Criminal Justice (Scotland) Act 1980

11 For section 452 (hearing of appeal), there shall be substituted the following sections—

“452 Hearing of appeal.

“452 (1) A stated case under this Part of this Act shall be heard by the High Court on such date as it may fix.

(2) For the avoidance of doubt, where an appellant, in his application under section 444(1) of this Act (or in a duly made amendment or addition to that application), refers to an alleged miscarriage of justice, but in stating a case under section 448(2D) of this Act the inferior court is unable to take the allegation into account, the High Court may nevertheless have regard to the allegation at a hearing under subsection (1) above.

(3) Except by leave of the High Court on cause shown, it shall not be competent for an appellant to found any aspect of his appeal on a matter not contained in his application under section 444(1) of this Act (or in a duly made amendment or addition to that application).

(4) Without prejudice to any existing power of the High Court, that court may in hearing a stated case—

(a) order the production of any document or other thing connected with the proceedings ;

(b) hear any additional evidence relevant to any alleged miscarriage of justice or order such evidence to be heard by a judge of the High Court or by such other person as it may appoint for that purpose ;

(c) take account of any circumstances relevant to the case which were not before the trial judge ;

(d) remit to any fit person to enquire and report in regard to any matter or circumstance affecting the appeal ;

(e) appoint a person with expert knowledge to act as assessor to the High Court in any case where it appears to the court that such expert know ledge is required for the proper determination of the case ;

(f) take account of any matter proposed in any adjustment rejected by the trial judge and of the reasons for such rejection ;

(g) take account of any evidence contained in a note of evidence such as is mentioned in section 448(2D) of this Act.

(5) The High Court may at the hearing remit the stated case back to the inferior court to be amended and returned.

452A Disposal of stated case appeal.

452A (1) The High Court may, subject to section 453D(1) of this Act, dispose of a stated case by—

(a) remitting the cause to the inferior court with their opinion and any direction thereon ;

(b) affirming the verdict of the inferior court ;

(c) setting aside the verdict of the inferior court and either quashing the conviction or substituting therefor an amended verdict of guilty :

Provided that an amended verdict of guilty must be one which could have been returned on the complaint before the inferior court , or

(d) setting aside the verdict of the inferior court and grainting authority to bring a new prosecution in accordance with section 452B of this Act.

(2) In an appeal against both conviction and sentence the High Court shall, subject to section 453D(1) of this Act, dispose of the appeal against sentence by exercise of the power mentioned in section 453C(1) of this Act.

(3) In setting aside, under subsection (1) above, a verdict the High Court may quash any sentence imposed on the appellant as respects the complaint, and—

(a) in a case where it substitutes an amended verdict of guilty, whether or not the sentence related to the verdict set aside , or

(b) in any other case, where the sentence did not so relate,

may pass another (but not more severe) sentence in substitution for the sentence so quashed.

(4) Where an appeal against acquittal is sustained, the High Court may—

(a) convict and sentence the respondent ;

(b) remit the case to the inferior court with instructions to convict and sentence the respondent, who shall be bound to attend any diet fixed by the inferior court for such purpose; or

(c) remit the case to the inferior court with their opinion thereon :

Provided that the High Court shall not in any case increase the sentence beyond the maximum sentence which could have been passed by the inferior court.

(5) The High Court shall have power in an appeal under this Part of this Act to award such expenses both in the High Court and in the inferior court as it may think fit.

(6) Where, following an appeal (other than an appeal under section 442(1)(a)(ii) or 442(1)(b) of this Act), the appellant remains liable to imprisonment or detention under the sentence of the inferior court, or is so liable under a sentence passed in the appeal proceedings the High Court shall have power where at the time of disposal of the appeal the appellant—

(a) was at liberty on bail, to grant warrant to apprehend and imprison (or detain) the appellant for a term, to run from the date of such apprehension, not longer than that part of the term or terms of imprisonment (or detention) specified in the sentence brought under review which remained unexpired at the date of liberation ;

(b) is serving a term or terms of imprisonment (or detention) imposed in relation to a conviction subsequent to the conviction appealed against, to exercise the like powers in regard to him as may be exercised, in relation to an appeal which has been abandoned, by a court of summary jurisdiction in pursuance of section 446(5) of this Act.

452B Supplementary provisions where High Court authorises new prosecution.

452B (1) Where authority is granted under section 452A(1)(d) of this Act, a new prosecution may be brought charging the accused with the same or any similar offence arising out of the same facts ; and the proceedings out of which the stated case arose shall not be a bar to such prosecution :

Provided that no sentence may be passed on conviction under the new prosecution which could not have been passed on conviction under the earlier proceedings.

(2) A new prosecution may be brought under this section, notwithstanding that any time limit (other than the time limit mentioned in subsection (3) below) for the commencement of such proceedings has elapsed.

(3) Proceedings in a prosecution under this section shall be commenced within two months of the date on which authority to bring the prosecution was granted ; and for the purposes of this subsection proceedings shall, in a case where such warrant is executed without unreasonable delay, be deemed to be commenced on the date on which a warrant to apprehend or to cite the accused is granted, and shall in any other case be deemed to be commenced on the date on which the warrant is executed.

(4) Where the two months mentioned in subsection (3) above elapse and no new prosecution has been brought under this section, the order under section 452A(1)(d) of this Act setting aside the verdict shall ha-,ie the effect, for all purposes, of an acquittal.”.