Criminal Procedure (Scotland) Act 1975

453 Consent by prosecutor to set aside conviction. S

(1) Where an appeal has been taken under [F1 section 442(1)(a)(i) or (iii)] of this Act or by suspension or otherwise, and the prosecutor, on the appeal being intimated to him, is not prepared to maintain the judgment appealed against, he may by a minute signed by him and written on the complaint or lodged with the clerk of court consent to the conviction and sentence being set aside, either in whole or in part. Such minute shall set forth the grounds on which the prosecutor is of opinion that the judgment cannot be maintained.

(2) A copy of any minute under the foregoing subsection shall be sent by the prosecutor to the appellant [F2 or his solicitor], and the clerk of court shall thereupon ascertain from the appellant or his solicitor whether he desires to be heard by the High Court before the appeal is disposed of, and shall note on the record whether or not the appellant so desires, and shall thereafter transmit the complaint and relative proceedings to the Clerk of Justiciary.

(3) The Clerk of Justiciary on receipt of a complaint and relative proceedings under the last foregoing subsection shall lay them before any judge of the High Court, either in court or in chambers, and such judge, after hearing parties if they desire to be heard, or without hearing parties, may set aside the conviction either in whole or in part and award expenses to the appellant not exceeding [F3 £40], or may refuse to set aside the conviction, in which case the proceedings shall be returned to the clerk of the inferior court, and the appellant shall then be entitled to proceed with his appeal in the same way as if it had been marked on the date when the complaint and proceedings are returned to the clerk of the inferior court.

(4) Where proceedings are taken under this section, the preparation of the draft stated case shall be delayed pending the decision of the High Court.

(5) The power conferred by this section to consent to a conviction and sentence being set aside shall be exercisable—

(a) where the appeal is by stated case, at any time within [F4 2 weeks] after the receipt by the prosecutor of the draft stated case; and

(b) where the appeal is by suspension at any time within [F4 2 weeks] after the service on the prosecutor of the bill of suspension.

Textual Amendments

F1 Words substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 3 para. 12(a), Sch. 6 para. 7

F2 Words inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 3 para. 12(b), Sch. 6 para. 7

F3 Words substituted by S.I. 1984/526, art. 7

F4 Words substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 3 para. 12(c), Sch. 6 para. 7