Criminal Procedure (Scotland) Act 1975

Part II U.K. Summary Procedure

Modifications etc. (not altering text)

C1 Pt. II (ss. 282–457) extended with modifications by Road Traffic Offenders Act 1988 (c. 53, SIF 107:1), s. 60(5)

Jurisdiction S

283 Application of Part II of this Act. S

[F1 (1) This Part of this Act applies to summary proceedings in respect of any offence which might prior to the passing of this Act, or which may under the provisions of this or any Act, whether passed before or after this Act, be tried summarily.

(1A) Without prejudice to subsection (1) above, this Part of this Act also applies to procedure in all courts of summary jurisdiction in so far as they have jurisdiction in respect of—

(a) any offence or the recovery of a penalty under any enactment or rule of law which does not exclude summary procedure as well as, in accordance with section 196 of this Act, to the enforcement of a fine imposed in solemn proceedings; and

(b) any order ad factum praestandum, or other order of court or warrant competent to a court of summary jurisdiction.]

(2) Where any statute provides for summary proceedings or appeal therefrom being taken under any public general or local enactment, such proceedings or appeal shall be taken under this Part of this Act.

(3) Nothing in this Part of this Act shall extend to any information or complaint or other proceeding under or by virtue of any statutory provision for the recovery of any rate, tax, or impost whatsoever, or shall affect any right to sue for a penalty, or to apply for an order of court or other warrantad factum praestandumin the Court of Session or sheriff court, but it shall not be competent to sue for penalties in the small debt court.

Textual Amendments

F1 S. 283(1)(1A) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) for s. 283(1) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 102; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

[F2 283A Offences which are to become triable only summarily. S

(1) [F3 Subject to section 8 of the M1 Criminal Justice (Scotland) Act 1980, but otherwise] The provisions of this or any other enactment notwithstanding, the offences mentioned (and broadly described) in column 1 of Schedule 7A to this Act shall be triable only summarily.

(2) Subsection (1) above is without prejudice to any other provision by virtue of which any offence is triable only summarily.]

Textual Amendments

F2 S. 283A inserted by Criminal Law Act 1977 (c. 45, SIF 39:1), Sch. 11 para. 2

F3 Words inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 7 para. 49

Marginal Citations

M1 1980 c. 62(39:1).

284 Jurisdiction of inferior courts. S

The jurisdiction and powers of all courts of summary jurisdiction, except in so far as the same may be altered or modified by any future Act shall remain as at the commencement of this Act and the district court shall, without prejudice to any other or wider powers conferred by statute, be entitled to exercise power on convicting of a common law offence—

(a) to award imprisonment for any period not exceeding 60 days;

(b) to impose a fine not exceeding [F4 level 4 on the standard scale];

(c) to ordain the accused (in lieu of or an addition to such imprisonment or fine) to find caution for good behaviour for any period not exceeding six months and to an amount not exceeding [F4 level 4 on the standard scale];

(d) failing payment of such fine or on failure to find such caution, to award imprisonment in accordance with section 407 of this Act:

Provided that in no case shall the total imprisonment exceed 60 days.

Textual Amendments

F4 Words substituted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 56, Sch. 7

Modifications etc. (not altering text)

C2 S. 284 extended by Animal Health Act 1981 (c. 22, SIF 4:4), s. 92(2)

285 Certain crimes not to be tried in inferior courts. S

A court of summary jurisdiction other than the sheriff court shall not have jurisdiction to try or to pronounce sentence in, but shall, to the extent and in the manner mentioned in the next following section, be entitled to take cognizance of the case of any person—

(a) found within the jurisdiction of such court, and brought before it accused or suspected of having committed at any place beyond the jurisdiction of such court any offence, or

(b) brought before such court accused or suspected of having committed within the jurisdiction thereof any of the following offences:—

(i) murder, culpable homicide, robbery, rape, wilful fire-raising, or attempt at wilful fire-raising:

(ii) stouthrief, theft by housebreaking, or housebreaking with intent to steal:

(iii) theft or reset of theft, falsehood fraud or wilful imposition, breach of trust or embezzlement, all to an amount exceeding [F5 level 4 on the standard scale].

(iv) . . . F6

(v) assault whereby any limb has been fractured, or assault with intent to ravish, or assault to the danger of life, or assault by stabbing:

(vi) uttering forged documents or uttering forged bank or banker’s notes, or offences under the Acts relating to coinage:

. . . F7

Textual Amendments

F5 Words substituted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 56, Sch. 7

F6 S. 285(b)(iv) repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 7(3), Sch. 8

F7 Proviso repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 7(3), Sch. 8

286 Remit to higher court or other jurisdiction. S

If either in the preliminary investigation or in the course of the trial of any offence it shall appear that the offence is one which cannot competently be tried in the court before which an accused is brought, or is one which, in the opinion of the court in view of the circumstances of the case, should be dealt with by a higher court, it shall be lawful for the court to commit the accused to prison for examination for any period not exceeding four days, and the prosecutor shall forthwith give notice of such committal to the procurator fiscal of the district within which such offence was committed, or to such other official as may be entitled to take cognizance thereof, in order that the accused may be dealt with according to law.

Modifications etc. (not altering text)

C3 S. 286 extended by Contempt of Court Act 1981 (c. 49, SIF 39:3), s. 15(5)

287 Boundaries of jurisdiction. S

(1) Where an offence is committed in any harbour, river, arm of the sea or other water (tidal or otherwise) which runs between or forms the boundary of the jurisdiction of two or more courts, such offence may be tried by any one of such courts.

(2) Where an offence is committed on the boundary of the jurisdiction of two or more courts, or within the distance of 500 yards of any such boundary, or partly within the jurisdiction of one court and partly within the jurisdiction of another court or courts, such offence may be tried by any one of such courts.

(3) Where an offence is committed on any person or in respect of any property in or upon any carriage, cart or vehicle employed in a journey by road or railway, or on board any vessel employed in a river, lake, canal or inland navigation, such offence may be tried by any court through whose jurisdiction such carriage, cart, vehicle or vessel passed in the course of the journey or voyage during which the offence was committed, and, where the side, bank, centre or other part of the road, railway, river, lake, canal or inland navigation along which the carriage, cart, vehicle or vessel passed in the course of such journey or voyage is the boundary of the jurisdiction of two or more courts, such offence may be tried by any one of such courts.

(4) Where several offences, which if committed in one sheriff court district could be tried under one complaint, are alleged to have been committed by any person in different sheriff court districts, the accused may be tried for all or any of those offences under one complaint before the sheriff of any one of such sheriff court districts.

(5) Where an offence is authorised by this section to be tried by any court, it may be dealt with, heard, tried, determined, adjudged and punished as if the offence had been committed wholly within the jurisdiction of such court.

Modifications etc. (not altering text)

C4 S. 287(4) modified (3.2.1995) by 1984 c. 39, s. 16C(1) (as inserted (3.2.1995) by 1994 c. 33, s. 91(3); S.I. 1995/127, art. 2(1), Sch. 1)

288 Jurisdiction of sheriff. S

(1) Subject to the provisions of this section, the jurisdiction of the sheriffs within their respective sheriffdoms shall extend to and include all navigable rivers, ports, harbours, creeks, shores and anchoring grounds in or adjoining such sheriffdoms and shall include all criminal maritime causes and proceedings (including such as may apply to persons furth of Scotland) provided the accused shall upon any legal ground of jurisdiction be subject to the jurisdiction of the sheriff before whom such cause or proceeding may be raised.

(2) It shall not be competent to the sheriff to try any crime committed on the seas which it would not be competent for him to try if the crime had been committed on land.

(3) Where sheriffdoms are separated by a river, firth, or estuary, the sheriffs on either side shall have concurrent jurisdiction over the intervening space occupied by water.

(4) The sheriff shall have a concurrent jurisdiction with every other court within his sheriffdom in relation to all offences competent for trial in such courts.

[F8 (5) Where an offence is alleged to have been committed in one district in a sheriffdom, it shall be competent to try that offence in a sheriff court in any other district in that sheriffdom.]

Textual Amendments

F8 S. 288(5) inserted (30.09.1991) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 39:1), s. 60; S.I. 1991/2151, art. 3, Sch.

289 Summary powers of sheriff. S

The sheriff shall, without prejudice to any other or wider powers conferred by statute, have power on convicting any person of a common law offence—

(a) to impose a fine not exceeding [F9 the prescribed sum (within the meaning of section 289B below];

(b) to ordain the accused to find caution for good behaviour for any period not exceeding 12 months and to an amount not exceeding [F10 the prescribed sum (within the meaning of section 289B below)], such caution being either in lieu of or in addition to a fine or in addition to imprisonment as hereafter in this section mentioned;

(c) failing payment of such fine, or on failure to find such caution, to award imprisonment in accordance with section 407 of this Act;

(d) to award imprisonment, for any period not exceeding three months.

Textual Amendments

F9 Words substituted by Criminal Law Act 1977 (c. 45, SIF 39:1), Sch. 11 para. 4(1)

F10 Words substituted by Criminal Law Act 1977 (c. 45, SIF 39:1), Sch. 11 para. 4(2)

[F11 289A Amendments relating to penalties (and mode of trial) for offences made triable only summarily. S

(1) The enactments specified in column 2 of Schedule 7A to this Act (which relate to the modes of trial of, and the maximum penalties for, the offences which are by section 283A of this Act made triable only summarily) shall so far as they relate to Scotland have effect subject to the amendments specified in column 3 of that Schedule.

(2) The said amendments have the effect of altering the maximum penalties available on summary conviction of those offences as well as making alterations consequential on their becoming triable only summarily; and in that Schedule column 4 shows the present maximum penalties by way of fine or imprisonment on summary conviction and on conviction on indictment, and column 5 shows the new maximum penalties resulting from the amendments.]

Textual Amendments

F11 Ss. 289A–289D inserted by Criminal Law Act 1977 (c. 45, SIF 39:1), Sch. 11 para. 5

[F12 289B Penalties on summary conviction for offences triable either summarily or on indictment. S

(1) Where an offence created by a relevant enactment may be tried either on indictment or summarily, the penalty or maximum penalty on summary conviction shall, to the extent that it included, immediately before the commencement of section 55 of the Criminal Justice Act 1982, a penalty or maximum penalty mentioned in column 1 of the Table below, be amended so as to substitute as a maximum penalty the corresponding penalty set forth in column 2 thereof (unless provision is expressly made by any enactment for a larger penalty or maximum penalty on summary conviction)—

Column 1	Column 2
Penalty or maximum penalty at commencement of section 55 of Criminal Justice Act 1982	New maximum penalty
1. Fine (other than a fine specified in paragraph 3 below, or a fine in respect of each period of a specified length during which a continuing offence is committed).	1. Fine not exceeding the prescribed sum.
2. Imprisonment for a period exceeding 3 months.	2. Imprisonment for a period not exceeding 3 months.
3. Fine in respect of a specified quantity or number of things.	3. Fine not exceeding the prescribed sum in respect of each such quantity or number.
4. Fine exceeding £100 in respect of each period of a specified length during which a continuing offence is committed.	4. Fine not exceeding £100 in respect of each such period.

(2) Where, by virtue of a relevant enactment, a person summarily convicted of any offence to which subsection (1) above relates would, apart from this section, be liable to a fine or a maximum fine of one amount in the case of a first conviction and of a different amount in the case of a second or subsequent conviction, subsection (1) above shall apply irrespective of whether the conviction is a first, second or subsequent one.

(3)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F13

(5) Subsection (1) above is without prejudice to section 290 of this Act (6 months’ imprisonment competent for certain offences).

(6) In this section—

• “the prescribed sum” means [F14 £5,000] or such sum as is for the time being substituted in this definition by an order in force under section 289D(1) of this Act;

• “relevant enactment” means an enactment contained in the M2 Criminal Law Act 1977 or in any Act (including this Act) passed before, or in the same session as, that Act.

(7) [F15 Section 289GA(1) of this Act] shall not affect so much of any enactment as (in whatever words) provides for a person to be made liable, on summary conviction, to a fine or a maximum fine for each period of a specified length during which a continuing offence is committed.

(8) Where an enactment to which [F16 section 289GA(1) of this Act] applies provides for a person to be made liable to a penalty or maximum penalty on summary conviction of an offence triable either on indictment or summarily which includes a fine or a maximum fine in respect of a specified quantity or a specified number of things, that subsection shall apply to that fine or maximum fine.

(9) Schedule 7B to this Act shall have effect for the purpose of altering the penalties or maximum penalties available on summary conviction of the offences therein mentioned; and subsection (1) above shall not apply on summary conviction of any of the offences mentioned in paragraph 1(2) of the said Schedule 7B.]

Textual Amendments

F12 S. 289B substituted by virtue of Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 55(2)

F13 S. 289B(3)(4) repealed by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(2), Sch. 2

F14 Word in s. 289B(6) substituted (1.10.1992) by virtue of Criminal Justice Act 1991 (c. 53), ss. 17(2), 101(1), Sch. 12, para. 6 (with s. 28); S.I. 1992/333, art. 2(2), Sch. 2 (subject to the restriction of S.I. 1992/333, art. 4A as inserted (1.9.1992) by S.I. 1992/2118, arts. 3, 4).

F15 Words substituted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), s. 70(1), Sch. 1 para. 15(a)

F16 Words substituted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(1), Sch. 1 para. 15(b)

Marginal Citations

M2 1977 c. 45(39:1).

289C Increase of fines for certain summary offences. S

(1) The enactments specified in column 2 of Schedule 7C to this Act, which relate to the maximum fines for the offences mentioned (and broadly described) in column 1 of that Schedule, shall have effect as if the maximum fine that may be imposed on summary conviction of any offence so mentioned were a fine not exceeding the amount specified in column 4 of that Schedule instead of a fine not exceeding the amount specified in column 3 of that Schedule, so however that the preceding provision shall not alter the maximum daily fine, if any, provided for by any of those enactments.

(2) This subsection applies to the following enactments (by virtue of which certain byelaws may make persons contravening the byelaws liable on summary conviction to a fine not exceeding £20), namely—

(a) section 203 of the M3 Local Government (Scotland) Act 1973 (offences against byelaws) but (the provisions of section 462(11) of this Act notwithstanding) not that section as applied to byelaws made under any provision contained in a local or private Act other than by a local authority; and

(b) . . . F17

(3) In the enactments to which subsection (2) above applies for any reference to £20 there shall be substituted a reference to £50; and any provision in force at the coming into force of this subsection which—

(a) is contained in any byelaw made by virtue of any enactment to which subsection (2) above applies; and

(b) specifies £20 as the maximum fine which may be imposed on summary conviction in respect of a contravention of, or offence under, any byelaw mentioned in that provision.

shall have effect as if it specified £50 instead (but with no change by virtue of this subsection in the maximum daily fine, if any, for which it provides).

[F18 (4) This subsection applies to any pre-1949 enactment (however framed or worded) which—

(a) as regards any summary offence makes a person liable on conviction thereof to a fine of, or not exceeding, a specified amount less than £50 which has not been altered since the end of 1948 (and is not altered by this Act); or

(b) confers power by subordinate instrument to make a person as regards any summary offence (whether or not created by the instrument), liable on conviction thereof to a fine of, or a maximum fine of, less than £50 which has not been altered since the end of 1948 (and is not altered by this Act):

Provided that this subsection does not apply to any offence to which section 457A(1)(b) of this Act applies (offences triable only summarily other than by virtue of express provision).]

(5) Every enactment to which subsection (4) above applies shall have effect as if for the specified amount less than £50 there mentioned there were substituted:—

(a) £25 if the specified amount is less than £20; or

(b) £50 if the specified amount is not less than £20.

(6) Where, by virtue of any enactment to which subsection (4) above applies by virtue of paragraph (a) of that subsection, a person convicted of a summary offence would, apart from this section, be liable to a fine, or maximum fine, of one amount in the case of a first conviction and of a different amount in the case of a second or subsequent conviction, subsection (5) above shall apply separately in relation to each specified amount less than £50, even if this produces the same instead of different amounts for different convictions.

[F19 (7) Subsection (4) above does not apply to so much of any enactment as (in whatever words) makes a person liable or provides for a person to be made liable, on summary conviction, to a fine or a maximum fine for each period of a specified length during which a continuing offence is committed.

(7A) Where an enactment to which subsection (4) above applies provides or confers a power to provide for, on conviction of an offence triable only summarily, a fine or a maximum fine in respect of a specified quantity or a specified number of things, “the specified amount” for the purposes of subsection (5) above is the fine or maximum fine so provided or for which provision may be made.]

(8) In subsection (4) above “pre-1949 enactment” means an enactment passed before 1st January 1949 or an enactment passed on or after that date which (whether directly or, through successive re-enactments, indirectly) re-enacts with or without modification an enactment passed before that date.

(9) In this section “enactment” does not include an enactment contained in an order, regulation or other instrument made under an Act.

Textual Amendments

F17 S. 289C(2)(b) repealed by Weights and Measures Act 1985 (c. 72, SIF 131), Sch. 13

F18 S. 289C(4) substituted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 55(3)(a)

F19 S. 289C(7)(7A) substituted for s. 289C(7) by Criminal Justice Act 1982 (c. 48, SIF 39:1), ss. 55(3)(b)

Marginal Citations

M3 1973 c. 65(81:2).

289D Power to alter sums specified in certain provisions. S

[F20 (1) If it appears to the Secretary of State that there has been a change in the value of money since the relevant date, he may by order substitute for the sum or sums for the time being specified in the provisions mentioned in subsection (1A) below such other sum or sums as appear to him justified by the change.

(1A) The provisions referred to in subsection (1) above are—

(a) section 289B(6) of this Act;

(b) section 289G(2) of this Act;

(c) section 407(1A) of this Act;

F21 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F22 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F23 (ee) column 5 or 6 of Schedule 4 to the Misuse of Drugs Act 1971 so far as the column in question relates to the offences under provisions of that Act specified in column 1 of that Schedule in respect of which the maximum fines were increased by Part II of Schedule 8 to the Criminal Justice and Public Order Act 1994.]

(f)(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F24

(1B) In subsection (1) above “the relevant date” means—

(a) in relation to the M4 first order made under that subsection, 29th July 1977 (the date of the passing of the Criminal Law Act 1977); and

(b) in relation to each subsequent order, the date of the previous order.]

(2)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F24

(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F25

(4) An order under subsection (1) . . . F26 above—

(a) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament and may be revoked by a subsequent order thereunder; and

(b) without prejudice to Schedule 14 to the M5 Criminal Law Act 1977, shall not affect the punishment for an offence committed before that order comes into force.

Textual Amendments

F20 Words inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 65(5)

F21 S. 289D(1A)(d) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 103, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F22 S. 183(5B)(5C) inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 65(1)(2)(a)

F23 Community Service by Offenders (Scotland) Act 1978 (c. 49, SIF 39:1), s.7(c) (substituting “(5) or (5A)” for “or (5)” is repealed by virtue of the Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(2), Sch. 2 and for “or (5A)” there is substituted “(5A), (5B) or (5C)” by virtue of the Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 65(4)

F24 S. 289D(1A)(f)(g)(2)(3) repealed by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(2), Sch. 2

F25 Ss. 289D(3A), 291(1) repealed by Criminal Justice Act 1982 (c. 48, SIF 39:1), Sch. 16

F26 Words repealed by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(2), Sch. 2

Marginal Citations

M4 1977 c. 45(39:1).

M5 1977 c. 45(39:1).

[F27 289E Penalties for first and subsequent convictions of summary offences to be the same. S

(1) Subject to subsections (2) to (4) and (6) below, this section applies where any Act—

(a) makes a person liable on conviction of an offence triable only summarily to a penalty or a maximum penalty; or

(b) confers a power by subordinate instrument to make a person liable on conviction of an offence triable only summarily (whether or not created by the instrument) to a penalty or a maximum penalty

which is different in the case of a second or subsequent conviction from the penalty or maximum penalty provided or for which provision may be made in the case of a first conviction.

(2) Where the penalty or maximum penalty for an offence to which section 457A(1)(b) of this Act applies has not been altered by any enactment passed or made after 29th July 1977 (the date of the passing of the Criminal Law Act 1977), this section applies as if the amount referred to in subsection (5)(a) below were the greatest amount to which a person would have been liable on any conviction immediately before that date.

(3) Where any Act—

(a) provides or confers a power to provide for a penalty or a maximum penalty which would, but for the operation of section 289C(5) of this Act, be different in the case of a second or subsequent conviction from the penalty or maximum penalty provided for or for which provision may be made in the case of a first conviction; and

(b) otherwise fulfils the conditions of subsection (1) above;

this section applies to that penalty or maximum penalty as if the amount referred to in subsection (5)(a) below were the greatest amount to which a person would have been liable or could have been made liable on any conviction immediately before the commencement of the said section 289C.

(4) This section does not apply to—

(a) section 290 of this Act (imprisonment for certain offences);

(b) section 78 of the M6 Criminal Justice (Scotland) Act 1980 (vandalism); or

(c) an enactment mentioned in Schedule 7D to this Act.

(5) Where this section applies the maximum penalty to which a person is or may be made liable by or under the Act in the case of any conviction shall be either or both of—

(a) a fine not exceeding the greatest amount;

(b) imprisonment for a term not exceeding the longest term (if any)

to which an offender would have been liable or could have been made liable on any conviction (whether the first or a second or subsequent conviction) by or under the Act immediately before the commencement of this section.

(6) This section does not affect the penalty which may be imposed in respect of an offence committed before it comes into force.]

Textual Amendments

F27 S. 289E–289H inserted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 54

Modifications etc. (not altering text)

C5 S. 289E amended by Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 56(2), Sch. 8 para. 16

Marginal Citations

M6 1980 c. 62(39:1).

289F Increase of fines for certain summary offences. S

(1) Subject to subsections (2) to (7) and (9) below, this section applies where any Act passed on or before 29th July 1977 (the date of the passing of the M7 Criminal Law Act 1977)—

(a) makes a person liable on conviction of an offence triable only summarily to a fine or a maximum fine which is less than £1,000; or

(b) confers a power by subordinate instrument to make a person liable on conviction of an offence triable only summarily (whether or not created by the instrument) to a fine or a maximum fine which is less than £1,000, or a fine or a maximum fine which shall not exceed an amount of less than £1,000,

and the fine or maximum fine which may be imposed or, as the case may be, for which the subordinate instrument may provide has not been altered by—

(i) section 289A of this Act;

(ii) section 289C of this Act (except where section 289E(3) of this Act applies);

(iii) section 30(3) of the Criminal Law Act 1977;

(iv) an enactment passed or made after 29th July 1977 and before the commencement of this section.

(2) In the case of an offence to which section 457A(1)(b) of this Act applies, paragraphs (i) to (iii) of subsection (1) above do not apply and the fine or the maximum fine referred to in subsection (8) below is the fine or the maximum fine for the offence immediately before 29th July 1977 as amended, where applicable, by section 289E of this Act.

(3) This section also applies where any enactment—

(a) is contained in a consolidation Act passed after 29th July 1977 and before the commencement of this section; and

(b) otherwise fulfils the conditions of subsection (1) above as amended by subsection (2) above where it applies; and

(c) is a re-enactment (with or without modification) of an enactment passed on or before that date.

(4) Subject to subsection (9) below, where an Act provides or confers a power to provide for, on conviction of an offence triable only summarily, a fine or a maximum fine in respect of a specified quantity or a specified number of things, that fine or maximum fine is the fine or, as the case may be, the maximum fine for the purposes of this section.

(5) Where an Act to which this section applies provides or confers a power to provide different fines or maximum fines in relation to different circumstances or persons of different descriptions, such fines or maximum fines are to be treated separately for the purposes of this section.

(6) This section also applies where the penalties or maximum penalties provided or for which provision may be made by or under any Act on first and on second or subsequent conviction of an offence have been made the same by operation of section 289E of this Act; and in that case the fine or the maximum fine referred to in subsection (8) below is the maximum fine to which a person is or may be made liable by virtue of that section.

(7) This section does not apply in the case of—

(a) so much of any Act as (in whatever words) makes a person liable or provides for a person to be made liable to a fine or a maximum fine for each period of a specified length during which a continuing offence is committed;

(b) section 67(3) of the M8 Transport Act 1962;

(c) sections 40(5) and 44(1) of the M9 Road Traffic Act 1972;

(d) an enactment mentioned in Schedule 1 to the M10 British Railways Act 1977 to the extent that the enactment was amended by section 13(1) of that Act;

(e) an enactment mentioned in Schedule 7D to this Act or in Schedule 2 to the M11 Criminal Justice Act 1982.

(8) Where this section applies, the fine or, as the case may be, the maximum fine to which a person is or may be made liable by or under the Act shall be increased to the amount shown in column 2 of the Table below opposite the band in column 1 within which the fine or the maximum fine referred to in subsection (1) above falls.

Column 1	Column 2
Fine or maximum fine	Increased amount
Under £25	£25
Under £50 but not less than £25	£50
Under £200 but not less than £50	£200
Under £400 but not less than £200	£500
Under £1,000 but not less than £400	£1,000

(9) Where an Act to which this section applies provides or confers a power to provide for, on conviction of an offence triable only summarily, a fine or a maximum fine in respect of a specified quantity or a specified number of things but also provides or confers a power to provide for an alternative fine or maximum fine as regards the offence, subsection (8) above shall have effect to increase—

(a) the alternative fine; and

(b) any amount that the Act provides or confers a power to provide for as the maximum which a fine as regards the offence may not exceed,

as well as the fine or maximum fine which it has effect to increase by virtue of subsection (4) above.

(10) This section does not affect the penalty which may be imposed in respect of an offence committed before it comes into force.

Marginal Citations

M7 1977 c. 45(39:1).

M8 1962 c. 46(126).

M9 1972 c. 20(107:1).

M10 1977 c. xvii.

M11 1982 c. 48(39:1).

289G The standard scale: amendment of enactments. S

(1) There shall be a standard scale of fines for offences triable only summarily, which shall be known as “the standard scale”.

[F28 (2) The standard scale is shown below—

Level on the scale	Amount of fine
1	£200
2	£500
3	£1,000
4	£2,500
5	£5,000]

(3) Any reference in any enactment (whether passed or made before or after the passing of the Criminal Justice Act 1982) to a specified level on the standard scale shall be construed as referring to the amount which corresponds to that level on the standard scale referred to in subsection (2) above.

(4) Subject to subsection (8) below, where—

(a) an enactment to which subsection (5) below applies either—

(i) makes a person liable on conviction of an offence triable only summarily (whether created by that enactment or otherwise) to a fine or a maximum fine; or

(ii) confers a power by subordinate instrument to make a person liable on conviction of an offence triable only summarily (whether or not created by the instrument) to a fine or a maximum fine;

and

(b) the amount of the fine or the maximum fine is, whether by virtue of that enactment or otherwise, an amount shown in the second column of the standard scale,

for the reference in the enactment to the amount of the fine or maximum fine there shall be substituted a reference to the level on the standard scale shown in the first column thereof as corresponding to the amount in the second column thereof referred to in paragraph (b) above.

(5) This subsection applies to an enactment in any Act (including this Act) passed before the commencement of this section.

(6) Subject to subsection (7) below, where an Act provides or confers a power to provide for, on conviction of an offence triable only summarily, a fine or a maximum fine in respect of a specified quantity or a specified number of things, that fine or maximum fine is the fine or, as the case may be, the maximum fine for the purposes of this section.

(7) Where an Act provides or confers a power to provide for, on conviction of an offence triable only summarily, a fine or a maximum fine in respect of a specified quantity or a specified number of things but also provides or confers a power to provide for an alternative fine or maximum fine as regards the offence, the fine or the maximum fine for the purposes of this section is—

(a) the alternative fine; and

(b) any amount that the Act provides or confers a power to provide for as the maximum which a fine as regards the offence may not exceed,

as well as the fine or maximum fine referred to in subsection (6) above.

(8) Subsection (4) above does not apply to—

(a) an enactment mentioned in Schedule 2 to the M12 Companies Act 1980;

(b) the M13 Companies Act 1981; or

(c) so much of any Act as (in whatever words) makes a person liable or provides for a person to be made liable to a fine or a maximum fine for each period of a specified length during which a continuing offence is committed.

(9) Where an enactment to which subsection (5) above applies confers a power such as is mentioned in subsection (4)(a)(ii) above, the power shall be construed as a power to make a person liable to a fine or, as the case may be, a maximum fine of the amount corresponding to the level on the standard scale to which the enactment refers by virtue of subsection (4) above or of a lesser amount.

[F29 (10) Subject to subsection (12) below, where under a relevant subordinate instrument the fine or maximum fine on conviction of a summary offence specified in the instrument is an amount shown in the second column of the standard scale, the reference in the instrument to the amount of the fine or maximum fine shall be construed as a reference to the level in the first column of the standard scale corresponding to that amount.

(11) In subsection (10) above, “relevant subordinate instrument” means any instrument made by virtue of an enactment after 30th April 1984 and before the commencement of section 66 of the Criminal Justice (Scotland) Act 1987.

(12) Subsection (10) above shall not affect so much of any instrument as (in whatever words) makes a person liable on summary conviction to a fine not exceeding a specified amount for each period of a specified length during which a continuing offence is continued after conviction or the occurrence of any other specified event.

(13) Where there is,

[F30 (a)] under any enactment (however framed or worded) contained in an Act passed before the commencement of section 66 of the Criminal Justice (Scotland) Act 1987;

[F31 (b) under any instrument (however framed or worded) made by virtue of such an enactment,

a power to provide by subordinate instrument that a person, as regards any summary offence (whether or not created by the instrument) shall be liable on conviction to a fine, a person may be so made liable to a fine not exceeding a specified level on the standard scale.]

(14) Subsection (13) above has effect in relation to exercises of powers before as well as after the commencement of section 66 of the Criminal Justice (Scotland) Act 1987.]

Textual Amendments

F28 S. 289G(2) substituted (1.10.1992) by Criminal Justice Act 1991 (c. 53), ss. 17(1), 101(1), Sch. 12 para. 6 (with s. 28); S.I. 1992/333, art. 2(2), Sch. 2 (subject to the restriction of S.I. 1992/333, art. 4A as inserted (1.9.1992) by S.I. 1992/2118, arts. 3, 4).

F29 S. 289G(10)–(14) inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), s. 66(1)

F30 “(a)” inserted by Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 170, Sch. 8 para. 16, Sch. 15, para. 49(a)

F31 Words substituted by Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 170, Sch. 8 para. 16, Sch. 15, para. 49(b)

Marginal Citations

M12 1980 c. 22(27).

M13 1981 c. 62(27).

[F32 289GA Statutory maximum as penalty in respect of summary conviction for offences in subordinate instruments. S

(1) Where there is, under any enactment (however framed or worded) contained in an Act passed before the commencement of section 66 of the Criminal Justice (Scotland) Act 1987, a power by subordinate instrument to create a criminal offence triable either on indictment or summarily, the maximum fine which may, in the exercise of the power, be authorised on summary conviction shall, by virtue of this section, be the statutory maximum (unless some larger maximum fine can be authorised on summary conviction of such an offence by virtue of an enactment other than this subsection).

(2) Where there is, under any enactment (however framed or worded) contained in an Act passed before the commencement of section 66 of the Criminal Justice (Scotland) Act 1987, a power to create offences triable either on indictment or summarily by subordinate instrument, the maximum fine on summary conviction for such an offence may be expressed as a fine not exceeding the statutory maximum.

(3) Subsections (1) and (2) above shall have effect in relation to any exercise of such power before as well as after the commencement of section 66 of the Criminal Justice (Scotland) Act 1987.

(4) Where an offence created by a subordinate instrument made before the commencement of section 66 of the Criminal Justice (Scotland) Act 1987 may be tried either on indictment or summarily, the maximum fine which may be imposed on summary conviction shall by virtue of this subsection be the statutory maximum (unless the offence is one for which by virtue of the instrument a larger maximum fine may be imposed on summary conviction).

(5) Where a person summarily convicted of any offence to which subsection (4) above relates would, apart from this section, be liable to a fine or to a maximum fine of an amount in the case of a first conviction and of a different amount in the case of a second or subsequent conviction, subsection (4) above shall apply irrespective of whether the conviction is a first, second or subsequent one.

(6) Subsection (4) above shall not affect so much of any instrument as (in whatever words) make a person liable on summary conviction to a fine not exceeding a specified amount for each period of a specified length during which a continuing offence is continued after conviction or the occurrence of any other specified event.

(7) Nothing in this section shall affect the punishment for an offence committed before the commencement of section 66 of the Criminal Justice (Scotland) Act 1987.]

Textual Amendments

F32 Ss. 289GA, 289GB inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 66(2)

[F33 289GB Exceptionally high maximum fines. S

(1) The Secretary of State may by order amend an enactment or subordinate instrument specifying a sum to which this subsection applies so as to substitute for that sum such other sum as appears to him—

(a) to be justified by a change in the value of money appearing to him to have taken place since the last occasion on which the sum in question was fixed; or

(b) to be appropriate to take account of an order altering the standard scale which has been made or is proposed to be made.

(2) Subsection (1) above applies to any sum which—

(a) is higher than level 5 on the standard scale; and

(b) is specified as the fine or the maximum fine which may be imposed on conviction of an offence which is triable only summarily.

(3) The Secretary of State may by order amend an enactment or subordinate instrument specifying a sum to which this subsection applies so as to substitute for that sum such other sum as appears to him—

(a) to be justified by a change in the value of money appearing to him to have taken place since the last occasion on which the sum in question was fixed; or

(b) to be appropriate to take account of an order made or proposed to be made altering the statutory maximum.

(4) Subsection (3) above applies to any sum which—

(a) is higher than the statutory maximum; and

(b) is specified as the maximum fine which may be imposed on summary conviction of an offence triable either on indictment or summarily.

(5) An order under this section—

(a) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament; and

(b) shall not affect the punishment for an offence committed before that order comes into force.

(6) In this section—

• “enactment” includes an enactment contained in an Act passed after the Criminal Justice (Scotland) Act 1987; and

• “subordinate instrument” includes an instrument made after the passing of that Act.]

Textual Amendments

F33 Ss. 289GA, 289GB inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 66(2)

[F34 289GC Fines under secondary subordinate instruments–Scotland. S

(1) This section applies to any instrument (however framed or worded) which—

(a) was made before 11th April 1983 (the date of commencement of Part IV of the Criminal Justice Act 1982);

(b) confers on any authority other than a harbour authority a power by subordinate instrument to make a person, as regards any summary offence (whether or not created by the latter instrument), liable on conviction to a maximum fine of a specified amount not exceeding £1,000,

but does not affect so much of any such instrument as (in whatever words) confers a power by subordinate instrument to make a person liable on conviction to a fine for each period of a specified length during which a continuing offence is continued.

(2) The maximum fine to which a subordinate instrument made by virtue of an instrument to which this section applies may provide that a person shall be liable on conviction of a summary offence is—

(a) if the specified amount is less than £25, level 1 on the standard scale;

(b) if it is £25 or more but less than £50, level 2;

(c) if it is £50 or more but less than £200, level 3;

(d) if it is £200 or more but less than £400, level 4; and

(e) if it is £400 or more, level 5.

(3) Subject to subsection (5) below, where an instrument to which this section applies confers a power by subordinate instrument to make a person, as regards a summary offence, liable on conviction to a fine in respect of a specified quantity or a specified number of things, that fine shall be treated for the purposes of this section as being the maximum fine to which a person may be made liable by virtue of the instrument.

(4) Where an instrument to which this section applies confers a power to provide for different maximum fines in relation to different circumstances or persons of different descriptions, the amount specified as those maximum fines are to be treated separately for the purposes of this section.

(5) Where an instrument to which this section applies confers a power by subordinate instrument to make a person, as regards a summary offence, liable on conviction to a fine in respect of a specified quantity or a specified number of things but also confers a power by subordinate instrument to make a person, as regards such an offence, liable on conviction to an alternative fine, this section shall have effect in relation—

(a) to the alternative fine; and

(b) to any amount that the instrument specifies as the maximum fine for which a subordinate instrument made in the exercise of the power conferred by it may provide,

as well as in relation to the fine mentioned in subsection (3) above,]

Textual Amendments

F34 S. 289GC inserted by Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 56(1), Sch. 8 para. 16

[F35 289GD Fines on summary conviction for offences under subordinate instruments– conversion to references to levels on scale. S

(1) Where an instrument which was made under an enactment on or after 11th April 1983 but before the commencement of section 54 of the Criminal Justice Act 1988 confers on any authority other than a harbour authority a power by subordinate instrument to make a person liable on summary conviction to a fine of an amount shown in the second column of the standard scale, as that scale had effect when the instrument was made, a reference to the level in the first column of the standard scale which then corresponded to that amount shall be substituted for the reference in the instrument conferring the power to the amount of the fine.

(2) This section shall not affect so much of any instrument as (in whatever words) makes a person liable on summary conviction to a maximum fine not exceeding a specified amount for each period of a specified length during which a continuing offence is continued.]

Textual Amendments

F35 S. 289GD inserted by Criminal Justice Act 1988 (c. 33, SIF 39:1), ss. 54, 172, Sch. 8 para. 16

289H Schedule 7D. S

(1) The enactments specified in column 1 of Schedule 7D to this Act, which relate to the penalties or the maximum penalties for the offences mentioned in those enactments, shall be amended in accordance with the amendments specified in column 2 of that Schedule, which have the effect of altering the penalties on summary conviction of the said offences and placing the fines on a level on the standard scale; and in that Schedule column 3 shows the penalties or, as the case may be, maximum penalties in force immediately before the commencement of this section and column 4 shows the penalties or, as the case may be, maximum penalties resulting from the amendments.

(2) Subsection (1) above does not affect the penalty which may be imposed in respect of an offence committed before it comes into force.

290 When six months’ imprisonment competent. S

Where a person is convicted by the sheriff of—

(a) a second or subsequent offence inferring dishonest appropriation of property, or attempt thereat, or

(b) a second or subsequent offence inferring personal violence,

he may, without prejudice to any wider powers conferred by statute, be sentenced to imprisonment for any period not exceeding six months.

291 Trial of certain offences. S

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F36

(2) It is hereby declared that it is competent to prosecute summarily in the sheriff court the crime of uttering a forged document.

(3) It is hereby declared that it is competent to prosecute summarily in the sheriff court crimes of [F37 wilful fire-raising,] robbery and assault with intent to rob.

Textual Amendments

F36 Ss. 289D(3A), 291(1) repealed by Criminal Justice Act 1982 (c. 48, SIF 39:1), Sch. 16

F37 Words inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 38

292 Theft outside Scotland. S

(1) Any person who has in his possession in Scotland property which he has stolen in any other part of the United Kingdom may be dealt with, charged, tried and punished in Scotland in like manner as if he had stolen it in Scotland.

(2) Any person who in Scotland receives property stolen in any other part of the United Kingdom may be dealt with, charged, tried and punished in Scotland in like manner as if it had been stolen in Scotland.

293 Instructions by Lord Advocate as to reporting offences. S

The Lord Advocate may from time to time issue instructions to a chief constable with regard to the reporting, for consideration of the question of prosecution, of offences alleged to have been committed within the area of such chief constable, and it shall be the duty of a chief constable to whom any such instruction is issued to secure compliance therewith.

Procedure prior to trial S

294 Power of constable to take offenders into custody. S

(1) Without prejudice to any other powers of arrest, any constable may take into custody, without warrant—

(a) any person who within his view commits any of the offences mentioned in Schedule 1 to this Act, if the constable does not know and cannot ascertain his name and address;

(b) any person who has committed, or whom he has reason to believe to have committed, any of the offences mentioned in Schedule 1 to this Act, if the constable does not know and cannot ascertain his name and address or has reasonable ground for believing that he will abscond.

[F38 (2) Where a person has been arrested under this section, the officer in charge of a police station may—

(a) liberate him upon a written undertaking, signed by him and certified by the said officer, in terms of which that person undertakes to appear at a specified court at a specified time; or

(b) liberate him without any such undertaking; or

(c) refuse to liberate him; and such refusal and the detention of that person until his case is tried in the usual form shall not subject the officer to any claim whatsoever.

(3) A person in breach of an undertaking given by him under subsection (2)(a) above without reasonable excuse shall be guilty of an offence and liable to the following penalties—

(a) a fine not exceeding [F39 level 3 on the standard scale], and

(b) imprisonment for a period—

(i) where conviction is in the district court, not exceeding 60 days; or

(ii) where conviction is in the sheriff court, not exceeding 3 months.

(4) The penalties provided for in subsection (3) above may be imposed in addition to any other penalty which it is competent for the court to impose, notwithstanding that the total of penalties imposed may exceed the maximum penalty which it is competent to impose in respect of the original offence.

