The Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No. 8, Transitional and Savings Provisions) Order 2011

Citation and interpretation

1.—(1) This Order may be cited as the Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No. 8, Transitional and Savings Provisions) Order 2011.

(2) In this Order—

“the Act” means the Criminal Justice and Licensing (Scotland) Act 2010;

“the 1982 Act” means the Civic Government (Scotland) Act 1982(1);

“the 1995 Act” means the Criminal Procedure (Scotland) Act 1995(2);

“the 2003 Act” means the Sexual Offences Act 2003(3);

“the 2005 Act” means the Licensing (Scotland) Act 2005(4);

“earlier proceedings” means—

(a)

the proceedings to which the appellate proceedings relate; and

(b)

in respect of which the first appearance of the accused or, as the case may be, the recording of a plea of not guilty against an accused charged on summary complaint is on or after 6th June 2011;

“the first appearance of the accused” means where in a prosecution under solemn procedure—

(a)

an accused appears for the first time on petition; or

(b)

an accused appears for the first time on indictment (not having appeared on petition in relation to the same matter).

(3) For the purposes of this Order, where an offence is found to have been committed over a period of 2 or more days, or at some time during a period of 2 or more days, it is to be taken to have been committed on the first of those days.

Commencement of provisions

2.—(1) The provisions of the Act specified in column 1 of the Schedule (the subject matter of which is specified in column 2 of the Schedule) come into force on the corresponding date specified in column 3 of the Schedule.

(2) Those provisions come into force for all purposes, unless otherwise specified in articles 3 to 10 or column 4 of the Schedule.

Purposes – sections 141 (application for section 145 order) to 149 (application for non-attendance order)

3.  Sections 141 to 149 of the Act are commenced for all purposes in respect of—

(a) criminal proceedings in which—

(i) the first appearance of the accused; or

(ii) the recording of a plea of not guilty against an accused charged on summary complaint;

is on or after 6th June 2011;

(b) appellate proceedings arising out of such criminal proceedings.

Section 77 (retention of samples etc.)

4.—(1) The amendments made to section 18A of the 1995 Act by—

(a) sub-sections (1), (3)(a) to (c), (e), (f)(i) and (g) of section 77 of the Act, insofar as they relate to relevant physical data, only have effect in relation to such relevant physical data taken from or provided by a person under section 18(2) of the 1995 Act in connection with an offence committed on or after 28th March 2011; and

(b) sub-sections (1), (3)(f)(ii) and (g) of section 77 of the Act, insofar as they relate to any sample or information deriving from a sample taken from a person under section 18(6) or (6A) of the 1995 Act, only have effect where—

(i) that sample or information deriving from that sample was taken in connection with an offence committed on or after 28th March 2011; and

(ii) criminal proceedings are instituted against that person for a relevant sexual offence in section 19A(6)(g) of the 1995 Act, as modified by section 18A(12) of the 1995 Act, on or after 28th March 2011.

(2) Notwithstanding the amendment made to section 18A(1) of the 1995 Act by section 77(3)(a) of the Act, section 18A continues to apply to any sample or information derived from a sample taken from a person under section 18(6) or (6A) of the 1995 Act in connection with an offence committed before 28th March 2011.

Section 78 (retention of samples etc. where offer under sections 302 to 303ZA of 1995 Act accepted)

5.  Sections 18B and 18C of the 1995 Act, as inserted by section 78 of the Act, only have effect in respect of—

(a) relevant physical data taken from or provided by a person under section 18(2) of the 1995 Act; or

(b) any sample, or any information derived from a sample, taken from a person under section 18(6) or (6A) of the 1995 Act,

in connection with an offence committed on or after 28th March 2011.

Section 79 (retention of samples etc. taken or provided in connection with certain fixed penalty offences)

6.—(1) Section 18D of the 1995 Act, as inserted by section 79 of the Act, only has effect in respect of—

(a) relevant physical data taken from or provided by a person under section 18(2) of the 1995 Act; or

(b) any sample, or any information derived from a sample, taken from a person under section 18(6) or (6A) of the 1995 Act,

in connection with a fixed penalty offence that was committed on or after 28th March 2011.

(2) For the purpose of this article, “fixed penalty offence” has the meaning given by section 128(1) of the Antisocial Behaviour (Scotland) Act 2004(5).

Section 80 (retention of samples etc. from children referred to children’s hearings)

7.  Sections 18E and 18F of the 1995 Act, as inserted by section 80 of the Act, only have effect in respect of—

(a) relevant physical data taken from or provided by a child under section 18(2) of the 1995 Act; or

(b) any sample, or any information derived from a sample, taken from a child under section 18(6) or (6A) of the 1995 Act,

in connection with an offence committed on or after 15th April 2011.

Section 81 (extension of section 19A of 1995 Act)

8.—(1) The amendment to section 19A of the 1995 Act made by section 81(a) of the Act only has application in respect of section 18A of the 1995 Act—

(a) where—

(i) relevant physical data taken from or provided by a person under section 18(2) of the 1995 Act; or

(ii) any sample, or information deriving from a sample, taken from that person under section 18(6) or (6A) of the 1995 Act,

was taken or provided in connection with an offence committed on or after 28th March 2011; and

(b) criminal proceedings in respect of a relevant sexual offence specified in section 19A(6)(g) of the 1995 Act, as modified by section 18A(12) of the 1995 Act, are instituted against that person on or after 28th March 2011.

(2) The amendment to section 19A of the 1995 Act made by section 81(b) of the Act only has application in respect of section 18A of the 1995 Act—

(a) where—

(i) relevant physical data taken or provided by that person under section 18(2) of the 1995 Act; or

(ii) any sample, or information deriving from a sample, taken from that person under section 18(6) or (6A) of the 1995 Act,

was taken or provided in connection with an offence committed on or after 28th March 2011; and

(b) criminal proceedings in respect of a relevant violent offence specified in section 19A(6)(h)(v) of the 1995 Act are instituted against that person on or after 28th March 2011.

Section 82 (use of samples etc.)

9.—(1) Section 19C(1) of the 1995 Act, as inserted by section 82(1) of the Act, applies to relevant physical data, samples and information derived from samples whenever taken or provided.

(2) The amendments to section 56 of the Criminal Justice (Scotland) Act 2003(6) made by section 82(2) of the Act apply in relation to relevant physical data, samples or information derived from samples whenever taken or provided under that section.

Section 177 (licensing of late night catering)

10.—(1) A person who on or after 1st October 2012 carries on the activity designated by section 42(1) of the 1982 Act without a late hours catering licence shall not be guilty of an offence under section 7(1) of the 1982 Act if—

(a) that person made an application to the licensing authority before that date for the grant of the late hours catering licence in respect of the activity being carried on by the person; and

(b) that application has not yet been finally determined.

(2) For the purposes of paragraph (1)(b), an application is finally determined—

(a) when it is withdrawn by the applicant;

(b) when it is granted by the licensing authority;

(c) when it is refused by the licensing authority and the period of 28 days specified in paragraph 18(4) of Schedule 1 to the 1982 Act expires without an appeal against the refusal being made to the sheriff; or

(d) in a case where an appeal is made against a refusal by the licensing authority, when that appeal is disposed of.

(3) For the purposes of paragraph (2)(d), an appeal is disposed of—

(a) when it is abandoned by the appellant; or

(b) when a decision on it is made by the sheriff or a higher court expires without such a subsequent appeal being made.

KENNY MACASKILL

A member of the Scottish Executive

St Andrew’s House,

Edinburgh

7th March 2011