2017 No. 345 (C. 25)

Criminal Procedure

The Criminal Justice (Scotland) Act 2016 (Commencement No. 5, Transitional and Saving Provisions) Order 2017

Made

Laid before the Scottish Parliament

Coming into force

The Scottish Ministers make the following Order in exercise of the powers conferred by section 117(2) and (3) of the Criminal Justice (Scotland) Act 20161 and all other powers enabling them to do so.

Citation and commencement1

This Order may be cited as the Criminal Justice (Scotland) Act 2016 (Commencement No. 5, Transitional and Saving Provisions) Order 2017 and comes into force on 25th January 2018.

Interpretation2

1

In this Order—

  • “constable” means—

    1. a

      a constable within the meaning given by section 62 of the 2016 Act; and

    2. b

      a member of the staff of the Police Investigations and Review Commissioner designated under paragraph 7B of schedule 4 of the Police, Public Order and Criminal Justice (Scotland) Act 20062—

      1. i

        to take charge of any investigation on behalf of the Commissioner; or

      2. ii

        to assist a member of the Commissioner’s staff designated to take charge of such an investigation.

  • “detained” means detained under section 14 of the 1995 Act, and “detention” is to be construed accordingly;

  • “the 1995 Act” means the Criminal Procedure (Scotland) Act 19953;

  • “the 2016 Act” means the Criminal Justice (Scotland) Act 2016;

  • “the appointed day” means the day appointed by article 3.

2

For the purposes of this Order, a person is in police custody from the time the person is arrested or detained by a constable until any one of the events mentioned in paragraph (3) occurs.

3

The events are—

a

the person is released from custody;

b

the person is brought before a court in accordance with any enactment or rule of law or the terms of any warrant;

c

the Principal Reporter makes a direction under section 65(2)(b) of the Children’s Hearings (Scotland) Act 20114 that the person continue to be kept in a place of safety.

Appointed day3

25th January 2018 is the day appointed for the coming into force of the provisions of the 2016 Act specified in column 1 of the table in the schedule (the subject matter of which is described in the corresponding entry in column 2).

Persons arrested or detained before appointed day- transitional and saving provisions4

1

This article applies in relation to a person who is arrested or detained by a constable before the appointed day, and remains in police custody at the beginning of the appointed day following that arrest or detention.

2

Sections 3 to 34, 38 to 41, 43, 44 and 55 of the 2016 Act do not apply in relation to any matter arising from that arrest or detention.

3

Despite the coming into force of schedule 2 paragraphs 4, 27, 28, 31, 35, 36, 37, 39 and 40 of the 2016 Act in accordance with article 3, the following provisions continue to have effect on and after the appointed day as they did immediately before that day in relation to any matter arising from that arrest or detention:—

a

section 4 of the Trespass (Scotland) Act 18655;

b

section 8A(2)(a) of the Legal Aid (Scotland) Act 19866;

c

section 6D(2A) of the Road Traffic Act 19887;

d

sections 14 to 15A, 17, 17A, 18, 18B, 18D, 19AA, 22, 22ZA, 22ZB, 42(3), (7) and (8), 43 and 135(3) of the 1995 Act8;

e

schedule 8 paragraphs 18, 20(1) and 27 of the Terrorism Act 20009;

f

sections 65, 66, 68, 69 and 72 of the Children’s Hearings (Scotland) Act 201110.

4

Despite the coming into force of section 54 of the 2016 Act in accordance with article 3, the power of a constable at common law to arrest a person to whom this article applies in respect of an offence while the person remains in police custody following the arrest or detention referred to in paragraph (1) continues to have effect on and after the appointed day.

5

But the power referred to in paragraph (4) continues to have effect only for the purpose of immediately charging the person with an offence.

Undertakings- saving provision5

1

This article applies where a person is liberated on a written undertaking under section 22 or 43(1) of the 1995 Act before the appointed day.

2

Sections 22(1F) and (1G), 22ZA and 22ZB of that Act or (as the case may be) section 43(6) and (7) of that Act continue to have effect in relation to that undertaking on and after the appointed day as they did immediately before that day.

Arrest under section 1 following detention- transitional provision6

1

This article applies where a person arrested under section 1 of the 2016 Act has previously—

a

been detained in relation to the same offence as that in respect of which the person is arrested, or in relation to an offence arising from the same circumstances as that offence; and

b

left police custody following that detention.

2

No authorisation for keeping the person in custody may be given under section 7 of that Act.