(5) In any proceedings relating to an offence under this section, a writing, purporting to be such an undertaking as is mentioned in subsection (2)(a) above and bearing to be signed and certified, shall be sufficient evidence of the terms of the undertaking given by the arrested person.]

Textual Amendments

F38 S. 294(2)–(5) substituted for s. 294(2) by Bail etc. (Scotland) Act 1980 (c. 4, SIF 39:1), s. 7(2)

F39 Words substituted by virtue of Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), ss. 289G, 457A

[F40 295 Interim liberation by officer in charge of police station. S

(1) Where a person has been arrested and charged with an offence which may be tried summarily, the officer in charge of a police station may—

(a) liberate him upon a written undertaking, signed by him and certified by the said officer, in terms of which that person undertakes to appear at a specified court at a specified time; or

(b) liberate him without any such undertaking; or

(c) refuse to liberate him, and such refusal and the detention of that person until his case is tried in the usual form shall not subject the officer to any claim whatsoever.

(2) A person in breach of an undertaking given by him under subsection (1) above without reasonable excuse shall be guilty of an offence and liable on summary conviction to the following penalties—

(a) a fine not exceeding [F41 level 3 on the standard scale]; and

(b) imprisonment for a period—

(i) where conviction is in the district court, not exceeding 60 days; or

(ii) where conviction is in the sheriff court, not exceeding 3 months.

(3) Subsections (4) and (5) of section 294 of this Act shall, subject to any necessary modifications, apply for the purposes of this section as they apply for the purposes of that section.]

Textual Amendments

F40 S. 295 substituted by Bail etc. (Scotland) Act 1980 (c. 4), s. 8

F41 Words substituted by virtue of Criminal Procedure (Scotland) 1975 (c. 21, SIF 39:1), s. 289G

Modifications etc. (not altering text)

C6 S. 295(1) excluded by Prevention of Terrorism (Temporary Provisions) Act 1984 (c. 8, SIF 39:2), s. 12(7)

C7 S. 295(1) excluded by Prevention of Terrorism (Temporary Provisions) Act 1989 (c. 4, SIF 39:2), s. 15(8)

296 Police liberation or detention of children arrested. S

(1) Where a person who is apparently a child is apprehended, with or without warrant, and cannot be brought forthwith before a sheriff F42 . . ., a superintendent or inspector of police, or other officer of police of equal or superior rank, or the officer in charge of the police station to which he is brought, shall inquire into the case, and may liberate him on an [F43 undertaking] that he will attend at the hearing of the charge being entered into by him or his parent or guardian [F44 ; and such undertaking shall be in writing, signed by the child or the parent or guardian as the case may be, and certified by the said officer; and the said officer shall so liberate the child unless—]

(a) the charge is one of homicide or other grave crime; or

(b) it is necessary in his interest to remove him from association with any reputed criminal or prostitute; or

(c) the officer has reason to believe that his liberation would defeat the ends of justice.

(2) Where a person who is apparently a child having been apprehended is not so liberated as aforesaid, the officer of police shall cause him to be detained in a place of safety other than a police station until he can be brought before a sheriff F42 . . . unless the officer certifies—

(a) that it is impracticable to do so; or

(b) that he is of so unruly a character that he cannot safely be so detained; or

(c) that by reason of his state of health or of his mental or bodily condition it is inadvisable so to detain him;

and the certificate shall be produced to the court before which he is brought.

(3) Where a person who is apparently a child has been detained under this section and is not so liberated as aforesaid and it is decided not to proceed with the charge against him a constable shall so inform the reporter of the local authority for the area in which the child is detained, and the child may continue to be detained in a place of safety until the reporter has decided on the course that should be taken with regard to the child under the provisions of Part III of the M14 Social Work (Scotland) Act 1968.

(4) A child shall not continue to be detained under this section—

(a) where the reporter considers the child does not require compulsory measures of care.

(b) after the day on which a children’s hearing first sit to consider his case in pursuance of section 37(4) of the Social Work (Scotland) Act 1968, or

(c) for a period exceeding seven days.

[F45 (5) Any person, who without reasonable excuse is in breach of an undertaking entered into by him under subsection (1) above after having been given due notice of the time and place of the diet . . . F46 , shall be guilty of an offence, and liable on summary conviction in addition to any other penalty which it is competent for the court to impose on him, to a fine not exceeding [F47 level 3 on the standard scale].

(6) In any proceedings relating to an offence under this section, a writing, purporting to be such an undertaking as is mentioned in subsection (1) above and bearing to be signed and certified, shall be sufficient evidence of the undertaking given by the accused.]

Textual Amendments

F42 Words in s. 296(1)(2) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 104, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F43 Word substituted by Bail etc. (Scotland) Act 1980 (c. 4, SIF 39:1), s. 9(a)

F44 Words substituted by Bail etc. (Scotland) Act 1980 (c. 4, SIF 39:1), s. 9(a)

F45 S. 296(5) added by Bail etc. (Scotland) Act 1980 (c. 4, SIF 39:1), s. 9(b)

F46 Words repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 1, Sch. 8

F47 Words substituted by virtue of Criminal Procedure (Scotland) 1975 (c. 21, SIF 39:1), s. 289G

Marginal Citations

M14 1968 c. 49(81:3).

297 Committal of children to custody in place of safety. S

(1) Any court, on remanding or committing for trial a child who is not liberated on bail shall, instead of committing him to prison, commit him to the local authority in whose area the court is situated to be detained in a place of safety chosen by the local authority for the period for which he is remanded or until he is liberated in due course of law.

Provided that in the case of a child over 14 years of age it shall not be obligatory on the court so to commit him if the court certifies that he is of so unruly a character that he cannot safely be so committed or that he is of so depraved a character that he is not a fit person to be so detained [F48 ; but the court shall not so certify a child unless such conditions as the Secretary of State may by order made by statutory instrument prescribe are satisfied in relation to the child.]

(2) A commitment under this section may be varied, or, in the case of a child over 14 years of age, who proves to be of so unruly a character that he cannot safely be detained in such custody, or to be of so depraved a character that he is not a fit person to be so detained, revoked, by the court which made the order, or if application cannot conveniently be made to that court, by a sheriff sitting summarily having jurisdiction in the place where the court which made the order sat, and if it is revoked the child may be committed to prison [F49 ; but a commitment shall not be so revoked unless such conditions as the Secretary of State may by order made by statutory instrument prescribe are satisfied in relation to the child.]

Textual Amendments

F48 Words added (prosp.) by Children Act 1975 (c. 72, SIF 42:9, 10), ss. 70(a), 108(2)

F49 Words added (prosp.) by Children Act 1975 (c. 72, SIF 49:9,10), ss. 70(c), 108(2)

298 All offences to be bailable. S

(1) All offences shall be bailable, and any judge having jurisdiction to try the offence may, at his discretion, on the application of any person who has been charged with any offence, and after opportunity shall have been given to the prosecutor to be heard thereon, admit or refuse to admit such person to bail.

(2) Such application shall be disposed of within 24 hours after its presentation to the judge, failing which the accused shall be forthwith liberated.

[F50 (3) For the avoidance of doubt, the foregoing provisions of this section apply whether or not the person is in custody at such time as he appears for the disposal of his application.]

Textual Amendments

F50 S. 289(3) added by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 7 para. 51

299 Application for review of court’s decision on bail and caution. S

(1) The following provisions of this section shall apply where a court has refused to admit a person to bail or, where a court has so admitted a person, the bail fixed in his case has not been found.

(2) A court shall, on the application of any such person as aforesaid, have power to review its decision to admit to bail or its decision as to the bail fixed and may, on cause shown, admit the person to bail or, as the case may be, fix bail [F51 on different conditions].

(3) An application under this section, where it relates to the original decision of the court, shall not be made before the fifth day after that decision and, where it relates to a subsequent decision, before the fifteenth day thereafter.

(4) Nothing in the provisions of this section shall affect any right of a person to appeal against the decision of a court in relation to admitting to bail or to the bail fixed.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F52

Textual Amendments

F51 Words substituted by Bail etc. (Scotland) Act 1980 (c. 4, SIF 39:1), Sch. 1 para. 6

F52 Ss. 299(5), 301, 302, 303(2)(3) repealed by Bail etc. (Scotland) Act 1980 (c. 4, SIF 39:1), Sch. 2

[F53 299A Application by prosecutor for review of court’s decision to grant bail. S

(1) On an application by the prosecutor at any time after a court has granted bail to a person the court may, where the prosecutor puts before the court material information which was not available to it when it granted bail to that person, review its decision.

(2) On receipt of an application under subsection (1) above the court shall—

(a) intimate the application to the person granted bail;

(b) fix a diet for hearing the application and cite that person to attend the diet; and

(c) where it considers that the interests of justice so require, grant warrant to arrest that person.

(3) On hearing an application under subsection (1) above the court may—

(a) withdraw the grant of bail and remand the person in question in custody; or

(b) grant bail, or continue the grant of bail, either on the same or on different conditions.

(4) Nothing in the foregoing provisions of this section shall affect any right of appeal against the decision of a court in relation to bail.]

Textual Amendments

F53 S. 299A inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 4; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

300 Appeal in respect of bail. S

(1) Where an application for bail by a person charged with an offence under this Part of this Act is refused or where the applicant is dissatisfied with the amount of bail fixed, he may appeal to the High Court and that court may in its discretion order intimation to the prosecutor and, where an application for bail by any such person is granted [F54 or where the person is ordained to appear], the prosecutor, if dissatisfied with the granting of bail or with the amount fixed [F54 or that such person has been ordained to appear] may appeal in like manner and, subject as hereinafter provided, the applicant shall in such case not be liberated before such appeal is disposed of.

(2) Notice in writing shall be immediately given by the party appealing under this section to the other party.

(3) An appeal under this section shall be disposed of by the High Court or any Lord Commissioner of Justiciary in court or in chambers after such inquiry and hearing of the parties as shall seem just.

[F55 (3A) Where an applicant in an appeal under this section is under 21 years of age, section 329 of this Act shall apply to the High Court or, as the case may be, the Lord Commissioner of Justiciary when disposing of the appeal as it applies to a court when remanding or committing a person of the applicant’s age for trial or sentence.]

(4) When an appeal is taken by the prosecutor under this section either against the grant of bail or against the amount fixed, the applicant to whom bail has been granted shall, if the bail fixed shall have been found by him, be liberated after 72 hours F56 . . ., from the granting of the application, whether the appeal be disposed of or not, unless the High Court shall grant order for his further detention in custody. In computing the aforesaid [F57 period], Sundays and public holidays, whether general or court holidays, shall be excluded.

[F58 (4A) When an appeal is taken by the prosecutor under this section against the fact that the person has been ordained to appear, subsection (4) above shall apply as it applies in the case of an appeal against the granting of bail or against the amount fixed.]

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F59

(6) Where an appeal under this section by the prosecutor is refused, the High Court may award expenses against him, but no court or other fees shall be exigible from, and no expenses shall be awarded against, an applicant in respect of his application or of any appeal therein.

Textual Amendments

F54 Words inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 62(4)(a)

F55 S. 300(3A) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 105(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F56 Words in s. 300(4) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 105(b)(i), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F57 Word in s. 300(4) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 105(b)(ii); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F58 S. 300(4A) inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 62(4)(b)

F59 S. 300(5) repealed by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(2), Sch. 2

301, 302. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F60 S

Textual Amendments

F60 Ss. 299(5), 301, 302, 303(2)(3) repealed by Bail etc. (Scotland) Act 1980 (c. 4, SIF 39:1), Sch. 2

303 Caution and bail. S

(1) With regard to the finding, forfeiture, and recovery of caution in any proceedings under this Part of this Act the following provisions shall apply:—

(a) caution may be found by consignation of the amount with the clerk of court, or by bond of caution, which bond may be signed by the mark of the cautioner;

(b) where caution becomes liable to forfeiture, forfeiture may be granted by the court on the motion of the prosecutor, and, where necessary, warrant granted for the recovery thereof;

(c) in the event of any cautioner failing to pay the amount due under his bond within six days after he has received a charge to that effect, the court may order him to be imprisoned for the maximum period applicable in pursuance of section 407 of this Act to that amount or until payment is made; or the court, if it shall adjudge it expedient, may on the application of the cautioner grant time for payment or may instead of imprisonment order recovery by civil diligence in accordance with section 411 of this Act.

(2)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F61

Textual Amendments

F61 Ss. 299(5), 301, 302, 303(2)(3) repealed by Bail etc. (Scotland) Act 1980 (c. 4, SIF 39:1), Sch. 2

304 Power to order parents to give security for child’s good behaviour. S

(1) Where a child has been charged with any offence the court may order his parent or guardian to give security for his co-operation in securing the child’s good behaviour.

(2) An order under this section may be made against a parent or guardian who, having been required to attend, has failed to do so, but, save as aforesaid, no such order shall be made without giving the parent or guardian an opportunity of being heard.

(3) Any sums ordered on forfeiture of any such security as aforesaid to be paid by a parent or guardian may be recovered from him by civil diligence or imprisonment in like manner as if the order had been made on the conviction of the parent or guardian of the offence with which the child was charged.

[F62 305 Right of accused to have access to solicitor. S

(1) Where any person has been arrested on any criminal charge, such person shall be entitled immediately upon such arrest—

(a) to have intimation sent to a solicitor that his professional assistance is required by such a person and informing him—

(i) of the place where the person is being detained;

(ii) whether the person is to be liberated; and

(iii) if the person is not to be liberated, the date on which he is to be taken to court and the court to which he is to be taken;

(b) to be told what rights there are under paragraph (a) above and subsections (2) and (3) below.

(2) Such solicitor shall be entitled to have a private interview with the person accused before he is examined on declaration, and to be present at such examination.

(3) It shall be in the power of the sheriff or justice to delay such examination for a period not exceeding 48 hours from and after the time of such person’s arrest, in order to allow time for the attendance of such solicitor.]

Textual Amendments

F62 S. 305 substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 106; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

306 Separation of children from adults at courts, etc. S

Arrangements shall be made for preventing a child while detained in a police station, or while being conveyed to or from any criminal court, or while waiting before or after attendance in any criminal court, from associating with an adult (not being a relative) who is charged with any offence other than an offence with which the child is jointly charged, and for ensuring that a female child shall, while so detained, being conveyed, or waiting, be under the care of a woman.

307 Attendance at court of parent of child charged with an offence, etc. S

(1) Where a child is charged with any offence, his parent or guardian may in any case, and shall, if he can be found and resides within a reasonable distance, be required to attend at the court before which the case is heard or determined during all the stages of the proceedings, unless the court is satisfied that it would be unreasonable to require his attendance.

(2) Where the child is arrested, the constable by whom he is arrested or the officer of police in charge of the police station to which he is brought shall cause the parent or guardian of the child, if he can be found, to be warned to attend at the court before which the child will appear.

(3) For the purpose of enforcing the attendance of a parent or guardian and enabling him to take part in the proceedings and enabling orders to be made against him, rules may be made under section 457 of this Act, for applying, with the necessary adaptations and modifications, such of the provisions of this Part of this Act as appear appropriate for the purpose.

(4) The parent or guardian whose attendance shall be required under this section shall be the parent or guardian having the actual possession and control of the child:

Provided that, if that person is not the father, the attendance of the father may also be required.

(5) The attendance of the parent of a child shall not be required under this section in any case where the child was before the institution of the proceedings removed from the custody or charge of his parent by an order of a court.

308 Notice to local authority of charge against a child. S

(1) Where a child is to be brought before a court, notification of the day and hour when, and the nature of the charge on which, the child is to be so brought shall be sent by the chief constable of the area in which the offence is alleged to have been committed to the local authority for the area in which the court will sit.

(2) Where a local authority have received a notification under the foregoing subsection they shall make such investigations and render to the court a report which shall contain such information as to the home surroundings of the child as appear to them will assist the court in the disposal of his case, and the report shall contain information, which the appropriate education authority shall have a duty to supply, as to the school record, health and character of the child.

309 Forms of procedure. S

(1) The forms of procedure under this Part of this Act shall be in the forms set out in F63 . . . an Act of Adjournal under this Act or as nearly as may be in such forms.

(2) Warrants of apprehension and search shall be signed by the judge granting the same, but all other warrants, orders of court, and sentences may be signed either by the judge or by the clerk of court, and execution upon any warrant, order of court, or sentence may proceed either upon such warrant, order of court, or sentence itself or upon an extract thereof issued and signed by the clerk of court.

(3) Where, as preliminary to any procedure, a sworn information is required, such information may be sworn to before any judge, whether the subsequent procedure be in his court or another court.

Textual Amendments

F63 Words in s. 309(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 107, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

310 Incidental applications. S

Where prior to [F64 or after] the presentation of a complaint it is necessary to apply to a court for any warrant or order of court as incidental to . . . F65 proceedings by complaint, or where a court has power to grant any warrant or order of court, although no subsequent proceedings by complaint may follow thereon, such application may be by petition at the instance of a prosecutor in the form set out in F66 . . . an Act of Adjournal under this Act or as nearly as may be in such form and, where necessary for the execution of any such warrant or order of court, warrant to break open [F67 shut and] lockfast places shall be implied.

Textual Amendments

F64 Words inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 7 para. 53

F65 Words repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 1, Sch. 8

F66 Words in s. 310 repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 108(a), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F67 Words in s. 310 inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 108(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

C8 S. 310 applied by Telecommunications Act 1984 (c. 12, SIF 96), s. 81(2)

C9 S. 310 extended by S.I. 1988/110, rules 154(1), 156

C10 S. 310 applied by S.I. 1986/2184, arts. 2(1), 4

C11 S. 310 applied (31.10.1994) by 1994 c. 26, s. 98(2)(a); S.I. 1994/2550, art. 2

[F68 310A Abolition of private summary prosecutions. S

Except where any enactment otherwise expressly provides, all prosecutions under this Part of this Act shall be brought at the instance of the procurator fiscal.]

Textual Amendments

F68 S. 310A inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 63; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

311 Complaint. S

(1) All proceedings under this Part of this Act for the trial of offences or recovery of penalties shall be instituted by complaint F69 . . ..

(2) Such complaint shall be signed by the prosecutor or by any solicitor on behalf of a prosecutor other than the public prosecutor of a court.

(3) A solicitor may appear for and conduct any prosecution on behalf of a prosecutor other than the public prosecutor of a court.

F70 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F70 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F69 Words in s. 311(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 109(a), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F70 S. 311(4)(5) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 109(b), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

312 Form of the charge in complaint. S

The charge in a complaint under this Part of this Act shall be stated in the form, as nearly as may be, of the appropriate form contained in Part II of Schedule 2 to the M15 Summary Jurisdiction (Scotland) Act 1954 or in an Act of Adjournal under this Act. No further specification shall be required than a specification similar to that given in that form and—

(a) a person accused may be named and designed according to the existing practice, or he may be named by the name given by him and designed as of the place given by him as his residence when he is examined on declaration, and it shall not be necessary to set forth any other name or names by which he may be known, or any other address or designation;

(b) it shall not be necessary to specify by anynomen juristhe offence which is charged, but it shall be sufficient that the complaint sets forth facts relevant and sufficient to constitute an offence punishable on complaint;

(c) when two or more persons are charged together with committing an offence punishable on complaint, it shall not be necessary to allege that “both and each or one or other,” or that “all and each or one or more” of them committed the offence, or did or failed to do any particular act, but such alternatives shall be implied;

(d) it shall not be necessary to state that a person accused is “guilty, actor or art and part”, but such charge shall be implied;

(e) it shall not be necessary to allege that any act of commission or omission therein charged was done or omitted to be done “wilfully” or “maliciously”, or “wickedly and feloniously”, or “falsely and fraudulently”, or “knowingly”, or “culpably and recklessly”, or “negligently”, or in “breach of duty”, or to use such words as “knowing the same to be forged”, or “having good reason to know”, or “well knowing the same to have been stolen”, or to use any similar words or expressions qualifying any act charged, but such qualifying allegation shall be implied;

(f) the latitude in use to be taken in stating time shall be implied in all statements of time where an exact time is not of the essence of the charge, and the latitude in use to be taken in stating any place by adding to the word “at”, or to the word “in”, the words “or near”, or the words “or in the near neighbourhood thereof”, or similar words, shall be implied in all statements of place where the actual place is not of the essence of the charge, and where the circumstances of the offence charged make it necessary to take an exceptional latitude in regard to time or place it shall not be necessary to set forth such circumstances, or to set forth that the particular time or the particular place is to the prosecutor unknown; provided that where exceptional latitude is taken, the court shall, if satisfied that such exceptional latitude was not reasonable in the circumstances of the case, give such remedy to the accused by adjournment of the trial or otherwise as shall seem just [F71 provided also that nothing in the foregoing provisions of this paragraph or in any rule of law shall prohibit the amendment of a complaint to include a time outwith the exceptional latitude if it appears to the court that the amendment would not prejudice the accused;];

(g) the latitude in use to be taken in describing quantities by the words “or thereby”, or the words “or part thereof”, or the words “or some other quantity to the prosecutor unknown” or similar words, shall be implied in all statements of quantities, and the latitude in use to be taken in stating details connected with the perpetration of any act regarding persons, things or modes by inserting general alternative statements followed by the words “to the prosecutor unknown”, or similar words, shall be implied;

(h) where in a complaint, whether raised under statute or at common law, buildings, goods, money, or property of any other description are mentioned, it shall not be necessary to allege the property or possession thereof to be in any person, official, corporation or company, or that the same were not the property of the accused, and the allegation that the same were not the property of the accused shall be implied where it is essential to the criminality of the charge;

(i) where in a complaint or any list or inventory relative thereto any person is referred to, it shall be sufficient to describe him by his name and ordinary address, and it shall not be necessary to describe him as “now or lately” residing at such address, but such words shall be implied, and where goods, articles or things require to be described, it shall be sufficient to describe them in general terms without specifying the materials of which they are made, or any particulars which distinguish them from other goods, articles or things of a similar kind except in cases in which such particulars are essential to the constitution of the offence charged;

(j) the word “money” shall include [F72 cheques, banknotes, postal orders, money orders and foreign currency;];

(k) where any document requires to be referred to, it shall not be necessary to set forth the document or any part of it, but it shall be sufficient to refer to such document by a general description;

(l) criminal resetting of property shall not be limited to the receiving of property taken by theft or robbery, but shall extend to the receiving of property appropriated by breach of trust and embezzlement, and by falsehood fraud and wilful imposition, and under any complaint charging the resetting of property dishonestly appropriated by any of these means, it shall not be necessary to set forth any details of the offence by which the dishonest appropriation was accomplished, but it shall be sufficient to set forth that the accused received such property, it having been dishonestly appropriated by theft or robbery, or by breach of trust and embezzlement, or by falsehood fraud and wilful imposition, as the case may be;

(m) under a complaint for robbery, or for theft, or for breach of trust and embezzlement, or for falsehood fraud and wilful imposition, a person accused may be convicted of reset; under a complaint for robbery, or for breach of trust and embezzlement, or for falsehood fraud and wilful imposition, a person accused may be convicted of theft; under a complaint for theft, a person accused may be convicted of breach of trust and embezzlement, or of falsehood fraud and wilful imposition, or may be convicted of theft, although the circumstances proved may in law amount to robbery.

The power conferred by the last foregoing paragraph to convict a person of an offence other than the offence charged in a complaint shall be exercisable by the sheriff court before which such person is tried notwithstanding that that other offence was committed outside the jurisdiction of that sheriff court;

(n) where two or more offences or acts constituting offences are charged cumulatively, it shall be lawful to convict of any one or more of them, and any part of what is charged in a complaint, constituting in itself an offence punishable on complaint, shall be deemed separable to the effect of making it lawful to convict of such offence, and where any offence is charged as having been committed with a particular intent or with particular circumstances of aggravation, it shall be lawful to convict of the offence without such intent or aggravation;

(o) attempt to commit any offence punishable on complaint shall itself be an offence punishable on complaint, and under a complaint which charges a completed offence the accused may be lawfully convicted of an attempt to commit such offence; and under a complaint charging an attempt, the accused may be convicted of such attempt although the evidence be sufficient to prove the completion of the offence said to have been attempted; and under a complaint charging an offence which imports personal injury inflicted by the accused, resulting in death or serious injury to the person, the accused may be lawfully convicted of the assault or other injurious act, and may also be lawfully convicted of the aggravation that such assault or other injurious act was committed with intent to commit such offence;

(p) the description of any offence in the words of the statute or order contravened, or in similar words, shall be sufficient;

(q) the statement that an act was done contrary to a statute or order shall imply a statement that the statute or order applied to the circumstances existing at the time and place of the offence, that the accused was a person bound to observe the same, that any necessary preliminary procedure had been duly gone through, and that all the circumstances necessary to a contravention existed; in the case of the contravention of an order, such statement shall imply a statement that the order was duly made, confirmed, published and generally made effectual according to the law applicable, and was in force at the time and place in question;

(r) where the offence is created by more than one section of one or more statutes or orders, it shall be necessary to specify only the leading section or one of the leading sections;

(s) it shall not be necessary for an offence punishable under any Act of Parliament to quote the Act of Parliament or any part of it, but it shall be sufficient to allege that the offence was committed contrary to such Act of Parliament, and to refer to the Act and any section of the Act founded on without setting forth the enactment at length;

(t) where any act set forth in a complaint as contrary to any Act of Parliament is also criminal at common law, or where the facts proved under such a complaint do not amount to a contravention of the statute, but do amount to an offence at common law, it shall be lawful to convict of the common law offence;

(u) when in a trial the evidence shall be sufficient to prove the identity of any person, corporation or company, or of any place, or of any thing, it shall not be a valid objection to the sufficiency of such evidence that any particulars set forth in regard thereto in the complaint have not been proved;

(v) any exception, exemption, proviso, excuse or qualification, whether it does or does not accompany in the same section the description of the offence in the statute or order creating the offence, may be proved by the accused, but need not be specified or negatived in the complaint, and no proof in relation to such exception, exemption, proviso, excuse or qualification shall be required on behalf of the prosecution;

(w) it shall be competent to include in one complaint both common law and statutory charges;

(x) where an offence is alleged to be committed in any special capacity, as by the holder of a licence, master of a vessel, occupier of a house or the like, the fact that the accused possesses the qualification necessary to the commission of the offence shall, unless challenged by preliminary objection before his plea is recorded, be held as admitted;

(y) in any proceedings under the Merchant Shipping Acts it shall not be necessary to produce the official register of the ship referred to in the proceedings in order to prove the nationality of the ship, but the nationality of the ship as stated in the complaint shall, in the absence of evidence to the contrary, be presumed;

(z) in offences inferring dishonest appropriation of property brought before a court whose power to deal with such offences is limited to cases in which the value of such property does not exceed [F73 level 4 on the standard scale] it shall be assumed, and it shall not be necessary to state in the charge, that the value of the property does not exceed that sum.

Textual Amendments

F71 Words in s. 312(f) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 110(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F72 Words in s. 312(j) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 110(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F73 Words substituted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 56, Sch. 7

Marginal Citations

M15 1954 c. 48(39:1).

F74 313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

Textual Amendments

F74 S. 313 repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 24, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

314 Orders of court on complaint. S

(1) On any complaint under this Part of this Act being laid before a judge of the court in which the complaint is brought, he shall have power on the motion of the prosecutor—

(a) to pronounce an order of court assigning a diet for the disposal of the case to which the accused may be cited as after-mentioned;

(b) to grant warrant to apprehend the accused where this appears to the judge expedient;

(c) to grant warrant to search the person, dwelling-house and repositories of the accused and any place where he may be found for any documents, articles, or property likely to afford evidence of his guilt of, or guilty participation in, any offence charged in the complaint, and to take possession of such documents, articles or property;

(d) to grant any other order of court or warrant F75 . . . of court of warrant which may be competent in the circumstances.

(2) The power under the foregoing subsection [F76 of a judge—

(a) to pronounce an order of court assigning a diet for the disposal of the case may be exercised on his behalf by the clerk of court;

(b)]

to grant a warrant to apprehend the accused shall be exercisable notwithstanding that there is power whether at common law or under any Act to apprehend him without a warrant.

(3) Where a diet has been fixed in a summary prosecution, it shall be competent for the court, on a joint application in writing by the parties or their solicitors, to discharge the diet so fixed and fix in lieu thereof an earlier . . . F77 diet.

[F78 (4) Where the prosecutor and the accused make joint application to the court (orally or in writing) for postponement of a diet which has been fixed, the court shall discharge the diet and fix in lieu thereof a later diet unless the court considers that it should not do so because there has been unnecessary delay on the part of one or more of the parties.

[F79 (4A) Where all the parties join in an application under subsection (4) above, the court may proceed under that subsection without hearing the parties.]

(5) Where the prosecutor has intimated to the accused that he desires to postpone or accelerate a diet which has been fixed, and the accused refuses, or any of the accused refuse, to make a joint application to the court for that purpose, the prosecutor may make an incidental application for that purpose under section 310 of this Act; and, after giving the parties an opportunity to be heard, the court may discharge the diet and fix in lieu thereof a later diet or, as the case may be, an earlier diet.

(6) Where an accused has intimated to the prosecutor and to all the other accused that he desires such postponement or acceleration and the prosecutor refuses, or any of the other accused refuse, to make a joint application to the court for that purpose, the accused who has so intimated may apply to the court for that purpose; and, after giving the parties an opportunity to be heard, the court may discharge the diet and fix in lieu thereof a later diet or, as the case may be, an earlier diet.]

Textual Amendments

F75 Words in s. 314(1)(d) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 111(a), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F76 Words inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 11(a)

F77 Words repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 1, Sch. 8

F78 S. 314(4)–(6) added by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 11(c)

F79 S. 413(4A) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 111(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

315 Citation. S

(1) This Act shall be a sufficient warrant for the citation of the accused and witnesses in a summary prosecution to any ordinary sitting of the court or to any special diet fixed by the court or any adjournment thereof.

(2) Such citation shall be in the form, as nearly as may be, of the appropriate form contained in F80 . . .an Act of Adjournal under this Act and shall in the case of the accused proceed on an induciae of at least 48 hours unless in the special circumstances of the case the court fixes a shorter induciae.

(3) The foregoing provisions of this section as to the citation of witnesses shall apply to the citation of witnesses for precognition by the prosecutor where a judge on the application of such prosecutor shall deem it expedient to grant warrant to cite witnesses for precognition in regard to any offence which may be competently tried in the court of that judge, and whether or not any person has at the time of such application been charged with such offence.

Textual Amendments

F80 Words in s. 315(2) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 112, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

C12 S. 315 extended by Road Traffic Offenders Act 1988 (c. 53, SIF 107:1), s. 60(4)

316 Manner of citation. S

(1) The citation of the accused and witnesses in a summary prosecution to any ordinary sitting of the court or to any special diet fixed by the court or to any adjourned sitting or diet of such court shall be effected as provided in this section.

(2) It shall be deemed a legal citation of the accused or a witness to such a sitting or diet or adjourned sitting or diet as is mentioned in the foregoing subsection:—

(a) if the citation be delivered to him personally or left for him at his dwelling-house or place of business with some person resident or employed therein or, where he has no known dwelling-house or place of business, at any other place in which he may at the time be resident,

(b) where the accused or witness is the master of, or a seaman or person employed in a vessel, if the citation is left with a person on board thereof and connected therewith,

(c) where the accused is a company, association or corporation, if the citation is left at their ordinary place of business with a partner, director, secretary or other official, or if the company, association or corporation is cited in the same manner as if the proceedings were in a civil court, or

(d) where the accused is a body of trustees, if the citation is left with any one of them who is resident in Scotland or with their known solicitor in Scotland.

(3) It shall be deemed a legal citation of the accused [F81 or a witness]to such a sitting or diet or adjourned sitting or diet as is mentioned in subsection (1) hereof, if the citation be signed by the prosecutor and

[F82 (a) in the case of the accused,]

sent by post in a registered envelope or through the recorded delivery service [F83 ; and

(b) in the case of a witness, sent by ordinary post,]

to the dwelling-house or place of business of such accused, or, if he has no known dwelling-house or place of business, to any other place in which he may at the time be resident:

Provided that, if the accused [F84 or witness]shall fail to appear at a diet or sitting or adjourned diet or sitting to which he has been cited in the manner provided by this subsection, paragraphs (b) and (c) of section 338 of this Act shall not apply unless it shall have been proved to the court that he received the citation or that the contents thereof came to his knowledge.

(4) The production in court of any letter or other communication purporting to be written by or on behalf of an accused who has been cited in the manner provided in subsection (3) hereof in such terms as to infer that the contents of such citation came to his knowledge, shall be admissible as evidence of that fact for the purposes of the proviso to that subsection.

Textual Amendments

F81 Words in s. 316(3) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 113(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F82 S. 316(3)(a) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 113(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F83 S. 316(3)(b) and the word “and” immediately preceding inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 113(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F84 Words in s. 316(3) proviso inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 113(d); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

317 Citation of probationer. S

The citation of a probationer to appear before a court of summary jurisdiction in terms of section 387(1) or 388(1) of this Act shall be effected in like manner, mutatis mutandis, as the citation of an accused to a sitting or diet of the court.

318 Citation of offender. S

(1) The citation of an offender to appear before a court of summary jurisdiction in terms of section 398(2)(a) of this Act shall be effected in like manner, mutatis mutandis, as the citation of an accused to a sitting or diet of the court:

F85 Provided that the citation shall be signed by the clerk of the court before which the offender is required to appear, instead of by the prosecutor, and provided also that the forms contained in Part IV of Schedule 2 to the Summary Jurisdiction (Scotland) Act 1954 and the corresponding forms contained in an Act of Adjournal under this Act shall not apply to such citation.

(2) The citation of such an offender shall be in the appropriate form contained in an Act of Adjournal under this Act, or as nearly as may be in such form.

(3) If the citation of such an offender shall have been effected by an officer of law, the written execution, if any, of that officer of law shall be in the appropriate form contained in an Act of Adjournal under this Act, or as nearly as may be in such form.

Textual Amendments

F85 It is provided that the words “Part IV of Schedule 2 to the Summary Jurisdiction (Scotland) Act 1954 and the corresponding forms contained in” in s. 318(1) proviso shall be repealed (31.3.1996) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 114, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

319 Citation by post. S

(1) When the citation of any person F86 . . . is effected by post in terms of any of the foregoing provisions of this Act, the induciae shall be reckoned from 24 hours after the time of posting.

(2) It shall be sufficient evidence that a citation has been sent by post in terms of any of the foregoing provisions of this Act, if there is produced in court a written execution, signed by the person who signed such citation and in the appropriate form contained in an Act of Adjournal under this Act, or as nearly as may be in such form, together with the post office receipt for the relative registered or recorded delivery letter.

Textual Amendments

F86 Words in s. 319(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 115, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

320 Apprehension of witness. S

Where a witness after being duly cited fails to appear at the diet fixed for his attendance and no just excuse is offered on his behalf, the court may [F87 , if it is satisfied that he received the citation or that its contents came to his knowledge,]issue a warrant for his apprehension; or the court, if satisfied by evidence on oath that a witness is not likely to attend to give evidence without being compelled so to do, may issue a warrant for his apprehension in the first instance.

Textual Amendments

F87 Words in s. 320 inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 116; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

C13 S. 320 applied (10.6.1991) by Criminal Justice (International Co-operation) Act 1990 (c. 5, SIF 39:1), s. 4(6), Sch. 1 para. 2; S.I. 1991/1072, art. 2(a), Sch. Pt. I

321 Warrants of apprehension and search. S

(1) A warrant of apprehension or search may be in the form, as nearly as may be, of the appropriate form contained in F88 . . .an Act of Adjournal under this Act, and any warrant of apprehension or search shall, where it is necessary for its execution, imply warrant to officers of law to break open shut and lockfast places.

(2) A warrant of apprehension of an accused person in such form as aforesaid shall imply warrant to officers of law to search for and to apprehend the accused, and to bring him before the court issuing the warrant, or before any other court competent to deal with the case, to answer to the charge on which such warrant is granted, and, in the meantime, until he can be so brought to detain him in a police station house, police cell, or other convenient place.

(3) A person apprehended under any such warrant as aforesaid or by virtue of the powers possessed at common law, or conferred by statute, shall wherever practicable be brought before a court competent to deal with the case F89 . . . not later than in the course of the first . . . F90 day after such person shall be taken into custody, such day not being a [F91 Saturday, a Sunday or a court holiday prescribed for that court under section 10 of the M16 Bail etc. (Scotland) Act 1980:]

[F91 Provided that nothing in this subsection shall prevent such person being brought before the court on a Saturday, a Sunday or such a court holiday where the court is, in pursuance of the said section 10, sitting on such day for the disposal of criminal business.]

(4) A warrant of apprehension or other warrant shall not be required for the purpose of bringing before the court an accused person who had been apprehended without a written warrant or who attends without apprehension in answer to any charge made against him.

(5) A warrant of apprehension of a witness in the appropriate form shall imply warrant to officers of law to search for and apprehend the witness, and to detain him in a police station house, police cell, or other convenient place, until

[F92 (a) the date fixed for the hearing of the case; or

(b) the date when security to the amount fixed under subsection (6) below is found,

whichever is the earlier.]

[F93 (6) A witness apprehended under a warrant under section 320 of this Act shall, wherever practicable, be brought immediately by the officer of law who executed that warrant before a justice, who shall fix such sum as he considers appropriate as security for the appearance of the witness at all diets.]

Textual Amendments

F88 Words in s. 321(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 117(a), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F89 Words in s. 321(3) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 117(b), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F90 Word repealed by Bail etc. (Scotland) Act 1980 (c. 4, SIF 39:1), Sch. 2

F91 Words substituted by Bail etc. (Scotland) Act 1980 (c. 4, SIF 39:1), Sch. 1 para. 7

F92 S. 321(5)(a)(b) and words substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) for words by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 117(c); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F93 S. 321(6) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 117(d); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

C14 S. 321(3) excluded (temp. to 22.3.1991) by Prevention of Terrorism (Temporary Provisions) Act 1989 (c. 4, SIF 39:2), s. 15(7)(a) and S.I. 1990/683, art. 3

Marginal Citations

M16 1980 c. 4(39:1).

322 Warrants for arrest of escaped prisoners and mental patients. S

(1) On an application being made to a sheriff or justice alleging that any person is—

(a) an offender unlawfully at large from a prison or other institution to which the Prison Act applies in which he is required to be detained after being convicted of an offence; or

(b) a convicted mental patient liable to be retaken under [F94 section 18, 38(7) or 138 of the M17 Mental Health Act 1983], [F95 section 28, 44 or 121 of the M18 Mental Health (Scotland) Act 1984] or section 30 or 108 of the M19 Mental Health Act (Northern Ireland) 1961 (retaking of mental patients who are absent without leave or have escaped from custody);

the sheriff or justice may issue a warrant to arrest him and bring him before any sheriff.

(2) Where a person is brought before a sheriff in pursuance of a warrant for his arrest under this section, the sheriff shall, if satisfied that he is the person named in the warrant and if satisfied as to the facts mentioned in paragraph (a) or (b) of the foregoing subsection, order him to be returned to the prison or other institution where he is required or liable to be detained or, in the case of a convicted mental patient, order him to be kept in custody or detained in a place of safety pending his admission to hospital.

(3) [F96 Section 137 of the M20 Mental Health Act 1983], [F97 section 120 of the M21 Mental Health (Scotland) Act 1984] and section 107 of the M22 Mental Health Act (Northern Ireland) 1961 (custody, conveyance and detention of certain mental patients) shall apply to a convicted mental patient required by this section to be conveyed to any place or to be kept in custody or detained in a place of safety as they apply to a person required by or by virtue of [F96 the said Act of 1983], [F97 1984] or 1961, as the case may be, to be so conveyed, kept or detained.

(4) In this section—

• “convicted mental patient” means a person liable after being convicted of an offence to be detained under [F98 Part III of the M23 Mental Health Act 1983, [F99 Part VI of the M24 Mental Health (Scotland) Act 1984]], Part III of the M25 Mental Health Act (Northern Ireland) 1961 or section 330, 376, 378 or 379 of this Act in pursuance of a hospital order or transfer direction together with an order or direction restricting his discharge [F100 or a person liable to be detained under][F98 section 38 to the said Act of 1983];

• “place of safety” has the same meaning as in [F98 Part II of the said Act of 1983], or Part III of the said Act of 1961, or section 462 of this Act as the case may be;

• “Prison Act” means the M26 Prison Act 1952, the M27 Prisons (Scotland) Act 1952 or the M28 Prison Act (Northern Ireland) 1953, as the case may be.

