The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (Commencement No. 3 and Savings) Order 2008

The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (“the 2007 Act”) received Royal Assent on 22nd February 2007.

Article 3 of this Order brings into force various sections of the 2007 Act on 10th March 2008. The sections coming into force on that date together with the relevant subject matter are listed in the Schedule to the Order.

Some provisions of the 2007 Act are commenced for a limited purpose or are commenced subject to exceptions. For example, section 55 is commenced subject to an exception: it does not apply to relevant penalties which are to be paid in any district courts. It is not competent, therefore, for a district court to grant an enforcement order, and Fines Enforcement Officers (“FEOs”) will not be able to exercise functions in respect of such penalties. FEOs will however be able to deal with penalties which are payable in newly established JP courts (and, of course, the sheriff courts, which also have functions in relation to the enforcement of fines imposed in the High Court of Justiciary). Orders to be made under part 4 (JP Courts and JPs) of the 2007 Act will eventually lead to the disestablishment of all district courts in Scotland and to the establishment of JP courts in their place.

Several sections of the Act and paragraphs of the schedule to the Act are commenced only in the Sheriffdom of Lothian and Borders. Commencement of these sections go hand-in-hand with the establishment of JP Courts (and the associated disestablishment of district courts) in that Sheriffdom. The Justice of the Peace Courts (Sheriffdom of Lothian and Borders) etc. Order 2008 (S.S.I. 2008/31) makes provision as to the establishment and disestablishment of those courts. Similar such Orders will be made in relation to the other five sheriffdoms to roll-out the establishment of JP courts across the country.

Article 4 of the Order makes savings in respect of the application of section 7 of the 2007 Act. Section 7 amends sections 21 (schedule 1 offences: power of constable to take offender into custody) and 22 (liberation by police) of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”). Those amendments bring about changes to the system which allows the police to release suspected offenders from custody on the undertaking that they will appear in court on a specified day. The effect of article 4 is that these amendments will not apply in respect of undertakings which have been entered into prior to 10th March 2008.

Article 5 of the Order makes savings in respect of the application of section 12 of the 2007 Act. Section 12(2) makes provision in relation to the disclosure of convictions in criminal proceedings by inserting two new sections into the 1995 Act: sections 166A (post-offence convictions) and 166B (charges which disclose convictions). Section 166B was commenced on 10th December 2007 (along with section 12(1) of the 2007 Act, which amends section 166 (previous convictions: summary proceedings) of the 1995 Act). Section 166A is commenced by this Order.

Section 166A provides that where a court is dealing with a conviction (“the first conviction”), it may take account of any conviction(s) acquired by the accused between the date of the offence which led to the first conviction and the date of the first conviction. The effect of the savings provision at article 5 is that section 166A will apply only where the offence which led to the first conviction was committed on or after 10th March 2008.

Article 6 makes savings in respect of the application of sections 50 (fixed penalty and compensation offers), 52 (setting aside of offers and orders), 53 (disclosure of previous offers) and 54 (time bar where offer made) of the 2007 Act. Those sections make provision in relation to the offering and imposition of alternatives to prosecution, also known as, direct measures. Section 302 (fixed penalty: conditional offer by procurator fiscal) of the 1995 Act is amended by this provision. The effect of article 6 is that offers made (under section 302 of the 1995 Act) prior to 10th March 2008 will continue to be administered in terms of the law as it stood at the time that the offer was made.