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Criminal Justice (Scotland) Act 1949

1949 CHAPTER 94 12 13 and 14 Geo 6

An Act to amend the law of Scotland relating to the probation of offenders, and the powers of courts under the Children and Young Persons (Scotland) Act 1937; to abolish certain punishments and obsolete sanctions, and otherwise to reform existing methods and provide new methods of dealing with offenders; to alter the law relating to the proceedings of criminal courts in Scotland; to amend the False Oaths (Scotland) Act 1933; to regulate the management of prisons and other institutions in Scotland and the treatment of offenders and other persons committed to custody; to make certain consequential amendments to the Criminal Justice Act 1948; and for purposes connected with the aforesaid matters.

[16th December 1949]

Part IS Powers and Proceedings of Courts

1—20. F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

21 F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

22—41. F3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

42 Amendment of False Oaths (Scotland) Act, 1933.S

(1)Section two of the M1False Oaths (Scotland) Act 1933 (which penalises certain false statements) shall apply in like manner as it applies to the statements therein mentioned to any oral statement made for the purpose of any entry in a register kept in pursuance of any Act of Parliament.

(2)Any proceedings under [F4Part II of the M2Criminal Procedure (Scotland) Act 1975]for an offence against the M3False Oaths (Scotland) Act 1933 may, notwithstanding anything in the first mentioned Act, be commenced at any time within one year from the date of the commission of the offence, or within three months from the date when evidence sufficient in the opinion of the Lord Advocate to justify the proceedings comes to his knowledge whichever period last expires; and for the purposes of this subsection a certificate purporting to be signed by or on behalf of the Lord Advocate as to the date on which such evidence as aforesaid came to his knowledge shall be conclusive evidence thereof.

43—49. F5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

Part IIS Administrative Provisions and Provisions as to Treatment of Prisoners, etc.

50, 51. F6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

52 F7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

53—62. F8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

63—65. F9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

MiscellaneousS

66 F10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

Textual Amendments

67 F11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

68 Commutation of death sentence to sentence of imprisonment.S

Where His Majesty pardons any person who has been sentenced to death on condition that he serves a term of imprisonment, that person shall be deemed to have been sentenced by the court before which he was convicted to imprisonment for the said term.

69, 70. F12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

Part IIIS Supplemental

71—73. F13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

74 Rules and orders.S

(1)Any power of the Secretary of State to make rules under this Act shall be exercised by statutory instrument.

(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F14

(3)Any power to make Orders in Council under this Act, and any power of the Secretary of State to make orders under this Act, shall include power to revoke or vary any such Order in Council or order by a subsequent Order in Council or order.

75 Expenses and grants payable out of moneys provided by Parliament.S

(1)Any expenses of the Secretary of State under this Act and any expenses incurred by the Secretary of State—

(a) . . . F15

(b)in the conduct of research into the causes of delinquency and the treatment of offenders, and matters connected therewith,

shall, to such amount as may be sanctioned by the Treasury, be defrayed out of moneys provided by Parliament.

(2) . . . F16 any sums by which grants payable in pursuance of regulations made under subsection (1) of section sixty–six of the M4National Health Service (Scotland) Act 1947 are increased by reason of any provision of this Act, shall be defrayed out of moneys provided by Parliament.

(3)There shall be paid out of moneys provided by Parliament—

(a)—(d) . . . F17

(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F18

(f)towards the expenditure of any body or person approved by the Secretary of State in the conduct of research into the causes of delinquency and the treatment of offenders, and matters connected therewith,

such sums as the Secretary of State may with the approval of the Treasury direct, and subject to such conditions as he may with the like approval determine:

(4)—(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F19

(7)Any increase attributable to this Act in the sums payable out of moneys provided by Parliament under Part II of the M5Local Government Act 1948 shall be defrayed out of moneys so provided.

(8)All sums received by the Secretary of State under this Act (including any sums so received under arrangements made with respect to the cost of removing and maintaining persons removed from the Isle of Man or Channel Islands to institutions in Scotland under section sixty–two of this Act) shall be paid into the Exchequer.

76 Transitory provisions.S

Without prejudice to the provisions of the M6Interpretation Act 1889 with respect to repeals, the transitory provisions set out in the Tenth Schedule to this Act shall have effect for the purposes of the transition to the provisions of this Act from the law in force before the commencement of this Act.

