of criminal legal assistance; and (ii) notwithstanding any lien to which any such solicitor might otherwise be entitled, any documents connected with any such work, to a registered solicitor. (4) Regulations under this section may provide that where the Board has by virtue of this section entered into contracts with any registered firms for the provision of criminal legal assistance in any area, then, unless it seems to the Board to be inappropriate in a particular case, any person seeking such assistance in that area shall be required to instruct a registered solicitor connected with one of those firms. (5) Any money due to a firm under a contract made by virtue of this section shall be paid to the firm— (a) firstly, out of any amount payable by the client in accordance with section 11(2) of this Act; (b) secondly, in priority to all other debts, out of any expenses which by virtue of an order of a criminal court are payable to that client by any other person in respect of the matter in connection with which the criminal legal assistance was given; and (c) thirdly, by the Board out of the Fund. (6) For the purposes of sections 32 and 33 of this Act, the money paid to a firm, as provided in subsection (5) above, in respect of a contract made by virtue of this section shall be taken to be a payment made in accordance with this Act, and no solicitor connected with such a firm shall be entitled to any other payment out of the Fund in respect of any work done by him by virtue of such a contract.

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Powers of investigation

Power of investigation of Scottish Legal Aid Board

53

After section 35 of the 1986 Act there shall be inserted the following sections—

(35A) (1) The Board may, for the purpose of determining whether— (a) a solicitor or any employee of him or of his firm may be committing a criminal offence in connection with criminal legal assistance; or (b) a solicitor may be seeking, in relation to criminal legal assistance, to recover from the Fund money to which he is not entitled, as, for example, by performing unnecessary work; or (c) a registered firm or solicitor is or may not be complying with the code, require any solicitor or firm to produce such information and documents relating wholly or partly to the provision of criminal legal assistance as it may specify, at such time and place as it may specify. (2) If it appears to the Board that there is good reason to do so, it may authorise any of its officers to require any solicitor or firm to produce forthwith any such information or documents as are mentioned in subsection (1) above. (3) An officer of the Board acting under subsection (2) above shall, if requested to do so, produce evidence of his authorisation by the Board. (4) The power under this section to require production of information and documents includes power— (a) to require any person, who is a present or past partner or employee of any such solicitor or firm and who appears to the Board or one of its officers to have any information or documents, to produce them; (b) if any documents are produced— (i) to take copies of them or extracts from them; and (ii) to require the person producing them, or any other person who is a present or past partner or employee of the solicitor or firm in question, to provide an explanation of them; (c) if any document or information is held other than in legible form, to require the production of a copy of it in legible form; and (d) if documents are not produced, to require the person who was required to produce them to state, to the best of his knowledge and belief, where they are. (5) Where any person claims a lien over any documents required to be produced under this section the production is without prejudice to the lien. (6) Any person who is required under this section to produce information or documents shall, notwithstanding any duty of confidentiality, comply with that requirement; and if he fails to comply he shall be guilty of an offence and liable— (a) on conviction on indictment, to a fine; and (b) on summary conviction, to a fine not exceeding the statutory maximum. (7) Where a person is charged with an offence under subsection (6) above in respect of a requirement to produce documents, it shall be a defence for him to prove that they were not in his possession or under his control and that it was not reasonably practicable for him to comply with the requirement. (8) No information or documents obtained by the Board by virtue of this section or section 35B of this Act shall be used by it or by any of its employees for any purpose other than the purposes mentioned in subsection (1) above. (9) Section 34 of this Act applies in relation to a contravention of subsection (8) above as it applies in relation to a contravention of subsection (1) of that section. (35B) (1) Where a sheriff is satisfied, by evidence on oath given on behalf of the Board by a person authorised by the Board for that purpose, that there are reasonable grounds for believing that— (a) a solicitor or any employee of him or his firm may be committing a criminal offence in connection with criminal legal assistance; or (b) a solicitor may be seeking, in relation to criminal legal assistance, to recover from the Fund money to which he is not entitled, as, for example, by performing unnecessary work; or (c) a registered firm or solicitor may not be complying with the code; or (d) there are on any premises documents the production of which has been required under section 35A of this Act and which have not been produced in accordance with that requirement, he may issue a warrant under this section to a person authorised for that purpose by the Board. (2) A person holding a warrant under this section may— (a) search the premises named in the warrant; (b) take possession of any documents which appear to him to relate, wholly or partly, to any criminal legal assistance provided in or from those premises; (c) take copies of any such documents; (d) take any other steps which appear to him to be necessary for preserving those documents or preventing their destruction or interference with them; and (e) require any person named in the warrant to provide an explanation of the documents or to state where they may be found. (3) The duty to produce documents and to provide explanations applies notwithstanding any duty of confidentiality, but where any person claims a lien over any documents the production is without prejudice to that lien. (4) A warrant under this section shall continue in force for the period of one month from the date when it is issued. (5) The Board may retain any documents which it has obtained under this section for— (a) a period of not more than 12 months; or (b) where, within that period, proceedings to which the documents are relevant are commenced by the Board, the Law Society or a prosecutor, until the conclusion of those proceedings. (6) Any person who intentionally obstructs the execution of a warrant issued under this section or who fails without reasonable excuse to comply with any requirement imposed in accordance with subsection (2)(e) above shall be guilty of an offence, and liable— (a) on conviction on indictment, to a fine; and (b) on summary conviction, to a fine not exceeding the statutory maximum. (35C) (1) Where it appears to the Board that any solicitor has, in connection with the provision of criminal legal assistance, acted in such a way as to justify action being taken against him by the Law Society or the Scottish Solicitors’ Discipline Tribunal it shall refer the matter to either of those bodies so that they can consider whether to take action under section 31(3) of this Act. (2) Where it appears to the Board that any solicitor may have been guilty of a criminal offence it shall refer the matter to the police or the procurator fiscal, so that they can consider whether any criminal offence may have been committed. (3) Where the Board refers a matter to any of the bodies mentioned in subsections (1) or (2) above, it may disclose to that body any information or documents which it has obtained from the solicitor concerned under this Act. (4) Where the Board has referred a matter to any of the bodies mentioned in subsections (1) or (2) above it may— (a) suspend the solicitor concerned from providing criminal legal assistance; and (b) withhold payment of any fees due to him in respect of such work, pending the outcome of the investigation by the body or bodies to which the matter has been referred. (5) A solicitor who is suspended from providing criminal legal assistance under subsection (4)(a) above shall, in accordance with arrangements approved by the Board, transfer— (a) any work currently being undertaken by him for any client by way of criminal legal assistance; and (b) notwithstanding any lien to which he might otherwise be entitled, any documents connected with any such work, to a solicitor (or, where registration is in force, a registered solicitor).