Textual Amendments

F94 Words substituted by Mental Health Act 1983 (c. 20, SIF 85), s. 148, Sch. 4 para. 41(a)

F95 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(1), Sch. 3 para. 30(a)

F96 Words substituted by Mental Health Act 1983 (c. 20, SIF 85), s. 148, Sch. 4 para. 41(b)

F97 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(1), Sch. 3 para. 30(b)

F98 Words substituted by Mental Health Act 1983 (c. 20, SIF 85), s. 148, Sch. 4 para. 41(c)

F99 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(1), Sch. 3 para. 30(c)

F100 Words inserted by Mental Health (Amendment) Act 1982 (c. 51, SIF 85), Sch. 3 para. 51(b), Sch. 5 para. 1

Marginal Citations

M17 1983 c. 20(85).

M18 1984 c. 36(85).

M19 1961 c. 15 (N.I.)

M20 1983 c. 20(85).

M21 1984 c. 36(85).

M22 1961 c. 15 (N.I.)

M23 1983 c. 20(85).

M24 1984 c. 36(85).

M25 1961 c. 15 (N.I.)

M26 1952 c. 52(39:1).

M27 1952 c. 61(39:1).

M28 1953 c. 18 (N.I.)

323 Warrant to search for or remove a child. S

(1) If, on an application to a justice by any person who, in the opinion of the justice, is acting in the interests of a child, it appears to the justice on information on oath that there is reasonable cause to suspect—

(a) that the child has been or is being assaulted, ill-treated, or neglected in any place within the jurisdiction of the justice, in a manner likely to cause him unnecessary suffering or injury to health, or

(b) that any offence mentioned in Schedule 1 to this Act has been or is being committed in respect of the child,

the justice may issue a warrant authorising any constable named therein to search for the child and, if it is found that he has been or is being assaulted, ill-treated or neglected in manner aforesaid, or that any such offence as aforesaid has been or is being committed in respect of him, to take him to and detain him in a place of safety, or authorising any constable to remove him with or without search to a place of safety and detain him there.

(2) A child shall not continue to be detained under the last foregoing subsection—

(a) where the reporter considers the child does not require compulsory measures of care, or

(b) after the day on which a children’s hearing first sit to consider his case in pursuance of section 37(4) of the M29 Social Work (Scotland) Act 1968, or

(c) for a period exceeding seven days.

F101 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Any constable authorised by warrant under this section to search for or, with or without search, to remove any child may enter (if need be by force) any house, building, or other place specified in the warrant, and may remove him therefrom.

(5) Every warrant issued under this section shall be addressed to and executed by a constable, who shall be accompanied by the person making the application if that person so desires, unless the justice by whom the warrant is issued otherwise directs, and may also, if the justice by whom the warrant is issued so directs, be accompanied by a duly qualified medical practitioner.

(6) It shall not be necessary in any application, information or warrant under this section to name the child.

Textual Amendments

F101 S. 323(3) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 8, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

C15 S. 323 amended by Adoption (Scotland) Act 1978 (c. 28, SIF 49:11), ss. 37(1), and Foster Children (Scotland) Act 1984 (c. 56, SIF 20), s. 13

Marginal Citations

M29 1968 c. 49(81:3).

324 Backing of certain warrants from the Isle of Man. S

(1) A warrant issued in the Isle of Man for the arrest of a person charged with an offence may, after it has been endorsed by a justice in Scotland, be executed there by the person bringing that warrant, by any person to whom the warrant was originally directed or by any officer of law of the sheriff court district where the warrant has been endorsed as aforesaid in like manner as any such warrant issued in Scotland.

(2) In this section “endorsed” means endorsed in the like manner as a process to which section 4 of the M30 Summary Jurisdiction (Process) Act 1881 applies.

Marginal Citations

M30 1881 c. 24(36:3, 82).

325 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F102 S

Textual Amendments

F102 S. 325 repealed by Criminal Law Act 1977 (c. 45, SIF 39:1), Sch. 13

326 Service of complaints, etc. S

(1) Any complaint, warrant, or other proceeding under this Part of this Act may without endorsation be served or executed at any place within Scotland by any officer of law, and such service or execution may be proved either by the oath in court of such officer or by production of his written execution. The M31 Indictable Offences Act 1848 and the M32 Indictable Offences Act Amendment Act 1868 shall, for the purpose of this Part of this Act, apply to all offences which may be tried by the court issuing any competent warrant, order of court, or other process.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F103

Textual Amendments

F103 S. 326(2) repealed by Magistrates' Courts Act 1980 (c. 43, SIF 82), s. 154(3), Sch. 9

Marginal Citations

M31 1848 c. 42(39:1).

M32 1868 c. 107(39:1).

[F104 237 Warrants granted by justice may be executed throughout Scotland. S

Any warrant granted by a justice may, without being backed or endorsed by any other justice, be executed throughout Scotland in the same way as it may be executed within the jurisdiction of the justice who granted it.]

Textual Amendments

F104 S. 237 substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 9; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

327 Sheriff’s warrant may be executed out of district. S

(1) Any warrant granted by a sheriff against—

(a) a person charged with having committed a crime or offence within the jurisdiction of that sheriff; or

(b) a person as being in meditatione fugae,

shall be sufficient for the apprehension of that person within any other sheriff court district, and for conveying and disposing of him in terms of the warrant, without the necessity of its being backed or endorsed by any other justice.

(2) Such warrant may be executed throughout Scotland in like manner as it may be executed within the jurisdiction of the sheriff who granted the warrant.

F105 328 Adjournment for inquiry, etc. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F105 S. 328 repealed (18.9.1993) by 1993 c. 9, ss. 38(2), 47(3), Sch. 7 Pt.I (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, art. 3(3), Sch. 2

329 Remand and committal of persons under 21. S

(1) Where a court remands or commits for trial or for sentence a person under 21 years of age who is charged with or convicted of an offence and is not released on bail [F106 or ordained to appear], then, except as otherwise expressly provided by this section, the following provisions shall have effect, that is to say—

(a) subject to the following paragraph, if he is under 16 years of age the court shall [F107 , instead of committing him to prison, commit him to the local authority in whose area the court is situated to be detained—

(i) where the court so requires, in secure accommodation within the meaning of the Social Work (Scotland) Act 1968; and

(ii) in any other case, in a suitable place of safety chosen by the authority;]

(b) if he is a person of over 16 years of age, or a child under 16 years of age but over 14 years of age who is certified by the court to be unruly or depraved, and the court has been notified by the Secretary of State that a remand centre is available for the reception from that court of persons of his class or description, he shall be committed to a remand centre instead of being committed to prison.

(2) Where any person is committed to a local authority or to a remand centre under any provision of this Act, that authority or centre shall be specified in the warrant, and he shall be detained by the authority or in the centre for the period for which he is committed or until he is liberated in due course of law.

(3) Where any person has been committed to a local authority under any provision of this Act, the court by which he was committed, if the person so committed is not less than 14 years of age and it appears to the court that he is unruly or depraved, may revoke the commitment and commit the said person—

(a) if the court has been notified that a remand centre is available for the reception from that court of persons of his class or description, to a remand centre; and

(b) if the court has not been so notified, to a prison.

(4) Where, in the case of a person under 16 years of age who has been committed to prison or to a remand centre under this section, the sheriff is satisfied that his detention in prison or a remand centre is no longer necessary, he may revoke the commitment and commit the person to the local authority in whose area the court is situated, [F108 to be detained—.

(a) where the court so requires, in secure accommodation within the meaning of the Social Work (Scotland) Act 1968; and

(b) in any other case, in a suitable place of safety chosen by the authority.]

Textual Amendments

F106 Words inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 62(2)

F107 S. 329(1)(a)(i)(ii) and words substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 14(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F108 S. 329(4)(a)(b) and words substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) for words by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 14(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Commencement Information

I1 S. 329 wholly in force at 6.1.1992 see s. 464(3) and S.I. 1991/2883, art. 2

330 Power of court to commit to hospital a person suffering from mental disorder. S

(1) Where a court remands or commits for trial a person charged with any offence who appears to the court to be suffering from mental disorder, and the court is satisfied that a hospital is available for his admission and suitable for his detention, the court may, instead of remanding him in custody, commit him to that hospital.

(2) Where any person is committed to a hospital as aforesaid, the Hospital shall be specified in the warrant and, if the responsible medical officer is satisfied that he is suffering from mental disorder of a nature or degree which warrants his admission to a hospital under [F109 Part V of the M33 Mental Health (Scotland) Act 1984], he shall there be detained for the period for which he is remanded or the period of committal, unless before the expiration of that period he is liberated in due course of law.

(3) When the responsible medical officer has examined the person so detained he shall report the result of that examination to the court and, where the report is to the effect that the person is not suffering from mental disorder of such a nature or degree as aforesaid, the court may commit him to any prison or other institution to which he might have been committed had he not been committed to hospital or may otherwise deal with him according to law.

(4) No person shall be committed to a hospital under this section except on the written or oral evidence of a medical practitioner.

[F110 (5) Without prejudice to subsection (3) above, the court may review an order under subsection (1) above on the ground that there has been a change of circumstances since the order was made and, on such review—

(a) where the court considers that such an order is no longer required in relation to a person, it shall revoke the order and may deal with him in such way mentioned in subsection (3) above as the court thinks appropriate;

(b) in any other case, the court may—

(i) confirm or vary the order; or

(ii) revoke the order and deal with him in such way mentioned in subsection (3) above as the court considers appropriate.

(6) Subsections (1) to (4) above shall apply to the review of an order under subsection (5) above as they apply to the making of an order under subsection (1) above.]

Textual Amendments

F109 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(1), Sch. 3 para. 31

F110 S. 330(5)(6) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 53; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Marginal Citations

M33 1984 c. 36(85).

331 Statutory offences time-limit. S

(1) Proceedings under this Part of this Act in respect of [F111 any offence triable only summarily and consisting of]the contravention of any statute or order shall, unless the statute or order under which the proceedings are brought fixes any other period, be commenced within six months after the contravention occurred and, in the case of a continuous contravention, within six months after the last date of such contravention, and it shall be competent in such case in any prosecution to include the entire period during which the contravention has occurred.

F112 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) For the purposes of this section proceedings shall be deemed to be commenced on the date on which a warrant to apprehend or to cite the accused is granted, if such warrant is executed without undue delay.

Textual Amendments

F111 Words in s. 331(1) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 62(2); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F112 S. 331(2) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, ss. 62(3), 117(2), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

C16 S. 331 excluded by Food and Drugs (Scotland) Act 1956 (c. 30, SIF 53:2), s. 41(4); Wireless Telegraphy Act 1967 (c. 72, SIF 96), s. 5(4); Social Security Act 1975 (c. 14, SIF 113:1), s. 147(4); S.I. 1978/463, reg. 17; Ancient Monuments and Archaeological Areas Act 1979 (c. 46, SIF 3), s. 59; Solicitors (Scotland) Act 1980 (c. 46, SIF 76:2), s. 63(2); Insurance Companies Act 1982 (c. 50, SIF 67), s. 94(4)(5); Industrial Development Act 1982 (c. 52, SIF 64), s. 5, Sch. 1 para. 4(2); Road Traffic Regulation Act 1984 (c. 27, SIF 107:1), ss. 110(2), 145(5), Sch. 12 para. 8(2), and Companies Act 1985 (c. 6, SIF 27), s. 731(3); excluded by Animals (Scientific Procedures) Act 1986 (c. 14 SIF 4:5), ss. 30(3), 26(4); excluded by Insolvency Act 1986 (c. 45, SIF 66), ss. 431(3), 443; excluded by Legal Aid (Scotland) Act 1986 (c. 47, SIF 77:2), ss. 35(2), 46(2); excluded by Social Security Act 1986 (c. 50, SIF 113:1), s. 56(5)(a)

C17 S. 331 excluded by Banking Act 1987 (c. 22, SIF 10), s. 97(3)

C18 S. 331 excluded by S.I. 1990/1786, art. 8(7) (as replaced by S.I. 1990/2144, art. 3)

C19 S. 331 excluded (1.1.1992) by S.I. 1991/2779, reg. 3(2)

S. 331 excluded (1.7.1992) by Social Security Administration Act 1992 (c. 5), ss. 116(7)(a), 192(4).

C20 S. 331 excluded (15.4.1992) by S.I. 1992/973, art. 4(3)(a).

S. 331 excluded (15.4.1992) by S.I. 1992/975, art. 16(8).

C21 S. 331 excluded (5.6.1992) by S.I. 1992/1302, art. 17(8).

S. 331 excluded (5.6.1992) by S.I. 1992/1304, art. 5(3)(a).

S. 331 excluded (28.10.1992) by S.I. 1992/2372, reg. 90.

C22 S. 331 excluded (1.5.1993) by S.I. 1993/1188, art. 16(7)

C23 S. 331 excluded (24.5.1993) by S.I. 1993/1244, art. 22(9)

C24 S. 331 excluded (22.7.1993) by S.I. 1993/1784, art. 13(8)

C25 S. 331 excluded (22.7.1993) by S.I. 1993/1787, art. 10(8)

C26 S. 331 excluded (1.10.1993) by S.I. 1993/2355, art. 12(8)

C27 S. 331 excluded (1.12.1993) by S.I. 1993/2807, art. 19(8)

C28 S. 331 excluded (23.5.1994) by S.I. 1994/1323, art. 17(8)

S. 331 excluded (1.9.1994) by 1994 c. 22, ss. 48(4), 66(1) (with s. 57(4)

S. 331 excluded (20.9.1995) by 1995 c. 32, s. 9; S.I. 1995/2472, art. 2

S. 331 excluded (19.10.1994) by S.I. 1994/2673, art. 13(8)

S. 331 excluded (31.10.1994) by 1994 c. 26, s. 96(1); S.I. 1994/2550, art. 2

C29 S. 331(1) modified by Surrogacy Arrangements Act 1985 (c. 39, SIF 39:2), s. 4(6)

C30 S. 331(1) modified by Road Traffic Offenders Act 1988 (c. 53, SIF 107:1), s. 64(7)(b)

C31 S. 331(1) applied (1.2.1993) by Friendly Societies Act 1992 (c. 40), s. 107(5)(with ss. 7(5), 93(4)); S.I. 1993/16, art. 2, Sch. 3

C32 S. 331(3) applied by International Carriage of Perishable Foodstuffs Act 1976 (c. 58, SIF 126), s. 12(2); Marriage (Scotland) Act 1977 (c. 15, SIF 49:2), s. 24(3); Insurance Companies Act 1982 (c. 50, SIF 67), s. 94(5); Industrial Development Act 1982 (c. 52 SIF 64), Sch. 1 para. 4(2); Road Traffic Regulation Act 1984 (c. 27, SIF 107:1), s. 110(2); Bankruptcy (Scotland) Act 1985 (c. 66, SIF 11:2), s. 68(2); applied by Animals (Scientific Procedures) Act 1986 (c. 14, SIF 4:5), ss. 30(3), 26(4); applied by Insolvency Act 1986 (c. 45, SIF 66), ss. 431(3), 443; by Social Security Act 1986 (c. 50, SIF 113:1), s. 56(5)(b); Building Societies Act 1986 (c. 53, SIF 15), s. 111(5)

C33 S. 331(3) applied by Sexual Offences (Scotland) Act 1976 (c. 67, SIF 39:5), s. 2D(3)

C34 S. 331(3) applied by Road Traffic Offenders Act 1988 (c. 53, SIF 107:1), s. 6(5)

C35 S. 331(3) applied by Computer Misuse Act 1990 (c. 18, SIF 39:1), s. 13(7)

C36 S. 331(3) applied (1.7.1992) by Social Security Administration Act 1992 (c. 5), ss. 116(7)(b)(ii), 192(4).

S. 331(3) applied (12.10.1992) by Timeshare Act 1992 (c. 35), s. 11(3); S.I. 1992/1941, art. 2.

S. 331(3) applied (1.1.1993) by S.I. 1992/2992, reg. 14(5).

S. 331(3) applied (1.1.1993) by S.I. 1992/2993, reg. 12(5).

S. 331(3) applied (1.1.1993) by S.I. 1992/2994, reg. 12(5).

C37 S. 331(3) applied (10.6.1993) by S.I. 1993/1317, reg. 8(9)

C38 S. 331(3) applied (30.6.1993) by S.I. 1993/1441, reg. 11(5)

C39 S. 331(3) applied (30.8.1993) by 1992 c. 52, s. 45A(6)(b) (as inserted by 1993 c. 19, s. 11(2); S.I. 1993/1908, art. 2(1), Sch. 1

C40 S. 331(3) applied (1.8.1993) by S.I. 1993/1734, reg. 17(5)

C41 S. 331(3) applied (27.9.1993) by 1993 c. 37, ss. 52(5), 65(2)

C42 S. 331(3) applied (15.11.1993) by S.I. 1993/2631, reg. 14(5)

C43 S. 331(3) applied (24.12.1993) by 1993 c. 43, s. 148(5); S.I. 1993/3237, art. 2(1)

C44 S. 331(3) applied (18.4.1994) by S.I. 1994/947, reg. 16(8)

S. 331(3) applied (12.9.1994) by S.I. 1994/2155, reg. 11(7)

S. 331(3) applied (3.10.1994) by S.I. 1994/2328, reg. 16(3)

S. 331(3) extended (15.11.1994) by S.I. 1994/2740, reg. 15(5)

S. 331(3) applied (20.2.1995) by S.I. 1995/184, reg. 5(7)

S. 331(3) applied (10.5.1995) by S.I. 1995/1054, reg. 15(3)(d)

S. 331(3) applied (22.6.1995) by S.I. 1995/1576, reg. 15(6)

S. 331(3) applied (31.7.1995) by S.I. 1995/1738, reg. 17(8)

[F113 331A Prevention of delay in trials. S

(1) Subject to subsections (2) and (3) below, a person charged with a summary offence shall not be detained in that respect for a total of more than forty days after the bringing of the complaint in court unless his trial is commenced within that period, failing which he shall be liberated forthwith and thereafter he shall be for ever free from all question or process for that offence.

(2) The sheriff may, on application made to him for the purpose, extend the period mentioned in subsection (1) above and order the accused to be detained awaiting trial for such period as he thinks fit where he is satisfied that delay in the commencement of the trial is due to—

(a) the illness of the accused or of a judge;

(b) the absence or illness of any necessary witness; or

(c) any other sufficient cause which is not attributable to any fault on the part of the prosecutor.

(3) The grant or refusal of any application to extend the period mentioned in subsection (1) above may be appealed against by note of appeal presented to the High Court; and that Court may affirm, reverse or amend the determination made on such application.

(4) For the purposes of this section, a trial shall be taken to commence when the first witness is sworn.]

Textual Amendments

F113 S. 331A inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 14(2), Sch. 6 para. 1

[F114 331B Death, illness or absence of judge. S

(1) Where the court is unable to proceed owing to the death, illness or absence of the presiding judge, it shall be lawful for the clerk of court—

(a) where the diet has not been called, to convene the court and adjourn the diet;

(b) where the diet has been called but no evidence has been led, to adjourn the diet; and

(c) where the diet has been called and evidence has been led—

(i) with the agreement of the parties, to desert the diet pro loco et tempore; or

(ii) to adjourn the diet.

(2) Where, under subsection (1)(c)(i) above, a diet has been deserted pro loco et tempore, any new prosecution charging the accused with the same or any similar offence arising out of the same facts shall be brought within two months of the date on which the diet was deserted notwithstanding that any other time limit for the commencement of such prosecution has elapsed.

(3) For the purposes of subsection (2) above, a new prosecution shall be deemed to commence on the date on which a warrant to apprehend or to cite the accused is granted, if such warrant is executed without undue delay.]

Textual Amendments

F114 S. 331B inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 30(4); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

332 Power to recover penalties. S

(1) All penalties, for the recovery of which no special provision has been made by statute or order, may be recovered by the public prosecutor in any court having jurisdiction.

(2) Where a court has power to take cognisance of an offence the penalty attached to which is not defined, the punishment therefore shall be regulated by that applicable to common law offences in that court.

333 Offences by companies, etc. S

With regard to the summary prosecution of offences committed by a company, association, incorporation or body of trustees, the following provisions shall, without prejudice to any other or wider powers conferred by statute, apply:—

(a) proceedings may be taken against the company, association, incorporation or body of trustees in their corporate capacity, and in that event any penalty imposed shall be recovered by civil diligence in manner hereinafter provided; or

(b) proceedings may be taken against an individual representative of such company, association or incorporation as follows:—

(i) in the case of an ordinary company or firm, any one of the partners thereof, or the manager or the person in charge or locally in charge of the affairs thereof, may be dealt with as if he was the person offending;

(ii) in the case of an association, incorporation or incorporated company, the managing director or the secretary or other person in charge, or locally in charge, of the affairs thereof, may be dealt with as if he was the person offending;

(iii) the offence shall be deemed to be the offence of such company, association or incorporation.

[333A F115 Adjournment for inquiry at first calling. S

Without prejudice to section 338(1) of this Act, at the first calling of the case in a summary prosecution the court may, in order to allow time for inquiry into the case or for any other cause which it considers reasonable, adjourn the case under this section, for such period as it considers appropriate, without calling on the accused to plead to any charge against him but remanding him in custody or on bail or ordaining him to appear at the diet thus fixed; and the court may from time to time so adjourn the case, so however that—

(a) where the accused is remanded in custody, the total period for which he is so remanded under this subsection shall not exceed twenty-one days and no one period of adjournment shall, except on special cause shown, exceed seven days; and

(b) where he is remanded on bail or ordained to appear, no one period of adjournment shall exceed twenty eight days.]

Textual Amendments

F115 S. 333A inserted (18.9.1993) by 1993 c. 9, s. 38(1) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, art. 3(3), Sch. 2

[F116 333B Agreement of evidence. S

(1) Subject to subsection (2) below, the prosecutor and the accused (or each accused if more than one) shall each identify any facts which are facts—

(a) which he would, apart from this section, be seeking to prove;

(b) which he considers unlikely to be disputed by the other party (or by any of the other parties); and

(c) in proof of which he does not wish to lead oral evidence,

and shall (without prejudice to section 16 of the Criminal Justice (Scotland) Act 1995 (procedure for proving uncontroversial evidence)) take all reasonable steps to secure the agreement of the other party (or each of the other parties) to them; and the other party (or each of the other parties) shall take all reasonable steps to reach such agreement.

(2) Subsection (1) above shall not apply in relation to proceedings as respects which the accused (or any of the accused if more than one) is not legally represented.

(3) The duty under subsection (1) above applies from the date on which the accused pleads not guilty until the swearing of the first witness or, where the accused tenders a plea of guilty at any time before the first witness is sworn, the date when he does so.]

Textual Amendments

F116 S. 333B inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 12(2); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Trial Procedure S

334 Procedure at first diet, etc. S

(1) Where the accused is present at the first calling of the case in a summary prosecution [F117 (whether or not a diet fixed by virtue of section 333A of this Act)], and—

(a) the complaint has been served on him, or

(b) the complaint or the substance thereof has been read to him, or

(c) he has legal assistance in his defence,

he shall [F118 , unless the court adjourns (or further adjourns) the case under the said section 333A,] be asked to plead in common form, and he may, prior to pleading, state [F119 an objection to the competency or relevancy of the complaint or the proceedings or issue a denial that he is the person charged by the police with the offence; and no such objection or denial shall be allowed to be stated or issued] at any future diet in the case except with the leave of the court, which may be granted only on cause shown.

[F120 (2) In the absence of the accused, an objection to the competency or relevancy of a summary complaint or the proceedings thereon may be stated, or a denial that the accused is the person charged by the police with the offence may be issued, by counsel or by a solicitor on his behalf; and where such an objection is stated or denial is issued, the provisions of this Part of this Act shall apply in like manner as if the accused had appeared and stated the objection or issued the denial.]

[F121 (2A) Without prejudice to any right of appeal under section 442 or 453A of this Act, a party may, with the leave of the court (granted either on the motion of that party or ex proprio motu) and in accordance with such procedure as may be prescribed by Act of Adjournal under this Act, appeal to the High Court against a decision of the court of first instance (other than a decision not to grant leave under this subsection) which relates to such objection or denial as is mentioned in subsection (1) above; but such appeal must be taken not later than two days after such decision.

(2B) Where an appeal is taken under subsection (2A) above, the High Court may postpone the trial diet (if one has been fixed) for such period as appears to them to be appropriate and may, if they think fit, direct that such period (or some part of it) shall not count towards any time limit applying in respect of the case.

(2C) If leave to appeal under subsection (2A) above is granted by the court it shall not proceed to trial at once under paragraph (a) of section 337 of this Act; and paragraph (b) of that section shall be construed as requiring sufficient time to be allowed for the appeal to be taken.

(2D) In disposing of an appeal under subsection (2A) above the High Court may affirm the decision of the court of first instance or may remit the case to it with such directions in the matter as they think fit; and where the court of first instance had dismissed the complaint, or any part of it, may reverse that decision and direct that the court of first instance fix a trial diet (if it has not already fixed one as regards so much of the complaint as it has not dismissed.)]

(3) Where the accused is not present at a calling of the case in a summary prosecution and either—

(a) the prosecutor produces to the court written intimation that the accused pleads not guilty or pleads guilty and the court is satisfied that such written intimation has been made or authorised by the accused, or

(b) a solicitor, or a person not being a solicitor who satisfies the court that he is authorised by the accused, appears on behalf of the accused and tenders a plea of not guilty or a plea of guilty,

then—

(i) in the case of a plea of not guilty, the provisions of this Part of this Act except paragraph (a) of section 337 shall apply in like manner as if the accused had appeared and tendered the plea, and

(ii) in the case of a plea of guilty, the court may, if the prosecutor accepts the plea, proceed to hear and dispose of the case in the absence of the accused in like manner as if he had appeared and pled guilty, or may, if it thinks fit, continue the case to another diet and require the attendance of the accused with a view to pronouncing sentence in his presence.

(4) Where in pursuance of paragraph (ii) of the last foregoing subsection the court proceeds to hear and dispose of a case in the absence of the accused, it shall not pronounce a sentence of imprisonment or of Borstal training or of detention in a detention centre, young offenders institution, remand centre, or other establishment.

(5) In this section a reference to a plea of guilty shall include a reference to a plea of guilty to a part only of the charge:

Provided that where such a plea is not accepted by the prosecutor it shall be deemed to be a plea of not guilty.

(6) It shall not be competent for any person appearing to answer a complaint, or for a solicitor appearing for the accused in his absence, to plead want of due citation or informality therein or in the execution thereof.

Textual Amendments

F117 Words in s. 334(1) inserted (18.9.1993) by 1993 c. 9, s. 47(1), Sch. 5 para. 1(30)(a) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, arts. 3(3), 4(1)(c), Sch. 2

F118 Words in s. 334(1) inserted (18.9.1993) by 1993 c. 9, s. 47(1), Sch. 5 para. 1(30)(b) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, arts. 3(3), 4(1)(c), Sch. 2

F119 Words substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 1, Sch. 7 para. 54(a)

F120 S. 334(2) substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 1, Sch. 7 para. 54(b)

F121 S. 334(2A)–(2D) inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 36, Sch. 6 para. 1

335 Amendment of complaint. S

(1) It shall be competent at any time prior to the determination of a summary prosecution, unless the court sees just cause to the contrary, to amend the complaint or any notice of F122 . . . previous conviction relative thereto by deletion, alteration or addition so as to cure any error or defect therein, or to meet any objection thereto, or to cure any discrepancy or variance between the complaint or notice and the evidence.

(2) Nothing in this section shall authorise an amendment which changes the character of the offence charged, and if the court shall be of opinion that the accused may in any way be prejudiced in his defence on the merits of the case by any amendment made under this section, the court shall grant such remedy to the accused by adjournment or otherwise as it shall think just.

(3) An amendment made under this section shall be sufficiently authenticated by the initials of the clerk of court.

Textual Amendments

F122 Words in s. 335(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 118, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F123 336 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

Textual Amendments

F123 S. 336 repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 119, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

337 Plea of not guilty. S

Where the accused in a summary prosecution pleads not guilty to the charge or guilty to part only thereof, and the prosecutor does not accept such partial plea, the following provisions shall apply:—

(a) the court may proceed to trial at once unless either party moves for an adjournment and the court shall adjudge it expedient to grant it; . . . F124

(b) the court may adjourn the case for trial to as early a diet as is consistent with the just interest of both parties, in which case the prosecutor shall, if requested by the accused, furnish him with a copy of the complaint if he does not already have one;

(c) where the accused is brought before the court by apprehension he shall be entitled to an adjournment of the case for not less than 48 hours, if the request for such adjournment is made before the prosecutor has commenced his proof, and the court shall inform the accused of his right to such adjournment:

Provided that the case may proceed to trial at once or on a shorter adjournment than 48 hours if the court considers that necessary to secure the examination of witnesses who otherwise would not be available;

(d) where the accused is in custody, he may be committed to prison or to legalised police cells or to any other place to which he may lawfully be committed pending trial

[F125 (i) if he is neither granted bail nor ordained to appear, or

(ii) if he is granted bail on a condition imposed under section 1(3) of the Bail etc. (Scotland) Act 1980 that a sum of money is deposited in court, until the accused or a cautioner on his behalf has so deposited that sum.]

(e) . . . F126

(f) the court may from time to time, and at any stage of the case, on the motion of either party or ex proprio motu grant such adjournment as may be necessary for the proper conduct of the case, and where from any cause a diet has to be continued from day to day it shall not be necessary to intimate such continuation to the accused;

(g) it shall not be necessary for the prosecutor to establish a charge or part of a charge to which the accused pleads guilty;

(h) the court may, in any case where it considers such a course expedient, permit any witness for the defence to be examined prior to evidence for the prosecution having been led or concluded, but in any such case the accused shall be entitled to lead additional evidence after the case for the prosecution is closed.

Textual Amendments

F124 Word repealed by Bail etc. (Scotland) Act 1980 (c. 4, SIF 39:1), Sch. 2

F125 S. 337(d)(i)(ii) substituted for words by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 62(3)

F126 S. 337(e) repealed by Bail etc. (Scotland) Act 1980 (c. 4, SIF 39:1), Sch. 2 and Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 8

[F127 337A Intermediate diet. S

[F128 (1) The court may, when adjourning a case for trial in terms of section 337(b) of this Act, and may also, at any time thereafter, whether before, on or after any date assigned as a trial diet, fix a diet (to be known as an intermediate diet) for the purpose of ascertaining—

(a) the state of preparation of the prosecutor and of the accused with respect to their cases; and

(b) whether the accused intends to adhere to the plea of not guilty.]

[F129 (1A) Where at an intermediate diet the court concludes that the case is unlikely to proceed to trial on the date assigned for the trial diet, the court—

(a) shall, unless having regard to previous proceedings in the case it considers it inappropriate to do so, postpone the trial diet; and

(b) may fix a further intermediate diet.

(1B) Subject to subsection (1A) above, the court may, if it considers it appropriate to do so, adjourn an intermediate diet.]

(2) At an intermediate diet, the court may ask the prosecutor and the accused any question for the purposes mentioned in subsection (1) above.

(3) The accused shall attend an intermediate diet of which he has received intimation or to which he has been cited [F130 unless—

(a) he is legally represented; and

(b) the court considers that there are exceptional circumstances justifying him not attending.

(4) The foregoing provisions of this section shall have effect as respects any court prescribed by the Secretary of State by order, in relation to proceedings commenced after such date as may be so prescribed, with the following modifications—

(a) in subsection (1), for the word “may” there shall be substituted “shall, subject to subsection (1C) below,”; and

(b) after subsection (1B) there shall be inserted the following subsections—

(1C) If, on a joint application by the prosecutor and the accused made at any time before the commencement of the intermediate diet, the court considers it inappropriate to have such a diet, the duty under subsection (1) above shall not apply and the court shall discharge any such diet already fixed.

(1D) The court may consider an application under subsection (1C) above without hearing the parties.

(5) An order under subsection (5) above shall be made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]]

Textual Amendments

F127 S. 337A added by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 15, Sch. 6 para. 1

F128 S. 337A(1) substituted (retrospectively) by virtue of 1998 c. 10, s. 1(3)

F129 Words added (prosp.) by Children Act 1975 (c. 72, SIF 42:9, 10), ss. 70(b), 108(2) which addition falls by reason of the repeal on 14.10.1991 of the said 1975 Act by the Children Act 1989 (c. 41, SIF 20), s. 108(7) Sch. 15; S.I. 1991/828, art. 3(2)

F130 S. 337A(4)(5) and words at the end of subsection (3) inserted (5.3.1996 for specifed purposes and 31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 14(4); S.I. 1996/517, arts. 3, 4-6, Sch. 2

[F131 337B Removal of accused from court. S

(1) Without prejudice to section 338 of this Act, and subject to subsection (2) below, no part of a trial shall take place outwith the presence of the accused.

(2) If during the course of his trial an accused so misconducts himself that in the view of the court a proper trial cannot take place unless he is removed, the court may order—

(a) that he is removed from the court for so long as his conduct makes it necessary; and

(b) that the trial proceeds in his absence,

but if he is not legally represented the court shall appoint counsel or a solicitor to represent his interests during such absence.]

Textual Amendments

F131 S. 337B inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 31; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

338 Failure of accused to appear. S

[F132 (1)] Where the accused in a summary prosecution fails to appear at any diet of which he has received intimation, or to which he has been cited [F133 (other than a diet which, by virtue of section 337A(3) of this Act, he is not required to attend)], the following provisions shall apply:—

(a) the court may adjourn the trial to another diet, and order the accused to attend at such diet, and appoint intimation thereof to be made to him, which intimation shall be sufficiently given by an officer of law, or by letter signed by the prosecutor and sent to the accused at his last known address by registered post or by the recorded delivery service, and the production in court of the written execution of such officer or of an acknowledgment or certificate of the delivery of the letter issued by the Post Office shall be sufficient evidence of such intimation having been duly given;

(b) where the accused is charged with any statutory offence for which a sentence of imprisonment cannot be imposed in the first instance, or where the statute founded on or conferring jurisdiction authorises procedure in the absence of the accused, the court may, on the motion of the prosecutor and upon proof that the accused has been duly cited, or has received due intimation of the diet where such intimation has been ordered, proceed to hear and dispose of the case in the absence of the accused. Unless the statute founded on authorises conviction in default of appearance, proof of the complaint must be led to the satisfaction of the court. The court in any case to which this paragraph applies may, if it shall judge it expedient, allow any solicitor who satisfies the court that he has authority from the accused so to do, to appear and plead for and defend him;

(c) the court may grant warrant to apprehend the accused;

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F134

[F135 (2) An accused who without reasonable excuse fails to attend any diet of which he has been given due notice, shall be guilty of an offence and liable on summary conviction—

(a) to a fine not exceeding [F136 level 3 on the standard scale]; and

(b) to a period of imprisonment not exceeding—

(i) in the district court, 60 days; or

(ii) in the sheriff court, 3 months.

(3) The penalties provided for in subsection (2) above may be imposed in addition to any other penalty which it is competent for the court to impose, notwithstanding that the total of penalties imposed may exceed the maximum penalty which it is competent to impose in respect of the original offence.

(4) An accused may be dealt with for an offence under subsection (2) above either at his diet of trial for the original offence or at a separate diet.]

Textual Amendments

F132 Words substituted by virtue of Criminal Procedure (Scotland) 1975 (c. 21, SIF 39:1), s. 289G

F133 Words in s. 338(1) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 120; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F134 S. 338(d) repealed by Bail etc. (Scotland) Act 1980 (c. 4), Sch. 2

F135 S. 338(2)–(4) inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 17, Sch. 6 para. 1

F136 Words substituted by virtue of Criminal Procedure (Scotland) 1975 (c. 21, SIF 39:1), s. 289G

Modifications etc. (not altering text)

C45 S. 338(1) amended (restrospective to 1.2.1981) by 2002 asp 4, s. 1(3)(4)

[F137 338A Desertion of trial diet. S

(1) It shall be competent at the diet of trial, at any time before the first witness is sworn, for the court, on the application of the prosecutor, to desert the dietpro loco et tempore.

(2) If, at a diet of trial, the court refuses an application by the prosecutor to adjourn the trial or to desert the diet pro loco et tempore,and the prosecutor is unable or unwilling to proceed with the trial, the court shall desert the dietsimpliciter.

(3) Where the court has deserted a dietsimpliciterunder subsection (2) above (and the court’s decision in that regard has not been reversed on appeal), it shall not be competent for the prosecutor to raise a fresh libel.]

Textual Amendments

F137 S. 338A added by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 18(2), Sch. 6 para. 2

339 Alibi. S

It shall not be competent for the accused in a summary prosecution to found on a plea of alibi unless he gives, [F138 at any time before the first witness is sworn], notice to the prosecutor of the plea with particulars as to time and place and of the witnesses by whom it is proposed to prove it. The prosecutor, on such notice being given, shall be entitled, if he so desires, to an adjournment of the case.

Textual Amendments

F138 Words in s. 339 substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 121; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

340 Examination of witness. S

[F139 (1)] In any trial, it shall be competent for the party against whom a witness is produced and sworn in causa to examine such witness, not in cross only, but also in causa.

[F140 (2) The judge may, on the motion of either party, on cause shown order that the examination of a witness for that party (“the first witness”) shall be interrupted to permit the examination of another witness for that party.

(3) Where the judge makes an order under subsection (2) above he shall, after the examination of the other witness, permit the recall of the first witness.]

Textual Amendments

F139 S. 340 renumbered as s. 340(1) (31.3.1996 with transitonal provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 54(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F140 S. 340(2)(3) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 54(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

341 Witnesses not to be excluded by reason of conviction, interest, etc. S

(1) No person adduced as a witness shall be excluded from giving evidence by reason of having been convicted of or having suffered punishment for crime, or by reason of interest, or by reason of agency or of partial counsel, or by reason of having appeared without citation or without having been duly cited to attend, or by reason of having been precognosced subsequently to the date of citation.

(2) Every person so adduced, who is not otherwise by law disqualified from giving evidence, shall be admissible as a witness, notwithstanding any objection offered on any of the above-mentioned grounds.

(3) Nothing in this section shall prevent such witness from being examined on any point tending to affect his credibility.

(4) Where any person who is or has been an agent of the accused shall be adduced and examined as a witness for the accused, it shall not be competent to the accused to object, on the ground of confidentiality, to any question proposed to be put to such witness on matter pertinent to the issue of the guilt of the accused.

342 Witnesses admissible notwithstanding relationship to parties. S

It shall be no objection to the admissibility of any witness that he or she is the father, mother, son, daughter, brother or sister, by consanguinity or affinity, or uncle, aunt, nephew or niece, by consanguinity, of any party adducing such witness in any trial; nor shall it be competent to any witness to decline to be examined and give evidence on the ground of any such relationship.

[F141 342A Power to permit witness to be in court during trial. S

The court may, on an application by any party to the proceedings, permit a witness to be in court during the proceedings or any part of the proceedings before he has given evidence if it appears to the court that the presence of the witness would not be contrary to the interests of justice.]

Textual Amendments

F141 S. 342A inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 63

343 Presence in court not to disqualify witnesses in certain cases. S

In any trial, the court need not reject any witness against whom it is objected that he has, without the permission of the court, and without the consent of the party objecting, been present in court during the proceedings; but the court may, in its discretion, admit the witness, where it appears to the court that the presence of the witness was not the result of culpable negligence or criminal intent, and that the witness has not been unduly instructed or influenced by what took place during his presence, or that injustice will not be done by his examination.

344 Punishment of witness for contempt. S

(1) If a witness in a summary prosecution shall wilfully fail to attend after being duly cited, or unlawfully refuse to be sworn, or after the oath has been administered to him refuse to answer any question which the court may allow, F142 . . .or shall prevaricate in his evidence, he shall be deemed guilty of contempt of court and be liable to be summarily punished forthwith for such contempt by a fine not exceeding [F143 level 3 on the standard scale] or by imprisonment for any period not exceeding [F144 21 days].

(2) Where such punishment as aforesaid is summarily imposed, the clerk of court shall enter in the record of the proceedings the acts constituting the contempt or the statements forming the prevarication.

(3) The foregoing provisions of this section shall be without prejudice to the prosecutor proceeding by way of formal complaint for any such contempt where such summary punishment, as above mentioned, is not imposed.

(4) Any witness who, after being duly cited in accordance with section 315 of this Act—

(a) fails without reasonable excuse, after receiving at least [F145 48] hours’ notice, to attend for precognition by a prosecutor at the time and place mentioned in the citation served on him, or

(b) refuses when so cited to give information within his knowledge regarding any matter relative to the commission of the offence in relation to which such precognition is taken,

shall be liable to the like punishment as is provided in the foregoing provisions of this section.

