The Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (Commencement and Transitional Provisions) Order 2002

Explanatory Note

(This Note is not part of the Order)

This Order brings into force the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (“the Act”) on 1st November 2002. All provisions of the Act come into force on that date. Sections 1, 2, 6 to 8 and 10 and the schedule are subject to transitional and saving provisions.

Article 4 makes transitional and saving provisions. Article 4(1) provides that the provisions of the Act which deal with prohibition of personal conduct of the case by the accused and related matters (sections 1 and 2) only apply to sexual offence cases where the indictment or complaint is served on or after 1st November 2002. Article 4(2) clarifies that if an indictment or complaint is re-served after that date then the provisions of sections 1 and 2 will apply, but only in respect of any charges to which the second or further indictment or complaint relates.

Article 4(3) clarifies that the pre-trial provisions as set out in paragraphs 2 and 3 of the schedule to the Act will not apply in specified circumstances to cases where the indictment or complaint is served on or after 1st November 2002. The relevant pre-trial provisions are (a) the requirement for an accused to be told on arrest that his defence must be conducted by a lawyer; and (b) the requirement for a similar notice at judicial examination. These pre-trial provisions will not apply in cases where the indictment is served on or after 1st November 2002 but the arrest or judicial examination, as the case may be, has already occurred.

Article 4(4) provides a transitional provision to ensure that there is sufficient time for the new notices required by section 6 to be served in cases coming to trial soon after 1st November 2002. An accused will not have to give notice of the defence of consent if on 1st November 2002 the trial diet has already commenced or is due to commence within 14 days. However if such a trial is subsequently adjourned for at least 14 days then the accused is required to give this notice.

Article 4(5) provides a transitional provision to ensure that there is sufficient time for the new applications to lead sexual history evidence required by sections 8 and 10 of the Act to be made in cases coming to trial soon after 1st November 2002. The provisions will not apply to cases where, on 1st November 2002, the trial diet has already commenced or is due to commence within 21 days. However if such a trial is subsequently adjourned for at least 21 days then these provisions will apply.