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Regulations in relation to criminal legal assistance

54

After section 41 of the 1986 Act there shall be inserted the following section—

(41A) (1) The Secretary of State may by regulations made under this section provide that any reference in, under or by virtue of this Act to “criminal legal assistance” shall relate, for any of the purposes of this Act, to such class or classes of criminal legal assistance as he thinks appropriate. (2) Without prejudice to the generality of subsection (1) above, the power conferred by that subsection may be exercised by reference to— (a) the class or classes of person who are to receive criminal legal assistance; (b) the class or classes of case in respect of which such assistance is to be given; (c) the nature of the work; (d) the place or places where the assistance is to be provided; (e) the period for which it is to be provided, or to any combination of the foregoing; and different provision may be made under that subsection for different purposes, or in relation to different areas or different periods.

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Part VI — Miscellaneous and General

Miscellaneous

Liberation of child by police

55

• (1) Section 43 of the 1995 Act (arrangements where child arrested) shall be amended in accordance with this section.

• (2) In subsection (1), for the words from “shall”, in the second place where it occurs, to the end there shall be substituted the words—

may liberate him— (a) on a written undertaking being entered into by him or his parent or guardian that he will attend at a court and at a time specified in the undertaking; or (b) unconditionally.

.

• (3) In subsection (6)—

• (a) for the words from “is” to “diet” there shall be substituted the words “ fails to appear at the court and at the time specified in the undertaking entered into by him or on his behalf under subsection (1) above ”; and

• (b) after the word “conviction” there shall be inserted the words “ of any charge made against him at the time he was liberated under that subsection ”.

Powers of the court on remand or committal of children and young persons

56

• (1) Section 51 of the 1995 Act (remand or committal of children and young persons) shall be amended in accordance with this section.