Marginal Citations

77 Consequential and minor amendments. S

The enactments mentioned in the first column of the Eleventh Schedule to this Act shall have effect subject to the amendments specified in the second column of that Schedule (being amendments consequential upon the foregoing provisions of this Act or relating to matters of minor detail).

Modifications etc. (not altering text)

C2The text of s. 77 is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any amendments or repeals which may have been made prior to 1.2.1991.

78 Interpretation.S

(1)In this Act, unless the context otherwise requires, the following expressions have the meaning hereby respectively assigned to them, that is to say—

(2)Any reference in this Act to a previous sentence of imprisonment shall be construed as including a reference to a previous sentence of penal servitude; any such reference to a previous sentence of Borstal training shall be construed as including a reference to a previous sentence of detention in a Borstal institution; and any such reference to a previous conviction or sentence shall be construed as a reference to a previous conviction by a court in any part of Great Britain and to a previous sentence passed by any such court.

(3)Where the age of any person at any time is material for the purposes of any provision of this Act, or of any Order in Council made thereunder, regulating the powers of a court, his age at the material time shall be deemed to be or to have been that which appears to the court after considering any available evidence to be or to have been his age at that time.

(4)References in this Act to an offence punishable with imprisonment shall be construed, in relation to any offender, without regard to any prohibition or restriction imposed by or under [F24any enactment including]this Act upon the imprisonment of offenders of his age.

(5)For the purposes of this Act, except subsection (8) of section two thereof, where a probation order has been made on appeal, the order shall be deemed to have been made by the court from which the appeal was brought.

(6)References in this Act to any enactment shall, unless the context otherwise requires, be construed as references to that enactment as amended by any subsequent enactment including this Act.

(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F25

79 Short title, commencement, extent and repeals.S

(1)This Act may be cited as the Criminal Justice (Scotland) Act 1949 and, save as otherwise expressly provided, shall extend to Scotland only.

(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F26

(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F27

F28F28FIRST SCHEDULES

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F29F29SECOND SCHEDULES

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F30F30THIRD SCHEDULES

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F31F31FORTH TO SIXTH SCHEDULESS

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Section 39.

SEVENTH SCHEDULES Forms of Notices to Accused in Criminal Proceedings

Proceedings on Indictment

Form No. 1.

Notice of Previous ConvictionsS

A.B. Take notice that in the event of your being convicted of the charge ofin the indictment to which this notice is attached, it is intended to place before the Court the undernoted previous convictions applying to you . . . F32.

Textual Amendments

Date.Place of trial.Court.Offence.Sentence.

(Date) C.D.

. . .

F33F33EIGHTH AND NINTH SCHEDULESS

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

Textual Amendments

Section 76.

TENTH SCHEDULES Transitory Provisions

1Where in any proceedings commenced before the date of the commencement of this Act no sentence, probation order, order discharging the offender absolutely or other order finally disposing of the case has been passed or made, the court shall have power to pass or make any sentence or order which it could have passed or made if the proceedings had been commenced after the said date.

2(1)Any person who immediately before the commencement of this Act was undergoing or liable to undergo a term of penal servitude under a sentence passed by a court in any part of Great Britain or as a condition of a pardon granted by His Majesty for an offence for which he was sentenced to death, or in consequence of the forfeiture or revocation of a licence granted in any part of Great Britain under the Penal Servitude Acts 1853 to 1891 shall, if he is or ought to be in custody in Scotland at the commencement of this Act, be treated thereafter as if he had been sentenced to, or were undergoing or liable to undergo, imprisonment and not penal servitude for that term.

(2)Where any person who having been sentenced to penal servitude for life, or while undergoing penal servitude for life as a condition of a pardon granted as aforesaid, is at the commencement of this Act the holder of a licence granted under the Penal Servitude Acts 1853 to 1891, which has not been forfeited or revoked, he shall be deemed to have been released on licence under section fifty–seven of this Act.

(3)In the case of a person who is deemed by virtue of the last foregoing sub–paragraph to have been released on licence under section fifty–seven of this Act, the Secretary of State may, without recalling him to prison, substitute for the licence granted under the Penal Servitude Acts 1853 to 1891, a licence under the said section fifty–seven.

