The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations are made in exercise of the powers conferred by paragraphs 1(1) and (3) and 11G(1) of schedule 2 and paragraph 21(b) of schedule 7 of the European Union (Withdrawal) Act 2018.

The Regulations address failures of retained EU law to operate effectively and other deficiencies in retained EU law (in particular to address reciprocal arrangements which no longer exist and are no longer appropriate and EU references which are no longer appropriate) arising from the withdrawal of the UK from the European Union.

They also make savings and transitional provision in respect of matters and procedures begun but not completed before the end of the implementation period and in light of Title V of Part 3 of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the Atomic Energy Community (“the withdrawal agreement”). Title V makes provision in respect of ongoing judicial co-operation in criminal matters relating to certain EU measures, referred to in the withdrawal agreement as “other separation issues”. Generally the other separation issues preserve the application of particular EU measures in respect of any matters or procedures begun (but not completed) before the end of the implementation period. By virtue of sections 7A and 7C of the European Union (Withdrawal) Act 2018, rights, powers, obligations, remedies etc. as they arise or are created from time to time in the withdrawal agreement are given legal effect in the United Kingdom.

Part 2 amends and consequentially revokes the retained EU law implementing Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties. Regulation 6 makes transitional and saving provision in relation to requests for enforcement received by a member State or in Scotland before the end of the implementation period.

Part 3 revokes the retained EU law implementing Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention. Regulation 9 makes transitional and saving provision in relation to decisions received in the executing State or in Scotland before the end of the implementation period.

Part 4 amends retained EU law implementing Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings. Regulation 16 makes transitional and saving provision in relation to criminal proceedings commenced before the end of the implementation period.

Part 5 amends retained EU law implementing Council Directive 2012/13/EU of the European Parliament and of the Council on the right to information in criminal proceedings.

Part 6 amends retained EU law implementing Directive 2010/64/EU of the European Parliament and of the Council on the right to interpretation and translation in criminal proceedings.

Part 7 amends retained EU law implementing Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market. The retained EU law relates to an offence under section 51A of the Civic Government (Scotland) Act 1982 (extreme pornography). Other aspects of the Directive were implemented in relation to this offence by S.I 2018/477, as amended by S.I. 2019/87.

Part 8 amends the saving provision in the Licensing (Amendment) (EU Exit) (Scotland) Regulations 2019 so that it applies to matters arising before IP completion day rather than exit day.

No Regulatory Impact Assessment has been prepared for these Regulations.