Textual Amendments

F142 Words in s. 344(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 122, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F143 Words substituted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 56, Sch. 7

F144 Words substituted by Criminal Justice (Scotland) Act 1980 (c. 62), s. 46(1)(c), Sch. 6 para. 1

F145 Words substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 1, Sch. 7 para. 55

F146 345 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

Textual Amendments

F146 S. 345 repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 123, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

[F147 345A No case to answer. S

(1) Immediately after the close of the evidence for the prosecution, the accused may intimate to the court his desire to make a submission that he has no case to answer both—

(a) on an offence charged in the complaint; and

(b) on any other offence of which he could be convicted under the complaint were the offence charged the only offence so charged.

(2) If, after hearing both parties, the court is satisfied that the evidence led by the prosecution is insufficient in law to justify the accused being convicted of the offence charged in respect of which the submission has been made or of such other offence as is mentioned, in relation to that offence, in paragraph (b) of subsection (1) above, it shall acquit him of the offence charged in respect of which the submission has been made, and the trial shall proceed only in respect of any other offence charged in the complaint.

(3) If, after hearing both parties, the court is not satisfied as is mentioned in subsection (2) above, it shall reject the submission and the trial shall proceed, with the accused entitled to give evidence and call witnesses, as if such submission had not been made.]

Textual Amendments

F147 S. 345A inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 19(2), Sch. 6 para. 2

346 Accused and spouse competent witnesses for defence. S

[F148 (1)] The accused . . . F149 shall be [F150 a competent witness] for the defence at every stage of the case, whether the accused is on trial alone or along with a co-accused:

Provided that—

(a) the accused shall not be called as a witness in pursuance of this section except upon his own application [F151 or in accordance with subsection (2) or (3) below];

F152 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c), (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F153

(e) the accused who gives evidence on his own behalf in pursuance of this section may be asked any question in cross-examination notwithstanding that it would tend to incriminate him as to the offence charged;

(f) the accused who gives evidence on his own behalf in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed, or been convicted of, or been charged with, any offence other than that with which he is then charged, or is of bad character, unless—

(i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence with which he is then charged; or

(ii) the accused or his counsel or solicitor has asked questions of the witnesses for the prosecution with a view to establish the accused’s good character [F154 or impugning the character of the complainer], or the accused has given evidence of his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of the witnesses for the prosecution [F155 or of the complainer]; or

(iii) the accused has given evidence against any other person charged [F156 in the same proceedings];

(g) every person called as a witness in pursuance of this section . . . F149 shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses give their evidence.

[F157 (1A) In a case to which sub-paragraph (ii) of paragraph (f) of the proviso to subsection (1) above applies, the prosecutor shall be entitled to ask the accused a question of a kind specified in that paragraph only if the court, on the application of the prosecutor, permits him to do so.

(1B) In subsection (1) above, references to the complainer include references to a victim who is deceased.]

[F158 (2) The accused may—

(a) with the consent of a co-accused, call that other accused as a witness on the accused’s behalf; or

(b) ask a co-accused any question in cross-examination if that co-accused gives evidence,

but he may not do both in relation to the same co-accused.

(3) The prosecutor or the accused may call as a witness a co-accused who has pleaded guilty to [F159 or been acquitted of] all charges against him which remain before the court (whether or not [F160 in a case where the co-accused has pleaded guilty to any charge,] he has been sentenced) [F161 or in respect of whom the diet has been deserted]; and the party calling such co-accused as a witness shall not require to give notice thereof, but the court may grant any other party such adjournment or postponement of the trial as may seem just.]

Textual Amendments

F148 Word inserted by virtue of Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 28(b)

F149 Words repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 1, Sch. 8

F150 Words substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 1, Sch. 7 para. 56

F151 Words added by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 28(a), Sch. 6 para. 1

F152 S. 346(1)(b) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, ss. 32, 117(2), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F153 S. 346(1) proviso paras. (c)(d) repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 1, Sch. 8

F154 S. 346(1): words in paragraph (f)(ii) of the proviso inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 24(4)(a)(i); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F155 S. 346(1): words in paragraph (f)(ii) of the proviso inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 24(4)(a)(ii); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F156 Words substituted with saving by Criminal Evidence Act 1979 (c. 16, SIF 47), s. 1

F157 S. 346(1A)(1B) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 24(4)(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F158 S. 346(2)(3) added by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 28(c), Sch. 6 para. 1

F159 Words inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(1), Sch. 1 para. 8(a)

F160 Words inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(1), Sch. 1 para. 8(b)

F161 Words inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(1), Sch. 1 para. 8(c)

[F162 346A Evidence in relation to sexual offences. S

(1) In any trial of a person on any charge to which this section applies, subject to section 346B, the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer—

(a) is not of good character in relation to sexual matters;

(b) is a prostitute or an associate of prostitutes; or

(c) has at any time engaged with any person in sexual behaviour not forming part of the subject matter of the charge.

(2) This section applies to a charge of committing or, in the case of paragraphs (b) to (g), attempting to commit any of the following offences, that is to say—

(a) attempted rape;

(b) sodomy;

[F163 (ba) clandestine injury to women;]

(c) assault with intent to rape;

(d) indecent assault;

(e) indecent behaviour (including any lewd, indecent or libidinous practice or behaviour);

(f) an offence under any of the following provisions of the M34 Sexual Offences (Scotland) Act 1976—

(i) section 2 (procuring by threats, etc.);

[F164 (ia) section 2A (incest);

(ib) section 2B (unlawful sexual intercourse with stepchild);

(ic) section 2C (unlawful sexual intercourse of person in position of trust with child under 16);]

(ii) section 3(2) (unlawful sexual intercourse with girl under 13);

(iii) section 4 (unlawful sexual intercourse with girl under 16);

(iv) section 5 (indecent behaviour towards girl between 12 and 16);

[F165 (iva) section 7 (gross indecency between males)]

(v) section 8 (abduction of girl under 18);

(vi) section 9 (unlawful detention of female); or

(g) an offence under section 80(7) of the M35 Criminal Justice (Scotland) Act 1980 (homosexual offences).

(3) In this section, “complainer” means the person against whom the offence referred to in subsection (2) above is alleged to have been committed.

(4) This section does not apply to questioning, or evidence being adduced, by the Crown.]

Textual Amendments

F162 S. 346A, 346B inserted by Law Reform (Miscellaneous Provisions) Act 1985 (c. 73, SIF 39:1), s. 36(2), Sch. 3 para. 1

F163 S. 346A(2)(ba) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 28(2)(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F164 S. 346A(2)(f)(ia)-(ic) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 28(2)(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F165 S. 346A(2)(f)(iva) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 28(2)(c); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Marginal Citations

M34 1976 c. 67(39:5).

M35 1980 c. 62(39:1).

[F166 346ZA Evidence of criminal record and character of accused. S

(1) This section applies where—

(a) evidence is led by the defence, or the defence asks questions of a witness for the prosecution, with a view to establishing the accused’s good character or impugning the character of the prosecutor, of any witness for the prosecution or of the complainer; or

(b) the nature or conduct of the defence is such as to tend to establish the accused’s good character or to involve imputations on the character of the prosecutor, of any witness for the prosecution or of the complainer.

(2) Where this section applies the court may, without prejudice to section 350 of this Act, on the application of the prosecutor, permit the prosecutor to lead evidence that the accused has committed, or has been convicted of, or has been charged with, offences other than that for which he is being tried, or is of bad character.

(3) In subsection (1) above, references to the complainer include references to a victim who is deceased.]

Textual Amendments

F166 S. 346ZA inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 24(5); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

346B Exceptions to prohibition. S

(1) Notwithstanding the terms of section 346A above, in any trial of a person on any charge to which that section applies, where the court is satisfied on an application by that person—

(a) that the questioning or evidence referred to in section 346A(1) above is designed to explain or rebut evidence adduced, or to be adduced, otherwise than by or on behalf of that person,

(b) that the questioning or evidence referred to in section 346A(1)(c) above—

(i) is questioning or evidence as to sexual behaviour which took place on the same occasion as the sexual behaviour forming the subject matter of the charge, or

(ii) is relevant to the defence of incrimination, or

(c) that it would be contrary to the interests of justice to exclude the questioning or evidence referred to in section 346A(1) above,

the court shall allow such questioning or, as the case may be, admit such evidence.

(2) Where questioning or evidence is or has been allowed or admitted under this section, the court may at any time limit as it thinks fit the extent of that questioning or evidence.

(3) Any application under this section shall be made in the course of the trial but in the absence of the complainer, any person cited as a witness and the public.

[F167 347 Evidence of the accused. S

Where, in any trial, the accused is to be called as a witness he shall be so called as the first witness for the defence unless the court, on cause shown, otherwise directs.]

Textual Amendments

F167 S. 347 substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 124; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

[F168 348 Spouse to be competent witness. S

(1) The spouse of a person charged with an offence may be called as a witness—

(a) by that person;

(b) by a co-accused or by the prosecutor without the consent of that person.

(2) Nothing in this section shall—

(a) make the spouse of an accused a compellable witness for a co-accused or for the prosecutor in a case where such spouse would not be so compellable at common law;

(b) compel a spouse to disclose any communication made between the spouses during the marriage.

(3) The failure of the spouse of an accused to give evidence shall not be commented on by the defence or the prosecutor.]

Textual Amendments

F168 S. 348 substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 29, Sch. 6 para. 1

349 Witness may be examined etc., as to having previously made a different statement. S

In any trial, any witness may be examined as to whether he has on any specified occasion made a statement on any matter pertinent to the issue at the trial different from the evidence given by him in such trial; and in such trial evidence may be led to prove that such witness has made such different statement on the occasion specified.

[F169 349A Recall of witnesses. S

—In any trial, on the motion of either party, the presiding judge may permit a witness who has been examined to be recalled.]

Textual Amendments

F169 S. 349A inserted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 73(2)

[F170 350 Additional evidence. S

(1) The judge may, on a motion of the prosecutor or defence made [F171 at any time] before the prosecutor proceeds to address the judge on the evidence, permit that party to lead additional evidence; but such permission shall only be granted where the judge—

(a) considers that the additional evidence isprima faciematerial; and

(b) accepts that at the [F172 commencement of the trial] either—

(i) the additional evidence was not available and could not reasonably have been made available; or

(ii) the materiality of such additional evidence could not reasonably have been foreseen by the party.

(2) The judge may permit the additional evidence to be led notwithstanding that a witness must be recalled.

(3) The judge may, when granting a motion in terms of this section, adjourn or postpone the trial before permitting the additional evidence to be led.]

Textual Amendments

F170 Ss. 350, 350A substituted for s. 350 by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 30(2), Sch. 6 para. 2

F171 Words in s. 350(1) substituted (18.9.1993) by 1993 c. 9, s. 47(1), Sch. 5 para. 1(31)(a) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, arts. 3(3), 4(1)(c), Sch.2

F172 Words in s. 350(1)(b) substituted (18.9.1993) by 1993 c. 9, s. 47(1), Sch. 5 para. 1(31)(b) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, arts. 3(3), 4(1)(c), Sch. 2

350A Evidence in replication. S

(1) The judge may, on a motion of the prosecutor made after the close of the defence evidence and before the prosecutor proceeds to address the judge on the evidence, permit the prosecutor to lead additional evidence, for the purpose of—

(a) contradicting evidence, [F173 given by any defence witness], which could not reasonably have been anticipated by the prosecutor; or

(b) providing such proof as is mentioned in section 349 of this Act.

(2) The judge may permit the additional evidence to be led notwithstanding that a witness must be recalled.

(3) The judge may, when granting a motion in terms of this section, adjourn or postpone the trial before permitting the additional evidence to be led.

Textual Amendments

F173 Words substituted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 39:1), s. 37

351 Defence to speak last. S

In any trial, the accused or, where he is legally represented, his counsel or solicitor shall have the right to speak last.

[F174 352 Record of proceedings at examination to be received in evidence without being sworn to by witnesses. S

(1) Subject to subsection (2) below, the record made, under section 20B of this Act (with any rectification, authorised under subsection (4) of that section, incorporated), of proceedings at the examination of an accused shall be received in evidence without being sworn to by witnesses.

(2) Subject to section 20B(2) of this Act and to subsection (4) below, on the application of either an accused or the prosecutor, the court may refuse to admit the record or some part of the record as evidence; and at the hearing of such application it shall be competent for [F175 the prosecutor or]the defence to adduce as witnesses the persons who were present during the proceedings mentioned in subsection (1) above and for [F176 either party] to examine those witnesses upon any matters regarding the said proceedings.

(3) “Record” in subsection (2) above comprises, as regards any trial, each record which it is sought to have received in evidence under subsection (1) above.

(4) Except on cause shown, an application under subsection (2) above shall not be heard unless notice of at least 10 clear days has been given to the court and to the other parties.]

Textual Amendments

F174 S. 352 substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 6(4), Sch. 6 para. 1

F175 Words in s. 352(2) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 125(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F176 Words in s. 352(2) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 125(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

353 Proof of official documents. S

(1) Any letter, minute or other official document issuing from the office or in the custody of any of the departments of state or government in the United Kingdom the production of which in evidence is required in any summary prosecution, and which according to the rules and regulations applicable to such departments may be competently produced, shall when produced be received as prima facie evidence of the matters contained in it without being produced or sworn to by any witness, and a copy thereof bearing to be certified by any person having authority to certify the same shall be treated as equivalent to the original, and no proof of the signature of the person certifying such copy, or of his authority to certify it, shall be necessary.

(2) Any order by any of the departments of state or government or any local authority or public body made under powers conferred by any statute, or a print or copy of such order, shall when produced in a summary prosecution be received in evidence of the due making, confirmation, and existence of such order without being sworn to by any witness and without any further or other proof, but without prejudice to any right competent to the accused to challenge any such order as being ultra vires of the authority making it or on any other competent ground, and where any such order is referred to in the complaint it shall not be necessary to enter it in the record of the proceedings as a documentary production.

(3) The provisions contained in this section shall be deemed to be in addition to, and not in derogation of, any powers of proving documents conferred by statute, or existing at common law.

354 Admissions by parties. S

(1) It shall not be necessary in any summary prosecution for either party to lead proof of any fact which is admitted by the opposite party, or to prove any documents the terms and application of which are not in dispute, and copies of any documents may, by agreement of the parties, be accepted as equivalent to the originals:

F177 . . .

(2) Admissions or agreements under the foregoing subsection may be made by lodging with the clerk of court a minute signed by the person or persons making the same or by his or their counsel or solicitor, and any facts and documents so admitted or agreed shall be accepted as if they had been duly proved.

Textual Amendments

F177 Proviso to s. 354(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 126, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

355 Judges equally divided. S

In a summary prosecution in a court consisting of more than one judge, if the judges are equally divided in opinion as to the guilt of the accused, the accused shall be found not guilty of the charge or part thereof on which such division of opinion exists.

356 Previous convictions. S

F178 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) Where a person is convicted of an offence, the court may have regard to any previous conviction in respect of that person in deciding on the disposal of the case.

F178 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F178 S. 356(1)(3) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 60, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

357 Laying of previous convictions before court. S

(1) Where the accused in a summary prosecution has been previously convicted of any offence and the prosecutor has decided to lay a previous conviction before the court, the following provisions shall have effect:—

(a) a notice in the form, as nearly as may be, of F179 . . .or of the appropriate form in an Act of Adjournal under this Act setting forth the previous conviction shall be served on the accused with the complaint where he is cited to a diet, and where he is in custody the complaint and such a notice shall be served on him before he is asked to plead;

(b) the previous conviction shall not be laid before the judge until he is satisfied that the charge is proved;

(c) if a plea of guilty is tendered or if, after a plea of not guilty, the accused is convicted the prosecutor shall lay the notice referred to in paragraph (a) of this subsection before the judge, and

[F180 (i) in a case where the plea of guilty is tendered in writing the accused shall be deemed to admit any previous conviction set forth in the notice, unless he expressly denies it in the writing by which that plea is tendered;

(ii) in any other case the judge or the clerk of court shall ask the accused whether he admits the previous conviction,

and if such admission is made or deemed to be made it shall be entered in the record of the proceedings.]

(d) it shall not be necessary for the prosecutor to produce extracts of any previous convictions so admitted;

(e) where the accused does not admit any such previous conviction, the prosecutor unless he withdraws the conviction shall adduce evidence in proof thereof either then or at any other diet;

(f) a copy of any notice served on the accused under this subsection shall be entered in the record of the proceedings.

(2) A conviction, or an extract conviction of any offence committed in any part of the United Kingdom, bearing to be under the hand of the officer in use to give out such extract conviction, shall be received in evidence without being sworn to by witnesses. [F181 A prison officer]of any prison in which the accused may have been confined on such conviction shall be a competent and sufficient witness to prove the application thereof to the accused, although such [F182 prison officer]may not have been present in court at the trial to which such conviction relates. This provision shall be without prejudice to any other competent mode of proving a conviction and the application thereof to the accused.

(3) Where in any court a book of record is kept of the convictions in the court containing the like particulars as are inserted in an extract conviction, and where at the end of each day’s proceedings the entries in such book are certified as correct by the judge or clerk of court, such entries shall, in any proceeding in that court, be accepted as evidence of such convictions.

F183 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) Nothing in this section shall prevent [F184 the prosecutor—

(a) asking the accused questions tending to show that the accused has been convicted of an offence other than that with which he is charged, where he is entitled to do so under section 346 of this Act; or

(b) leading evidence of previous convictions where it is competent to do so—

(i) as evidence in support of a substantive charge; or

(ii) under section 346ZA of this Act.]

[F185 (6) Without prejudice to subsections (1) to (3) above, where proof of a previous conviction is competent in support of a substantive charge, any such conviction or an extract of it shall, if—

(a) it purports to relate to the accused and to be signed by the clerk of court having custody of the record containing the conviction; and

(b) a copy of it has been served on the accused not less than 14 days before the trial diet,

be sufficient evidence of the application of the conviction to the accused unless, within seven days of the date of service of the copy on him, he serves notice on the prosecutor that he denies that it applies to him.

(7) A copy of a conviction or extract conviction served under subsection (6) above shall be served on the accused in such manner as may be prescribed by Act of Adjournal, and a written execution purporting to be signed by the person who served the copy together with, where appropriate, the relevant post office receipt shall be sufficient evidence of service of the copy.]

Textual Amendments

F179 Words in s. 357(1)(a) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 127(a), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F180 Words substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 40, Sch. 6 para. 1

F181 Words in s. 357(2) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 127(b)(i); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F182 Words in s. 357(2) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para 127(b)(ii); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F183 S. 357(4) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 127(c), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F184 S. 357(5)(a)(b) and words substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) for words by 1995 c. 20, s. 24(6); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F185 S. 357(6)(7) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 29(2); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

C46 S. 357(1) excluded by Road Traffic Offenders Act 1988 (c. 53, SIF 107:1), ss. 31(2), 32(6)

358 Proof of previous convictions by fingerprints. S

(1) A previous conviction may be proved against any person in any criminal proceedings by the production of such evidence of the conviction as is mentioned in this section and by showing that his fingerprints and those of the person convicted are the fingerprints of the same person.

(2) A certificate purporting to be signed by or on behalf of the Chief Constable of Strathclyde or the Commissioner of Police of the Metropolis, containing particulars relating to a conviction extracted from the criminal records kept by the person by or on whose behalf the certificate is signed, and certifying that the copies of the fingerprints contained in the certificate are copies of the fingerprints appearing from the said records to have been taken in pursuance of regulations for the time being in force under section 11 of the M36 Prisons (Scotland) Act 1952, or under section 16 of the M37 Prison Act 1952, from the person convicted on the occasion of the conviction or on the occasion of his last conviction, shall be sufficient evidence of the conviction or, as the case may be, of his last conviction and of all preceding convictions and that the copies of the fingerprints produced on the certificate are copies of the fingerprints of the person convicted.

(3) Where a person has been apprehended and detained in the custody of the police in connection with any criminal proceedings, a certificate purporting to be signed by the chief constable concerned or a person authorised on his behalf, certifying that the fingerprints produced thereon were taken from him while he was so detained, shall be sufficient evidence in those proceedings that the fingerprints produced on the certificate are the fingerprints of that person.

(4) A certificate purporting to be signed by or on behalf of the governor of a prison or of a remand centre in which any person has been detained in connection with any criminal proceedings, certifying that the fingerprints produced thereon were taken from him while he was so detained, shall be sufficient evidence in those proceedings that the fingerprints produced on the certificate are the fingerprints of that person.

(5) A certificate purporting to be signed by or on behalf of the Chief Constable of Strathclyde, and certifying that the fingerprints, copies of which are certified as aforesaid by or on behalf of the Chief Constable or the Commissioner of Police of the Metropolis to be copies of the fingerprints of a person previously convicted and the fingerprints certified by or on behalf of a chief constable or a governor as aforesaid, or otherwise shown, to be the fingerprints of the person against whom the previous conviction is sought to be proved, are the fingerprints of the same person, shall be sufficient evidence of the matter so certified.

(6) The method of proving a previous conviction authorised by this section shall be in addition to any other method of proving the conviction.

Marginal Citations

M36 1952 c. 52(39:1).

M37 1952 c. 61(39:1).

359 Record. S

Proceedings in a summary prosecution shall be conducted summarily viva voce and, except where otherwise provided, no record need be kept of the proceedings other than the complaint [F186 , or a copy of the complaint certified as true by a procurator fiscal], the plea, a note of any documentary evidence produced, and the conviction and sentence or other finding of the court:

Provided that any objections taken to the competency or relevancy of the complaint or proceedings, or to the competency or admissibility of evidence, shall, if either party desires it, be entered in the record of the proceedings.

Textual Amendments

F186 Words in s. 359 inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 128; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F187 360 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

Textual Amendments

F187 S. 360 repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 129, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

[F188 Interruption of proceedings S

Textual Amendments

F188 S. 360A and cross heading inserted (18.9.1993) by 1993 c. 9, s. 40(2) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, art. 3(3), Sch.2

F189 360A Interruption of summary proceedings for verdict in earlier trial. S

(1) Where the sheriff is sitting in any summary proceedings during the period in which the jury in any criminal trial in which he has presided are retired to consider their verdict, it shall be lawful, if he considers it appropriate to do so, to interrupt those proceedings—

(a) in order to receive the verdict of the jury and dispose of the cause to which it relates;

(b) to give a direction to the jury on any matter on which they may wish one from him, or to hear a request from them regarding any matter, F190 . . .

and the interruption shall not affect the validity of the proceedings nor cause the instance to fall in respect of any person accused in the proceedings.

F191 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F189 S. 360A and cross heading inserted (18.9.1993) by 1993 c. 9, s. 40(2) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, art. 3(3), Sch. 2

F190 Words in s. 360A(1)(b) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 130(a), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F191 S. 360A(2) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 130(b), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Procedure at trial involving children U.K.

361 Child under 14 not to be in court during trial of another person. S

No child under 14 years of age (other than an infant in arms) shall be permitted to be present in court during the trial of any other person charged with an offence, or during any proceedings preliminary thereto, except during such time as his presence is required as a witness or otherwise for the purposes of justice; and any child present in court when under this section he is not to be permitted to be so shall be ordered to be removed:

Provided that this section shall not apply to messengers, clerks, and other persons required to attend at any court for purposes connected with their employment.

362 Power to clear court while child is giving evidence in certain cases. S

(1) Where, in any proceedings in relation to an offence against, or any conduct contrary to, decency or morality, a person who, in the opinion of the court, is a child is called as a witness, the court may direct that all or any persons, not being:

[F192 (a) members or officers of the court;

(b) parties to the case before the court, their counsel or solicitors or persons otherwise directly concerned in the case;

(c) bona fide representatives of news gathering or reporting organisations present for the purpose of the preparation of contemporaneous reports of the proceedings; or

(d) such other persons as the court may specially authorise to be present,

shall be excluded from the court during the taking of the evidence of that witness.]

Provided that nothing in this section shall authorise the exclusion of bona fide representatives of a newspaper or news agency.

(2) The powers conferred on a court by this section shall be in addition and without prejudice to any other powers of the court to hear proceedings in camera.

Textual Amendments

F192 S. 362(1)(a)-(d) and words substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) for words by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 64; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

363 Power to proceed with case in absence of person under 17. S

Where, in any proceedings relating to any of the offences mentioned in Schedule 1 to this Act, the court is satisfied that the attendance before the court of any person under the age of 17 years in respect of whom the offence is alleged to have been committed is not essential to the just hearing of the case, the case may be proceeded with and determined in the absence of that person.

364 Power of court, in respect of certain offences against a child, to refer child to reporter. S

Any court by or before which a person is convicted of having [F193 committed any offence—

(a) under section 21 of the M38 Children and Young Persons (Scotland) Act 1937;

(b) mentioned in Schedule 1 to this Act; or

(c) in respect of a female person aged 17 years or over which constitutes the crime of incest,

may refer—

(i) the child in respect of whom the offence referred to in paragraph (a) or (b) above has been committed; or

(ii) any child who is, or who is likely to become, a member of the same household as the person who has committed the offence mentioned in paragraph (b) or (c) above,

to the reporter] of the local authority in whose area the child resides and certify that the said offence shall be a ground established for the purposes of Part III of the M39 Social Work (Scotland) Act 1968.

Textual Amendments

F193 Words substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 7 para. 57

Marginal Citations

M38 1937 c. 37(20).

M39 1968 c. 49(81:3).

365 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F194 E+W+S

Textual Amendments

F194 S. 365 repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 8

366 Procedure when sheriff sits summarily in respect of offence by child. S

(1) Where summary proceedings are brought in respect of an offence alleged to have been committed by a child, the sheriff shall sit either in a different building or room from that in which he usually sits or on different days from those on which other courts in the building are engaged in criminal proceedings: and no person shall be present at any sitting to which this subsection applies except—

(a) members and officers of the court;

(b) parties to the case before the court, their solicitors and counsel, and witnesses and other persons directly concerned in that case;

(c) bona fide representatives of [F195 news gathering or reporting organisations present for the purpose of contemporaneous reports of the proceedings];

(d) such other persons as the court may specially authorise to be present.

F196 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F195 Words in s. 366(1)(c) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 131(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F196 S. 366(2) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 131(b), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

367 Powers of sheriff sitting summarily. S

(1) A sheriff sitting summarily for the purpose of hearing a charge against, or an application relating to, a person who is believed to be a child may, if he thinks fit to do so, proceed with the hearing and determination of the charge or application, notwithstanding that it is discovered that the person in question is not a child.

(2) When a sheriff sitting summarily has remanded a child for information to be obtained with respect to him, any sheriff sitting summarily in the same place—

(a) may in his absence extend the period for which he is remanded so, however that he appears before a sheriff or a justice at least once in every two days;

(b) when the required information has been obtained, may deal with him finally;

and where the sheriff by whom he was originally remanded has recorded a finding that he is guilty of an offence charged against him, it shall not be necessary for any court which subsequently deals with him under this subsection to hear evidence as to the commission of that offence, except in so far as it may consider that such evidence will assist the court in determining the manner in which he should be dealt with.

(3) Any direction in any enactment that a charge shall be brought before a juvenile court shall be construed as a direction that he shall be brought before the sheriff sitting as a court of summary jurisdiction, and no such direction shall be construed as restricting the powers of any justice or justices to entertain an application for bail or for a remand, and to hear such evidence as may be necessary for that purpose.

368 Presumption and determination of age of child. S

(1) Where a person charged with an offence is brought before any court otherwise than for the purpose of giving evidence, and it appears to the court that he is a child, the court shall make due inquiry as to the age of that person, and for that purpose shall take such evidence as may be forthcoming at the hearing of the case, but an order or judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court, and the age presumed or declared by the court to be the age of the person so brought before it shall, for the purposes of this Act or the M40 Children and Young Persons (Scotland) Act 1937, be deemed to be the true age of that person, and, where it appears to the court that the person so brought before it has attained the age of 17 years, that person shall for the purposes of this Act or the M41 Children and Young Persons (Scotland) Act 1937 be deemed not to be a child.

(2) The court in making any inquiry in pursuance of the foregoing subsection shall have regard to the application of the provisions of section 30(1) of the M42 Social Work (Scotland) Act 1968 but an order or judgment of the court shall not be invalidated by any subsequent proof that the court was not informed that at the material time the person was subject to a supervision requirement or that his case had been referred to a children’s hearing under Part V of that Act.

(3) Where in any complaint in respect of any offence under the M43 Children and Young Persons (Scotland) Act 1937 or any of the offences mentioned in [F197 paragraphs [F198 (c)][F199 (d) and (e)] of Schedule 1 to this Act or any offence under section [F200 2A,] 11(1) to (3) or 14 of the M44 Sexual Offences (Scotland) Act 1976], it is alleged that the person by or in respect of whom the offence was committed was a child or was under or had attained any specified age, and he appears to the court to have been at the date of the commission of the alleged offence a child, or to have been under or to have attained the specified age, as the case may be, he shall for the purposes of this Act or the M45 Children and Young Persons (Scotland) Act 1937 [F197 or the M46 Sexual Offences (Scotland) Act 1976 be presumed] at that date to have been a child or to have been under or to have attained that age, as the case may be, unless the contrary is proved.

(4) Where, in any complaint in respect of any offence under the M47 Children and Young Persons (Scotland) Act 1937 or any of the offences mentioned in Schedule 1 to this Act, it is alleged that the person in respect of whom the offence was committed was a child or was a young person, it shall not be a defence to prove that the person alleged to have been a child was a young person or the person alleged to have been a young person was a child in any case where the acts constituting the alleged offence would equally have been an offence if committed in respect of a young person or child respectively.

(5) Where a person is charged with an offence under the M48 Children and Young Persons (Scotland) Act 1937 in respect of a person apparently under a specified age, it shall be a defence to prove that the person was actually of or over that age.

(6) In subsection (3) of this section, references to a child (other than a child charged with an offence) shall be construed as references to a child under the age of 17 years; but except as aforesaid references in this section to a child shall be construed as references to a child within the meaning of section 462 of this Act.

Textual Amendments

F197 Words substituted by Sexual Offences (Scotland) Act 1976 (c. 67, SIF 39:5), Sch. 1

F198 Words “(c) and” substituted by virtue of the Incest and Related Offences (Scotland) Act 1986 (c. 36, SIF 39:5), s. 3(2), Sch. 1 para. 3

F199 Words “(d) and (e)” substituted for words “and (d)” by virtue of the Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 170, Sch. 8 para. 16, Sch. 15 para. 48

F200 Words inserted by Incest and Related Offences (Scotland) Act 1986 (c. 36, SIF 39:5), s. 3(2), Sch. 1 para. 3

Marginal Citations

M40 1937 c. 37(20).

M41 1937 c. 37(20).

M42 1968 c. 49(81:3).

M43 1937 c. 37(20).

M44 1976 c. 67(39:5).

M45 1937 c. 37(20).

M46 1976 c. 67(39:5).

M47 1937 c. 37(20).

M48 1937 c. 37(20).

369 Age of criminal responsibility. S

It shall be conclusively presumed that no child under the age of eight years can be guilty of any offence.

370 Child charged jointly with person who is not a child. E+W+S

When a child has been charged with an offence jointly with a person who is not a child the provisions of sections 366 [F201 and 367] of this Act shall not apply to summary proceedings before the sheriff in respect of the charges.

Textual Amendments

F201 Words substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 7 para. 58

371 Welfare of child. S

Every court in dealing with a child who is brought before it as an offender shall have regard to the welfare of the child and shall in a proper case take steps for removing him from undesirable surroundings.

372 Reference and remit of children’s cases by courts to children’s hearings. S

(1) Where a child who is not subject to a supervision requirement is charged with an offence and pleads guilty to, or is found guilty of, that offence the court—

(a) instead of making an order on that plea or finding, may remit the case to the reporter of the local authority to arrange for the disposal of the case by a children’s hearing; or

(b) on that plea or finding may request the reporter of the local authority to arrange a children’s hearing for the purposes of obtaining their advice as to the treatment of the child.

(2) Where a court has acted in pursuance of paragraph (b) of the foregoing subsection, the court, after consideration of the advice received from the children’s hearing may, as it thinks proper, itself dispose of the case or remit the case as aforesaid.

(3) Where a child who is subject to a supervision requirement is charged with an offence and pleads guilty to, or is found guilty of, that offence the court shall request the reporter of the local authority to arrange a children’s hearing for the purpose of obtaining their advice as to the treatment of the child, and on consideration of that advice may, as it thinks proper, itself dispose of the case or remit the case as aforesaid.

(4) Where a court has remitted a case to the reporter under this or the next following section, the jurisdiction of the court in respect of the child or person shall cease, and his case shall stand referred to a children’s hearing.

(5) Nothing in the provisions of this or the next following section shall apply to a case in respect of an offence the sentence for which is fixed by law.

373 Reference and remit of cases of certain young persons by courts to children’s hearings. S

Where a person who is not subject to a supervision requirement but is a person over the age of 16, and is not within six months of attaining the age of 18, is charged summarily with an offence and pleads guilty to, or has been found guilty of, that offence the court on that plea or finding may request the reporter of the local authority to arrange a children’s hearing for the purpose of obtaining their advice as to the treatment of the person, and on consideration of that advice, the court may, as it thinks proper, itself dispose of the case or, where the hearing have so advised, remit the case to the reporter of the local authority for the disposal of the case by a children’s hearing.

[F202 374 Restrictions on report of proceedings involving person under 16. U.K.

(1) No newspaper report of any proceedings in a court shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any person under the age of 16 years concerned in the proceedings, either—

(a) as being a person against or in respect of whom the proceedings are taken; or

(b) as being a witness therein;

nor shall any picture which is, or includes, a picture of a person under the age of 16 years so concerned in the proceedings be published in any newspaper in a context relevant to the proceedings:

Provided that, in any case—

(i)

where the person is concerned in the proceedings as a witness only and no one against whom the proceedings are taken is under the age of 16 years, the foregoing provisions of this subsection shall not apply unless the court so directs;

(ii)

the court may at any stage of the proceedings if satisfied that it is in the public interest so to do, direct that the requirements of this section (including such requirements as applied by a direction under paragraph (i) above) shall be dispensed with to such extent as the court may specify;

(iii)

the Secretary of State may, after completion of the proceedings, if so satisfied by order dispense with the said requirements to such extent as may be specified in the order.

(2) This section shall, with the necessary modifications, apply in relation to sound and television [F203 programmes included in a programme service (within the meaning of the Broadcasting Act 1990)] as it applies in relation to newspapers.

(3) A person who publishes matter in contravention of this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding [F204 level 4 on the standard scale.]

(4) In this section, references to a court shall not include a court in England, Wales or Northern Ireland.]

Textual Amendments

F202 S. 374 substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 22, Sch. 6 para. 2

F203 Words substituted by Broadcasting Act 1990 (c. 42, SIF 96), s. 203(1), Sch. 20 para. 21

F204 Words substituted by virtue of (E.W.) Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 46, (S.) Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), s. 289G and (N.I.) 1984/703, (N.I. 13), art. 5

Procedure at Trial of Persons suffering from Mental Disorder S

375 Insanity in bar of trial. S

(1) Subject to the following provisions of this section, any rule of law relating to insanity standing in bar of trial shall apply in the case of a person charged summarily in the sheriff court as it would apply if that person were charged on indictment.

[F205 (2) Where the court is satisfied, on the written or oral evidence of two medical practitioners, that a person charged summarily in the sheriff court with the commission of an offence is insane so that his trial cannot proceed or, if it has commenced, cannot continue, the court shall, subject to subsection (2A) below—

(a) make a finding to that effect and state the reasons for that finding;

(b) discharge the trial diet and order that a diet (in this Act referred to as an “examination of facts”) be held in accordance with section 375ZA of this Act; and

(c) remand the person in custody or on bail or, where the court is satisfied—

(i) on the written or oral evidence of two medical practitioners, that he is suffering from mental disorder of a nature or degree which warrants his admission to hospital under Part V of the Mental Health (Scotland) Act 1984; and

(ii) that a hospital is available for his admission and suitable for his detention,

make an order (in this section referred to as a “temporary hospital order”) committing him to that hospital until the conclusion of the examination of facts.

(2A) Subsection (2) above is without prejudice to the power of the court, on an application by the prosecutor, to desert the diet pro loco et tempore.

(2B) The court may, before making a finding under subsection (2) above as to the insanity of a person, adjourn the case in order that investigation of his mental condition may be carried out.

(2C) The court which made a temporary hospital order may, at any time while the order is in force, review the order on the ground that there has been a change of circumstances since the order was made and, on such review—

(a) where the court considers that such an order is no longer required in relation to a person, it shall revoke the order and may remand him in custody or on bail;

(b) in any other case, the court may—

(i) confirm or vary the order; or

(ii) revoke the order and make such other order, under subsection (2)(c) above or any other provision of this Part of this Act, as the court considers appropriate.]

(3) It shall not be competent for a person charged as aforesaid to found on a plea of insanity standing in bar of trial unless, before the first witness for the prosecution is [F206 sworn], he gives notice to the prosecutor of the plea and of the witnesses by whom he proposes to maintain it; and where notice as aforesaid has been given, the court shall, if the prosecutor so moves, adjourn the case.

[F207 (3A) Where, in the case of any person charged summarily in the sheriff court, evidence is brought before the court that the person was insane at the time of doing the act or making the omission constituting the offence with which he is charged and the person is acquitted, the court shall state whether the person was insane at that time and, if so, whether he was acquitted on that ground.]

(4) Where it appears to a court that it is not practicable or appropriate for the accused to be brought before it for the purpose of determining whether he is insane so that his trial cannot proceed, then, if no objection to such a course is taken by or on behalf of the accused, the court may order that the case be proceeded with in his absence.

Textual Amendments

F205 Words inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 65(3)

F206 S. 183(5B)(5C) inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 65(1)(2)(a)

F207 Community Service by Offenders (Scotland) Act 1978 (c. 49, SIF 39:1), s.7(c) (substituting “(5) or (5A)” for “or (5)” is repealed by virtue of the Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(2), Sch. 2 and for “or (5A)” there is substituted “(5A), (5B) or (5C)” by virtue of the Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 65(4)

[F208 375ZA Examination of facts. S

(1) At an examination of facts ordered under section 375(2)(b) of this Act the court shall, on the basis of the evidence (if any) already given in the trial and such evidence, or further evidence, as may be led by either party, determine whether it is satisfied—

(a) beyond reasonable doubt, as respects any charge in a complaint in respect of which the accused was being or was to be tried, that he did the act or made the omission constituting the offence; and

(b) on the balance of probabilities, that there are no grounds for acquitting him.

(2) Where the court is satisfied as mentioned in subsection (1) above, it shall make a finding to that effect.

(3) Where the court is not so satisfied it shall, subject to subsection (4) below, acquit the person of the charge.

(4) Where, as respects a person acquitted under subsection (3) above, the court is satisfied as to the matter mentioned in subsection (1)(a) above but it appears to the court that the person was insane at the time of doing the act or making the omission constituting the offence, the court shall state whether the acquittal is on the ground of such insanity.

(5) Where it appears to the court that it is not practicable or appropriate for the accused to attend an examination of facts the court may, if no objection is taken by or on behalf of the accused, order that the examination of facts shall proceed in his absence.

(6) Subject to the provisions of this section, section 375ZB of this Act and any Act of Adjournal, the rules of evidence and procedure and the powers of the court in respect of an examination of facts shall be as nearly as possible those applicable in respect of a trial.

(7) For the purposes of the application to an examination of facts of the rules and powers mentioned in subsection (6) above, an examination of facts—

(a) commences when the diet is called; and

(b) concludes when the court—

(i) acquits the person under subsection (3) above;

(ii) makes an order under subsection (2) of section 375ZC of this Act; or

(iii) decides, under paragraph (e) of that subsection, not to make an order.]

Textual Amendments

F208 S. 375ZA inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 49(2); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F209 375ZB Examination of facts: supplementary provisions. S

(1) An examination of facts ordered under section 375(2)(b) of this Act may, where the order is made at the trial diet, be held immediately following the making of the order and, where it is so held, the citation of the accused and any witness to the trial diet shall be a valid citation to the examination of facts.

(2) Where an accused person is not legally represented at an examination of facts the court shall appoint counsel or a solicitor to represent his interests.

(3) The court may, on the motion of the prosecutor and after hearing the accused, order that the examination of facts shall proceed in relation to a particular charge, or particular charges, in the complaint in priority to other such charges.