• (2) In subsection (1)—

• (a) in paragraph (a), for the words “in whose area the court is situated” there shall be substituted the words “ which it considers appropriate ”;

• (b) after paragraph (a) there shall be inserted the following paragraph—

(aa) if the person is over 16 years of age and subject to a supervision requirement, the court may, instead of committing him to prison, commit him to the local authority which it considers appropriate to be detained as mentioned in sub-paragraphs (i) or (ii) of paragraph (a) above;

and

• (c) in paragraph (b), after the “age”, where it first occurs, there shall be inserted the words “ to whom paragraph (aa) above does not apply ”.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

(4A) The local authority which may be appropriate in relation to a power to commit a person under paragraphs (a) or (aa) of subsection (1) or subsection (4) above may, without prejudice to the generality of those powers, be— (a) the local authority for the area in which the court is situated; (b) if the person is usually resident in Scotland, the local authority for the area in which he is usually resident; (c) if the person is subject to a supervision requirement, the relevant local authority within the meaning of Part II of the Children (Scotland) Act 1995 in relation to that requirement.

.

Precognitions

57

• (1) After section 67 of the 1995 Act, there shall be inserted the following section—

(67A) (1) This section applies where a prosecutor has obtained a warrant to cite a witness for precognition and has served a citation for precognition on the witness. (2) Where this section applies, a witness who— (a) fails without reasonable excuse, after receiving at least 48 hours notice, to attend for precognition by a prosecutor at the time and place mentioned in the citation served on him; or (b) refuses when so cited to give information within his knowledge regarding any matter relative to the commission of the offence in relation to which such precognition is taken, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale or to a term of imprisonment not exceeding 21 days.

.

• (2) In section 140 of the 1995 Act (citation)—

• (a) in subsection (1), after the words “for” there shall be inserted the words

— (a) the citation of witnesses for precognition by the prosecutor, whether or not any person has been charged with the offence in relation to which the precognition is taken; and (b)

; and

• (b) subsection (3) shall cease to have effect.

Information concerning jurors

58

• (1) Section 85 of the 1995 Act (citation and attendance of jurors) shall be amended as follows.

• (2) In subsection (1), the words from “but” to the end shall cease to have effect.

• (3) For subsection (2), there shall be substituted the following subsections—

(2) A list of jurors shall— (a) contain not less than 30 names; (b) be prepared under the directions of the clerk of the court before which the trial is to take place; (c) be kept at the office of the sheriff clerk of the district in which the court of the trial diet is situated; and (d) be headed “List of Assize for the sitting of the High Court of Justiciary (or the sheriff court of». at».) on the». of».”. (2A) The clerk of the court before which the trial is take place shall, on an application made to him by or on behalf of an accused, supply the accused, free of charge, on the day on which the trial diet is called, and before the oath has been administered to the jurors for the trial of the accused, with a copy of a list of jurors prepared under subsection (2) above. (2B) Where an accused has been supplied under subsection (2A) above with a list of jurors— (a) neither he nor any person acting on his behalf shall make a copy of that list, or any part thereof; and (b) he or his representative shall return the list to the clerk of the court after the oath has been administered to the jurors for his trial. (2C) A person who fails to comply with subsection (2B) above shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale.

.

Certification of previous convictions in criminal proceedings

59

• (1) Section 285 of the 1995 Act (proof of previous convictions) shall be amended in accordance with the following provisions of this section.

• (2) In subsection (2)—

• (a) for the words “or on behalf of the Chief Constable of Strathclyde” there shall be substituted the words “ the Secretary of State or by a person authorised by him to sign such a certificate ”;

• (b) for the words “by the person by or on whose behalf the certificate is signed” there shall be substituted the words “ in pursuance of a service provided and maintained by the Secretary of State under or by virtue of section 36 of the Police (Scotland) Act 1967 or by or on behalf of the Commissioner of Police of the Metropolis ”.

• (3) In subsection (5)—

• (a) for the words “or on behalf of the Chief Constable of Strathclyde” there shall be substituted the words “ the Secretary of State or by a person authorised by him to sign such a certificate ”;

• (b) for the words “or on behalf of the Chief Constable” there shall be substituted the words “ the Secretary of State or by a person authorised by him to sign such a certificate or by or on behalf of ”.