Voluntary interviews- transitional and saving provision7

Where a person attends at a police station or other place voluntarily for the purpose of being interviewed by a constable, and that interview begins before the appointed day—

a

section 31(1), (2)(a) to (c) and (4) and section 32 of the 2016 Act do not apply in respect of that interview;

b

section 15A of the 1995 Act continues to have effect in relation to that interview after the beginning of the appointed day as it did immediately before that day.

Post-charge questioning- transitional provision8

1

Despite the coming into force of sections 35 to 37 of the 2016 Act in accordance with article 3, the court may not authorise questioning under section 35(1) of a person in respect of an offence where paragraph (2) or (3) applies.

2

This paragraph applies where the person was officially accused of the offence before the appointed day.

3

This paragraph applies where—

a

the person was arrested or detained in respect of the offence before the appointed day and remained in police custody at the beginning of the appointed day following that arrest or detention; and

b

the application for authorisation is made by a constable.

Statements by accused- transitional provision9

Section 109 of the 2016 Act applies only in respect of a statement made in the course of questioning where the course of questioning begins on or after the appointed day.

Live television links- saving provision10

Despite the coming into force of section 110(2)(b) of the 2016 Act in accordance with article 3, any arrangements made under section 80(1) of the Criminal Justice (Scotland) Act 200311 before the appointed day continue to have effect on and after that day, and section 80(2) to (5) continue to apply in relation to any such arrangements as they did immediately before that day.

MICHAEL MATHESONA member of the Scottish GovernmentSt Andrew’s House,Edinburgh

SCHEDULE

Article 3

Column 1

Column 2

Provisions of the 2016 Act

Subject matter

Section 1

Power of arrest

Section 2

Exercise of the power

Section 3

Information to be given on arrest

Section 4

Arrested person to be taken to police station

Section 5

Information to be given at police station

Section 6

Information to be recorded by police

Section 7

Authorisation for keeping in custody

Section 8

Information to be given on authorisation

Section 9

12 hour limit: general rule

Section 10

12 hour limit: previous period

Section 11

Authorisation for keeping in custody beyond 12 hour limit

Section 12

Information to be given on authorisation under section 11

Section 13

Custody review

Section 14

Test for sections 7, 11 and 13

Section 15

Medical treatment

Section 16 and schedule 1

Release on conditions

Section 17

Conditions ceasing to apply

Section 18

Modification or removal of conditions

Section 19

Review of conditions

Section 20

Information to be given if sexual offence

Section 21

Person to be brought before court

Section 22

Under 18s to be kept in place of safety

Section 23

Notice to parent that under 18 to be brought before court

Section 24

Notice to local authority

Section 25

Liberation by police

Section 26

Release on undertaking

Section 27

Modification of undertaking

Section 28

Rescission of undertaking

Section 29

Expiry of undertaking

Section 30

Review of undertaking

Section 31

Information to be given before interview

Section 32

Right to have solicitor present

Section 33

Consent to interview without solicitor

Section 34

Questioning following arrest

Section 35

Authorisation for post-charge questioning

Section 36

Authorisation: further provision

Section 37

Arrest to facilitate questioning

Section 38

Right to have intimation sent to other person

Section 39

Right to have intimation sent: under 18s

Section 40

Right of under 18s to have access to other person

Section 41

Social work involvement in relation to under 18s

Section 43

Right to have intimation sent to solicitor

Section 44

Right to consultation with solicitor

Section 45

Use of reasonable force

Section 46

Common law power of entry

Section 47

Common law power of search etc.

Section 48

Power of search etc. on arrest

Section 49

Taking drunk persons to designated place

Section 50

Duty not to detain unnecessarily

Section 51

Duty to consider child’s wellbeing

Section 52

Duties in relation to children in custody

Section 53

Duty to inform Principal Reporter

Section 54

Abolition of pre-enactment powers of arrest

Section 55

Abolition of requirement to charge

Section 56 and schedule 2

Consequential modification

Section 57

Code of practice about investigative functions

Section 58

Disapplication in relation to service offences

Section 59

Disapplication in relation to terrorism offences

Section 97

Publication of prosecutorial test

Section 109

Statements by accused

Section 110(1) and (2)(b)

Live television links

EXPLANATORY NOTE

(This note is not part of the Order)

This Order brings into force various provisions of the Criminal Justice (Scotland) Act 2016 (“the 2016 Act”).