(4)Where any person who having been sentenced to penal servitude for a term less than life is at the commencement of this Act the holder of a licence granted as aforesaid under the Penal Servitude Acts 1853 to 1891, which has not been forfeited or revoked, he shall be treated as if his sentence had expired.

3Any person who has been sentenced to imprisonment with hard labour for a term which has not expired at the commencement of this Act shall, for the remainder of that term, be treated as though he had been sentenced to imprisonment without hard labour; but nothing in this paragraph shall affect any disability or disqualification attaching to him by virtue of his sentence.

4(1)Any person who is at the commencement of this Act detained in custody under a sentence of preventive detention shall for the remainder of the period for which he was sentenced to preventive detention be treated as if he had been sentenced to preventive detention under this Act; and the provisions of this Act relating to preventive detention shall apply to him accordingly.

(2)Where a person having been sentenced to a term of preventive detention is at the commencement of this Act absent from prison by virtue of a licence granted under section fourteen of the M8Prevention of Crime Act 1908 the provisions of Part II of that Act shall continue to apply to him; but if before the expiration of the term his licence is revoked or forfeited the said provisions shall cease to apply, and he shall for the remainder of the term be treated as if he had been sentenced to preventive detention under this Act; and the provisions of this Act relating to preventive detention shall apply to him accordingly.

(3)Where a person has been sentenced to penal servitude for a term which has not expired at the commencement of this Act, and is liable to undergo a period of preventive detention on the determination of the sentence of penal servitude, there shall be substituted for the sentence of preventive detention a sentence of preventive detention under this Act for a like period; and the provisions of this Act relating to preventive detention shall apply to that person accordingly.

Marginal Citations

5(1)Any person who, having been sentenced to detention in a Borstal institution, is or ought to be immediately before the commencement of this Act detained in Scotland in a Borstal institution, or in a prison awaiting removal to such an institution, or then holds a licence in force under section five of the Prevention of Crime Act 1908, or is under the supervision of the Secretary of State under section six of that Act, shall be deemed to have been sentenced to Borstal training under this Act, or to be under supervision under the Fourth Schedule to this Act; and in its application to him the said Fourth Schedule shall have effect as if for the references therein to three years there were substituted references to the term of the sentence of detention in a Borstal institution.

(2)Any person to whom Part I of the M9Prevention of Crime Act 1908 applied immediately before the commencement of this Act by reason of his transfer from a prison to a Borstal institution under section three of that Act shall be treated as if he were transferred under the provisions of this Act on the date of the commencement of this Act.

Marginal Citations

6(1)Where at the commencement of this Act a person is subject to the supervision of the police pursuant to the direction of a court in Scotland given under section eight of the M10Prevention of Crimes Act 1871 the period for which he is under supervision shall expire at the end of twelve months from the commencement of this Act unless it shall have expired sooner.

(2)Any period of supervision as aforesaid exceeding twelve months which has not begun before the commencement of this Act shall by virtue of this Act be reduced to twelve months.

(3)The Secretary of State may substitute for any such direction, the period of supervision under which has not expired at the commencement of this Act, an order that the person subject to supervision under the direction shall, during the remainder of the period for which he would be liable to such supervision, be subject to the provisions of section twenty–two of this Act.

Marginal Citations

7(1)Any probation order made under the M11Probation of Offenders Act 1907 by virtue of which a person is under supervision at the commencement of this Act shall be deemed to have been made under this Act:

Provided that where any requirement as to residence in such an order has been in operation for more than six months the probation officer shall apply to the court for a review of the requirement for the purpose of considering whether the requirement should be cancelled or the period thereof reduced, and where the requirement has been in operation for more than twelve months the probation officer shall report the case to the court with a view to an order terminating the requirement.

(2)Any order made by the Secretary of State under paragraph (ii) of subsection (1) of section two of the M12Probation of Offenders (Scotland) Act 1931 for the combination or division of areas shall have effect as if made under the Third Schedule to this Act.

(3)The members of a probation committee appointed for any area in accordance with rules under section three of the aforesaid Act of 1931 holding office at the commencement of this Act shall, pending an appointment of a committee under paragraph 2 of the Third Schedule to this Act be deemed to be the probation committee for that area under this Act and the salaried probation officers appointed under the said Act for any area and holding office at the commencement of this Act shall be deemed to have been appointed under paragraph 3 of the said Schedule.