Grants for forensic medical services

60

The Lord Advocate may out of money provided by Parliament make grants of such amount and on such conditions as he considers appropriate to any person for the provision to him by that person of forensic medical services.

Confiscation of alcohol from persons under 18

61

• (1) Where a constable has reasonable grounds for suspecting that a person in a public place—

• (a) is under the age of 18; and

• (b) is in possession of alcohol, within the meaning of the Licensing (Scotland) Act 1976,

he may require that person to surrender the alcohol to him, and may dispose of it in such manner as he considers appropriate; and he may also require that person to supply him with his name and address.

• (2) Where a constable has reasonable grounds for suspecting that a person of or over the age of 18 has alcohol in his possession in a public place and that that person—

• (a) has supplied such alcohol to a person under the age of 18 for consumption in a public place; or

• (b) intends that that alcohol should be consumed in a public place by a person under the age of 18,

the constable may require the person in possession of the alcohol to surrender it to him, and may dispose of it in such manner as he considers appropriate; and he may also require that person to supply him with his name and address.

• (3) Subject to subsection (4) below, it shall be an offence punishable on summary conviction by a fine not exceeding level 2 on the standard scale for a person to fail to comply with a requirement made under subsection (1) or (2) above.

• (4) Where a constable makes a requirement such as is mentioned in subsection (1) or (2) above he shall inform the person concerned—

• (a) of his suspicion; and

• (b) of the fact that failure to comply with a requirement made under either of those provisions is an offence.

• (5) A constable may arrest without warrant any person who fails to comply with a requirement made under subsection (1) or (2) above.

• (6) In this section “public place” includes—

• (a) any place to which the public have access for the time being (whether on payment of a fee or otherwise); and

• (b) any place to which the public do not have access but to which the persons mentioned in subsection (1) or (2) have unlawfully gained access,

but does not include licensed premises within the meaning of the Licensing (Scotland) Act 2005 (asp 16).

• (7) In this section, “ alcohol ” has the meaning given in section 2 of the Licensing (Scotland) Act 2005 (asp 16).

General

Minor and consequential amendments, and repeals

62

• (1) The enactments mentioned in Schedule 1 to this Act shall have effect subject to the amendments specified therein, being minor amendments and amendments consequential upon the provisions of this Act.

• (2) The enactments mentioned in Schedule 3 to this Act are repealed to the extent specified in the third column of that Schedule.

Financial provisions

63

• (1) There shall be paid out of money provided by Parliament any expenses incurred—

• (a) by the Secretary of State, under—

• (i) section 245C(1) of the 1995 Act (remote monitoring of restriction of liberty orders) (as inserted by section 5 of this Act);

• (ii) Part XA of the 1995 Act (Scottish Criminal Cases Review Commission) (as inserted by section 25 of this Act);

• (iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) by the Scottish Legal Aid Board under—

• (i) section 28A(1) of the 1986 Act (power of Board to employ solicitors for criminal legal assistance) (as inserted by section 50 of this Act); or

• (ii) section 33A(1) of the 1986 Act (power of Board to enter into contracts for provision of criminal legal assistance) (as inserted by section 52 of this Act); or

• (c) by the Lord Advocate under section 60 of this Act.

• (2) There shall be paid out of money provided by Parliament any increase attributable to this Act in the sums payable out of money so provided under any other Act.

Interpretation

64

In this Act, unless the context otherwise requires—

• “supervised release order” has the same meaning as in section 209 of the 1995 Act (supervised release orders);

• “the 1984 Act” means the Mental Health (Scotland) Act 1984;

• “the 1986 Act” means the Legal Aid (Scotland) Act 1986;

• “the 1989 Act” means the Prisons (Scotland) Act 1989;

• “the 1993 Act” means the Prisoners and Criminal Proceedings (Scotland) Act 1993;

• “the 1995 Act” means the Criminal Procedure (Scotland) Act 1995.

Short title, commencement and extent

65

• (1) This Act may be cited as the Crime and Punishment (Scotland) Act 1997.

• (2) This Act, except sections 45 and 46, shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint, and different days may be appointed for different purposes.