(4) The court may, on the motion of the prosecutor and after hearing the accused, at any time desert the examination of facts pro loco et tempore as respects the whole complaint or any charge in the complaint.

(5) Where, and to the extent that, an examination of facts has, under subsection (4) above, been deserted pro loco et tempore, the prosecutor may, at any time, raise a fresh libel notwithstanding any time limit which would otherwise apply in respect of prosecution of the alleged offence.

(6) If, in a case where a court has made a finding under subsection (2) of section 375ZA of this Act, a person is subsequently charged, whether on indictment or on a complaint, with an offence arising out of the same act or omission as is referred to in subsection (1) of that section, any order made under section 375ZC(2) of this Act shall, with effect from the commencement of the later proceedings, cease to have effect.

(7) For the purposes of subsection (6) above, the later proceedings are commenced when the indictment or, as the case may be, the complaint is served.

Textual Amendments

F209 S. 375ZB inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 49(2); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

[F210 375ZC Disposal of case where accused found to be insane. S

(1) This section applies where—

(a) a person is, by virtue of section 375(3A) or 375ZA(3) of this Act, acquitted on the ground of his insanity at the time of the act or omission; or

(b) following an examination of facts under section 375ZA, a court makes a finding under subsection (2) of that section.

(2) Where this section applies the court may, as it thinks fit—

(a) make an order (which shall have the same effect as a hospital order) that the person be detained in such hospital as the court may specify;

(b) in addition to making an order under paragraph (a) above, make an order (which shall have the same effect as a restriction order) that the person shall, without limit of time, be subject to the special restrictions set out in section 62(1) of the Mental Health (Scotland) Act 1984;

(c) make an order (which shall have the same effect as a guardianship order) placing the person under the guardianship of a local authority or of a person approved by a local authority;

(d) make a supervision and treatment order (within the meaning of paragraph 1(1) of Schedule 5A to this Act); or

(e) make no order.

(3) Sections 376(1) and (6) to (9) and 377 to 379 of this Act shall have effect in relation to the making, terms and effect of an order under paragraph (a), (b) or (c) of subsection (2) above as those provisions have effect in relation to the making, terms and effect of, respectively, a hospital order, a restriction order and a guardianship order as respects a person convicted of an offence, other than an offence the sentence for which is fixed by law, punishable by imprisonment.]

Textual Amendments

F210 S. 375ZC inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 50(2); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

[F211 375ZD Appeal by accused in case involving insanity. S

(1) A person may appeal to the High Court against—

(a) a finding made under section 375(2) of this Act that he is insane so that his trial cannot proceed or continue, or the refusal of the court to make such a finding;

(b) a finding under section 375ZA(2) of this Act; or

(c) an order made under section 375ZC(2) of this Act.

(2) An appeal under subsection (1) above shall be—

(a) in writing; and

(b) lodged—

(i) in the case of an appeal under paragraph (a) of that subsection, not later than seven days after the date of the finding or refusal which is the subject of the appeal;

(ii) in the case of an appeal under paragraph (b), or both paragraphs (b) and (c), of that subsection, not later than 28 days after the conclusion of the examination of facts;

(iii) in the case of an appeal under paragraph (c) of that subsection against an order made on an acquittal, by virtue of section 375(3A) or 375ZA(3) of this Act, on the ground of insanity at the time of the act or omission, not later than 14 days after the date of the acquittal;

(iv) in the case of an appeal under that paragraph against an order made on a finding under section 375ZA(2), not later than 14 days after the conclusion of the examination of facts,

or within such longer period as the High Court may, on cause shown, allow.

(3) Where an appeal is taken under subsection (1) above, the period from the date on which the appeal was lodged until it is withdrawn or disposed of shall not count towards any time limit applying in respect of the case.

(4) An appellant in an appeal under this section shall be entitled to be present at the hearing of the appeal unless the High Court determines that his presence is not practicable or appropriate.

(5) In disposing of an appeal under subsection (1) above the High Court may—

(a) affirm the decision of the court of first instance;

(b) make any other finding or order which that court could have made at the time when it made the finding or order which is the subject of the appeal; or

(c) remit the case to that court with such directions in the matter as the High Court thinks fit.

(6) Section 443 of this Act shall not apply in relation to any order as respects which a person has a right of appeal under subsection (1)(c) above.]

Textual Amendments

F211 S. 375ZD inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 51(2); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

[F212 375ZE Appeal by prosecutor in case involving insanity. S

(1) The prosecutor may appeal to the High Court on a point of law against—

(a) a finding under subsection (2) of section 375 of this Act that an accused is insane so that his trial cannot proceed or continue;

(b) an acquittal on the ground of insanity at the time of the act or omission by virtue of subsection (3A) of that section;

(c) an acquittal under section 375ZA(3) of this Act (whether or not on the ground of insanity at the time of the act or omission); or

(d) any order made under section 375ZC(2) of this Act.

(2) An appeal under subsection (1) above shall be—

(a) in writing; and

(b) lodged—

(i) in the case of an appeal under paragraph (a) or (b) of that subsection, not later than seven days after the finding or, as the case may be, the acquittal which is the subject of the appeal;

(ii) in the case of an appeal under paragraph (c) or (d) of that subsection, not later than seven days after the conclusion of the examination of facts,

or within such longer period as the High Court may, on cause shown, allow.

(3) A respondent in an appeal under this section shall be entitled to be present at the hearing of the appeal unless the High Court determines that his presence is not practicable or appropriate.

(4) In disposing of an appeal under subsection (1) above the High Court may—

(a) affirm the decision of the court of first instance;

(b) make any other finding or order which that court could have made at the time when it made the finding or order which is the subject of the appeal; or

(c) remit the case to that court with such directions in the matter as the High Court thinks fit.]

Textual Amendments

F212 S. 375ZE inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 52(2); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

[F213 375A Interim hospital orders. S

(1) Where, in the case of any person charged summarily in the sheriff court—

(a) the person is convicted of an offence punishable by that court with imprisonment (other than an offence the sentence for which is fixed by law); or

(b) the sheriff is satisfied that the person did the act or made the admission charged but does not convict him,

and the sheriff is satisfied on the written or oral evidence of two medical practitioners (complying with the provisions of subsection (3) of this section and section 377 of this Act)—

(a) that the offender is suffering from mental disorder within the meaning of [F214 section 1(2) of the M49 Mental Health (Scotland) Act 1984]; and

(b) that there is reason to suppose—

(i) that the mental disorder from which the offender is suffering is such that it may be appropriate for a hospital order to be made in his case; and

(ii) that, having regard to the provisions of section 376(7) of this Act, the hospital to be specified in any such hospital order may be a State hospital,

the court may, before making a hospital order or dealing with the offender in some other way, make an order (to be known as “an interim hospital order”) authorising his admission to and detention in a State hospital or such other hospital as for special reasons the court may specify in the order.

(2) Where a person is remitted to the sheriff court from the district court under section 376(4) of this Act, the sheriff court may, if it is satisfied as in subsection (1) of this section, make an interim hospital order in relation to that person.

(3) Of the medical practitioners whose evidence is taken into account under subsection (1) of this section at least one shall be employed at the hospital which is to be specified in the order.

(4) An interim hospital order shall not be made in respect of an offender unless the court is satisfied that the hospital which is to be specified in the order, in the event of such an order being made by the court, is available for his admission thereto within 28 days of the making of such an order.

(5) Where a court makes an interim hospital order it shall not make any other order for detention or impose a fine or pass sentence of imprisonment or make a probation order or a community service order in respect of the offence, but may make any other order which it has power to make apart from this section.

(6) The court by which an interim hospital order is made may include in the order such direction as it thinks fit for the conveyance of the offender to a place of safety and his detention therein pending his admission to the hospital within the period of 28 days referred to in subsection (4) of this section.

(7) An interim hospital order—

(a) shall be in force for such period, not exceeding 12 weeks, as the court may specify when making the order; but

(b) may be renewed for further periods of not more than 28 days at a time if it appears to the court on the written or oral evidence of the responsible medical officer that the continuation of the order is warranted;

but no such order shall continue in force for more than 6 months in all and the court shall terminate the order if it makes a hospital order in respect of the offender or decides, after considering the written or oral evidence of the responsible medical officer, to deal with the offender in some other way.

(8) The power of renewing an interim hospital order may be exercised without the offender being brought before the court if he is represented by counsel or a solicitor and his counsel or solicitor is given an opportunity of being heard.

(9) If an offender absconds from a hospital in which he is detained in pursuance of an interim hospital order, or while being conveyed to or from such a hospital, he may be arrested without warrant by a constable and shall, after being arrested, be brought as soon as practicable before the court which made the order; and the court may thereupon terminate the order and deal with him in any way in which it could have dealt with him if no such order had been made.

(10) When an interim hospital order ceases to have effect in relation to an offender the court may deal with him in any way (other than by making a new interim hospital order) in which it could have dealt with him if no such order had been made.

(11) The power conferred on the court by the provisions of this section is without prejudice to the power of the court under section 381(1) of this Act to remand a person in order that an inquiry may be made into his physical or mental condition.]

Textual Amendments

F213 S. 375A inserted by virtue of Mental Health (Amendment) (Scotland) Act 1983 (c. 39), s. 34(c) and Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 126(2)(b)

F214 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(1), Sch. 3 para. 32

Marginal Citations

M49 1984 c. 36(85).

376 Power of court to order hospital admission or guardianship. S

(1) Where a person is convicted in the sheriff court of an offence, other than an offence the sentence for which is fixed by law, punishable by that court with imprisonment, and the following conditions are satisfied, that is to say—

(a) the court is satisfied, on the written or oral evidence of two medical practitioners (complying with the provisions of section 377 of this Act) that [F215 the grounds set out in section [F216 17(1)] or, as the case may be, the ground set out in section [F216 36(a)] of the [F216 M50 Mental Health (Scotland) Act 1984] apply in relation to the offender]; and

(b) the court is of opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section,

the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of such local authority or of such other person approved by a local authority as may be so specified.

F217 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Where in the case of a person charged [F218 summarily in the sheriff court with an act or omission constituting an offence] the court would have power, on convicting him, to make an order under subsection (1) of this section, then, if it is satisfied that the person did the act or made the omission charged, the court may, if it thinks fit, make such an order without convicting him.

(4) Where a person is charged before a court of summary jurisdiction, other than a sheriff court, with any act or omission constituting an offence punishable with imprisonment, the court, if it appears to it that that person may be suffering from mental disorder, shall remit him to the sheriff court in the manner provided by section 286 of this Act, and the sheriff court shall, on any such remit being made, have the like power to make an order under subsection (1) of this section in respect of him as if he had been charged before that court with the said act or omission as an offence, or in dealing with him may exercise the like powers as the court making the remit.

(5) Where it appears to the prosecutor in any court before which a person is charged with an offence that the person may be suffering from mental disorder, it shall be the duty of such prosecutor to bring before the court such evidence as may be available of the mental condition of that person.

(6) An order for the admission of a person to a hospital (in this Act referred to as “a hospital order”) shall not be made under this section in respect of an offender or of a person to whom subsection (3) of this section applies unless the court is satisfied that that hospital, in the event of such an order being made by the court, is available for his admission thereto within 28 days of the making of such an order.

(7) A State hospital shall not be specified in a hospital order in respect of the detention of a person unless the court is satisfied, on the evidence of the medical practitioners which is taken into account under paragraph (a) of subsection (1) of this section, that the offender, on account of his dangerous, violent or criminal propensities, requires treatment under conditions of special security, and cannot suitably be cared for in a hospital other than a State hospital.

(8) An order placing a person under the guardianship of a local authority or of any other person (in this Act referred to as “a guardianship order”) shall not be made under this section unless the court is satisfied

[F219 (a) after taking into consideration the evidence of a mental health officer, that it is necessary in the interests of the welfare of the person that he should be placed under guardianship; and

(b)]

that that authority or person is willing to receive that person into guardianship.

(9) A hospital order or guardianship order shall specify the form of mental disorder, being mental illness or mental [F220 handicap], or both, from which, upon the evidence taken into account under paragraph (a) of subsection (1) of this section, the offender is found by the court to be suffering; and no such order shall be made unless the offender is described by each of the practitioners, whose evidence is taken into account as aforesaid, as suffering from the same form of mental disorder, whether or not he is also described by either of them as suffering from the other form.

(10) Where an order is made under this section, the court shall not pass sentence of imprisonment or impose a fine or make a probation order [F221 or a community service order] in respect of the offence, but may make any other order which the court has power to make apart from this section; and for the purposes of this subsection “sentence of imprisonment” includes any sentence or order for detention.

Textual Amendments

F215 Words substituted by virtue of Mental Health (Amendment) (Scotland) Act 1983 (c. 39), Sch. 2 para. 34(a) and Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 126(2)(b)

F216 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(1), Sch. 3 para. 33

F217 S. 376(2) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 133(a), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F218 Words in s. 376(3) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 133(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F219 Words inserted by virtue of Mental Health (Amendment) (Scotland) Act 1983 (c. 39), Sch. 2 para. 34(b) and Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 126(2)(b)

F220 Words substituted by virtue of Mental Health (Amendment) (Scotland) Act 1983 (c. 39), Sch. 2 para. 34(b) and Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 126(2)(b)

F221 Words inserted by virtue of Mental Health (Amendment) (Scotland) Act 1983 (c. 39), Sch. 2 para. 34(d) and Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 126(2)(b)

Modifications etc. (not altering text)

C47 S. 376 extended by Contempt of Court Act 1981 (c. 49, SIF 39:3), s. 15(3)

Marginal Citations

M50 1984 c. 36(85).

377 Requirements as to medical evidence. S

(1) Of the medical practitioners whose evidence is taken into account under [F222 sections [F223 375(2),]375A(1) and] 376(1)(a) of this Act, at least one shall be a practitioner approved for the purposes of [F224 section 20 or section 39 of the M51 Mental Health (Scotland) Act 1984] by a Health Board as having special experience in the diagnosis or treatment of mental disorder.

[F225 (1A) Written or oral evidence given for the purposes of the said section 376(1)(a) shall include a statement as to whether the person giving the evidence is related to the accused and of any pecuniary interest which that person may have in the admission of the accused to hospital or his reception into guardianship.]

(2) For the purposes of the said [F226 sections 375(2) and] 376(1)(a) a report in writing purporting to be signed by a medical practitioner may, subject to the provisions of this section, be received in evidence without proof of the signature or qualifications of the practitioner; but the court may, in any case, require that the practitioner by whom such a report was signed be called to give oral evidence.

(3) Where any such report as aforesaid is tendered in evidence, otherwise than by or on behalf of the accused, then—

(a) if the accused is represented by counsel or solicitor, a copy of the report shall be given to his counsel or solicitor;

(b) if the accused is not so represented, the substance of the report shall be disclosed to the accused or, where he is a child under 16 years of age, to his parent or guardian if present in court;

(c) in any case, the accused may require that the practitioner by whom the report was signed be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by or on behalf of the accused;

and where the court is of opinion that further time is necessary in the interests of the accused for consideration of that report, or the substance of any such report, it shall adjourn the case.

(4) For the purpose of calling evidence to rebut the evidence contained in any such report as aforesaid, arrangements may be made by or on behalf of an accused person detained in a hospital [F227 or, as respects a report for the purposes of section 375(2), remanded in custody]for his examination by any medical practitioner, and any such examination may be made in private.

Textual Amendments

F222 Word and s. 186(2)(d) added by Community Service by Offenders (Scotland) Act 1978 (c. 49, SIF 39:1), s. 8

F223 S. 186(1)(b)(c) inserted (1.4.1991) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 39:1), s. 61(2)(b); S.I. 1991/850, art. 3, Sch.

F224 Words substituted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 56, Sch. 7

F225 S. 186(1) “(a)” inserted (1.4.1991) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 39:1), s. 61(2)(a): S.I. 1991/850, art. 3, Sch.

F226 Words inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 65(5)

F227 Words in s. 375(4) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 134(c); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

C48 S. 377 extended by Contempt of Court Act 1981 (c. 49, SIF 39:3), s. 15(3)

Marginal Citations

M51 1984 c. 36(85).

378 Supplementary provisions as to hospital orders. S

The court by which a hospital order is made may give such directions as it thinks fit for the conveyance of the patient to a place of safety and his detention therein pending his admission to the hospital within the period of 28 days referred to in section 376(6) of this Act; but a direction for the conveyance of a patient to a residential establishment provided by a local authority under Part IV of the M52 Social Work (Scotland) Act 1968 shall not be given unless the court is satisfied that that authority is willing to receive the patient therein.

Modifications etc. (not altering text)

C49 S. 378 extended by Contempt of Court Act 1981 (c. 49, SIF 39:3), s. 15(3)

Marginal Citations

M52 1968 c. 49(81:3).

379 Power of court to restrict discharge from hospital. S

(1) Where a hospital order is made in respect of a person, and it appears to the court, having regard to the nature of the offence with which he is charged, the antecedents of the person and the risk that as a result of his mental disorder he would commit offences if set at large, that it is necessary for the protection of the public [F228 from serious harm] so to do, the court may, subject to the provisions of this section, further order that the person shall be subject to the special restrictions set out in [F229 section 62(1) of the M53 Mental Health (Scotland) Act 1984], F230 . . . without limit of time F230 . . ..

(2) An order under this section (in this Act referred to as [F231 “a restriction order”]) shall not be made in the case of any person unless the medical practitioner approved by the Health Board for the purposes of [F232 section 20 or section 39 of the M54 Mental Health (Scotland) Act 1984], whose evidence is taken into account by the court under section 376(1)(a) of this Act, has given evidence orally before the court.

(3) Where [F233 a restriction order is in force in respect of a patient], a guardianship order shall not be made in respect of him; and where the hospital order relating to him ceases to have effect by virtue of [F234 [F235 section 60(3)] of the M55 Mental Health (Scotland) Act 1984] on the making of another hospital order, that order shall have the same effect in relation to [F236 the restriction order] as the previous hospital order, but without prejudice to the power of the court making that other hospital order to make [F237 another restriction order] to have effect on the expiration of the previous such order.

Textual Amendments

F228 Words inserted by virtue of Mental Health (Amendment) (Scotland) Act 1983 (c. 39), s. 22(2) and Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 126(2)(b)

F229 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(1), Sch. 3 para. 35(a)

F230 Words in s. 379(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, ss. 54, 117(2), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F231 Ss. 282A, 282B inserted (prosp.) by Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 (c. 40, SIF 39:1), ss. 74(1), 75, Sch. 8 para. 27(2)

F232 Words substituted by Mental Health (Scotland) Act 1984 :c. 36, SIF 85), s. 127(1), Sch. 3 para. 35(b)

F233 Words substituted by virtue of Mental Health (Amendment) (Scotland) Act 1983 (c. 39), Sch. 2 para. 36(b)(i) and Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 126(2)(b)

F234 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(1), Sch. 3 para. 35(c)

F235 Words in s. 379(3) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 135; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F236 Words substituted by virtue of Mental Health (Amendment) (Scotland) Act 1983 (c. 39), Sch. 2 para. 36(b)(ii) and Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 126(2)(b)

F237 Words substituted by virtue of Mental Health (Amendment) (Scotland) Act 1983 (c. 39), Sch. 2 para. 36(b)(iii) and Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 126(2)(b)

Modifications etc. (not altering text)

C50 S. 379 extended by Comtempt of Court Act 1981 (c. 49, SIF 39:3), s. 15(3)

C51 S. 379(3) extended by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 76

Marginal Citations

M53 1984 c. 36(85).

M54 1984 c. 36(85).

M55 1984 c. 36(85).

U.K. Conviction and Sentence

Adjournment and remand S

380 Power of court to adjourn case before sentence. S

[(1)] It is hereby declared that the power of a court to adjourn the hearing of a case includes power, after a person has been convicted or the court has found that he committed the offence and before he has been sentenced or otherwise dealt with, to adjourn the case for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with his case [F238 and where the court [F239 adjourns the case solely for that purpose] it shall remand the accused in custody or on bail][F240 or ordain him to appear at the adjourned diet].

Provided that a court shall not [F241 solely] for the purpose aforesaid adjourn the hearing of a case for any single period exceeding

[F242 (a) where the accused is remanded in custody, three weeks; or

(b) where he is remanded on bail or is ordained to appear, eight weeks but only on cause shown and otherwise four weeks]

[F243 (2) An accused who is remanded under this section may appeal against the refusal of bail or against the conditions imposed within 24 hours of his remand, by note of appeal presented to the High Court, and the High Court, either in court or in chambers, may, after hearing parties—

[F244 (a) review the order appealed against and either grant bail on such conditions as it thinks fit or ordain the accused to appear at the adjourned diet;] or

(b) confirm the order.]

Textual Amendments

F238 Words inserted by Bail etc. (Scotland) Act 1980 (c. 4, SIF 39:1), s. 5(a)

F239 Words in s. 380(1) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 68(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F240 Words inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 7 para. 59(a)

F241 Word in the proviso to s. 380(1) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 68; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F242 S. 380(1)(a)(b) substituted (18.9.1993) for words “three weeks” by 1993 c. 9, s. 47(1), Sch. 5 para. 1(6) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, arts. 3(3), 4(1)(c), Sch.2

F243 Words substituted by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(1), Sch. 2 para. 11

F244 S. 380(2)(a) substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 7 para. 59(b)

[F245 380A Offence committed by person under supervision etc.: provision of local authority report. S

(1) Where a person specified in section 27(1)(b)(i) to (vi) of the Social Work (Scotland) Act 1968 commits an offence, the court shall not dispose of the case without obtaining from the local authority in whose area the person resides a report as to—

(a) the circumstances of the offence; and

(b) the character of the offender, including his behaviour while under the supervision, or as the case may be subject to the order, so specified in relation to him.

(2) In subsection (1) above, “the court” does not include a district court.]

Textual Amendments

F245 S. 380A inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 37(2); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

381 Remand for inquiry into physical or mental condition. S

(1) Without prejudice to any powers exercisable by a court under the last foregoing section, where a person is charged before a court with an offence punishable with imprisonment, and the court is satisfied that he did the act or made the omission charged but is of opinion that an inquiry ought to be made into his physical or mental condition before the method of dealing with him is determined, the court [F246 shall—

(a) for the purpose of inquiry solely into his physical condition, remand him in custody or on bail;

(b) for the purpose of inquiry into his mental condition (whether or not in addition to his physical condition), remand him in custody or on bail or, where the court is satisfied—

(i) on the written or oral evidence of a medical practitioner, that the person appears to be suffering from a mental disorder; and

(ii) that a hospital is available for his admission and suitable for his detention,

make an order committing him to that hospital,

for]such period or periods, no single period exceeding three weeks, as the court thinks necessary to enable a medical examination and report to be made.

[F247 (1A) Where the court is of the opinion that a person ought to continue to be committed to hospital for the purpose of inquiry into his mental condition following the expiry of the period specified in an order for committal to hospital under paragraph (b) of subsection (1) above, the court may—

(a) if the condition in sub-paragraph (i) of that paragraph continues to be satisfied and a suitable hospital is available for his continued detention, renew the order for such further period not exceeding three weeks as the court thinks necessary to enable a medical examination and report to be made; and

(b) in any other case, remand the person in custody or on bail in accordance with subsection (1) above.

(1B) An order under subsection (1A)(a) above may, unless objection is made by or on behalf of the person to whom it relates, be made in his absence.

(1C) Where, before the expiry of the period specified in an order for committal to hospital under subsection (1)(b) above, the court considers, on an application made to it, that committal to hospital is no longer required in relation to the person, the court shall revoke the order and may make such other order, under subsection (1)(a) above or any other provision of this Part of this Act, as the court considers appropriate.]

(2) Where a person is remanded on bail under this section, . . . F248 it shall be a condition of the [F249 order granting bail] that he shall—

(a) undergo a medical examination by a duly qualified medical practitioner or, where the inquiry is into his mental condition and the [F249 order granting bail] so specifies, two such practitioners; and

(b) for the purpose attend at an institution or place, or on any such practitioner specified in the [F249 order granting bail] and, where the inquiry is into his mental condition, comply with any directions which may be given to him for the said purpose by any person so specified or by a person of any class so specified;

and, if arrangements have been made for his reception, it may be a condition of the [F249 order granting bail] that the person shall, for the purpose of the examination, reside in an institution or place specified as aforesaid, not being an institution or place to which he could have been remanded in custody, until the expiry of such period as may be so specified or until he is discharged therefrom, whichever first occurs.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F250

(4) On exercising the powers conferred by this section [F251 to remand in custody or on bail] the court shall—

(a) where the person is remanded in custody, send to the institution or place in which he is detained, and

(b) where the person is released on bail, send to the institution or place at which or the person by whom he is to be examined,

a statement of the reasons for which the court is of opinion that an inquiry ought to be made into his physical or mental condition, and of any information before the court about his physical or mental condition.

[F252 (4A) On making an order of committal to hospital under subsection (1)(b) above the court shall send to the hospital specified in the order a statement of the reasons for which the court is of the opinion that an inquiry ought to be made into the mental condition of the person to whom it relates, and of any information before the court about his mental condition.]

[F253 (5) A person remanded under this section may appeal against the refusal of bail or against the conditions imposed [F254 , and a person committed to hospital under this section may appeal against the order of committal,] within 24 hours of his remand [F255 or, as the case may be, committal], by note of appeal presented to the High Court, and the High Court, either in court or in chambers, may after hearing parties—

(a) review the order and grant bail on such conditions as it thinks fit; or

(b) confirm the order.][F256 ; or

(c) in the case of an appeal against an order of committal to hospital, revoke the order and remand the person in custody.]

[F257 (6) The court may, on cause shown, vary an order for committal to hospital under subsection (1)(b) above by substituting another hospital for the hospital specified in the order.

(7) Subsection (1)(b) above shall apply to the variation of an order under subsection (6) above as it applies to the making of an order for committal to hospital.]

Textual Amendments

F246 S. 381(1)(a)(b) and words substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) for words by 1995 c. 20, s. 55(2); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F247 Words substituted by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(1), Sch. 2 para. 15(a)

F248 Words substituted as provided by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(1), Sch. 2 para. 13

F249 Words repealed by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(1), Sch. 1 para. 11(a)

F250 Words inserted by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(1), Sch. 2 para. 14

F251 Words in s. 381(4) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 55(4); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F252 S. 381(4A) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 55(5); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F253 Word substituted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(1), Sch. 1 para. 11(b)

F254 Words in s. 381(5) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 55(6)(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F255 Words in s. 381(5) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 55(6)(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F256 S. 381(5)(c) and the word “or” immediately preceding inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 55(6)(c); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F257 S. 381(6)(7) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 55(7); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Admonition and discharge S

382 Admonition. S

A court of summary jurisdiction may, if it appears to meet the justice of the case, dismiss with an admonition any person [F258 convicted] by the court of any offence.

Textual Amendments

F258 Words in s. 382 substituted (27.7.1993) by 1993 c. 36, s. 79(13), Sch. 5 Pt. I para. 2(2)

383 Absolute discharge. S

Where a person is charged before a court of summary jurisdiction with an offence (other than an offence the sentence for which is fixed by law) and the court is satisfied that he committed the offence, the court, if it is of opinion, having regard to the circumstances, including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order is not appropriate may, without proceeding to conviction, make an order discharging him absolutely.

Modifications etc. (not altering text)

C52 S. 383 amended by Licensed Premises (Exclusion of Certain Persons) Act 1980 (c. 32, SIF 68A:1, 2), s. 1(2)(c)

Probation E+W+S

384 Probation. S

(1) [F259 Subject to subsection (1A) below,] where a person is [F260 convicted of]an offence (other than an offence the sentence for which is fixed by law) F261 ., the court, if it is of opinion having regard to the circumstances, including the nature of the offence and the character of the offender [F262 and having obtained a report as to the circumstances and character of the offender], that it is expedient to do so, may, [F263 instead of sentencing him] make a probation order, that is to say an order requiring the offender to be under supervision for a period to be specified in the order of not less than [F264 six months] nor more than three years.

[F265 (1A) A court shall not make a probation order under subsection (1) above unless it is satisfied that suitable arrangements for the supervision of the offender can be made

[F266 (a) in a case other than that mentioned in paragraph (b) below, by the local authority in whose area he resides or is to reside; or

(b) in a case where, by virtue of section 188(1) of this Act, subsection (2) of this section would not apply, by the probation committee for the area which contains the petty sessions area which would be named in the order]

.]

(2) A probation order shall be as nearly as may be in the form prescribed by Act of Adjournal, and shall name the local authority area in which the offender resides or is to reside and the order shall make provision for the offender to be under the supervision of an officer of the local authority of that area, or, where the offender resides or is to reside in a local authority area in which the court has no jurisdiction the court shall name the appropriate court (being such a court as could have been named in any amendment of the order in accordance with the provisions of Schedule 5 to this Act) in the area of residence or intended residence, and the court last mentioned shall require the local authority for that area to arrange for the offender to be under the supervision of an officer of that authority.

(3) Subject to the provisions of Schedule 5 to this Act relating to probationers who change their residence, an offender in respect of whom a probation order is made shall be required to be under the supervision of an officer of the local authority as aforesaid.

(4) Subject to the provisions of the next following section, a probation order may in addition require the offender to comply during the whole or any part of the probation period with such requirements as the court having regard to the circumstances of the case, considers

[F267 (a)] [F268 conducive to] securing the good conduct of the offender or [F269 to] preventing a repetition by him of the offence or the commission of other offences; [F270 or

(b) where the probation order is to include such a requirement as is mentioned in subsection (5A) [F271 or (5B)] below, conducive to securing or preventing the aforesaid matters].

(5) Without prejudice to the generality of the last foregoing subsection, a probation order may include requirements relating to the residence of the offender:

Provided that—

(a) before making an order containing any such requirements, the court shall consider the home surroundings of the offender; and

(b) where the order requires the offender to reside in any institution or place, the name of the institution or place and the period for which he is so required to reside shall be specified in the order, and that period shall not extend beyond 12 months from the date of the requirement or beyond the date when the order expires.

[F272 (5A) Without prejudice to the generality of subsection (4) above, where [F273 an offender has been convicted of an offence punishable by imprisonment and] a court which is considering making a probation order—

(a) is satisfied that the offender is of or over 16 years of age and F274 . that the conditions for the making of a community service order under the M56 Community Service by Offenders (Scotland) Act 1978 specified in paragraphs (a) and (c) of section 1(2) of that Act have been met;

(b) has been notified by the Secretary of State that arrangements exist for persons who reside in the locality where the offender resides, or will be residing when the probation order comes into force, to perform unpaid work as a requirement of a probation order; and

(c) is satisfied that provision can be made under the arrangements mentioned in paragraph (b) above for the offender to perform unpaid work under the probation order,

it may include in the probation order, in addition to any other requirement, a requirement that the offender shall perform unpaid work for such number of hours (being in total not less than forty nor more than two hundred and forty) as may be specified in the probation order; and the said Act of 1978 shall apply to a probation order including such a requirement as it applies to a community service order, but as if—

(i) subsections (1), (2)(b) and (d) and (4)(b) of section 1 and sections 4 [F275 , 6 and 6A] were omitted;

(ii) in section 1(5) for the words “subsection (1) above” there were substituted the words “subsection (5A) of section 183 or, as the case may be, 384 of the 1975 Act”; and

(iii) any other necessary modifications were made.]

[F276 (5B) Without prejudice to the generality of subsection (4) above, where a court is considering making a probation order it may include in the probation order, in addition to any other requirement, a requirement that the offender shall pay compensation either in a lump sum or by instalments for any personal injury, loss or damage caused (whether directly or indirectly) by the acts which constituted the offence; and the following provisions of the Criminal Justice (Scotland) Act 1980 shall apply to such a requirement as if any reference in them to a compensation order included a reference to a requirement to pay compensation under this subsection—

• section 58(2) and (3);

• section 59 (except the proviso to subsection (1) and subsection (3));

• section 60;

• section 62;

• section 64 (except paragraph (a));

• section 67.

(5C) Where the court imposes a requirement to pay compensation under subsection (5B) above—

(a) it shall be a condition of a probation order containing such a requirement that payment of the compensation shall be completed not more than eighteen months after the making of the order or not later than two months before the end of the period of probation whichever first occurs;

(b) the court, on the application of the offender or the officer of the local authority responsible for supervising the offender, may vary the terms of the requirement, including the amount of any instalments, in consequence of any change which may have occurred in the circumstances of the offender; and

(c) in any proceedings for breach of a probation order where the breach consists only in the failure to comply with a requirement to pay compensation, a document purporting to be a certificate signed by the clerk of the court for the time being having jurisdiction in relation to the order that the compensation or, where payment by instalments has been allowed, any instalment has not been paid shall be sufficient evidence of such breach.]

(6) Before making a probation order, the court shall explain to the offender in ordinary language the effect of the order (including any additional requirements proposed to be inserted therein under subsection (4) [F277 or (5) (5A), (5B) or (5C)] of this section or under the next following section) and that if he fails to comply therewith or commits another offence during the probation period he will be liable to be F278 . sentenced for the original offence and the court shall not make the order unless the offender expresses his willingness to comply with the requirements thereof.

(7) The clerk of the court by which a probation order is made or of the appropriate court, as the case may be, shall[F279 (a)]cause copies thereof to be given to the officer of the local authority who is to supervise the probationer F280 . and to the person in charge of any institution or place in which the probationer is required to reside under the probation order [F281 ; and.

(b) cause a copy thereof to be given to the probationer or sent to him by registered post or by the recorded delivery service; and an acknowledgement or certificate of delivery of a letter containing such copy order issued by the Post Office shall be sufficient evidence of the delivery of the letter on the day specified in such acknowledgement or certificate.]

Textual Amendments

F259 Words in s. 384(1) inserted (1.4.1991) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 39:1), s. 61(1)(a); S.I. 1991/850, art. 3, Schedule

F260 Words in s. 384(1) substituted (31.3.1996 subject to transitional provisions and savings in commencing S.I.) by 1995 c. 20, s. 38(3)(a)(i); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F261 Words in s. 384(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, ss. 38(3)(a)(ii), 117(2), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F262 Words inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(1), Sch. 1 para. 10(a)

F263 Words in s. 384(1) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 38(3)(a)(iii); S.I 1996/517, art. 3(2)

F264 Words substituted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(1), Sch. 1 para. 10(b)

F265 S. 384(1A) inserted (1.4.1991) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 39:1), s. 61(1)(b); S.I. 1991/850, art. 3, Schedule

F266 S. 384(1A)(a)(b) substituted (1.10.1992) for certain words by Criminal Justice Act 1991 (c. 53), s. 16, Sch. 3, Pt. II, para. 7(2) (with s. 28); S.I. 1992/333, art. 2(2), Sch. 2.

F267 Word inserted by Community Service by Offenders (Scotland) Act 1978 (c. 49, SIF 39:1), s. 7(a)

F268 Words in s. 384(4)(a) substituted (1.4.1991) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 39:1), s. 61(1)(c)(i); S.I. 1991/850, art. 3, Schedule

F269 Word in s. 384(4)(a) substituted (1.4.1991) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 39:1), s. 61(1)(c)(ii); S.I. 1991/850, art. 3, Schedule

F270 Words added by Community Service by Offenders (Scotland) Act 1978 (c. 49, SIF 39:1), s. 7(a)

F271 Words inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 65(3)

F272 S. 384(5A) inserted by Community Service by Offenders (Scotland) Act 1978 (c. 49, SIF 39:1), s. 7(b)

F273 Words in s. 384(5A) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 38(3)(b)(i); S.I.1996/517, arts. 3(2), 4-6, Sch. 2

F274 S. 384(5A)(a): by 1995 c. 20, ss. 38(3)(b)(ii), 117(2), Sch. 7 Pt. I it is provided that the words “has committed an offence punishable by imprisonment and” shall be repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F275 Words substituted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 68(2), Sch. 13 Pt. II para. 3

F276 S. 384(5B)(5C) inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 65(1)(2)(b)

F277 Community Service by Offenders (Scotland) Act 1978 (c. 49, SIF 39:1), s.7(c) (substituting “(5) or (5A)” for “or (5)” is repealed by virtue of the Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(2), Sch. 2 and for “or (5A)” there is substituted “(5A), (5B) or (5C)” by virtue of the Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 65(4)

F278 Words in s. 384(6) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 38(b)(ii)(c), 117(2), Sch. 7 Pt. I; S.I 1996/517, arts. 3(2), 4-6, Sch. 2

F279 Word in s. 384(7) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 70(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F280 Words in s. 384(7) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 70(b), Sch. 7 Pt. I; S.I. 1996/517, art. 3(2), 4-6, Sch. 2

F281 S. 384(7)(b) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s.117(1) Sch. 6 Pt. I para. 70(c); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

C53 S. 384 amended by Licensed Premises (Exclusion of Certain Persons) Act 1980 (c. 32, SIF 39:1), s. 1(2)(c)

Marginal Citations

M56 1978 c. 49(39:1).

385 Probation orders requiring treatment for mental condition. S

(1) Where the court is satisfied, on the evidence of a registered medical practitioner approved for the purposes of [F282 section 20 or 39 of the M57 Mental Health (Scotland) Act 1984], that the mental condition of an offender is such as requires and may be susceptible to treatment but is not such as to warrant his detention in pursuance of a hospital order under [F282 Part VI of that Act], or under this Act, the court may, if it makes a probation order, include therein a requirement that the offender shall submit, for such period not extending beyond 12 months from the date of the requirement as may be specified therein, to treatment by or under the direction of a registered medical practitioner [F283 or chartered psychologist] with a view to the improvement of the offender’s mental condition.

(2) The treatment required by any such order shall be such one of the following kinds of treatment as may be specified in the order, that is to say—

(a) treatment as a resident patient in a hospital within the meaning of the [F284 M58 Mental Health (Scotland) Act 1984], not being a State hospital within the meaning of that Act;

(b) treatment as a non-resident patient at such institution or place as may be specified in the order; or

(c) treatment by or under the direction of such registered medical practitioner [F285 or chartered psychologist] as may be specified in the order;

but except as aforesaid the nature of the treatment shall not be specified in the order.

(3) A court shall not make a probation order containing such a requirement as aforesaid unless it is satisfied that arrangements have been made for the treatment intended to be specified in the order, and, if the offender is to be treated as a resident patient, for his reception.

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F286

[F287 (5) Where the medical practitioner [F285 or chartered psychologist] by whom or under whose direction a probationer is receiving any of the kinds of treatment to which he is required to submit in pursuance of a probation order is of opinion—

(a) that the probationer requires, or that it would be more appropriate for him to receive, a different kind of treatment (whether in whole or in part) from that which he has been receiving, being treatment of a kind which subject to subsection (5A) of this section could have been specified in the probation order; or

(b) that the treatment (whether in whole or in part) can be more appropriately given in or at a different institution or place from that where he has been receiving treatment in pursuance of the probation order,

he may, subject to subsection (5B) of this section, make arrangements for the probationer to be treated accordingly.

(5A) Arrangements made under subsection (5) of this section may provide for the probationer to receive his treatment (in whole or in part) as a resident patient in an institution or place notwithstanding that it is not one which could have been specified in that behalf in the probation order.

(5B) Arrangements shall not be made under subsection (5) of this section unless—

(a) the probationer and any officer responsible for his supervision agree;

(b) the treatment will be given by or under the direction of a registered medical practitioner [or chartered psychologist]who has agreed to accept the probationer as his patient; and

(c) where such treatment entails the probationer’s being a resident patient, he will be received as such.]

(6) Where any such arrangements as are mentioned in [F288 subsection (5) of this section] are made for the treatment of a probationer—

(a) the [F289 any officer responsible for the probationer’s supervision shall notify the appropriate court of the arrangements;] and

(b) the treatment provided for by the arrangements shall be deemed to be treatment to which he is required to submit in pursuance of the probation order.

(7) Subsections (2), (3) and (4) of section 377 of this Act shall apply for the purposes of this section as if for the reference in the said subsection (2) to section 376(1)(a) of this Act there were substituted a reference to subsection (1) of this section.

(8) Except as provided by this section, a court shall not make a probation order requiring a probationer to submit to treatment for his mental condition.

Textual Amendments

F282 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(1), Sch. 3 para. 36(a)

F283 Words in s. 385(1) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 39(1)(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F284 Words substituted by Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(1), Sch. 3 para. 36(b)

F285 Words in s. 385(2)(c)(5)(5B)(b) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 39(1)(b); S.I 1996/517, arts. 3(2), 4-6, Sch. 2

F286 S. 385(4) repealed by Mental Health (Amendment) (Scotland) Act 1983 (c. 39, SIF 85), Sch. 3

F287 S. 385(5)(5A)(5B) substituted for s. 385(5) by virtue of Mental Health (Amendment) (Scotland) Act 1983 (c. 39), s. 36(2) and Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 126(2)(b)

F288 Words substituted by virtue of Mental Health (Amendment) (Scotland) Act 1983 (c. 39), s. 36(3)(a) and Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 126(2)(b)

F289 Words substituted by virtue of Mental Health (Amendment) (Scotland) Act 1983 (c. 39), s. 36(3)(b) and Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 126(2)(b)

Marginal Citations

M57 1984 c. 36(85).