Marginal Citations

8For the purposes of this Act—

(a)prison rules made under any enactment repealed by this Act and regulations made under section four of the M13Prevention of Crime Act 1908 shall be deemed to have been made under section fifty–three of this Act; and

(b)rules made under the M14Probation of Offenders Act 1907 or the M15Probation of Offenders (Scotland) Act 1931 shall be deemed to have been made under paragraph 7 of the Third Schedule to this Act.

9In relation to any person who—

(a)having been sentenced to a term of preventive detention is at the commencement of this Act absent from prison by virtue of a licence granted under section fourteen of the M16Prevention of Crime Act 1908; or

(b)is at the commencement of this Act subject to the supervision of the police pursuant to the direction of any court under section eight of the M17Prevention of Crimes Act 1871,

the provisions of section twenty–one of the M18Firearms Act 1937 shall have effect as originally enacted and not as amended by this Act.

Section 77.

ELEVENTH SCHEDULES Consequential And Minor Amendments.

Modifications etc. (not altering text)

C3The text of Sch. 11 is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and, except as specified, does not reflect any amendments or repeals which may have been made prior to 1.2.1991.

Act to be Amended.Amendment.
. . . F34 . . . F34
. . . F35 . . . F35
. . . F36 . . . F36
. . . F37 . . . F37
. . . F36 . . . F36
. . . F38 . . . F38
The Children and Young Persons (Scotland) Act, 1937. 1 Edw. 8 & 1 Geo. 6. c. 37. . . . F35
In section sixty-two, in paragraph (a) of the proviso the words “undergoing detention in a Borstal Institution or was” shall cease to have effect and at the end of the proviso there shall be added the following paragraph—

“(c) in the case of a person who was undergoing detention in a Borstal institution, than the end of the period for which he would have been liable to be detained therein.”

. . . F35
. . . F39 . . . F39
. . . F40 . . . F40
The Criminal Justice Act, 1948. 11 & 12 Geo. 6. c. 58. . . . F41
. . . F42
. . . F43
In the Eighth Schedule, after sub-paragraph (2) of paragraph I, there shall be inserted the following sub-paragraph—

“(2a) In the case of a person who is deemed by virtue of the last foregoing sub-paragraph to have been released on licence under section fifty-seven of this Act, the Secretary of State may, without recalling him to prison, substitute for the licence granted under the Penal Servitude Acts, 1853 to 1891, a licence under the said section fifty-seven.”

Textual Amendments

F34Entry relating to Prisons (Scotland) Act 1877 repealed by Prisons (Scotland) Act 1952 (c. 61), s. 43(2), Sch. 4

F35Entries relating to Criminal Procedure (Scotland) Act 1887 and Children and Young Persons (Scotland) Act 1937 (other than s. 62 thereof) repealed by Criminal Procedure (Scotland) Act 1975 (c. 21), s. 461(2), Sch. 10 Pt. I

F36By Summary Juristiction Scotland Act 1954 (c. 48), s. 78(1), Sch. 4, it is provided that entries relating to Summary Jurisdiction (Scotland) Act 1908 or Criminal Justice Administration Act 1914 are repealed.

F37Entry relating to Mental Deficiency and Lunacy (Scotland) Act 1913 repealed by Mental Health (Scotland) Act 1960, (c. 61), s. 113(2), Sch. 5

F38Entry relating to Firearms Act 1937 repealed by Firearms Act 1968 (c. 27), s. 59(1), Sch. 7

F39Entry relating to National Service Act 1947 repealed by Statute Law (Repeals) Act 1977 (c. 18), s. 1(1), Sch. 1 Pt. IV

F40Entry relating to Police Pensions Act 1948 repealed by Police Pensions Act 1976 (c. 35), s. 13(2), Sch. 3

F41Entry relating to s. 9 Criminal Justice Act 1948 repealed by Powers of Criminal Court Act 1973 (c. 62), s. 56(2), Sch. 6

F42Entry relating to s. 23 Criminal Justice Act 1948 repealed by Criminal Justice Act 1967 (c. 80), ss. 103(2), 106(2), Sch. 7 Pts. I, II

F43Entry relating to ss. 52, 57, 61, 65, of the Criminal Justice Act 1948 repealed by Prison Act 1952 (c. 52), ss. 54(2), 55(3), Sch. 4, Pt. II

F44F44TWELFTH SCHEDULES

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