• (3) In an order under subsection (2) above made in respect of any provision of sections 49 to 54 of this Act, or of paragraph 12 of Schedule 1 to this Act—

• (a) different days may be appointed for different provisions;

• (b) different days may be appointed for different areas; and

• (c) different provisions may be brought into force in relation to different areas.

• (4) An order under subsection (2) above may contain such transitional and consequential provisions and savings as appear to the Secretary of State to be necessary or expedient in connection with the provisions brought into force.

• (5) Subject to subsections (6) and (7) below, this Act shall extend to Scotland only.

• (6) Section 4(3) and (5) of this Act shall extend to England and Wales, and section 37(4) of this Act shall extend to England and Wales and Northern Ireland.

• (7) The amendment or repeal of any enactment by Schedules 1 or 3 to this Act shall have the same extent as the enactment so amended or, as the case may be, repealed.

SCHEDULE 1

The Public Records Act 1958 (c. 51)

1

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

The Police (Scotland) Act 1967 (c. 77)

2

• (1) The Police (Scotland) Act 1967 shall be amended in accordance with this paragraph.

• (2) Section 6(2) (application of certain provisions to appointments of ranks below assistant chief constable) shall cease to have effect.

• (3) In section 17 (general functions and duties of constables)—

• (a) in subsection (1), for the words “section 321(1) of the Criminal Procedure (Scotland) Act 1975” there shall be substituted the words “ section 135(3) and (4) of the Criminal Procedure (Scotland) Act 1995 ”; and

• (b) in subsection (7)(a) after the word “agreements” there shall be inserted the words “ or of section 98 of the Police Act 1996 (cross-border aid of one police force by another) ”.

• (4) In section 19(3) (amalgamation schemes) for the words from “reimbursed” to the end there shall be substituted the words “ provided for by a grant made to the board under section 32 of this Act ”.

• (5) In section 41(1)(b)(ii) (penalty for assaults on constables) for the words “section 289B of the Criminal Procedure (Scotland) Act 1975” there shall be substituted the words “ section 225(8) of the Criminal Procedure (Scotland) Act 1995 ”.

• (6) In section 46(1)(b) (rewards) after the word “agreements” there shall be inserted the words “ or of section 98 of the Police Act 1996 (cross-border aid of one police force by another) ”.

The Firearms Act 1968 (c. 27)

3

In section 51 of the Firearms Act 1968 (penalties for offences), after subsection (2) there shall be inserted the following subsection—

(2A) Nothing in subsection (2) above or Schedule 6 to this Act shall prejudice the operation of section 205A of the Criminal Procedure (Scotland) Act 1995 (imprisonment for life on further conviction of certain offences).

.

The Superannuation Act 1972 (c. 11)

4

In Schedule 1 to the Superannuation Act 1972 (kinds of employment to which a scheme under section 1 of that Act may apply), at the end of the list of “Royal Commissions and other Commissions” insert—

Scottish Criminal Cases Review Commission.

.

The House of Commons Disqualification Act 1975 (c. 24)

5

In the House of Commons Disqualification Act 1975, in Part II of Schedule 1 (bodies of which all members are disqualified), at the appropriate place insert—

The Scottish Criminal Cases Review Commission.

.

The Sexual Offences (Scotland) Act 1976 (c. 67)

6

• (1) The Sexual Offences (Scotland) Act 1976 shall cease to have effect.

• (2) This paragraph shall be deemed to have come into force on 1st April 1996 and the Sexual Offences (Scotland) Act 1976 shall for the purposes of the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 be regarded as a repealed enactment within the meaning of that Act.

The Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c. 55)

7

In Part I of Schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (persons ineligible for jury service), in Group B, after paragraph (w) insert—

(wa) members and employees of the Scottish Criminal Cases Review Commission;

.

The Criminal Justice (Scotland) Act 1980 (c. 62)

8

In section 3D(1)(b) of the Criminal Justice (Scotland) Act 1980 (interpretation of sections 3A to 3C), for the words “section 3 of this Act” there shall be substituted the words “ section 15(6) of the Criminal Procedure (Scotland) Act 1995 ”.

The Mental Health (Scotland) Act 1984 (c. 36.)