M58 1984 c. 36(85).

386 Discharge and amendment of probation orders. S

(1) The provisions of Schedule 5 to this Act shall have effect in relation to the discharge and amendment of probation orders.

(2) Where, under section 387 of this Act, a probationer is sentenced for the offence for which he was placed on probation, the probation order shall cease to have effect.

387 Failure to comply with requirement of probation order. S

(1) If, on information F290 . from

[F291 (a)] the officer supervising the probationer

[F292 (b) the director of social work of the local authority whose officer is supervising the probationer; or

(c) an officer appointed by the director of social work to act on his behalf for the purposes of this subsection,]

it appears to the court by which the order was made or to the appropriate court that the probationer has failed to comply with any of the requirements of the order, that court may issue a warrant for the arrest of the probationer, or may, if it thinks fit, instead of issuing such a warrant in the first instance, issue a citation requiring the probationer to appear before the court at such time as may be specified in the citation.

(2) If it is proved to the satisfaction of the court before which a probationer appears or is brought in pursuance of the foregoing subsection that he has failed to comply with any of the requirements of the probation order, the court may—

(a) [F293 except in the case of a failure to comply with a requirement to pay compensation and] without prejudice to the continuance in force of the probation order, impose a fine not exceeding [F294 level 3 on the standard scale], or

[F295 (b) sentence the offender for the offence for which the order was made;]

(c) vary any of the requirements of the probation order, so however that any extension of the probation period shall terminate not later than three years from the date of the probation order [F296 ; or

(d) without prejudice to the continuance in force of the probation order, in a case where the conditions required by the M59 Community Service by Offenders (Scotland) Act 1978 are satisfied, make a community service order, and the provisions of that Act shall apply to such an order as if the failure to comply with the requirement of the probation order were the offence in respect of which the order had been made.]

[F297 (2A) for the purposes of subsection (2) above, evidence of one witness shall be sufficient evidence.]

(3) A fine imposed under this section in respect of a failure to comply with the requirements of a probation order shall be deemed for the purposes of any enactment to be a sum adjudged to be paid by or in respect of a conviction of a penalty imposed on a person summarily convicted.

(4) A probationer who is required by a probation order to submit to treatment for his mental condition shall not be deemed for the purpose of this section to have failed to comply with that requirement on the ground only that he has refused to undergo any surgical, electrical or other treatment if, in the opinion of the court, his refusal was reasonable having regard to all the circumstances.

(5) Without prejudice to the provisions of section 388 of this Act, a probationer who is convicted of an offence committed during the probation period shall not on that account be liable to be dealt with under this section for failing to comply with any requirement of the probation order.

Textual Amendments

F290 Words in s. 387(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 71, Sch. 7 Pt. I; S.I 1996/517, arts. 3(2), 4-6, Sch. 2

F291 S. 387 “(a)” inserted (1.4.1991) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 39:1), s. 61(2)(a); S.I. 1991/850, art. 3, Schedule

F292 S. 387(1)(b)(c) inserted (1.4.1991) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 39:1), s. 61(2)(b); S.I. 1991/850, art. 3, Schedule

F293 Words inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 65(5)

F294 Words substituted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 56, Sch. 7

F295 S. 387(2)(b) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 38(2); S.I 1996/517, arts. 3(2), 4-6, Sch. 2

F296 Word and s. 387(2)(d) added by Community Service by Offenders (Scotland) Act 1978 (c. 49, SIF 39:1), s. 8

F297 S. 387(2A) inserted (1.10.1993) by 1993 c. 9, s. 47(1), Sch. 5 para. 1(7) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, arts. 3(4), 4(1)(c)

Marginal Citations

M59 1978 c. 49(39:1).

388 Commission of further offence. S

(1) If it appears to the court by which a probation order has been made (or to the appropriate court) that the probationer to whom the order relates has been convicted by a court in any part of Great Britain of an offence committed during the probation period and has been dealt with for that offence, the first-mentioned court (or the appropriate court) may issue a warrant for the arrest of the probationer, or may, if it thinks fit, instead of issuing such a warrant in the first instance issue a citation requiring the probationer to appear before that court at such time as may be specified in the citation, and on his appearance or on his being brought before the court the court may, if it thinks fit, deal with him under section 387(2)(b) of this Act.

(2) Where a probationer is convicted by the court which made the probation order (or by the appropriate court) of an offence committed during the probation period, that court may, if it thinks fit, deal with him under section 387(2)(b) of this Act for the offence for which the order was made as well as for the offence committed during the period of probation.

[F298 (3) Where—

(a) a court has, under section 384(5A) of this Act, included in a probation order a requirement that an offender shall perform unpaid work; and

(b) the offender is convicted of an offence committed in the circumstances mentioned in subsection (4) below,

the court which sentences him for the offence shall, in determining the appropriate sentence for that offence, have regard to the fact that the offence was committed in those circumstances.

(4) The circumstances referred to in subsection (3) above are that the offence was committed—

(a) during the period that the offender was subject to a requirement to perform unpaid work or within the period of three months following the expiry of that period; and

(b) in any place where the unpaid work was being or had previously been performed.

(5) The court shall not, under subsection (3) above, have regard to the fact that the offence was committed in the circumstances mentioned in subsection (4) above unless that fact is libelled in the indictment or, as the case may be, specified in the complaint.]

Textual Amendments

F298 S. 388(3)-(5) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 40(2); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

389 Probation orders relating to persons residing in England. E+W+S

(1) Where the court by which a probation order is made under section 384 of this Act [F299 (not being a probation order including a requirement [F300 which, while corresponding to a requirement mentioned in paragraph 2 or 3 of Schedule 1A to the Powers of Criminal Courts Act 1973, would if included in a probation order made under that Act fail to accord with a restriction as to days of presentation, participation or attendance mentioned in paragraph 2(4)(a) or (6)(a), or as the case may be 3(3)(a), of that Schedule])] is satisfied that the offender has attained the age of [F301 16] years and resides or will reside in England, subsection (2) of the said section shall not apply to the order, but the order shall contain a requirement that he be under the supervision of a probation officer appointed for or assigned to the petty sessions area in which the offender resides or will reside; F302 . that area shall be named in the order [F303 ; and where the order includes a requirement that the probationer perform unpaid work for a number of hours, the number specified shall not exceed one hundred.].

(2) Where a probation order has been made under section 384 of this Act and the court in Scotland by which the order was made or the appropriate court is satisfied

[F304 (a) that the probationer has attained the age of 16 years;

(b) that he proposes to reside, or is residing, in England; and

(c) that suitable arrangements for his supervision can be made by the probation committee for the area which contains the petty sessions area in which he resides or will reside]

, the power of that court to amend the order under Schedule 5 to this Act shall include power to insert the provisions required by subsection (1) of this section [F305 or to vary any requirement for performance of unpaid work so that such hours as remain to be worked do not exceed one hundred]; and the court may so amend the order without summoning the probationer and without his consent.

(3) A probation order made or amended by virtue of this section may, notwithstanding section 385(8) of this Act, include a requirement that the probationer shall submit to treatment for his mental condition, and—

(a) subsections (1), (3) and (7) of the said section 385 and [F306 paragraph 5(3) of Schedule 1A to] the M60 Powers of Criminal Courts Act 1973 (all of which regulate the making of probation orders which include any such requirement) shall apply to the making of an order which includes any such requirement by virtue of this subsection as they apply to the making of an order which includes any such requirement by virtue of section 385 of this Act and [F306 paragraph 5 of Schedule 1A to] the said Act of 1973 respectively; and

(b) [F307 sub-paragraphs (5) to (7) of paragraph 5 of Schedule 1A to] the said Act of 1973 (functions of supervising officer and medical practitioner where such a requirement has been imposed) shall apply in relation to a probationer who is undergoing treatment in England in pursuance of a requirement imposed by virtue of this subsection as they apply in relation to a probationer undergoing such treatment in pursuance of a requirement imposed by virtue of that section.

(4) Sections 386(1) and 387(1) of this Act shall not apply to any order made or amended under this section; but subject as hereinafter provided the provisions of [F308 Schedule 2 to the Criminal Justice Act 1991 shall apply to the order—

(a) except in the case mentioned in paragraph (b) below, as if that order were a probation order made under section 2 of the Powers of Criminal Courts Act 1973; and

(b) in the case of an order which contains a requirement such as is mentioned in subsection (5A) of section 183 or 384 of this Act, as if it were a combination order made under section 11 of the said Act of 1991:

Provided that Part III of that Schedule shall not so apply; and sub-paragraphs (3) and (4) of paragraph 3 of that Schedule shall so apply as if for the first reference in the said sub-paragraph (3) to the Crown Court there were substituted a reference to a court in Scotland and for the other references in those sub-paragraphs to the Crown Court there were substituted references to the court in Scotland.]

(5) If it appears on information to a justice acting for the petty sessions area [F309 named in a probation order made or amended under this section that the person to whom the order relates] has been convicted by a court in any part of Great Britain of an offence committed during the period specified in the order, he may issue a summons requiring that person to appear, at the place and time specified therein, before the court in Scotland by which the probation order was made or, if the information is in writing and on oath, may issue a warrant for his arrest, directing that person to be brought before the last-mentioned court.

(6) If a warrant for the arrest of a probationer issued under section 388 of this Act by a court is executed in England, and the probationer cannot forthwith be brought before that court, the warrant shall have effect as if it directed him to be brought before a magistrates’ court for the place where he is arrested; and the magistrates’ court shall commit him to custody or release him on bail (with or without sureties) until he can be brought or appear before the court in Scotland.

(7) The court by which a probation order is made or amended in accordance with the provisions of this section shall send three copies of the order to the clerk to the justices for the petty sessions area named therein, together with such documents and information relating to the case as it considers likely to be of assistance to the court acting for that petty sessions area.

(8) Where a probation order which is amended under subsection (2) of this section is an order to which the provisions of this Act apply by virtue of section 10 of the M60 Powers of Criminal Courts Act 1973 (which relates to probation orders under that Act relating to persons residing in Scotland) then, notwithstanding anything in that section or this section, the order shall, as from the date of the amendment, have effect in all respects as if it were an order made under section 2 of that Act in the case of a person residing in England.

Extent Information

E1 S. 389(3)-(8) extends also to England and Wales see s. 463(1)(b)

Textual Amendments

F299 Words inserted by Community Service by Offenders (Scotland) Act 1978 (c. 49, SIF 39:1), Sch. 2 para. 3

F300 Words in s. 389(1) substituted (1.10.1992) by Criminal Justice Act 1991 (c. 53), s. 16, Sch. 3, Pt. II, para. 7(3)(a)(i) (with s. 28); S.I. 1992/333, art. 2(2), Sch. 2.

F301 Word in s. 389(1) substituted (1.10.1992) by Criminal Justice Act 1991 (c. 53), s. 16, Sch. 3, Pt. II, para. 7(3)(a)(ii) (with s. 28); S.I. 1992/333, art. 2(2), Sch. 2.

F302 Word in s. 389(1) ceased to have effect (1.10.1992) by virtue of Criminal Justice Act 1991 (c 53), s. 16, Sch. 3, Pt. II, para. 7(3)(a)(iii) (with s. 28); S.I. 1992/333, art. 2(2), Sch. 2.

F303 Words at the end of s. 389(1) added (1.10.1992) by Criminal Justice Act 1991 (c. 53), s. 16, Sch. 3, Pt. II, para. 7(3)(a)(iv) (with s. 28); S.I. 1992/333, art. 2(2), Sch. 2.

F304 S. 389(2)(a)(b)(c) substituted (1.10.1992) for certain words by Criminal Justice Act 1991 (c. 53), s. 16, Sch. 3, Pt. II, para. 7(3)(b)(i) (with s. 28); S.I. 1992/333, art. 2(2), Sch. 2.

F305 Words in s. 389(2) inserted (1.10.1992) by Criminal Justice Act 1991 (c. 53), s. 16, Sch. 3, Pt. II , para. 7(3)(b)(ii) (with s. 28); S.I. 1992/333, art. 2(2), Sch. 2.

F306 Words in s. 389(3) substituted (1.10.1992) by Criminal Justice Act 1991 (c. 53), s. 16, Sch. 3, Pt. II, para. 7(3)(c)(i) (with s. 28); S.I. 1992/333, art. 2(2), Sch. 2.

F307 Words in s. 389(3) substituted (1.10.1992) by Criminal Justice Act 1991 (c. 53), s. 16, Sch. 3, Pt. II, para. 7(3)(c)(ii) (with s. 28); S.I. 1992/333, art. 2(2), Sch. 2.

F308 S. 389(4)(a)(b) and words substituted (1.10.1992) for certain words by Criminal Justice Act 1991 (c. 53), s. 16, Sch. 3, Pt. II, para. 7(3)(d) (with s. 28); S.I. 1992/333, art. 2(2), Sch. 2.

F309 Words in s. 389(5) substituted (1.10.1992) by Criminal Justice Act 1991 (c. 53), s. 16, Sch. 3, Pt. II, para. 7(3)(e) (with s. 28); S.I. 1992/333, art. 2(2), Sch. 2.

Marginal Citations

M60 1973 c. 62(39:1).

F310 390 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F310 S. 390 ceased to have effect (1.10.1992) by virtue of Criminal Justice Act 1991 (c. 53), s. 16, Sch. 3, Pt. II, para. 7(4 (with s. 28); S.I. 1992/333, art. 2(2), Sch. 2.

F311 391 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

Textual Amendments

F311 S. 391 repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s.117, Sch. 6 Pt. I para. 72, Sch. 7 Pt. I (with ss. 74(4), 127); S.I 1996/517, arts. 3(2), 4-6, Sch. 2

392 Effects of probation and absolute discharge. S

(1) Subject as hereinafter provided, a conviction . . . F312 of an offence for which an order is made . . . F312 placing the offender on probation or discharging him absolutely shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of laying it before a court as a previous conviction in subsequent proceedings for another offence:

Provided that where an offender, being not less than 16 years of age at the time of his conviction of an offence for which he is placed on probation as aforesaid, is subsequently sentenced under this Act for that offence, the provisions of this subsection shall cease to apply to the conviction.

(2) Without prejudice to the foregoing provisions of this section, the conviction of an offender who is placed on probation or discharged absolutely as aforesaid shall in any event be disregarded for the purposes of any enactment which imposes any disqualification or disability upon convicted persons, or authorises or requires the imposition of any such disqualification or disability.

(3) The foregoing provisions of this section shall not affect—

[F313 (a) any right to appeal;]

(b) the operation, in relation to any such offender, of any enactment which was in force as at the commencement of section 9(3)(b) of the M61 Criminal Justice (Scotland) Act 1949 and is expressed to extend to persons dealt with under section 1(1) of the M62 Probation of Offenders Act 1907 as well as to convicted persons.

(4) Where an offender is F314 . discharged absolutely by a court of summary jurisdiction, he shall have the like right of appeal against the finding that he committed the offence as if that finding were a conviction.

(5) Where a person charged with an offence has at any time previously been. discharged absolutely in respect of the commission by him of an offence, it shall be competent, in the proceedings for that offence, to bring before the court the.order of absolute discharge in like manner as if the order were a conviction.

Textual Amendments

F312 Words repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 63:1), Sch. 6 para. 1, Sch. 8

F313 S. 392(3)(a) substituted (27.7.1993) by 1993 c. 36, s. 79(13), Sch. 5 Pt. I para. 2(9)

F314 Words in s. 392(4)(5) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 136, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

C54 S. 392 amended by Licensed Premises (Exclusion of Certain Persons) Act 1980 (c. 32, SIF 68A:1, 2), s. 1(2)(c)

C55 S. 392 excluded by Road Traffic Act 1972 (c. 20, SIF 107:1), ss. 93(8), 101(8) (as added by Criminal Justice Act 1980 (c. 62, SIF 39:1), s. 55) and Police and Criminal Evidence Act 1984 (c. 60, SIF 95), s. 75(3)(b)

C56 S. 392 excluded by Road Traffic Offenders Act 1988 (c. 53, SIF 107:1), s.46(3) and by S.I. 1989/1341 (N.I. 12), art. 73(3)(c)

Marginal Citations

M61 1949 c. 94.(39:1).

M62 1907 c. 17.

393 Probation reports. S

Where a report by an officer of a local authority is made to any court F315 . with a view to assisting the court in determining the most suitable method of dealing with any person in respect of an offence, a copy of the report shall be given by the clerk of the court to the offender or his solicitor:

F315 .

Textual Amendments

F315 Words in s. 393, and the proviso, repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 74, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Penalties for Statutory Offences S

394 Power to mitigate penalties. S

In a summary prosecution for the contravention of any statute or order, where such contravention involves any of the following punishments, namely imprisonment, the imposition of a fine, the finding of caution for good behaviour or otherwise, either singly or in combination with imprisonment or fine, the court shall have in addition to any other powers conferred by Act of Parliament the following powers, viz.:—

(a) to reduce the period of imprisonment;

[F316 (b) to substitute for imprisonment a fine which in the case of an offence triable either summarily or on indictment shall not exceed the prescribed sum (within the meaning of section 289B above), and in the case of an offence triable only summarily shall not exceed [F317 level 4 on the standard scale] (in either case, with or without caution for good behaviour, not exceeding the amount and the period competent under this Part of this Act):]

(c) to substitute the finding of caution as provided for in this Part of this Act for a fine or imprisonment:

(d) to reduce the amount of any fine:

(e) to dispense with the finding of caution:

Provided that—

(i)

where any Act carries into effect a treaty, convention or agreement with a foreign state, and such treaty, convention or agreement stipulates for a fine of minimum amount, the court shall not be entitled by virtue of this section to reduce the amount of such fine below that minimum amount;

(ii)

this section shall not apply to proceedings taken under any Act relating to any of Her Majesty’s regular or auxiliary forces.

Textual Amendments

F316 S. 394(b) substituted by Criminal Law Act 1977 (c. 45, SIF 39:1), Sch. 11 para. 7

F317 Words substituted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 56, Sch. 7

Fines S

395 Provisions as to fines. S

(1) A court of summary jurisdiction in determining the amount of any fine to be imposed on an offender shall take into consideration, amongst other things, the means of the offender so far as known to the court.

(2) Where a court of summary jurisdiction imposes a fine on an offender, the court may order him to be searched, and any money found on him on apprehension or when so searched or when taken to prison or to a [F318 young offenders institution] in default of payment of the fine, may, unless the court otherwise directs, be applied towards payment of the fine, and the surplus if any shall be returned to him:

Provided that the money shall not be so applied if the court is satisfied that it does not belong to the person on whom it was found or that the loss of the money will be more injurious to his family than his imprisonment or detention.

(3) When a court of summary jurisdiction, which has adjudged that a sum of money shall be paid by an offender, shall consider that any money found on the offender on apprehension, or after he has been searched by order of the court, should not be applied towards payment of such sum, the court shall make a direction in writing to that effect which shall be written on the extract of the sentence which imposes the fine before the same is issued by the clerk of the court.

(4) An accused may make an application to such a court either orally or in writing, through the governor of the prison in whose custody he may be at the time, that any sum of money which shall have been found on his person should not be applied in payment of the fine adjudged to be paid by him.

(5) A person who alleges that any money found on the person of an offender is not the property of the offender, but belongs to such person, may apply to such court either orally or in writing for a direction that such money should not be applied in payment of the fine adjudged to be paid, and the court after enquiry may so direct.

(6) A court of summary jurisdiction, which has adjudged that a sum of money shall be paid by an offender, may order the attendance in court of the offender, if he is in prison, for the purpose of ascertaining the ownership of money which shall have been found on his person.

(7) A notice in the form, as nearly as may be, of the appropriate form contained in an Act of Adjournal under this Act, addressed to the governor of the prison in whose custody an offender may be at the time, signed by the judge of a court of summary jurisdiction shall be a sufficient warrant to the governor of such prison for conveying the offender to the court.

Textual Amendments

F318 Words substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 7 para. 60 and S.I. 1983/1580, art. 3

Modifications etc. (not altering text)

C57 S. 395(1) excluded by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 56(9)(b)(i)

[F319 395A Power to remit fines. S

(1) A fine may at any time be remitted in whole or in part by—

(a) in a case where a transfer of fine order under section 403 of this Act is effective and the court by which payment is enforceable is, in terms of the order, a court of summary jurisdiction in Scotland, that court; or

(b) in any other case, the court which imposed the fine or (where that court was the High Court) by which payment was first enforceable.

(2) Where the court remits the whole or part of a fine after imprisonment has been imposed under section 396(2) or (4) of this Act, it shall also remit the whole period of imprisonment or, as the case may be, reduce the period by an amount which bears the same proportion to the whole period as the amount remitted bears to the whole fine.

(3) The power conferred by subsection (1) above shall be exercisable without requiring the attendance of the accused.]

Textual Amendments

F319 S. 395A inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 49

Modifications etc. (not altering text)

C58 S. 395A(2) excluded by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 56(9)(b)(i)

396 Time for payment. S

(1) Where a court of summary jurisdiction has imposed a fine on an offender or ordered him to find caution, the court shall, subject to the provisions of the next following subsection, allow him at least seven days to pay the fine or the first instalment thereof or, as the case may be, to find caution; and any reference in this and the next following section to a failure to pay a fine or other like expression shall include a reference to a failure to find caution.

(2) If on the occasion of the imposition of a fine—

(a) the offender appears to the court to possess sufficient means to enable him to pay the fine forthwith; or

(b) on being asked by the court whether he wishes to have time for payment, he does not ask for time; or

(c) he fails to satisfy the court that he has a fixed abode; or

(d) the court is satisfied for any other special reason that no time should be allowed for payment,

the court may refuse him time to pay the fine and, if the offender fails to pay, may exercise its power to impose imprisonment and, if it does so, shall state the special reason for its decision.

(3) In all cases where time is not allowed by a court of summary jurisdiction for payment of a fine, the reasons of the court for not so allowing time shall be stated in the extract of the finding and sentence as well as in the finding and sentence itself.

(4) Where time is allowed for payment of a fine or payment by instalments is ordered, a court of summary jurisdiction shall not, on the occasion of the imposition of a fine, impose imprisonment in the event of a future default in paying the fine or an instalment thereof unless the offender is before it and the court determines that, having regard to the gravity of the offence or to the character of the offender, or to other special reason, it is expedient that he should be imprisoned without further inquiry in default of payment; and where a court so determines, it shall state the special reason for its decision.

(5) Where a court of summary jurisdiction has imposed imprisonment in accordance with the provisions of the last foregoing subsection, then, if at any time the offender asks the court to commit him to prison, the court may do so notwithstanding subsection (1) of this section.

(6) Nothing in the foregoing provisions of this section shall affect any power of a court of summary jurisdiction to order a fine to be recovered by civil diligence.

(7) Where time has been allowed for payment of a fine imposed by a court of summary jurisdiction, the court may F320 ... , on an application by or on behalf of the offender, and after giving the prosecutor an opportunity of being heard, allow further time for payment.

Textual Amendments

F320 Words in S. 396(7) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 137, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

C59 S. 396 applied with modifications by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 7(2), 47(4)(a)

C60 S. 396 extended (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 80(2)(a) (with ss. 70(2), 113(1), Sch. 3 para. 4(4)); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

C61 S. 396(1)–(6) excluded by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 56(9)(b)(i)

C62 S. 396(2) amended by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 41, Sch. 6 para. 1

397 Application for further time for payment of fine. S

(1) An application by an offender for further time in which to pay a fine adjudged to be paid by him by a court of summary jurisdiction, or of instalments thereof, shall be made to that court, except in a case where a transfer of fine order shall have been made under section 403 of this Act [F321 , under [F322 section 90 of the M63 Magistrates’ Courts Act 1980] or under [F323 Article 95 of the M64 Magistrates’ Courts (Northern Ireland) Order 1981]] in which case the application shall be made to the court specified in the transfer order, or to the court specified in the last transfer order where there is more than one transfer.

(2) A court to which an application is made under the foregoing subsection shall allow further time for payment of the fine or of instalments thereof, unless it is satisfied that the failure of the offender to make payment has been wilful or that the offender has no reasonable prospect of being able to pay if further time is allowed.

(3) An application made under this section to a court of summary jurisdiction may be made orally or in writing.

Textual Amendments

F321 Words substituted by Criminal Law Act 1977 (c. 45, SIF 39:1), Sch. 11 para. 8

F322 Words substituted by Magistrates' Courts Act 1980 (c. 43, SIF 39:1), s. 154, Sch. 7 para. 136

F323 Words substituted by S.I. 1981/1675 (N.I. 26), Sch. 6 Pt. I para. 36

Modifications etc. (not altering text)

C63 Ss. 397, 398 applied by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 7(2), 47(4)(a)

C64 S. 397 extended (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 80(2)(b) (with ss. 70(2), 113(1), Sch. 3 para. 4(4)); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Marginal Citations

M63 1980 c. 43(39:1).

M64 S.I. 1981/1675 (N.I. 26).

398 Restriction on imprisonment after fine or caution. S

(1) Where a court of summary jurisdiction has imposed a fine or ordered the finding of caution without imposing imprisonment in default of payment, it shall not impose imprisonment on an offender for failing to make payment of the fine [F324 or, as the case may be, to find caution] unless on an occasion subsequent to that sentence the court has enquired into [F325 in his presence the reason why the fine has not been paid][F326 or, as the case may be, caution has not been found]; but this subsection shall not apply where the offender is in prison.

(2) A court of summary jurisdiction may, for the purpose of enabling enquiry to be made under this section—

(a) issue a citation requiring the offender to appear before the court at a time and place appointed in the citation; or

(b) issue a warrant of apprehension.

(3) On the failure of the offender to appear before the court in response to a citation under this section, the court may issue a warrant of apprehension.

(4) A warrant of apprehension issued by a court of summary jurisdiction under subsection (2) of this section shall be in the form, as nearly as may be, of the appropriate form contained in an Act of Adjournal under this Act.

(5) The minute of procedure in relation to an enquiry into the means of an offender under this section shall be in the form, as nearly as may be, of the appropriate form contained in an Act of Adjournal under this Act.

Textual Amendments

F324 Words in s. 398(1) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 138(a); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F325 Words substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 7 para. 61

F326 Words in s. 398(1) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1996 c. 20, s. 117(1), Sch. 6 Pt. I para. 138(b); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

C65 Ss. 397, 398 applied by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 7(2), 47(4)(a)

C66 S. 398(1) extended (with modifications) (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 80(2)(c) (with ss. 70(2), 113(1), Sch. 3 para. 4(4)); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

399 Payment by instalments. S

(1) Without prejudice to the operation of section 396(2) of this Act, where a court of summary jurisdiction has imposed a fine on an offender, the court may, of its own accord or on the application of the offender, order payment of that fine by instalments of such amounts and at such time as it may think fit, . . . F327 .

[F328 (2) Where the court has ordered payment of a fine by instalments it may—

(a) allow further time for payment of any instalment thereof;

(b) order payment thereof by instalments of lesser amounts, or at longer intervals, than those originally fixed.

(3) The powers conferred by subsection (2) above shall be exercisable without requiring the attendance of the accused.]

Textual Amendments

F327 Words repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 3, Sch. 8

F328 S. 399(2)(3) substituted for s. 399(2) by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 3, Sch. 7 para. 62(b)

Modifications etc. (not altering text)

C67 S. 399 applied with modifications by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 7(2), 47(4)(a)

C68 S. 399 extended (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 80(2)(d) (with ss. 70(2), 113(1), Sch. 3 para. 4(4)); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

400 Supervision pending payment of fine. S

(1) Where an offender has been allowed time for payment of a fine by a court of summary jurisdiction, the court may, either on the occasion of the imposition of the fine or on a subsequent occasion, order that he be placed under the supervision of such person as the court may from time to time appoint for the purpose of assisting and advising the offender in regard to payment of the fine.

(2) An order made in pursuance of the foregoing subsection shall remain in force so long as the offender to whom it relates remains liable to pay the fine or any part of it unless the order ceases to have effect or is discharged under the next following subsection.

(3) An order under this section shall cease to have effect on the making of a transfer of fine order under section 403 of this Act in respect of the fine or may be discharged by the court that made it without prejudice, in either case, to the making of a new order.

(4) Where an offender under 21 years of age has been allowed time for payment of a fine by a court of summary jurisdiction, the court shall not order the form of detention appropriate to him in default of payment of the fine unless he has been placed under supervision in respect of the fine or the court is satisfied that it is impracticable to place him under supervision.

(5) Where a court being satisfied as aforesaid, orders the detention of a person under 21 years of age without an order under this section having been made, the court shall state the grounds on which it is so satisfied.

(6) Where an order under this section is in force in respect of an offender, the court shall not impose imprisonment in default of the payment of the fine unless the court has, before so doing, taken such steps as may be reasonably practicable to obtain from the person appointed for the supervision of the payment of his fine a report, which may be oral, on the offender’s conduct and means, and shall consider any report so obtained in addition, in a case where an enquiry is required by section 398 of this Act, to that enquiry.

(7) When a court of summary jurisdiction shall have made an order under subsection (1) of this section placing an offender under the supervision of another person, a notice shall be sent by the clerk of the court to such offender in the form, as nearly as may be, of the appropriate form contained in an Act of Adjournal under this Act.

(8) The person appointed to supervise such an offender shall communicate with him with a view to assisting and advising him in regard to payment of the fine, and unless the same or any instalment thereof shall have been paid to the clerk of the court within the time allowed by the court for payment, the person so appointed shall report to the court without delay after the expiry of such time, as to the conduct and means of the offender.

Modifications etc. (not altering text)

C69 S. 400 applied by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 7(2), 47(4)(a)

C70 S. 400 extended (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 80(2)(e) (with ss. 70(2), 113(1), Sch. 3 para. 4(4)); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

401 Supplementary provisions as to payment of fine. S

(1) Where under the provisions of section 396 or 400 of this Act a court is required to state a special reason for its decision or the grounds on which it is satisfied that it is undesirable or impracticable to place an offender under supervision, the reason or, as the case may be, the grounds shall be entered in the record of the proceedings along with the finding and sentence.

(2) Any reference in the sections last mentioned to imprisonment shall be construed, in the case of an offender on whom by reason of his age imprisonment may not lawfully be imposed, as a reference to the lawful form of detention in default of payment of a fine appropriate to that person, and any reference to prison shall be construed accordingly.

[F329 (3) Where a warrant has been issued for the apprehension of an offender for non-payment of a fine, the offender may, notwithstanding section 412 of this Act, pay such fine in full to a constable; and the warrant shall not then be enforced and the constable shall remit the fine to the clerk of court.]

Textual Amendments

F329 S. 401(3) added by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 7 para. 63

Modifications etc. (not altering text)

C71 S, 401(2)(3) extended (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 80(2)(f) (with ss. 70(2), 113((1), Sch. 3 para. 4(4)); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

C72 S. 401(2)(3) applied by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 7(2), 47(4)(a)

402 Fines, etc., may be enforced in other district. S

Any sentence or decree for any fine or expenses pronounced by any sheriff court or district court may be enforced against the person or effects of any party against whom any such sentence or decree shall have been awarded in any other sheriff court district, as well as in the district where such sentence or decree is pronounced:

F330 ..

Textual Amendments

F330 Proviso in s. 402 repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 75, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

C73 S. 402 extended (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 80(1) (with ss. 70(2), 113(1), Sch. 3 para. 4(4)); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

403 Transfer of fine orders. S

(1) Where a court of summary jurisdiction has imposed a fine on a person convicted of an offence and it appears to the court that he is residing—

(a) within the jurisdiction of another court of summary jurisdiction in Scotland, or

(b) in any petty sessions area in England and Wales [F331 , or

(c) in any petty sessions district in Northern Ireland]

the court, . . . F332 may order that payment of the fine shall be enforceable by that other court of summary jurisdiction or in that petty sessions area, [F331 or petty sessions district] as the case may be.

(2) An order under this section (in this section referred to as a transfer of fine order) shall specify the court by which or the petty sessions area [F333 or petty sessions district] in which payment is to be enforceable and, where the court to be specified in a transfer of fine order is a court of summary jurisdiction, it shall, in any case where the order is made by the sheriff court, be a sheriff court.

(3) [F334 Subject to subsections (3A) and (3B) below,]where a transfer of fine order is made with respect to any fine under this section, any functions under any enactment relating to that sum which, if no such order had been made, would have been exercisable by the court which made the order or by the clerk of that court shall cease to be so exercisable.

[F335 (3A) Where—

(a) the court specified in a transfer of fine order is satisfied, after inquiry, that the offender is not residing within the jurisdiction of that court; and

(b) the clerk of that court, within 14 days of receiving the notice required by section 404(1) of this Act, sends to the clerk of the court which made the order notice to that effect,

the order shall cease to have effect.

(3B) Where a transfer of fine order ceases to have effect by virtue of subsection (3A) above, the functions referred to in subsection (3) above shall again be exercisable by the court which made the order or, as the case may be, by the clerk of that court.]

(4) Where a transfer of fine order [F336 under this section, [F337 section 90 of the M65 Magistrates’ Courts Act 1980] or [F338 Article 95 of the M66 Magistrates’ Courts (Northern Ireland) Order 1981]] specifies a court of summary jurisdiction in Scotland, that court and the clerk of that court shall have all the like functions under this Part of this Act in respect of the fine or the sum in respect of which that order was made (including the power to make any further order under this section) as if the fine or the sum were a fine imposed by that court and as if any order made under this section [F336 , [F337 the said Act of 1980] or [F338 the said Order of 1981]] in respect of the fine or the sum before the making of the transfer of fine order had been made by that court:

[F339 (4A) The functions of the court to which subsection (4) above relates shall be deemed to include the court’s power to apply to the Secretary of State under any regulations made by him under section 24(1)(a) of the M67 Criminal Justice Act 1991 (power to deduct fines etc. from income support).]

.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F340

(6) Where a transfer of fine order under [F341 section 90 of the M68 Magistrates’ Courts Act 1980][F342 Article 95 of the M69 Magistrates’ Courts (Northern Ireland) Order 1981] or this section provides for the enforcement by a sheriff court in Scotland of a fine imposed by the Crown Court, F343 . the term of imprisonment which may be imposed under this Part of this Act shall be the term fixed in pursuance of section 31 of the M70 Powers of Criminal Courts Act 1973 by the Crown Court or a term which bears the same proportion to the term so fixed as the amount of the fine remaining due bears to the amount of the fine imposed by that court, notwithstanding that the term exceeds the period applicable to the case under section 407 of this Act.

Textual Amendments

F331 Words inserted by Criminal Law Act 1977 (c. 45, SIF 39:1), Sch. 7 para. 2(2)

F332 Words repealed by Criminal Law Act 1977 (c. 45, SIF 39:1), Sch. 13

F333 Words inserted by Criminal Law Act 1977 (c. 45, SIF 39:1), Sch. 7 para. 2(3)

F334 Words in s. 403(3) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s.67(2); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F335 s. 403(3A)(3B) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 67(3); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F336 Words substituted by Criminal Law Act 1977 (c. 45, SIF 39:1), Sch. 7 para. 2(4)

F337 Words substituted by Magistrates' Courts Act 1980 (c. 43, SIF 39:1), s. 154, Sch. 7 para. 137(a)

F338 Words substituted by S.I. 1981/1675 (N.I. 26), Sch. 6 Pt. I para. 37(a)

F339 S. 403(4A) inserted (3.2.1995) by 1994 c. 33, s. 47(4); S.I. 1995/127, art. 2(1), Sch. 1

F340 S. 403(5) repealed by Criminal Law Act 1977 (c. 45, SIF 39:1), Sch. 13

F341 Words substituted by Magistrates' Courts Act 1980 (c. 43, SIF 39:1), s. 154, Sch. 7 para. 137(b)

F342 Words substituted by S.I. 1981/1675 (N.I. 26), Sch. 6 Pt. I para. 37(b)

F343 Proviso in s. 403(4) and words in s. 403(6) repealed (1.10.1992) by Criminal Justice Act 1991 (c. 53), s. 101(2), Sch. 13 (with s. 28); S.I. 1992/333, art. 2(2), Sch. 2.

Modifications etc. (not altering text)

C74 S. 403 applied with modifications by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 7(2), 47(4)(a)

C75 s. 403 extended (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 80(2)(g) (with ss. 70(2), 113(1), Sch. 3 para. 4(4)); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

C76 S. 403(6) excluded by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 56(9)(b)(i)

Marginal Citations

M65 1980 c. 43(82).

M66 S.I. 1981/1675 (N.I. 26).

M67 1969 c. 54(20).

M68 1980 c. 43(82).

M69 S.I. 1981/1675 (N.I. 26)

M70 1984 c. 36(85).

404 Action of clerk of court on transfer of fine orders. S

(1) Where a court of summary jurisdiction makes a transfer of fine order under section 403 of this Act, the clerk of the court shall send to the clerk of the court specified in the order a notice in the form, as nearly as may be, of the appropriate form contained in an Act of Adjournal under this Act, and shall at the same time send to that clerk a statement of the offence of which the offender was convicted, and of the steps if any which shall have been taken to recover the fine, and shall give him such further information if any as, in his opinion, is likely to assist the court specified in the order in recovering the fine.

(2) In the case of a further transfer of fine order the clerk of the court which shall have made the order shall send to the clerk of the court by which the fine was imposed a copy of the notice which shall have been sent to the clerk of the court specified in the order.

(3) The clerk of the court specified in a transfer of fine order shall, as soon as may be after he has received the notice prescribed in subsection (1) of this section, send an intimation to the offender in the form, as nearly as may be, of the appropriate form contained in an Act of Adjournal under this Act.

(4) The clerk of the court specified in a transfer of fine order shall remit or otherwise account for any payment received in respect of the fine, to the clerk of the court by which the fine was imposed, and if the sentence shall have been enforced otherwise than by payment of the fine, he shall inform the clerk of that court how the sentence was enforced.

Modifications etc. (not altering text)

C77 Ss. 404, 406 applied by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 7(2), 47(4)(a)

C78 Ss. 404, 406 excluded by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 56(9)(b)(i)

C79 S. 404 extended (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 80(2)(h) (with ss. 70(2), 113(1), Sch. 3 para. 4(4)); S.I. 1996/517, art. 3(2), 4-6, Sch. 2

405 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F344 S

Textual Amendments

F344 Ss. 405, 410 repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 8

406 Substitution of custody for imprisonment where a child defaults on fine. S

Where a child would, if he were an adult, be liable to be imprisoned in default of payment of any fine, F345 .the court may, if it considers that none of the other methods by which the case may legally be dealt with is suitable, order that the child be detained for such period, not exceeding one month, as may be specified in the order in a place chosen by the local authority in whose area the court is situated.

Textual Amendments

F345 Words in s. 406 repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 139, Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Modifications etc. (not altering text)

C80 Ss. 404, 406 applied by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 7(2), 47(4)(a)

C81 Ss. 404, 406 excluded by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 56(9)(b)(i)

C82 S. 406 extended (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 80(2)(i) (with ss.70(2), 113(1), Sch. 3 para. 4(4)); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

407 Period of imprisonment for non-payment of fine. S

[F346 (1) Subject to sections 396 to 401 of this Act—

(a) a court of summary jurisdiction may, when imposing a fine, impose a period of imprisonment in default of payment; or

(b) where no order has been made under paragraph (a) above and a person fails to pay a fine, or any part or instalment of a fine, by the time ordered by the court (or, where section 396(2) of this Act applies, immediately) the court may [F347 , subject to section 62(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990]impose a period of imprisonment for such failure [F348 either with immediate effect or to take effect in the event of the person failing to pay the fine or any part or instalment of it by such further time as the court may order],

whether or not the fine is imposed under an enactment which makes provision for its enforcement or recovery.

(1A) Subject to the following subsections of this section, the maximum period of imprisonment which may be imposed under subsection (1) above or for failure to find caution, shall be as follows—

[F349 Amount of fine or caution	Maximum period of imprisonment
An amount not exceeding £200	7 days
An amount exceeding £200 but not exceeding £500	14 days
An amount exceeding £500 but not exceeding £1,000	28 days
An amount exceeding £1,000 but not exceeding £2,500	45 days
An amount exceeding £2,500 but not exceeding £5,000	3 months
An amount exceeding £5,000 but not exceeding £10,000	6 months
An amount exceeding £10,000 but not exceeding £20,000	12 months
An amount exceeding £20,000 but not exceeding £50,000	18 months
An amount exceeding £50,000 but not exceeding £100,000	2 years
An amount exceeding £100,000 but not exceeding £250,000	3 years
An amount exceeding £250,000 but not exceeding £1 million	5 years
An amount exceeding £1 million	10 years.]