Article 2 contains provisions required for the interpretation of the Order.

Article 3 brings into force, on 25th January 2018, the provisions of the 2016 Act specified in the schedule of the Order.

Section 1 of the 2016 Act creates a power of arrest by a constable without warrant on reasonable suspicion of an offence. Section 2 makes further provision regarding its exercise. Sections 3 to 15 provide for the procedure to be followed after an arrest. Sections 16 to 19 enable the release of a suspect subject to conditions while the police investigation is continuing. Under schedule 1 (introduced by section 16), breach of such a condition is a criminal offence.

Sections 20 to 30 deal with matters arising after the individual has been charged with an offence, including first appearance in court and the police power to release the individual on an undertaking to appear in court. Schedule 1 equally applies to breach of an undertaking by virtue of section 26(6).

Sections 31 to 33, 38 to 41 and 43 to 44 deal with rights of suspects including the rights to have intimation sent to another person, to consult a solicitor and to have a solicitor present during interview. Sections 34 to 37 make provision regarding police powers of questioning, including the ability of the court to authorise post-charge questioning. Sections 45 to 53 and 55 deal with ancillary matters, while section 54 abolishes certain powers of arrest.

Section 56 introduces schedule 2, which contains modifications of enactments, including the repeal or amendment of aspects of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”). Sections 58 and 59 exclude certain matters from the scope of Part 1 of the 2016 Act.

Sections 57 and 97 require the Lord Advocate to issue a code concerning the questioning of suspects and the conduct of identification procedures and to publish a statement setting out criteria for prosecuting offences.

Section 109 provides for the admissibility in evidence of statements made by an accused while being questioned in connection with an offence.

Section 110(1) and (2)(b) make provision for an accused who is in custody to participate in proceedings by live television link. This will become possible in principle for the first calling of the case in court. The Lord Justice General will specify by direction the particular types of hearing in which an accused may appear by live link.

Article 4 of the Order makes provision relating to individuals arrested or detained before 25th January 2018 and still in police custody at the beginning of that day. Pre-existing procedures for the custody and treatment of suspects will apply to this group instead of the new provisions commenced by Article 3. The common law power of a constable to arrest such a person immediately prior to charge will continue to have effect.

Article 5 provides for the continuation of provisions of the 1995 Act about release on undertaking (otherwise repealed by the 2016 Act) in relation to individuals released before 25th January 2018.

Article 6 ensures that an individual previously detained under section 14 of the 1995 Act (repealed by the 2016 Act) can only be arrested under section 1 of the 2016 Act for the purpose of charging them with an offence, and cannot be held in custody for further pre-charge investigation.

Article 7 preserves the old rules relating to police interviews contained in section 15A of the 1995 Act in relation to any voluntary interview beginning before 25th January 2018.

Article 8 prevents the court from authorising post-charge questioning of certain individuals who were arrested or detained before 25th January 2018.

Article 9 provides for section 109 of the 2016 Act to apply only in relation to statements made during interviews where the interview begins on or after 25th January 2018.

Article 10 preserves the provisions of section 80 of the Criminal Justice (Scotland) Act 2003 in relation to applications for live links granted under that section before 25th January 2018.

NOTE AS TO EARLIER COMMENCEMENT ORDERS

(This note is not part of the Order)

The following provisions of the 2016 Act have been brought into force by commencement orders made before the date of this Order:

Provision

Date of Commencement

Instrument No.

Sections 60 to 64

17th January 2017

S.S.I. 2016/426

Sections 65 to 69

11th May 2017

S.S.I. 2017/99

Section 72

11th May 2017

S.S.I. 2017/99

Section 78

17th January 2017

S.S.I. 2016/426

Sections 79, 80 and 81(1), (2) and (5)

29th May 2017

S.S.I. 2017/99

Section 81(3) and (4)

31st July 2017

S.S.I. 2017/99

Section 81(6) and (7)

28th August 2017

S.S.I. 2017/99

Sections 82 and 83

17th January 2017

S.S.I. 2016/426

Section 84

10th March 2016

S.S.I. 2016/95

Sections 87 to 96

17th January 2017

S.S.I. 2016/426

Sections 98 to 101

17th January 2017

S.S.I. 2016/426

Sections 104 to 106

17th January 2017

S.S.I. 2016/426

Sections 110(2)(a) and 111(1)

17th January 2017

S.S.I. 2016/426

Section 112

1st July 2016

S.S.I. 2016/199