9

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

The Repatriation of Prisoners Act 1984 (c. 47)

10

• (1) The Repatriation of Prisoners Act 1984 shall be amended in accordance with this paragraph.

• (2) In section 2(4)(b) (transfer of prisoners out of the United Kingdom)—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) after sub-paragraph (ii) there shall be inserted the following sub-paragraph—

(iia) released subject to a supervised release order made under section 209 of the Criminal Procedure (Scotland) Act 1995;

.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Foster Children (Scotland) Act 1984 (c. 56)

11

In section 13 of the Foster Children (Scotland) Act, for the words “section 47 of the Children and Young Persons (Scotland) Act 1937” to the end there shall be substituted the words “ section 55 of the Children (Scotland) Act 1995 (child assessment orders) as giving the local authority reasonable cause for the suspicion mentioned in subsection (1)(a) of that section ”.

The Legal Aid (Scotland) Act 1986 (c. 47)

12

• (1) The Legal Aid (Scotland) Act 1986 shall be amended in accordance with this paragraph.

• (2) In section 4 (Scottish Legal Aid Fund)—

• (a) in subsection (2)—

• (i) in paragraph (a), for the words “by him” there shall be substituted the words “ or in respect of payments made in accordance with regulations made under section 33(3A) of this Act ”;

• (ii) after paragraph (a) there shall be inserted the following paragraphs—

(aa) any expenses incurred by the Board in connection with the provision of criminal legal assistance by solicitors employed by it by virtue of section 28A of this Act; (ab) any sums payable by the Board under contracts made by virtue of section 33A of this Act;

; and

• (b) in subsection (3), after paragraph (a) there shall be inserted the following paragraphs—

(aa) any contribution payable to the Board by any person in pursuance of section 11 of this Act; (ab) any award of expenses made by a criminal court to a person to whom criminal legal assistance has been provided by a solicitor employed by the Board by virtue of section 28A of this Act;

.

• (3) In section 11 (clients’ contributions)—

• (a) in subsection (1), after the words “subsection (2)” there shall be inserted the words “ or (3) ”; and

• (b) after subsection (2) there shall be inserted the following subsections—

(3) Where a client to whom paragraphs (a) and (b) of subsection (2) above apply receives criminal legal assistance from a solicitor employed by the Board by virtue of section 28A of this Act, he shall pay to the Board such contribution in respect of that assistance as the Board may, subject to subsection (4) below, determine. (4) The amount determined by the Board under subsection (3) above shall not exceed the amount which could have been charged in respect of the assistance in question by a solicitor.

.

• (4) In section 12 (payment of fees or outlays otherwise than through clients’ contributions)—

• (a) at the end of subsection (2) there shall be inserted the words—

; but does not apply to the salary payable to a solicitor employed by the Board by virtue of section 28A of this Act.

; and

• (b) for the word “contribution”, where it appears in subsection (3)(a), there shall be substituted the word “ amount ”.

• (5) In section 21 (scope and nature of criminal legal aid), in subsection (1)(aa), for the word “discretionary” there shall be substituted the word “ designated ”.

• (6) In section 22 (automatic availability of legal aid), at the end of subsection (1) there shall be inserted the words—

and, in relation to paragraph (dc) above, “accused person” includes a person authorised to institute or continue an appeal under section 303A(4) of the Criminal Procedure (Scotland) Act 1995 (transfer of rights of appeal of deceased person).

.

• (7) After section 25 (legal aid in appeals) there shall be inserted the following section—

(25AA) (1) Subject to the provisions of this section, section 25 of this Act applies to any appeal, within the meaning of section 303A of the Criminal Procedure (Scotland) Act 1995 (transfer of rights of appeal of deceased person), instituted or continued by a person (an “authorised person”) authorised under subsection (4) of the said section 303A. (2) Where an authorised person is continuing an appeal which has been instituted by the deceased person, and criminal legal aid, within the meaning of section 25, has been awarded to the deceased person in connection with any proceedings, such legal aid shall continue to be made available to the authorised person in respect of those proceedings. (3) Where— (a) the deceased person had applied for criminal legal aid within the meaning of section 25, but the application had not been determined prior to his death; or (b) the deceased person had not applied for such legal aid, the authorised person shall be regarded as the applicant and, in a case to which paragraph (b) applies, may apply for such legal aid. (4) Notwithstanding subsection (3) above— (a) in section 25(2)(a) of this Act, where the authorised person is the executor of the deceased, any reference to— (i) the financial circumstances of the applicant shall be construed as a reference to the value of the deceased person’s estate; and (ii) the applicant’s dependants shall be construed as a reference to the beneficiaries of the deceased’s estate; and (b) any reference in section 25(2)(c) or (2A) of this Act to whether it is in the interests of justice that the applicant should receive legal aid shall be construed as a reference to whether it would have been in the interests of justice that the deceased should have received legal aid.