(1B) Where an offender is fined on the same day before the same court for offences charged in the same complaint or in separate complaints, the amount of the fine shall, for the purposes of this section, be taken to be the total of the fines imposed.

(1C) Where a court has imposed a period of imprisonment in default of payment of a fine, and—

(a) an instalment of the fine is not paid at the time ordered; or

(b) part only of the fine has been paid within the time allowed for payment,

the offender shall be liable to imprisonment for a period which bears to the period so imposed the same proportion, as nearly as may be, as the amount outstanding at the time when warrant is issued for imprisonment of the offender in default bears to the original fine.

(1D) Where no period of imprisonment in default of payment of a fine has been imposed and—

(a) an instalment of the fine is not paid at the time ordered; or

(b) part only of the fine has been paid within the time allowed for payment,

the offender shall be liable to imprisonment for a maximum period which bears, as nearly as may be, the same proportion to the maximum period of imprisonment which could have been imposed by virtue of the Table in subsection (1A) above in default of payment of the original fine as the amount outstanding at the time when he appears before the court bears to the original fine.]

(2) If in any sentence or extract sentence the period of imprisonment inserted in default of payment of a fine or on failure to find caution is in excess of that competent under this Part of this Act, such period of imprisonment shall be reduced to the maximum period under this Part of this Act applicable to such default or failure, and the judge who pronounced the sentence shall have power to order the sentence or extract to be corrected accordingly.

(3) The periods of imprisonment set forth in [F350 subsection (1A)] of this section shall apply to the non-payment of any sum imposed as aforesaid by a court of summary jurisdiction under a statute or order passed or made before the first day of June 1909, notwithstanding that that statute or order fixes any other period of imprisonment.

(4) The provisions of this section shall be without prejudice to the operation of section 409 of this Act.

[F351 (5) Where in any case—

(a) the sheriff considers that the imposition of imprisonment for the number of years for the time being specified in section 2(2) of this Act would be inadequate; and

(b) the maximum period of imprisonment which may be imposed under subsection (1) above (or under that subsection as read with either or both of sections 66(2) of the M71 Criminal Justice (Scotland) Act 1980 and 7(2) of the Criminal Justice (Scotland) Act 1987) exceeds that number of years,

he shall remit the case to the High Court for sentence.]

Textual Amendments

F346 S. 407(1)–(1D) substituted for s. 407(1) by Criminal Justice (Scotland) Act 1980 (c. 62), s. 50, Sch. 6 para. 3

F347 Words in s. 407(1)(b) inserted (26.9.1995) by 1995 c. 20, s. 35(10); S.I. 1995/2295, art. 3(2) Sch. (with art. 4)

F348 Words inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 39:1), s. 74(1), Sch. 8 para. 27(3)

F349 Table in s. 407(1A) substituted (1.10.1992) by Criminal Justice Act 1991 (c. 53), s. 23(2), (with s. 28); S.I. 1992/333, art. 2(2), Sch. 2.

F350 Words substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 3, Sch. 7 para. 64

F351 S. 407(5) added by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 67(2)

Modifications etc. (not altering text)

C83 S. 407 applied with modifications by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 7(2), 25(4)(b), 47(4)(a)

C84 S. 407 excluded (except subsection (1)(b)) by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 56(9)(b)(i)

C85 S. 407 extended (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 80(2)(j) (with ss. 70(2), 113(1), Sch. 3 para. 4(4)); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

C86 S. 407(1A) modified (1.7.1991) by Criminal Justice (International Co-operation) Act 1990 (c. 5, SIF 39:1), ss. 15(2), 17(4)(b); S.I. 1991/1072, art. 2(b), Sch. Pt. II

Marginal Citations

M71 1961 c. 39(39:1).

408 Discharge from imprisonment to be specified. S

All warrants of imprisonment [F352 in default of payment of a fine or on failure to find]caution, shall specify a period at the expiry of which the person sentenced shall be discharged, notwithstanding such fine shall not have been paid, or caution found.

Textual Amendments

F352 Words repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 6, Sch. 8

Modifications etc. (not altering text)

C87 S. 408 applied by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 7(2), 47(4)(a)

C88 S. 408 excluded by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 56(9)(b)(i)

C89 S. 408 extended (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 80(2)(k) (with ss. 70(2), 113(1), Sch. 3 para. 4(4)); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

409 Payment of fine in part by prisoner. S

(1) Where a person committed to prison or otherwise detained for failure to pay a fine imposed by a court of summary jurisdiction pays to the governor of the prison, under conditions prescribed by rules made under the M72 Prisons (Scotland) Act 1952, any sum in part satisfaction of the fine, the term of imprisonment shall be reduced [F353 (or as the case may be further reduced) by a number of days bearing as nearly as possible the same proportion to such term as the sum so paid bears to the amount of the fine outstanding at the commencement of the imprisonment:]

• [F353 Provided that the day on which any sum is paid shall not be regarded as a day served by the prisoner as part of the said term of imprisonment.]

(2) In this section references to a prison and to the governor thereof shall include respectively references to any other place in which a person may be lawfully detained in default of payment of a fine, and to an officer in charge thereof.

(3) Provision may be made by Act of Adjournal for the application of sums paid under this section and for any matter incidental thereto.

(4) The provision of Schedule 7 to this Act shall apply for the purposes of this section.

Textual Amendments

F353 Words substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 7 para. 65

Modifications etc. (not altering text)

C90 S. 409 applied with modifications by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 7(2), 47(4)(a)

C91 S. 409 excluded by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 56(9)(b)(i)

C92 S. 409 extended (with modifications) (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 80(2)(l) (with ss. 70(2), 113(1), Sch. 3 para. 4(4)); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Marginal Citations

M72 1952 c. 61(39:1).

410 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F354 S

Textual Amendments

F354 Ss. 405, 410 repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 8

411 Recovery by civil diligence. S

(1) Where any fine falls to be recovered by civil diligence in pursuance of this Part of this Act or in any case in which a court of summary jurisdiction may think it expedient to order a fine to be recovered by civil diligence, there shall be added to the finding of the court imposing the fine [F355 a warrant for civil diligence in a form prescribed by Act of Adjournal which shall have the effect of authorising—

(a) the charging of the person who has been fined to pay the fine within the period specified in the charge and, in the event of failure to make such payment within that period, the execution of an earnings arrestment and the poinding of articles belonging to him and, if necessary for the purpose of executing the poinding, the opening of shut and lockfast places;

(b) an arrestment other than an arrestment of earnings in the hands of his employer;]

and such diligence, whatever the amount of the fine imposed, may be executed in the same manner as if the proceedings were on an extract decree of the sheriff [F356 in a summary cause].

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F357

(3) Proceedings by civil diligence under this section may be adopted at any time after the imposition of the fine to which they relate:

Provided that no such proceedings shall be authorised after the [F358 offender has been imprisoned in consequence of his having defaulted in] payment of the fine.

Textual Amendments

F355 Words substituted by virtue of the Debtors (Scotland) Act 1987 (c. 18, SIF 45:2), s. 108(1), Sch. 6 para. 18 Sch. 7 para. 5

F356 Words substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 3, Sch. 7 para. 66

F357 S. 411(2) repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para 3, Sch. 8

F358 Words substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 52, Sch. 6 para. 3

Modifications etc. (not altering text)

C93 S. 411 applied with modifications by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 7(2), 47(4)(a)

C94 S. 411 applied (12. 8. 1991) by Dangerous Dogs Act 1991 (c. 65, SIF 4:1), s. 4(9)(c); S.I. 1991/1742, art.3

C95 S. 411 extended (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 80(2)(m) (with ss. 70(2), 113(1), Sch. 3 para. 4(4)); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

C96 S. 411(3) excluded by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 56(9)(b)(i)

412 Payment of fines to be made to clerk of court. S

All fines and expenses imposed under this Part of this Act shall be paid to the clerk of court to be accounted for by him to the person entitled thereto, and it shall not be necessary to specify in any sentence the person entitled to payment of any such fine or expenses, unless where it is necessary to provide for the division of the penalty.

Modifications etc. (not altering text)

C97 S. 412 extended (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 80(1) (with ss. 70(2), 100, 113(1), Sch. 3 para. 4(4)); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

[F359 Supervised attendance orders S

Textual Amendments

F359 Ss.412A, 412B inserted (26.9.1995 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, 35(11); S.I. 1995/2295, arts. 3(2), Sch. (with art. 4)

412A Supervised attendance orders in place of fines for 16 and 17 year olds. S

(1) This section applies where a person of 16 or 17 years of age is convicted of an offence by a court of summary jurisdiction and the court considers that, but for this section, the appropriate sentence is a fine.

(2) Where this section applies, the court shall determine the amount of the fine and shall consider whether the person is likely to pay a fine of that amount within 28 days.

(3) If the court considers that the person is likely to pay the fine as mentioned in subsection (2) above, it shall—

(a) impose the fine; and

(b) subject to paragraph 1 of Schedule 6 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (“the 1990 Act”), make a supervised attendance order in default of payment of the fine within 28 days.

(4) A supervised attendance order made under subsection (3)(b) above—

(a) shall come into force on such date, not earlier than 28 days after the making of the order, as may be specified in the order, unless the person pays the fine within that period;

(b) shall, for the purposes of Schedule 6 to the 1990 Act, be deemed to be made on the date when it comes into force.

(5) Where, before the coming into force of a supervised attendance order made under subsection (3)(b) above, the person pays part of the fine, the period specified in the order shall be reduced by the proportion which the part of the fine paid bears to the whole fine, the resulting figure being rounded up or down to the nearest 10 hours; but this subsection shall not operate to reduce the period to less than 10 hours.

(6) If the court considers that the person is not likely to pay the fine as mentioned in subsection (2) above, it shall, subject to paragraph 1 of Schedule 6 to the 1990 Act, make a supervised attendance order in respect of that person.

(7) Sections 395A to 398, 400 to 404 and 407 of this Act shall not apply in respect of a person to whom this section applies.

(8) For the purposes of any appeal or review, a supervised attendance order made under this section is a sentence.

(9) In this section “supervised attendance order” means an order made in accordance with section 62(2), (5) and (6) of the 1990 Act.

412B F360 Supervised attendance orders where court allows further time to pay fine. S

(1) Where a court, on an application to it under section 397(1) of this Act, allows a person further time for payment of a fine or instalments thereof it may, in addition, subject to paragraph 1 of Schedule 6 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (“the 1990 Act”), impose a supervised attendance order in default of payment of the fine or any instalment of it on the due date.

(2) A supervised attendance order made under subsection (1) above —

(a) shall, if the person fails to pay the fine or any instalment of it on the due date, come into force on the day after the due date; and

(b) shall, for the purposes of Schedule 6 to the 1990 Act, be deemed to be made on the date when it comes into force.

(3) Where, before the coming into force of a supervised attendance order under subsection (1) above, the person pays part of the fine, the period specified in the order shall be reduced by the proportion which the part of the fine paid bears to the whole fine, the resulting figure being rounded up or down to the nearest 10 hours; but this subsection shall not operate to reduce the period to less than 10 hours.

(4) In this section “supervised attendance order” means an order made in accordance with section 62(2), (5) and (6) of the 1990 Act.]

Textual Amendments

F360 Ss. 412A, 412B inserted (26.9.1995 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 35(11); S.I. 1995/2295, arts. 3(2), 4, Sch.

Residential and Borstal Training U.K.

[413 F361 Detention of children. U.K.

(1) Where a child appears before the sheriff in summary proceedings and pleads guilty to, or is found guilty of, an offence to which this section applies, the sheriff may order that he be detained in residential care by the appropriate local authority [F362 for such period not exceeding one year as may be specified in the order]]. . .in such place (in any part of the United Kingdom) as the local authority may, from time to time, consider appropriate F363 . . ..

(2) This section applies to any offence in respect of which it is competent to impose imprisonment on a person of the age of 21 years or more.

(3) In this section—

• “the appropriate local authority” means—

(a) where the child usually resides in Scotland, the regional or islands council for the area in which he usually resides;

(b) in any other case, the regional or islands council for the area in which the offence was committed;

• “care”shall be construed in accordance with section 32(3) of the 1968 Act, and the provisions of that Act specified in section 44(5) of that Act shall apply in respect of a child who is detained in residential care in pursuance of this section as they apply in respect of a child who is subject to a supervision requirement;

• “the 1968 Act” means the M73 Social Work (Scotland) Act 1968.

(4) Where a child in respect of whom an order is made under this section is also subject to a supervision requirement within the meaning of the 1968 Act, subject to subsection (6) below, the supervision requirement shall be of no effect during any period for which he is required to be detained under the order.

(5) The Secretary of State may, by regulations made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament, make such provision as he considers necessary as regards the detention in secure accommodation (within the meaning of the 1968 Act) of children in respect of whom orders have been made under this section.

[F364 (6) Where a child is detained in residential care in pursuance of an order under—

(a) subsection (1) above, he shall be released from such detention not later than the date by which half the period specified in the order has (following commencement of the detention) elapsed but, without prejudice to subsection (6A) below, until the entire such period has so elapsed may be required by the local authority to submit to supervision in accordance with such conditions as they consider appropriate;

(b) subsection (1) above or (6B) below, the local authority may at any time review his case and may, in consequence of such review and after having regard to the best interests of the child and the need to protect members of the public, release the child—

(i) for such period and on such conditions as the local authority consider appropriate; or

(ii) unconditionally.

(6A) Where a child released under paragraph (a) or (b)(ii) of subsection (6) above is subject to a supervision requirement within the meaning of the 1968 Act, the effect of that requirement shall commence, or as the case may be resume, upon such release.

(6B) If, while released under paragraph (a) or (b) of subsection (6) above (and before the date on which the entire period mentioned in the said paragraph (a) has, following commencement of the detention, elapsed), a child commits an offence to which this section applies and (whether before or after that date) pleads guilty to or is found guilty of it a court may, instead of or in addition to making any other order in respect of that plea or finding, order that he be returned to the residential care of the authority which released him and that his detention in their care shall continue for the whole or any part of the period which—

(a) begins with the date of the order for his return; and

(b) is equal in length to the period between the date on which the new offence was committed and the date on which that entire period elapses.

(6C) An order under subsection (6B) above for return to residential care—

(a) shall be taken to be an order for detention in residential care for the purposes of this Act and of any appeal; and

(b) shall, as the court making that order may direct, either be for a period of residential care before and to be followed by, or to be concurrent with, any period of residential care to be imposed in respect of the new offence (being in either case disregarded in determining the appropriate length of the period so imposed).]

(7) Where a local authority consider it appropriate that a child in respect of whom an order has been made under subsection (1) [F365 (or (6B))]above should be detained in a place in any part of the United Kingdom outside Scotland, the order shall be a like authority as in Scotland to the person in charge of the place to restrict the child’s liberty to such an extent as that person may consider appropriate having regard to the terms of the order.

Textual Amendments

F361 S. 413 substituted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 59(1)

F362 Words in s. 413(1) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 141(a); S.I. 1996/517, arts. 3-6, Sch.

F363 Words in s. 413(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 141(b), Sch. 7 Pt. I; S.I. 1996/517, arts. 3-6, Sch.

F364 S. 413(6)(6A)-(6C) substituted (1.10.1993) for s. 413(6) by 1993 c. 9, ss. 5, 6, 8, 10 (with ss. 5(1), 6(1), 10, 27, 47(2), Sch. 6 paras. 1, 2, 6, 7); S.I. 1993/2050, art. 3(4)

F365 Words in s. 413(7) inserted (1.10.1993) by 1993 c. 9, s. 47(1), Sch. 5 para. 1(32)(b) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, arts. 3(4), 4(1)(c)

Marginal Citations

M73 1968 c.49 (81:3).

414 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F366 S

Textual Amendments

F366 S. 414 repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 45(3), Sch. 6 para. 5, Sch. 8 and S.I. 1983/1580, art. 3

[F367 415 Detention of young offenders. S

(1) It shall not be competent to impose imprisonment on a person under 21 years of age.

(2) Subject to subsections (3) and (4) below a court may impose detention (whether by way of sentence or otherwise) on a person, who is not less than 16 but under 21 years of age, where but for subsection (1) above the court would have power to impose a period of imprisonment; and the period of detention imposed under this section on any person shall not exceed the maximum period of imprisonment which might otherwise have been imposed.

(3) The court shall not under subsection (2) above impose detention on a person unless it is of the opinion that no other method of dealing with him is appropriate; and the court shall state its reasons for that opinion, and, except in the case of the High Court, those reasons shall be entered in the record of proceedings.

(4) To enable the court to form an opinion under subsection (3) above, it shall obtain (from an officer of a local authority or otherwise) such information as it can about the offender’s circumstances; and it shall also take into account any information before it concerning the offender’s character and physical and mental condition.

[F368 (5) A sentence of detention imposed under this section shall be a sentence of detention in a young offenders institution.]

F369 (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F367 S. 415 substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), ss. 45(1), Sch. 6 para. 5 and S.I. 1983/1580, art. 3

F368 S. 415(5) substituted for s. 415(5)–(10) by Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 124(1), Sch. 8 para. 16

F369 S. 415(11) repealed (1.10.1993) by 1993 c. 9, s. 47(3), Sch. 7 Pt.I (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, art. 3(4)

Modifications etc. (not altering text)

C98 S. 415 extended by Contempt of Court Act 1981 (c. 49, SIF 39:3), s. 15(3)

C99 S. 415 excluded by Repatriation of Prisoners Act 1984 (c. 47, SIF 39:1), s. 3, Sch. para. 4(2)(b)

416 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F370 S

Textual Amendments

F370 S. 416 repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 8 and S.I. 1983/1580, art. 3

417 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F371 S

Textual Amendments

F371 S. 417 repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 8

418 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F372 S

Textual Amendments

F372 S. 418 repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 45(3), Sch. 6 para. 5, Sch. 8 and S.I. 1983/1580, art. 3

419, 420. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F373 S

Textual Amendments

F373 Ss. 419, 420 repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 5, Sch. 8 and S.I. 1983/1580, art. 3

F374 421 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

Textual Amendments

F374 S. 421 repealed (1.10.1993) by 1993 c. 9, s. 47(3), Sch. 7 Pt.I (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, art. 3(4)

422 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F375 S

Textual Amendments

F375 S. 422 repealed by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(2), Sch. 3

F376 423 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

Textual Amendments

F376 S. 423 repealed (1.10.1993) by 1993 c. 9, s. 47(3), Sch. 7 Pt.I (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, art. 3(4)

424 Detention in precincts of court. S

Where a court of summary jurisdiction has power to impose imprisonment [F377 or detention] on an offender it may, in lieu of so doing, order that the offender be detained within the precincts of the court or at any police station, till such hour, not later than eight in the evening on the day on which he is convicted, as the court may direct:

Provided that before making an order under this section a court shall take into consideration the distance between the proposed place of detention and the offender’s residence (if known to, or ascertainable by, the court), and shall not make any such order under this section as would deprive the offender of a reasonable opportunity of returning to his residence on the day on which the order is made.

Textual Amendments

F377 Words inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 84(2), Sch. 7 para. 68 and S.I. 1983/1580, art. 3

425 No imprisonment for less than five days. S

(1) No person shall be sentenced to imprisonment by a court of summary jurisdiction for a period of less than five days.

(2) Where a court of summary jurisdiction has power to impose imprisonment on an offender, it may, if any suitable place provided and certified as hereinafter mentioned is available for the purpose, sentence the offender to be detained therein, for such period not exceeding four days as the court thinks fit, and an extract of the finding and sentence shall be delivered with the offender to the person in charge of the place where the offender is to be detained and shall be a sufficient authority for his detention in that place in accordance with the sentence.

(3) The expenses of the maintenance of offenders detained under this section shall be defrayed in like manner as the expenses of the maintenance of prisoners under the M74 Prisons (Scotland) Act 1952.

(4) The Secretary of State may, on the application of any police authority, certify any police cells or other similar places provided by the authority to be suitable places for the detention of persons sentenced to detention under this section, and may by statutory instrument make regulations for the inspection of places so provided, the treatment of persons detained therein and generally for carrying this section into effect.

(5) No place certified under this section shall be used for the detention of females unless provision is made for their supervision by female officers.

(6) In this section the expression “police authority” means a regional or islands council, except that where there is an amalgamation scheme under the M75 Police (Scotland) Act 1967 in force it means a joint police committee.

(7) Until 16th May 1975 the last foregoing subsection shall have effect as if, for the words “regional or islands council”, there were substituted the words “council of a county or of a burgh which maintains a separate police force”.

Marginal Citations

M74 1952 c. 61(39:1).

M75 1967 c. 77(95).

[F378 426 Legal custody. S

Any person required or authorised by or under this Act or [F379 any other enactment or any subordinate instrument] to be taken to any place, or to be detained or kept in custody shall, while being so taken or detained or kept, be deemed to be in legal custody.]

Textual Amendments

F378 S. 426 substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 7 para. 69

F379 Words substituted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(1), Sch. 1 para. 12

Miscellaneous provisions as to conviction, sentence, etc. S

427 Conviction of part only of charge. S

A conviction of a part or parts only of the charge or charges libelled in a complaint shall imply dismissal of the rest of the complaint.

428 Art and part guilt of statutory offence. S

[F380 (1)] A person may be convicted of, and punished for, contravention of any [F381 enactment], notwithstanding that he was guilty of such contravention as art and part only.

[F382 (2) Without prejudice to subsection (1) above or to any express provision in any enactment having the like effect to this subsection, any person who aids, abets, counsels, procures or incites any other person to commit an offence against the provisions of any enactment shall be guilty of an offence and shall be liable on conviction, unless the enactment otherwise requires, to the same punishment as might be imposed on conviction of the first-mentioned offence.]

Textual Amendments

F380 S. 428 renumbered s. 428(1) by virtue of Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 64(1)(2)

F381 Word substituted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 64(1)(2)

F382 S. 428(2) inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 64(1)(2)

Prospective

429 “Conviction” and “sentence” not to be used in relation to a child. S

The words “conviction” and “sentence” shall not be used in relation to children dealt with summarily and any reference in any enactment, whether passed before or after the commencement of this Act, to a person convicted, a conviction or a sentence shall in the case of a child be construed as including a reference to a person found guilty of an offence, a finding of guilt or an order made upon such a finding as the case may be.

430 Forms of finding and sentence. S

(1) The finding and sentence and any order of a court of summary jurisdiction, as regards both offences at common law and offences under any statute or order, shall be entered in the record of the proceedings in the form, as nearly as may be, of the appropriate form contained in F383 . . . an Act of Adjournal under this Act, which shall be sufficient warrant for all execution thereon and for the clerk of court to issue extracts containing such executive clauses as may be necessary for implement thereof; and, when imprisonment forms part of any sentence or other judgment, warrant for the apprehension and interim detention of the accused pending his being committed to prison shall, where necessary, be implied.

(2) Where a fine imposed by a court of summary jurisdiction is paid at the bar it shall not be necessary for the court to refer to the period of imprisonment applicable to the non-payment thereof.

(3) Where several charges at common law or under any statute or order are embraced in one complaint, a cumulo fine may be imposed in respect of all or any of such charges of which the accused is convicted.

[F384 (4) A court of summary jurisdiction may frame—

(a) a sentence following on conviction; or

(b) an order for committal in default of payment of any sum of money or for contempt of court,

so as to take effect on the expiry of any previous sentence or order which, at the date of the later conviction or order, the accused is undergoing.]

Textual Amendments

F383 Words in s. 430(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 142(a), Sch. 7 Pt. I; S.I. 1996/517, arts. 3-6, Sch.

F384 S. 430(4) sustituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 142(b); S.I. 1996/517, arts. 3-6, Sch.

[F385 430A Sentence following guilty plea. S

In determining what sentence to pass on, or what other disposal or order to make in relation to, an offender who has pled guilty to an offence, a court may take into account—

(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and

(b) the circumstances in which that indication was given.]

Textual Amendments

F385 S. 430A inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 33; S.I. 1996/517, arts. 3-6, Sch.

431 Consideration of time spent in custody. S

[F386 (1)]A court, in passing a sentence of imprisonment or detention . . . F387 on a person for any offence, shall

[F388 (a)] in determining the period of imprisonment or detention, have regard to any period of time spent in custody by that person on remand awaiting trial or sentence [F389 or spent in custody awaiting extradition to the United Kingdom;

(b) specify the date of commencement of the sentence; and

(c) if that person—

(i) has spent a period of time in custody on remand awaiting trial or sentence; or

(ii) is an extradited prisoner for the purposes of this section,

and the date specified under paragraph (b) above is not earlier than the date on which sentence is passed, state its reasons for not specifying an earlier date.]

[F390 (2) A prisoner is an extradited prisoner for the purposes of this section if—

(a) he was tried for the offence in respect of which his sentence of imprisonment was imposed—

(i) after having been extradited to the United Kingdom; and

(ii) without having first been restored to the state from which extradited or having had an opportunity of leaving the United Kingdom; and

(b) he was for any period kept in custody while awaiting such extradition.

(3) In this section “extradited to the United Kingdom” means returned to the United Kingdom—

(a) in pursuance of extradition arrangements (as defined in section 3 of the Extradition Act 1989);

(b) under any law which corresponds to that Act and is a law of a designated Commonwealth country (as defined in section 5(1) of that Act);

(c) under that Act as extended to a colony or under any corresponding law of a colony; or

[F391 (cc) in pursuance of arrangements with a foreign state in respect of which an Order in Council under section 2 of the Extradition Act 1870 is in force;]]

(d) in pursuance of a warrant of arrest endorsed in the Republic of Ireland under the law of that country corresponding to the Backing of Warrants (Republic of Ireland) Act 1965.

Textual Amendments

F386 S. 431 renumbered (18.9.1993) as s. 431(1) by 1993 c. 9, s. 41(4) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, art. 3(3), Sch. 2

F387 Words repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 7 para. 70 and S.I. 1983/1580, art. 3

F388 Word in s. 431 inserted (18.9.1993) by 1993 c. 9, s. 41(2) (with s. 47(2), Sch. 6, paras. 1, 2); S.I. 1993/2050, art. 3(3), Sch. 2

F389 Words in s. 431 inserted (18.9.1993) by 1993 c. 9, s. 41(3) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, art. 3(3), Sch. 2

F390 S. 431(2)(3) inserted (18.9.1993) by 1993 c. 9, s. 41(5) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, art. 3(3), Sch. 2

F391 S. 431(3)(cc) inserted (3.2.1995) by 1994 c. 33, s. 168(1), Sch. 9 para. 48(2); S.I. 1995/127, art. 2(1), Sch. 1 Appendix A

432 Deferred sentence. S

[F392 (1)] It shall be competent for a court to defer sentence after conviction for a period and on such conditions as the court may determine; F393 . . ..

[F394 (2) If it appears to the court by which sentence on a person has been deferred under subsection (1) above that that person has been convicted, during the period of deferment, by a court in any part of Great Britain of an offence committed during that period and has been dealt with for that offence, the first mentioned court may issue a warrant for the arrest of that person, or may, instead of issuing such a warrant in the first instance, issue a citation requiring him to appear before it at such time as may be specified in the citation; and on his appearance or on his being brought before the court it may deal with him in any manner in which it would be competent for it to deal with him on the expiry of the period of deferment.

(3) Where a court which has deferred sentence under subsection (1) above on a person convicts that person of another offence during the period of deferment, it may deal with him for the original offence in any manner in which it would be competent for it to deal with him on the expiry of the period of deferment, as well as for the offence committed during the said period.]

Textual Amendments

F392 Word inserted by virtue of Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 54

F393 Words in s. 432(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 143, Sch. 7 Pt. I; S.I. 1996/517, arts. 3-6, Sch.

F394 S. 432(2)(3) inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 54

433 Sentence in open court. S

Every sentence imposed by a court of summary jurisdiction shall unless otherwise provided be pronounced in open court in the presence of the accused, but need not be written out or signed in his presence.

434 Further provision as to sentence. S

(1) It shall be competent at any time before imprisonment has followed on a sentence for the court to alter or modify it; but no higher sentence than that originally pronounced shall be competent.

(2) The signature of the judge or clerk of court to any sentence shall be sufficient also to authenticate the findings on which such sentence proceeds.

(3) The power conferred by subsection (1) of this section to alter or modify a sentence shall be exercisable without requiring the attendance of the accused . . . F395

Textual Amendments

F395 Words repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 63:1), Sch. 6 para. 1, Sch. 8

F396 435 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

Textual Amendments

F396 S. 435 repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 144, Sch. 7 Pt. I; S.I. 1996/517, arts. 3-6, Sch.

F397 436 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

Textual Amendments

F397 S. 436 repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 181(2), Sch. 7 Pt. II; S.I. 1996/517, arts. 3-6, Sch.

[F398 436A Disqualification in Scotland where vehicle used to commit offence. S

(1) Where a person is convicted of an offence (other than one triable only summarily) and the court which passes sentence is satisfied that a motor vehicle was used for the purpose of committing, or facilitating the commission of that offence, the court may order him to be disqualified for such period as the court thinks fit from holding or obtaining a licence to drive a motor vehicle granted under Part III of the Road Traffic Act 1988.

(2) A court which makes an order under this section disqualifying a person from holding or obtaining a licence shall require him to produce any such licence held by him and its counterpart.

(3) Any reference in this section to facilitating the commission of an offence shall include a reference to the taking of any steps after it has been committed for the purpose of disposing of any property to which it relates or of avoiding apprehension or detection.

(4) In relation to licences which came into force before 1st June 1990, the reference in subsection (2) above to the counterpart of a licence shall be disregarded.]

Textual Amendments

F398 S. 436A added (1.7.1992) by Road Traffic Act 1991 (c. 40), s.39;S.I. 1992/1286, art. 2,Sch.

437 Warrant of search for forfeited articles. S

Where a court has made an order for the forfeiture of an article, the court or any justice of the peace may, if satisfied on information on oath—

(a) that there is reasonable cause to believe that the article is to be found in any place or premises; and

(b) that admission to the place or premises has been refused or that a refusal of such admission is apprehended,

issue a warrant of search which may be executed according to law; and for the purposes of this section, any reference to a justice of the peace includes a reference to the sheriff and to a magistrate.

438 Register of children found guilty of offences. S

In addition to any other register required by law, a separate register of children found guilty of offences and of children discharged on bond or put on probation shall be kept for every summary court by the chief constable or other person charged with the duty of keeping registers of convictions. The register shall apply to children of such age, and shall include such particulars, as may be directed by the Secretary of State, and it shall be the duty of the keeper of the register, within seven days after any such child has been dealt with by the court, to transmit a copy of the entry relating to the child to the education authority for the area in which the child resides.

[F399 439 Correction of entries. S

(1) Subject to the provisions of this section, it shall be competent to correct an entry in—

(a) the record of proceedings in a summary prosecution; or

(b) the extract of a sentence passed or an order of court made in such proceedings,

in so far as that entry constitutes an error of recording or is incomplete.

(2) Such entry may be corrected—

(a) by the clerk of the court, at any time before either the sentence (or order) of the court is executed or, on appeal, the proceedings are transmitted to the Clerk of Justiciary;

(b) by the clerk of the court, under the authority of the court which passed the sentence or made the order, at any time after the execution of the sentence (or order) of the court but before such transmission as is mentioned in paragraph (a) above; or

(c) by the clerk of the court under the authority of the High Court in the case of a remit under subsection (4)(b) below.

(3) A correction in accordance with paragraph (b) or (c) of subsection (2) above shall be intimated to the prosecutor and to the former accused or his solicitor.

(4) Where, during the course of an appeal, the High Court becomes aware of an erroneous or incomplete entry, such as is mentioned in subsection (1) above, the court—

(a) may consider and determine the appeal as if such entry were corrected; and

(b) either before or after the determination of the appeal, may remit the proceedings to the court of first instance for correction in accordance with subsection (2)(c) above.

(5) Any correction under subsections (1) and (2) above by the clerk of the court shall be authenticated by his signature and, if such correction is authorised by a court, shall record the name of the judge or judges authorising such correction and the date of such authority.]

Textual Amendments

F399 S. 439 substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 20

[F400 439A Amendment of records of conviction and sentence in summary proceedings. S

(1) Without prejudice to section 439 of this Act, where, on an application in accordance with subsection (2) below, the High Court is satisfied that a record of conviction or sentence in summary proceedings inaccurately records the identity of any person, it may authorise the clerk of the court which convicted or, as the case may be, sentenced the person to correct the record.

(2) An application under subsection (1) above shall be made after the determination of the summary prosecution and may be made by any party to the summary proceedings or any other person having an interest in the correction of the alleged inaccuracy.

(3) The High Court shall order intimation of an application under subsection (1) above to such persons as it considers appropriate and shall not determine the application without affording to the parties to the summary proceedings and to any other person having an interest in the correction of the alleged inaccuracy an opportunity to be heard.

(4) The power of the High Court under this section may be exercised by a single judge of the High Court in the same manner as it may be exercised by the High Court, and subject to the same provisions.]

Textual Amendments

F400 S. 439A inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 41; S.I. 1996/517, arts. 3-6, Sch.

440 Extract sufficient warrant for imprisonment. S

Where imprisonment is authorised by the sentence of a court of summary jurisdiction, an extract of the finding and sentence in the form, as nearly as may be, of the appropriate form contained in F401 . . . an Act of Adjournal under this Act shall be a sufficient warrant for the apprehension and commitment of the accused, and no such extract shall be void or liable to be set aside on account of any error or defect in point of form.

Textual Amendments

F401 Words in s. 440 repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 145, Sch. 7 Pt. I; S.I. 1996/517, arts. 3-6, Sch.

441 Provision for court comprising more than one judge. S

In any proceedings in a court of summary jurisdiction consisting of more than one judge, the signature of one judge shall be sufficient in all warrants or other proceedings prior or subsequent to conviction F402 . . . and it shall not be necessary that the judge so signing shall be one of the judges trying or dealing with the case otherwise.

Textual Amendments

F402 Words in s. 441 repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 146, Sch. 7 Pt. I; S.I. 1996/517, arts. 3-6, Sch.

Review S

[F403 442 Right of appeal. S

(1) Without prejudice to any right of appeal under section 453A of this Act—

(a) any person convicted [F404 , or found to have committed an offence,]in summary proceedings may [F405 , with leave granted in accordance with section 442ZA or, as the case may be, 453AA of this Act,] appeal under this section to the High Court—

(i) against such conviction [F406 or finding];

(ii) against the sentence passed on such conviction;

[F407 (iia) against his absolute discharge or admonition or any probation order or any community service order under the M76 Community Service by Offenders (Scotland) Act 1978 or any order deferring sentence;]

or;

(iii) against both such conviction and such sentence [F408 or disposal or order];

(b) the prosecutor in such proceedings may so appeal on a point of law—

(i) against an acquittal in such proceedings; or

(ii) against a sentence passed [F409 on such conviction].

[F410 (c) the prosecutor in such proceedings may, in any class of case specified by order by the Secretary of State under this paragraph, so appeal against the sentence passed on such conviction [F411 or, whether the person has been convicted or not, against any probation order or any community service order under the Community Service by Offenders (Scotland) Act 1978 or against the person’s absolute discharge or admonition or against any order deferring sentence]]if it appears to the prosecutor that [F412 , as the case may be—.

(i) the sentence is unduly lenient;

(ii) the making of the probation order or community service order is unduly lenient or its terms are unduly lenient;

(iii) to dismiss with an admonition or to discharge absolutely is unduly lenient; or

(iv) the deferment of sentence is inappropriate or on unduly lenient conditions;]

(2) By an appeal under subsection (1)(a) of this section or, as the case may be, against acquittal under subsection (1)(b) of this section, an appellant may bring under review of the High Court any alleged miscarriage of justice in the proceedings, including, in the case of an appeal under the said subsection (1)(a), any alleged miscarriage of justice on the basis of the existence and significance of additional evidence which was not heard at the trial and which was not available and could not reasonably have been made available at the trial.

[F413 (3) The power of the Secretary of State to make an order under paragraph (c) of subsection (1) above shall be exercisable by statutory instrument; and any order so made shall be subject to annulment in pursuance of a resolution of either House of Parliament.]]

Textual Amendments

F403 S. 442, 442A, 442B substituted for s. 442 by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 3 para. 1, Sch. 6 para. 7

F404 Words in s. 442(1)(a) inserted (27.7.1993) by 1993 c. 36, s. 68(3)(a)(i)

F405 Words in s. 442(1)(a) inserted (26.9.1995) by 1995 c. 20, s. 42(4); S.I. 1995/2295, art. 3, Sch. (subject to transitional provisions in arts. 4-6)

F406 Words in s. 442(1)(a)(i) inserted (27.7.1993) by 1993 c. 36, s. 68(3)(a)(ii)

F407 S. 442(1)(a)(iia) inserted (27.7.1993) by 1993 c. 36, s. 68(3)(a)(iii)

F408 Words in s. 442(1)(a)(iii) added (27.7.1993) by 1993 c. 36, s. 68(3)(a)(iv)

F409 Words in s. 442(1)(b)(ii) substituted (1.10.1993) by 1993 c. 9, s. 47(1), Sch. 5 para. 1(33) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, arts. 3(4), 4(1)(c)

F410 S. 442(1)(c) inserted (1.10.1993) by 1993 c. 9, s. 42(2)(a) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, art. 3(4)

F411 Words in s. 442(1)(c) inserted (27.7.1993) by 1993 c. 36, s. 68(3)(b)(i)

F412 Words in s. 442(1)(c) substituted (27.7.1993) by 1993 c. 36, s. 68(3)(b)(ii)

F413 S. 442(3) inserted (1.10.1993) by 1993 c. 9, s. 42(2)(b) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, art. 3(4)

Modifications etc. (not altering text)

C100 S. 442(1)(a)(ii) extended (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, ss. 70(2), 76(9), 113(1); S.I. 1996/517, arts. 3-6, Sch.

S. 442(1)(a)(ii) modified (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1987 c. 41, s. 2 (as substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 113(3), Sch. 5 para. 3; S.I. 1996/517, arts. 3-6, Sch.)

C101 S. 442(1)(b)(ii) extended (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, ss. 70(1), 76(9), 113(1); S.I. 1996/517, arts. 3-6, Sch.

S. 442(1)(b)(ii) modified (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1987 c. 41, s. 2 (as substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 113(3), Sch. 5 para. 3; S.I. 1996/517, arts. 3-6, Sch.

Marginal Citations

M76 1978 c. 49

[F414 442ZA Leave to appeal against conviction etc. S

(1) The decision whether to grant leave to appeal for the purposes of section 442(1)(a)(i) or (iii) of this Act shall be made by a judge of the High Court who shall—

(a) if he considers that the documents mentioned in subsection (2) below disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and

(b) in any other case—

(i) refuse leave to appeal and give reasons in writing for the refusal; and

(ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him.

(2) The documents referred to in subsection (1) above are—

(a) the stated case lodged under subsection (4) of section 448 of this Act; and

(b) the documents transmitted to the Clerk of Justiciary under subsection (3)(b) of that section.

(3) A warrant granted under subsection (1)(b)(ii) above shall not take effect until the expiry of the period of 14 days mentioned in subsection (4) below without an application to the High Court for leave to appeal having been lodged by the appellant under that subsection.

(4) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 days of intimation under subsection (10) below, apply to the High Court for leave to appeal.

(5) In deciding an application under subsection (4) above the High Court shall—

(a) if, after considering the documents mentioned in subsection (2) above and the reasons for the refusal, the court is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as the court considers appropriate; and

(b) in any other case—

(i) refuse leave to appeal and give reasons in writing for the refusal; and

(ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him.

(6) Consideration whether to grant leave to appeal under subsection (1) or (5) above shall take place in chambers without the parties being present.

(7) Comments in writing made under subsection (1)(a) or (5)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the stated case) on the basis of which leave to appeal is granted.

(8) Where the arguable grounds of appeal are specified by virtue of subsection (7) above it shall not, except by leave of the High Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the stated case but not so specified.

(9) Any application by the appellant for the leave of the High Court under subsection (8) above—

(a) shall be made not less than seven days before the date fixed for the hearing of the appeal; and

(b) shall, not less than seven days before that date, be intimated by the appellant to the Crown Agent.