.

• (8) In section 31 (solicitors and counsel)—

• (a) in subsection (1), for the words from the beginning to “below” there shall be substituted the words “ Subject to subsection (1A) below, ”;

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

(1A) Subsection (1) above is subject to— (a) section 25A(3) of this Act; (b) section 30(2) of this Act; (c) regulations made under section 28A(6) of this Act; (d) regulations made under section 33A(4) of this Act; and (e) regulations made under subsection (9) below.

.

• (9) In section 33 (fees and outlays of counsel and solicitors), in subsection (1), at the beginning there shall be inserted the words “ Subject to subsections (3A) and (3B) below, ”.

• (10) In section 41 (interpretation)—

• (a) after the definition of “civil legal aid” there shall be inserted the following definition—

• “the code” means the code of practice in relation to criminal legal assistance for the time being in force under section 25B of this Act;

;

• (b) after the definition of “criminal legal aid” there shall be inserted the following definitions—

• “criminal legal assistance” means criminal legal aid and advice and assistance in relation to criminal matters;
• “document” includes information recorded in any form;
• “firm” includes an incorporated practice, a sole solicitor and a law centre;

;

• (c) after the definition of “incorporated practice” there shall be inserted the following definition—

• “law centre” means a body—
• established for the purpose of providing legal services to the public generally as well as to individual members of the public; and
• which does not distribute any profits made either to its members or otherwise, but reinvests any such profits for the purposes of the law centre;

and

• (d) after the definition of “person” there shall be inserted the following definitions—

• “the Register” means the Register established and maintained under section 25A of this Act;
• “registered firm” means a firm whose name appears on the Register;
• “registered solicitor” means a solicitor whose name appears on the Register;
• “sole solicitor” means a solicitor practising under his own name or as a single solicitor under a firm name; and
• “solicitor connected with a firm” includes a sole solicitor and a solicitor who is a partner, director or employee of a firm, and cognate expressions shall be construed accordingly.

.

The Prisons (Scotland) Act 1989 (c. 45)

13

• (1) The Prisons (Scotland) Act 1989 shall be amended in accordance with this paragraph.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) In section 27(5) (power of the Secretary of State to discharge prisoners not to affect duties of medical officer) (so far as that subsection continues to have effect by virtue of Schedule 6 to the Prisoners and Criminal Proceedings (Scotland) Act 1993 (existing provisions which continue to have effect in relation to prisoners sentenced before 1st October 1993)) for the word “the”, where it occurs for the second time, there shall be substituted the word “ any ”.

The Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9)

14

• (1) The Prisoners and Criminal Proceedings (Scotland) Act 1993 shall be amended in accordance with this paragraph.

• (2) In section 1 (release of prisoners)—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) in subsection (4), for the word “discretionary” there shall be substituted the word “ designated ”.

• (3) In section 2 (duty to release discretionary life prisoners)—

• (a) in subsection (2)—

• (i) for the words “subsection (1)(b)” there shall be substituted the words “ subsection (1) ”; and

• (ii) before the word “life”, in both places where it occurs, there shall be inserted the word “ designated ”;

• (b) in subsection (3), for the words “subsection (1)(a)” there shall be substituted the word “ subsection (1) ”;

• (c) for the word “relevant”, where it occurs in subsections (2), (8) and (9), there shall be substituted the word “ designated ”;

• (d) for the word “discretionary” where it occurs in subsections (4), (6), (8) and (9) there shall be substituted the word “ designated ”; and

• (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (8) In section 10 (life prisoners transferred to Scotland)—

• (a) for subsection (1) there shall be substituted the following subsection—

(1) In a case where a transferred life prisoner transferred from England and Wales (whether before or after the commencement of this enactment) is a life prisoner to whom section 28 of the Crime (Sentences) Act 1997 (duty to release certain life prisoners) applies, this Part of this Act except sections 1(4) and 2(9) shall apply as if— (a) the prisoner were a designated life prisoner within the meaning of section 2 of this Act; and (b) the designated part of his sentence within the meaning of that section were the relevant part specified in an order or direction made under the said section 28.

;

• (b) in subsection (3)(a), for the word “discretionary” there shall be substituted the word “ designated ”;

• (c) in subsection (3)(b), for the word “relevant” there shall be substituted the word “ designated ”;

• (d) in subsection (5)(a), for the word “discretionary” there shall be substituted the word “ designated ”; and

• (e) in subsection (5)(b), for the words “section 34 of the said Act of 1991” there shall be substituted the words “ the said section 28 of the Crime (Sentences) Act 1997 ”.

• (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (10) In section 12(3) (insertion, variation and cancellation of conditions in licences)—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) for the word “discretionary” there shall be substituted the word “ designated ”.

• (11) In section 14 (supervised release orders)—

• (a) in subsection (2)—

• (i) the words from the beginning to “209(1) of the 1995 Act” shall cease to have effect; and

• (ii) after the words “prison in Scotland” there shall be inserted the words “ under Schedule 1 to the Crime (Sentences) Act 1997 in an unrestricted transfer within the meaning of that Schedule ”; and

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (16) In section 27(1) (interpretation), in the definition of “supervised release order” the words “(as inserted by section 14 of this Act)” shall cease to have effect.

• (17) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (18) In Schedule 6 (transitional provisions and savings)—

• (a) for the word “relevant” in each place where it occurs in paragraph 6(2) and (3) and 6A(2) , there shall be substituted the word “ designated ”; and

• (b) for the word “discretionary” in each place where it occurs in paragraphs 6, 6A(2) and 7, there shall be substituted the word “ designated ”.

The Criminal Justice and Public Order Act 1994 (c. 33)

15

In section 110 of the Criminal Justice and Public Order Act 1994 (modifications of the Prisons (Scotland) Act 1989 in its application to contracted out prisons)—

• (a) in subsection (3) for the words “and 41B(3) (testing prisoners for drugs)” there shall be substituted the words “ , 41B(3) (testing prisoners for drugs) and 41C(3) (testing prisoners for alcohol) ”; and

• (b) in subsection (4) for the words “and 41B(1)(testing prisoners for drugs)” there shall be substituted the words “ , 41B(1) (testing prisoners for drugs) and 41C(1) (testing prisoners for alcohol) ”.

The Criminal Justice (Scotland) Act 1995 (c. 20)

16

Section 66 of the Criminal Justice (Scotland) Act 1995 shall cease to have effect.

The Children (Scotland) Act 1995 (c. 36)

17

In Schedule 4 to the Children (Scotland) Act 1995, paragraph 35(6) shall cease to have effect.

The Criminal Law (Consolidation)(Scotland) Act 1995 (c. 39)

18

• (1) The Criminal Law (Consolidation) (Scotland) Act 1995 shall be amended in accordance with this paragraph.

• (2) In section 5 (unlawful sexual intercourse with a girl under the age of 13 years)—

• (a) in subsection (1), at the beginning there shall be inserted the words “ Subject to section 205A of the Criminal Procedure (Scotland) Act 1995 (imprisonment for life on further conviction of certain offences), ”; and

• (b) in subsection (6) (definition of “like offence” for purposes of that section), for the words “section 10(1) of this Act” there shall be substituted the words “ section 9(1) of this Act ”.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) In section 19(3) (vehicles in relation to which certain offences relating to alcohol at sporting events may be committed), for the word “principle” there shall be substituted the word “ principal ”.

• (5) In section 21 (police powers in relation to control of alcohol etc. at sporting events), in paragraph (e), after sub-paragraph (ii) there shall be inserted the following sub-paragraph—

; or (iii) a controlled article or substance as defined in section 20(8) of this Act.

.

• (6) In section 23 (interpretation of Part II), after the definition of “keeper” there shall be inserted the following definition—

• “motor vehicle” means a mechanically propelled vehicle intended or adapted for use on roads;

.