(10) The Clerk of Justiciary shall forthwith intimate—

(a) a decision under subsection (1) or (5) above; and

(b) in the case of a refusal of leave to appeal, the reasons for the decision,

to the appellant or his solicitor and to the Crown Agent.]

Textual Amendments

F414 S. 442ZA inserted (26.9.1995) by 1995 c. 20, s. 42(5); S.I. 1995/2295, art. 3, Sch. (subject to transitional provisions in arts. 4-6)

442A Method of appeal against conviction or conviction and sentence. S

(1) Where a person desires to appeal under section 442(1)(a)(i) or (iii) or (b) of this Act, he shall pursue such appeal in accordance with the provisions of sections 444 to 453, 453D and 453E of this Act.

(2) A person who has appealed against both conviction and sentence, may abandon the appeal in so far as it is against conviction and may proceed with it against sentence alone, subject to such procedure as may be prescribed by Act of Adjournal under this Act.

442B Method of appeal against sentence alone. S

Where a [F415 convicted]person [F415 , or as the case may be a person found to have committed an offence,] desires to appeal F416 . . ., under section 442(1)(a)(ii) [F417 or (iia)] of this Act [F418 , or the prosecutor desires so to appeal by virtue of section 442(1)(c) thereof,]he shall pursue such appeal in accordance with the provisions of sections 453B to 453E of this Act:

[F419 ; but nothing in this section shall prejudice any right to proceed by bill of suspension, or as the case may be advocation, against an alleged fundamental irregularity relating to the imposition of the sentence.].

Textual Amendments

F415 Words in s. 442B inserted (27.7.1993) by 1993 c. 36, s. 79(13), Sch. 5 Pt. I para. 2(10)(a)

F416 Words in s. 442B repealed (27.7.1993) by 1993 c. 36, s. 79(13)(14), Sch. 5 Pt. I para. 2(10)(b), Sch. 6 Pt. I

F417 Words in s. 442B inserted (27.7.1993) by 1993 c. 36, s. 79(13), Sch. 5 Pt. I para. 2(1)(c)

F418 Words in s. 442B inserted (1.10.1993) by 1993 c. 9, s. 47(1), Sch. 5 para. 1(34)(b) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, arts. 3(4), 4(1)(c)

F419 Words in the proviso in s. 442B substituted (1.10.1993) by 1993 c. 9, s. 47(1), Sch. 5 para. 1(34)(c) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, arts. 3(4), 4(1)(c)

443 Appeals against hospital orders, etc. S

Where a hospital order [F420 interim hospital order (but not a renewal thereof),] guardianship order or an order restricting discharge has been made by a court in respect of a person charged or brought before it, he may, without prejudice to any other form of appeal under any rule of law [F421 (or, where an interim hospital order has been made, to any right of appeal against any other order or sentence which may be imposed)], appeal against that order in the same manner as against [F422 sentence].

Textual Amendments

F420 Words inserted by virtue of Mental Health (Amendment) (Scotland) Act 1983 (c. 39), s. 34(d)(i) and Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 126(2)(b)

F421 Words inserted by virtue of Mental Health (Amendment) (Scotland) Act 1983 (c. 39), s. 34(d)(ii) and Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 126(2)(b)

F422 Word substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 3 para. 2, Sch. 6 para. 7

[F423 443A Suspension of disqualification, forfeiture, etc. S

(1) Where upon conviction of any person—

(a) any disqualification, forfeiture or disability attaches to him by reason of such conviction; or

(b) any property, matters or things which are the subject of the prosecution or connected therewith are to be or may be ordered to be destroyed or forfeited.

if the court before which he was convicted thinks fit, the disqualification, forfeiture or disability or, as the case may be, destruction or forfeiture or order for destruction or forfeiture shall be suspended pending the determination of any appeal against conviction or sentence [F424 (or disposal or order)].

(2) Subsection (1) above does not apply in respect of any disqualification, forfeiture or, as the case may be, destruction or forfeiture or order for destruction or forfeiture under or by virtue of any enactment which contains express provision for the suspension of such disqualification, forfeiture or, as the case may be, destruction or forfeiture or order for destruction or forfeiture pending the determination of any appeal against conviction or sentence [F424 (or disposal or order)].]

[F425 (3) Where, upon conviction, a fine has been imposed upon a person or a compensation order has been made against him under section 58 of the Criminal Justice (Scotland) Act 1980—

(a) the fine or compensation order shall not be enforced against him and he shall not be liable to make any payment in respect of the fine or compensation order; and

(b) any money paid under the compensation order shall not be paid by the clerk of court to the entitled person under section 60(1) of the Act of 1980,

pending the determination of any appeal against conviction or sentence (or disposal or order).]

Textual Amendments

F423 S. 443A inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 68(1)

F424 Words in s. 443A(1)(2) added (27.7.1993) by 1993 c. 36, s. 79(13), Sch. 5 Pt. I para. 2(11)

F425 S. 443A(3) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 147; S.I. 1996/517, arts. 3-6, Sch.

444 Manner and time of appeal. S

[F426 (1) [F427 Subject to section 76(8) of the Criminal Justice (Scotland) Act 1995,]an appeal under section 442(1)(a)(i) or (iii) or (b) of this Act shall be by application for a stated case, which application shall—

(a) be made within one week of the final determination of the proceedings;

(b) contain a full statement of all the matters which the appellant desires to bring under review and where the appeal is also against the sentence [F428 or disposal or order], [F429 the ground of appeal against that sentence or disposal or order]; and

(c) be signed by the appellant or his solicitor and lodged with the clerk of court;

and a copy of the application shall within the period mentioned in paragraph (a) above be sent by the appellant to the respondent or the respondent’s solicitor.

(1A) The clerk of the court shall enter in the record of the proceedings the date when an application under subsection (1) above was lodged.

(1B) The appellant may, at any time within the period of three weeks mentioned in subsection (1) of section 448 of this Act, or within any further period afforded him by virtue of subsection (6) of that section, amend any matter stated in his application or add a new matter; and he shall intimate any such amendment, or addition, to the respondent or the respondent’s solicitor.]

(2) Where such an application has been made by the person convicted, and the judge by whom he was convicted dies before signing the case or is precluded by illness or other cause from doing so, it shall be competent for the convicted person to present a bill of suspension to the High Court and to bring under the review of that court any matter which might have been brought under review by stated case.

(3) Without prejudice to any other power of relief which the High Court may have, where it appears to that court on application made in accordance with the following provisions of this section, that the applicant has failed to comply with any of the requirements of subsection (1) of this section, the High Court may direct that such further period of time as it may think proper be afforded to the applicant to comply with any requirement of the aforesaid provisions.

(4) Any application for a direction under the last foregoing subsection shall be made in writing to the Clerk of Justiciary and shall state the grounds for the application, and notification of the application shall be made by the appellant or his solicitor to the clerk of the court from which the appeal is to be taken, and the clerk shall thereupon transmit the complaint, documentary productions and any other proceedings in the cause to the Clerk of Justiciary.

(5) The High Court shall dispose of any application under [F430 subsection (3) of] this section in like manner as an application to review the decision of an inferior court on a grant of [F431 bail], but shall have power—

(a) to dispense with a hearing; and

(b) to make such enquiry in relation to the application as the court may think fit;

and when the High Court has disposed of the application the Clerk of Justiciary shall inform the clerk of the inferior court of the result.

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F432

Textual Amendments

F426 S. 444(1)(1A)(1B) substituted for s. 444(1) by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 3 para. 3(a), Sch. 6 para. 7

F427 Words in s. 444(1) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 181(4); S.I. 1996/517, arts. 3-6, Sch.

F428 Words in s. 444(1)(b) inserted (27.7.1993) by 1993 c. 36, s. 79(13), Sch. 5 Pt. I para. 2(12)

F429 Words in s. 444(1)(b) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 148; S.I. 1996/517, arts. 3-6, Sch.

F430 Words inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 3 para. 3(b), Sch. 6 para. 7

F431 Words substituted by Bail etc. (Scotland) Act 1980 (c. 4, SIF 39:1), Sch.1 para. 10

F432 S. 444(6) repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 8

445 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F433 S

Textual Amendments

F433 S. 445 repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Schs. 6 para. 7, Sch. 8

446 Procedure where appellant in custody. S

[F434 (1) If an appellant under section 444 of this Act is in custody, the court may—

(a) grant bail;

(b) grant a sist of execution;

(c) make any other interim order.]

(2) An application for [F435 bail] shall be disposed of by the court within 24 hours after such application has been made. The appellant, if dissatisfied with the [F436 conditions imposed], or on refusal of [F435 bail], may, within 24 hours after the judgment of the court, appeal thereagainst by a note of appeal written on the complaint and signed by himself or his solicitor, and the complaint and proceedings shall thereupon be transmitted to the Clerk of Justiciary, and the High Court or any judge thereof, either in court or in chambers, shall, after hearing parties, have power to review the decision of the inferior court and to grant [F435 bail] on such conditions as such court or judge may think fit, or to refuse [F435 bail].

(3) No clerks’ fees, court fees or other fees or expenses shall be exigible from or awarded against an appellant in custody in respect of an appeal to the High Court against the [F436 conditions imposed] or on account of refusal of [F435 bail] by a court of summary jurisdiction.

(4) If an appellant who has been granted [F435 bail] does not thereafter proceed with his appeal, the inferior court shall have power to grant warrant to apprehend and imprison him for such period of his sentence as at the date of his [F435 bail] remained unexpired, such period to run from the date of his imprisonment under such warrant [F437 or, on the application of the appellant, such earlier date as the court thinks fit, not being a date later than the date of expiry of any term or terms of imprisonment imposed subsequently to the conviction appealed against].

(5) Where an appellant who has been granted [F435 bail] does not thereafter proceed with his appeal, the court from which the appeal was taken shall have power, where at the time of the abandonment of the appeal the person is [F438 in custody or]serving a term or terms of imprisonment imposed subsequently to the conviction appealed against, to order that the sentence or, as the case may be, the unexpired portion of that sentence relating to that conviction should run from such date as the court may think fit, not being a date later than the date on which [F439 any term]or terms of imprisonment subsequently imposed expired.

[F440 (6) The court shall not make an order under subsection (5) above to the effect that the sentence or, as the case may be, unexpired portion of the sentence shall run other than concurrently with the subsequently imposed term of imprisonment without first notifying the appellant of its intention to do so and considering any representations made by him or on his behalf.]

Textual Amendments

F434 S. 446(1) substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 3 para. 5, Sch. 6 para. 7

F435 Word substituted by Bail etc. (Scotland) Act 1980 (c. 4, SIF 39:1), Sch. 1 para. 11(a)

F436 Words substituted by Bail etc. (Scotland) Act 1980 (c. 4, SIF 39:1), Sch. 1 para. 11(b)

F437 Words in s. 446(4) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 149(a); S.I. 1996/517, arts. 3-6, Sch.

F438 Words in s. 446(5) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 149(b)(i); S.I. 1996/517, arts. 3-6, Sch.

F439 Words in s. 446(5) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 149(b)(ii); S.I. 1996/517, arts. 3-6, Sch.

F440 S. 446(6) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 149(c); S.I. 1996/517, arts. 3-6, Sch.

Modifications etc. (not altering text)

C102 S. 446(2) applied by Extradition Act 1989 (c. 33, SIF 48), s. 10(13)

447 Draft stated case to be prepared. S

[F441 (1) Within three weeks of the final determination of proceedings in respect of which an application for a stated case is made under section 444 of this Act—

(a) where the appeal is taken from the district court and the trial was presided over by a justice of the peace or justices of the peace, [F442 the clerk of court]; or

(b) in any other case the judge who presided at the trial,

shall prepare a draft stated case, and the clerk of the court concerned shall forthwith issue the draft to the appellant or his solicitor and a duplicate thereof to the respondent or his solicitor.]

(2) A stated case shall be in the form, as nearly as may be, . . . F443 of the appropriate form contained in an Act of Adjournal under this Act, and shall set forth the particulars of any matters competent for review which the appellant desires to bring under the review of the High Court, and of the facts, if any, proved in the case, and any point of law decided, and the grounds of the decision.

Textual Amendments

F441 S. 447(1) substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 3 para. 6, Sch. 6 para. 7

F442 Words substituted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 39:1), s. 23(2), Sch. 2 para. 20

F443 Words repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 63:1), Sch. 6 para. 1, Sch. 8

448 Adjustment and signature of case. S

[F444 (1) Subject to subsection (6) below, within three weeks of the issue of the draft stated case under section 447 of this Act, each party shall cause to be transmitted to the court and to the other parties or their solicitors a note of any adjustments he proposes be made to the draft case or shall intimate that he has no such proposal:

Provided that adjustments proposed shall relate to evidence heard (or purported to have been heard) at the trial and not to such additional evidence as is mentioned in section 442(2) of this Act.

(2) Subject to subsection (6) below, if the period mentioned in subsection (1) above has expired and the appellant has not lodged adjustments and has failed to intimate that he has no adjustments to propose, he shall be deemed to have abandoned his appeal; and subsection (4) of section 446 of this Act shall apply accordingly.

(2A) If adjustments are proposed under subsection (1) above or if the judge desires to make any alterations to the draft case there shall, within one week of the expiry of the period mentioned in that subsection or as the case may be of any further period afforded under subsection (6) below, be a hearing (unless the appellant has, or has been deemed to have, abandoned his appeal) for the purpose of considering such adjustments or alterations.

(2B) Where a party neither attends nor secures that he is represented at a hearing under subsection (2A) above, the hearing shall nevertheless proceed.

(2C) Where at a hearing under subsection (2A) above—

(a) any adjustment proposed under subsection (1) above by a party (and not withdrawn) is rejected by the judge; or

(b) any alteration . . . F445 proposed by the judge is not accepted by all the parties,

that fact shall be recorded in the minute of the proceedings of the hearing.

(2D) Within two weeks of the date of the hearing under subsection (2A) above or, where there is no hearing, within two weeks of the expiry of the period mentioned in subsection (1) above, the judge shall (unless the appellant has been deemed to have abandoned the appeal) state and sign the case and shall append to the case—

(a) any adjustment, proposed under subsection (1) above, which is rejected by him, a note of any evidence rejected by him which is alleged to support that adjustment and the reasons for his rejection of that adjustment and evidence; and

(b) a note of the evidence upon which he bases any finding of fact challenged, on the basis that it is unsupported by the evidence, by a party at the hearing under subsection (2A) above.]

[F446 (3) As soon as the case is signed under subsection (2D) above the clerk of court—

(a) shall send the case to the appellant or his solicitor and a duplicate thereof to the respondent or his solicitor; and

(b) shall transmit the complaint, productions and any other proceedings in the cause to the Clerk of Justiciary.

(4) Subject to subsection (6) below, within one week of receiving the case the appellant or his solicitor, as the case may be, shall cause it to be lodged with the Clerk of Justiciary.

(5) Subject to subsection (6) below, if the appellant or his solicitor fails to comply with subsection (4) above the appellant shall be deemed to have abandoned the appeal; and subsection (4) of section 446 of this Act shall apply accordingly.]

(6) Without prejudice to any other power of relief which the High Court may have, where it appears to that court on application made in accordance with the following provisions of this section, that the applicant has failed to comply with any of the requirements of subsection [F447 (1) or] (4) of this section, the High Court may direct that such further period of time as it may think proper be afforded to the applicant to comply with any requirement of the aforesaid provisions.

(7) Any application for a direction under the last foregoing subsection shall be made in writing to the Clerk of Justiciary and shall state the grounds for the application.

(8) The High Court shall dispose of any application under [F448 subsection (6) of] this section in like manner as an application to review the decision of an inferior court on a grant of [F449 bail], but shall have power—

(a) to dispense with a hearing; and

(b) to make such enquiry in relation to the application as the court may think fit;

and when the High Court has disposed of the application the Clerk of Justiciary shall inform the clerk of the inferior court of the result.

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F450

Textual Amendments

F444 S. 448(1)–(2D) substituted for s. 448(1)(2) by Criminal Justice (Scotland) Act 1980 (c. 62), Sch. 3 para. 7(a), Sch. 6 para. 7

F445 Words repealed by Law Reform (Miscellaneous Provisions (Scotland) Act 1985 (c. 73, SIF 36:1), Sch. 4

F446 S. 448(3)–(5) substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 3 para. 7(b), Sch. 6 para. 7

F447 Words inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 3 para. 7(c), Sch. 6 para. 7

F448 Words inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 3 para. 7(d), Sch. 6 para. 7

F449 Word substituted by Bail etc. (Scotland) Act 1980 (c. 4, SIF 39:1), Sch. 1 para. 12

F450 S. 448(9) repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 8

449 Abandonment of appeal. S

(1) An appellant [F451 in an appeal such as is mentioned in section 444(1)] of this Act may at any time prior to lodging the case with the Clerk of Justiciary abandon his appeal by minute signed by himself or his solicitor, written on the complaint or lodged with the clerk of the inferior court, and intimated to the respondent [F452 or the respondent’s solicitor], but such abandonment shall be without prejudice to any other competent mode of appeal, review, advocation or suspension.

(2) [F453 Subject to section 453A of this Act] On the case being lodged with the Clerk of Justiciary, the appellant shall be held to have abandoned any other mode of appeal which might otherwise have been open to him.

Textual Amendments

F451 Words substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 3 para. 8(a)(i), Sch. 6 para. 7

F452 Words inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 3 para. 8(a)(ii), Sch. 6 para. 7

F453 Words inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 3 para. 8(b), Sch. 6 para.7

450 Record of procedure in appeal. S

On an appeal [F454 such as is mentioned in section 444(1) of this Act being taken] the clerk of court shall record on the complaint the different steps of procedure in the appeal, and such record shall be evidence of the dates on which the various steps of procedure took place. The forms of procedure in appeals shall be as nearly as may be in accordance with the forms contained in . . . F455 an Act of Adjournal under this Act.

Textual Amendments

F454 Words substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 3 para. 9, Sch. 6 para. 7

F455 Words repealed by S.I. 1981/386, rule 4(3)

[F456 451 Computation of time. S

(1) If any period of time specified in any provision of this Part of this Act relating to appeals expires on a Saturday, Sunday or court holiday prescribed for the relevant court, the period shall be extended to expire on the next day which is not a Saturday, Sunday or such court holiday.

(2) Where a judge against whose judgment an appeal is [F457 taken—.

(a) is temporarily absent from duty for any cause;

(b) is a temporary sheriff; or

(c) is a justice of the peace,

the sheriff] principal of the sheriffdom in which the court at which the judgment was pronounced is situtated may extend any period specified in sections 447(1) and 448(2A) and (2D) of this Act for such period as he considers resonable.

(3) For the purposes of sections 444(1)(a) and 447(1) of this Act, summary proceedings shall be deemed to be finally determined on the day on which sentence is passed in open court; except that, where in relation to an appeal under section 442(1)(a)(i) [F458 or (in so far as it is against conviction) (iii)]or (b)(i) of this Act sentence is deferred under section 432 of this Act, they shall be deemed finally determined on the day on which sentence is first so deferred in open court.]

Textual Amendments

F456 S. 451 substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 3 para. 10, Sch. 6 para. 7

F457 S. 451(2)(a)-(c) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) for words by 1995 c. 20, s. 45(1); S.I. 1996/517, arts. 3-6, Sch.

F458 Words in s. 451(3) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 150; S.I. 1996/517, arts. 3-6, Sch.

[F459 451A Quorum of High Court in relation to appeals. S

(1) For the purpose of hearing and determining any appeal under this Part of this Act, or any proceeding connected therewith, three of the Lords Commissioners of Justiciary shall be a quorum of the High Court, and the determination of any question under this Part of this Act by the court shall be according to the votes of the majority of the members of the court sitting, including the presiding judge, and each judge so sitting shall be entitled to pronounce a separate opinion.

(2) For the purpose of hearing and determining appeals under section 442(1)(a)(ii) or (iia) of this Act, or any proceeding connected therewith, two of the Lords Commissioners of Justiciary shall be a quorum of the High Court, and each judge shall be entitled to pronounce a separate opinion; but where the two Lords Commissioners of Justiciary are unable to reach agreement on the disposal of the appeal, or where they consider it appropriate, the appeal shall be heard and determined in accordance with subsection (1) above.]

Textual Amendments

F459 S. 451A inserted (26.9.1995) by 1995 c. 20, s. 43(2); S.I. 1995/2295, art. 3, Sch. (subject to transitional provisions in arts. 4-6)

[F460 452 Hearing of appeal. S

(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).

[F461 (3A) Subsection (3) above shall not apply as respects any ground of appeal specified as an arguable ground of appeal by virtue of subsection (7) of section 442ZA of this Act.]

(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 knowledge 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.]

Textual Amendments

F460 Ss. 452, 452A, 452B substituted for s. 452 by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 3 para. 11, Sch. 6 para. 7.

F461 S. 452(3A) inserted (26.9.1995) by 1995 c. 20, s. 42(6); S.I. 1995/2295, art. 3, Sch. (subject to transitional provisions in arts. 4-6)

Modifications etc. (not altering text)

C103 S. 452(4)(a)–(e) extended by Telecommunications Act 1984 (c. 12, SIF 96), s. 81(8)

C104 S. 452(4)(a)–(e) extended by Consumer Protection Act 1987 (c. 43, SIF 109:1), s. 17(8)

C105 S. 452(4)(a)-(e) applied (28.10.1992) by S.I. 1992/2372, reg. 95(8).

S. 452(4)(a)-(e) applied (31.10.94) by 1994 c. 26, s. 98(9); S.I. 1994/2550, art. 2

452A Disposal of stated case appeal. S

(1) The High Court may, subject [F462 to subsection (2) below and]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 granting authority to bring a new prosecution in accordance with section 452B of this Act.

[F463 (2) The High Court shall, in an appeal—

(a) against both conviction and sentence [F464 (“sentence” being construed in this subsection and in subsection (3) below as including disposal or order)]], subject to section 453D(1) of this Act, dispose of the appeal against sentence; or

(b) by the prosecutor, against sentence, dispose of the appeal,

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.

[F465 (4A) Any reference in subsection (4) above to convicting and sentencing shall be construed as including a reference to convicting and making some other disposal or convicting and deferring sentence.]

(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.

Textual Amendments

F462 Words in s. 452A(1) inserted (1.10.1993) by 1993 c. 9, s. 47(1), Sch. 5 para. 1(35)(a) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, arts. 3(4), 10(b)

F463 S. 452A(2) substituted (1.10.1993) by 1993 c. 9, s. 47(1), Sch. 5 para. 1(35)(b) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, arts. 3(4), 10(b)

F464 Words in s. 452A(2) inserted (27.7.1993) by 1993 c. 36, s. 79(13), Sch. 5 Pt. I para. 2(13)(a)

F465 S. 452A(4A) inserted (27.7.1993) by 1993 c. 36, s. 79(13), Sch. 5 Pt. I para. 2(13)(b)

452B Supplementary provisions where High Court authorises new prosecution. S

(1) [F466 Subject to subsection (1A) below,]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.

[F467 (1A) In a new prosecution under this section the accused shall not be charged with an offence more serious than that of which he was convicted in the earlier proceedings.

(1B) In proceedings in a new prosecution under this section it shall, subject to subsection (1C) below, be competent for either party to lead any evidence which it was competent for him to lead in the earlier proceedings.

(1C) The complaint in a new prosecution under this section shall identify any matters as respects which the prosecutor intends to lead evidence by virtue of subsection (1B) above which would not have been competent but for that subsection.]

(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 have the effect, for all purposes, of an acquittal.

[F468 (5) On granting authority under section 452A(1)(d) of this Act to bring a new prosecution, the High Court may, after giving the parties an opportunity of being heard, order the detention of the accused person in custody; but an accused person may not be detained by virtue of this subsection for a period of more than 40 days.]

Textual Amendments

F466 Words in s. 452B(1) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 46(2)(a); S.I. 1996/517, arts. 3-6, Sch.

F467 S. 452B(1A)-(1C) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 46(2)(b); S.I. 1996/517, arts. 3-6, Sch.

F468 S. 452B(5) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 46(2)(c); S.I. 1996/517, arts. 3-6, Sch.

[453 F469 Prosecutor’s consent to or application for setting aside of conviction. S

(1) [F470 Without prejudice to section 442(1)(b) or (c) of this Act,]]Where—

(a) an appeal has been taken under section [F471 442(1)(a)] of this Act or by suspension or otherwise and the prosecutor is not prepared to maintain the judgment appealed against he may, by a relevant minute, consent to the conviction [F472 or sentence or, as the case may be, conviction and sentence (“sentence” being construed in this section as including disposal or order)]being set aside either in whole or in part; or

(b) no such appeal has been taken but the prosecutor is, at any time, not prepared to maintain the judgment on which a conviction is founded [F473 or the sentence imposed following such conviction] he may, by a relevant minute, apply for the conviction [F474 or sentence or, as the case may be, conviction and sentence]so to be set aside.

(2) For the purposes of subsection (1) above, a “relevant minute” is a minute, signed by the prosecutor—

(a) setting forth the grounds on which he is of the opinion that the judgment cannot be maintained; and

(b) written on the complaint or lodged with the clerk of court.

(3) A copy of any minute under subsection (1) above shall be sent by the prosecutor to the convicted person or his solicitor and the clerk of court shall—

(a) thereupon ascertain, and note on the record, whether that person or solicitor desires to be heard by the High Court before the appeal, or as the case may be application, is disposed of; and

(b) thereafter transmit the complaint and relative proceedings to the Clerk of Justiciary.

(4) The Clerk of Justiciary, on receipt of a complaint and relative proceedings transmitted under subsection (3) above, shall lay them before any judge of the High Court either in court or in chambers who, after hearing parties if they desire to be heard, may—

(a) set aside the conviction [F475 or the sentence, or both,] either in whole or in part and—

(i) award such expenses to the convicted person, both in the High Court and in the inferior court, as the judge may think fit; F476 . . .

(ii) where the conviction is set aside in part, pass another (but not more severe) sentence in substitution for the sentence imposed in respect of that conviction; or [F477 ; and

(iii) where the sentence is set aside, pass another (but not more severe) sentence;]

(b) refuse to set aside the conviction [F478 or sentence, or, as the case may be conviction and sentence,], in which case the complaint and proceedings shall be returned to the clerk of the inferior court.

(5) Where an appeal has been taken and the complaint and proceedings in respect of that appeal returned under subsection (4)(b) above, the appellant shall be entitled to proceed with the appeal as if it had been marked on the date of their being received by the clerk of the inferior court on such return.

(6) Where an appeal has been taken and a copy minute in respect of that appeal sent under subsection (3) above, the preparation of the draft stated case shall be delayed pending the decision of the High Court.

(7) The period from an application being made under subsection (1)(b) above until its disposal under subsection (4) above (including the day of application and the day of disposal) shall, in relation to the conviction to which the application relates, be disregarded in any computation of time specified in any provision of this Part of this Act relating to appeals.

Textual Amendments

F469 S. 453 substituted (18.9.1993) by 1993 c. 9, s. 43 (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, arts. 3(3), 4(1)(a), Sch. 2

F470 Words in s. 453(1) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 151(2)(a); S.I. 1996/517, arts. 3-6, Sch.

F471 Words in s. 453(1)(a) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 151(2)(b)(i); S.I. 1996/517, arts. 3-6, Sch.

F472 Words in s. 452(1)(a) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 151(2)(b)(ii); S.I. 1996/517, arts. 3-6, Sch.

F473 Words in s. 452(1)(b) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 151(2)(c)(i); S.I. 1996/517, arts. 3-6, Sch.

F474 Words in s. 452(1)(b) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 151(2)(c)(ii); S.I. 1996/517, arts. 3-6, Sch.

F475 Words in s. 452(4)(a) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 151(3)(a)(i); S.I. 1996/517, arts. 3-6, Sch.

F476 Word in s. 452(4)(a)(i) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 151(3)(a)(ii), Sch. 7 Pt. I; S.I. 1996/517, arts. 3-6, Sch.

F477 S. 452(4)(a)(iii) and word

“and”

immediately preceding it inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 151(3)(a)(iii); S.I. 1996/517, arts. 3-6, Sch.

F478 Words in s. 452(4)(b) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 151(3)(b); S.I. 1996/517, arts. 3-6, Sch.

[F479 453A Appeal by bill of suspension or advocation on ground of miscarriage of justice. S

(1) Notwithstanding section 449(2) of this Act, a party to a summary prosecution may, where an appeal under section 442 of this Act would be incompetent or would in the circumstances be inappropriate, appeal to the High Court, by bill of suspension against a conviction, or as the case may be by advocation against an acquittal, on the ground of an alleged miscarriage of justice in the proceedings:

Provided that where the alleged miscarriage of justice is referred to in an application, under section 444(1) of this Act, for a stated case as regards the proceedings (or in a duly made amendment or addition to that application) an appeal under subsection (1) above shall not proceed without the leave of the High Court until the appeal to which the application relates has been finally disposed of or abandoned.

(2) Sections 452(4)(a) to (e), 452A(1)(d), 452A(3) and 452B of this Act shall apply to appeals under this section as they apply to appeals such as are mentioned in section 444(1) of this Act.

(3) The foregoing provisions of this section shall be without prejudice to any rule of law relating to bills of suspension or advocation in so far as such rule of law is not inconsistent with those provisions.]

Textual Amendments

F479 S. 453A–453E inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 3 para. 13, Sch. 6 para. 7

[F480 453AA Leave to appeal against sentence. S

(1) The decision whether to grant leave to appeal for the purposes of section 442(1)(a)(ii) or (iia) of this Act shall be made by a judge of the High Court who shall—

(a) if he considers that the note of appeal and other documents sent to the Clerk of Justiciary under section 453B(4)(a) of this Act disclose arguable grounds of appeal, grant leave to appeal; and

(b) in any other case—

(i) refuse leave to appeal and give reasons in writing for the refusal; and

(ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him.

(2) A warrant granted under subsection (1)(b)(ii) above shall not take effect until the expiry of the period of 14 days mentioned in subsection (3) below without an application to the High Court for leave to appeal having been lodged by the appellant under that subsection.

(3) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 days of intimation under subsection (9) below, apply to the High Court for leave to appeal.

(4) In deciding an application under subsection (3) above the High Court shall—

(a) if, after considering the note of appeal and other documents mentioned in subsection (1) above and the reasons for the refusal, the court is of the opinion that there are arguable grounds of appeal, grant leave to appeal; and

(b) in any other case—

(i) refuse leave to appeal and give reasons in writing for the refusal; and

(ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him.

(5) Consideration whether to grant leave to appeal under subsection (1) or (4) above shall take place in chambers without the parties being present.

(6) Comments in writing made under subsection (1)(a) or (4)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted.

(7) Where the arguable grounds of appeal are specified by virtue of subsection (6) above it shall not, except by leave of the High Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified.

(8) Any application by the appellant for the leave of the High Court under subsection (7) above—

(a) shall be made not less than seven days before the date fixed for the hearing of the appeal; and

(b) shall, not less than seven days before that date, be intimated by the appellant to the Crown Agent.

(9) The Clerk of Justiciary shall forthwith intimate—

(a) a decision under subsection (1) or (4) above; and

(b) in the case of a refusal of leave to appeal, the reasons for the decision,

to the appellant or his solicitor and to the Crown Agent.]

Textual Amendments

F480 S. 453AA inserted (26.9.1995) by 1995 c. 20, s. 42(7); S.I. 1995/2295, art. 3, Sch. (with transitional provisions in arts. 4-6)

453B Appeals against sentence only. S

(1) An appeal under section 442(1)(a)(ii) [F481 or (iia)][F482 , or by virtue of section 442(1)(c),]of this Act shall be by note of appeal, which shall state the ground of appeal.

[F483 (2) The note of appeal shall, where the appeal is—

(a) under section 442(1)(a)(ii) [F481 or (iia)]]be lodged, within one week of the passing of the sentence [F484 (or as the case may be of the making of the order disposing of the case or deferring sentence)], with the clerk of the court from which the appeal is to be taken; or

(b) by virtue of section 442(1)(c) be so lodged within four weeks of such passing [F485 (or making)].

(3) The clerk of court on receipt of the note of appeal shall—

(a) send a copy of the note to the respondent or his solicitor; and

(b) obtain a report from the judge who sentenced the convicted person [F486 (or as the case may be who disposed of the case or deferred sentence)].

(4) The clerk of court shall within two weeks of the passing of the sentence [F487 (or within two weeks of the disposal or order)] against which the appeal is taken—

(a) send to the Clerk of Justiciary the note of appeal, together with the report mentioned in subsection (3)(b) above, a certified copy of the complaint, the minute of proceedings and any other relevant documents; and

(b) send copies of that report to the appellant and respondent or their solicitors:

Provided that the sheriff principal of the sheriffdom in which the judgment was pronounced may, where a [F488 judge-.

(a) is temporarily absent from duty for any cause;

(b) is a temporary sheriff; or

(c) is a justice of the peace,

extend] the period of two weeks specified in this subsection for such period as the sheriff principal considers reasonable

[F489 (4A) Subject to subsection (4) above, the report mentioned in subsection (3)(b) above shall be available only to the High Court, the parties and, on such conditions as may be prescribed by Act of Adjournal, such other persons or classes of persons as may be so prescribed.]

(5) Where the judge’s report is not furnished within the period mentioned in subsection (4) above, the High Court may extend such period or, if it thinks fit, hear and determine the appeal without such report.

(6) Subsections (3), (4) and (5) of section 444 of this Act shall apply where an appellant fails to comply with the requirement of subsection [F490 (2)(a) above] as they apply where an applicant fails to comply with any of the requirements of subsection (1) of that section.

(7) An appellant under section 442(1)(a)(ii) [F481 or (iia)][F482 , or by virtue of section 442(1)(c),]of this Act may at any time prior to the hearing of the appeal abandon his appeal by minute, signed by himself or his solicitor, lodged—

(a) in a case where the note of appeal has not yet been sent under subsection (4)(a) above to the Clerk of Justiciary, with the clerk of the court;

(b) in any other case, with the Clerk of Justiciary, and intimated to the respondent.

(8) Sections 446, 450 and 452(4)(a) to (e) of this Act shall apply to appeals under section 442(1)(a)(ii) [F481 or (iia)][F482 , or by virtue of section 442(1)(c),]of this Act as they apply to appeals under section 442(1)(a)(i) or (iii) of this Act [F491 except that, for the purposes of such application to any appeal by virtue of section 442(1)(c), references in subsections (1) to (3) of section 446 to the appellant shall be construed as references to the convicted person and subsections (4) and (5) of section 446 shall be disregarded].

Textual Amendments

F481 Words in s. 452B(1)(2)(7)(8) inserted (27.7.1993) by 1993 c. 36, s. 79(13), Sch. 5 Pt. I para. 2(14)(a)

F482 Words in s. 453B(1)(7)(8) inserted (1.10.1993) by 1993 c. 9, s. 47(1), Sch. 5 para. 1(36)(a) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, arts. 3(4), 4(1)(c)

F483 S. 453B(2) substituted (1.10.1993) by 1993 c. 9, s. 47(1), Sch. 5 para. 1(36)(b) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, arts. 3(4), 4(1)(c)

F484 Words in s. 452B(2)(a) inserted (27.7.1993) by 1993 c. 36, s. 79(13), Sch. 5 Pt. I para. 2(14)(b)(i)

F485 Words in s. 452B(2)(b) added (27.7.1993) by 1993 c. 36, s. 79(13), Sch. 5 Pt. I para. 2(14)(b)(ii)

F486 Words in s. 452B(3)(b) added (27.7.1993) by 1993 c. 36, s. 79(13), Sch. 5 Pt. I para. 2(14)(c)

F487 Words in s. 452B(4) added (27.7.1993) by 1993 c. 36, s. 79(13), Sch. 5 Pt. I para. 2(14)(d)

F488 S. 452B(4)(a)-(c) proviso substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) for words by 1995 c. 20, s. 45(2); S.I. 1996/517, arts. 3-6, Sch.

F489 S. 453B(4A) inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 152; S.I. 1996/517, arts. 3-6, Sch.

F490 Word in s. 453B(6) substituted (1.10.1993) by 1993 c. 9, s. 47(1), Sch. 5 para. 1(36)(c) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, arts. 3(4), 4(1)(c)

F491 Words in s. 453B(8) added (1.10.1993) by 1993 c. 9, s. 47(1), Sch. 5 para. 1(36)(d) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, arts. 3(4), 4(1)(c)

Modifications etc. (not altering text)

C106 S. 453B(3) extended by S.I. 1988/110, rule 129(6)

C107 S. 453B(3) modified by S.I. 1988/110, rule 130(1)(2)

C108 S. 453B(4) extended by S.I. 1988/110, rule 129(6)

C109 S. 453B(4) modified by S.I. 1988/110, rule 130(1)(2)

C110 S. 453B(5) extended by S.I. 1988/110, rule 129(6)

C111 S. 453B(6) extended by S.I. 1988/110, rule 129(6)

C112 S. 453B(6) modified by S.I. 1988/110, rule 130(1)(2)

C113 Ss. 453B(7)(8), 453C–453E extended by S.I. 1988/110, rule 129(6)

453C Disposal of appeal by note of appeal. S

(1) An appeal against sentence by note of appeal shall be heard by the High Court on such date as it may fix, and the High Court may, subject to section 453D(1) of this Act, dispose of such appeal by—

(a) affirming the sentence; or

(b) if the Court thinks that, having regard to all the circumstances, including any additional evidence such as is mentioned in section 442(2) of this Act, a different sentence should have been passed, quashing the sentence and passing another sentence, whether more or less severe, in substitution therefor:

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

(2) The High Court shall have power in an appeal by note of appeal to award such expenses both in the High Court and in the inferior court as it may think fit.

(3) Where, following an appeal under section 442(1)(a)(ii) [F492 or (iia)][F493 , or by virtue of section 442(1)(c),]of this Act, the [F494 convicted person] 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 [F494 convicted person]—

(a) was at liberty on bail, to grant warrant to apprehend and imprison (or detain) the [F494 convicted person] 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; or

(b) is serving a term or terms of imprisonment (or detention) imposed in relation to a conviction subsequent to the conviction in respect of which the sentence appealed against was imposed, 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.

[F495 (4) In subsection (1) above, “appeal against sentence” shall, without prejudice to the generality of the expression, be construed as including an appeal under section 442(1)(a)(iia), and any appeal under section 442(1)(c), of this Act; and without prejudice to subsection (5) below, other references to sentence in that subsection and in subsection (3) above shall be construed accordingly.

(5) In disposing of any appeal in a case where the accused has not been convicted, the High Court may proceed to convict him; and where it does, the reference in subsection (3) above to the conviction in respect of which the sentence appealed against was imposed shall be construed as a reference to the disposal or order appealed against.]

Textual Amendments

F492 Words in s. 453C inserted (27.7.1993) by 1993 c. 36, s. 79(13), Sch. 5 Pt. I para. 2(15)(a)

F493 Words in s. 453C(3) inserted (1.10.1993) by 1993 c. 9, s. 47(1), Sch. 5 para. 1(37)(a) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, arts. 3(4), 4(1)(c)

F494 Word in s. 453C substituted (1.10.1993) by 1993 c. 9, ss. 47(1), Sch. 5 para. 1(37)(b) (with s. 47(2), Sch. 6 paras. 1, 2); S.I. 1993/2050, arts. 3(4), 4(1)(c)

F495 S. 453C(4)(5) added (27.7.1993) by 1993 c. 36, s. 79(13), Sch. 5 Pt. I para. 2(15)(b)

Modifications etc. (not altering text)

C114 Ss. 453B(7)(8), 453C–453E extended by S.I. 1988/110, rule 129(6)

C115 S. 183 amended by Licensed Premises (Exclusion of Certain Persons) Act 1980 (c. 32, SIF 68A:1, 2), s. 1(2)(c)

453D Disposal of appeal where appellant insane. S

(1) In relation to any appeal under section 442(1)(a) of this Act, the High Court shall, where it appears to it that the appellant committed the act charged against him but that he was insane when he did so, dispose of the appeal by—

(a) setting aside the verdict of the inferior court and substituting therefor a verdict of acquittal on the ground of insanity; and

(b) quashing any sentence imposed on the appellant as respects the complaint [F496 and—.

(i) making, in respect of the appellant, any order mentioned in section 375ZC(2)(a) to (d) of this Act; or

(ii) making no order.]

[F497 (2) Subsection (3) of section 375ZC of this Act shall apply to an order made under subsection (1)(b)(i) above as it applies to an order made under subsection (2) of that section.]

Textual Amendments

F496 S. 453D(1)(b)(i)(ii) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) for words by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 153(a); S.I. 1996/517, arts. 3-6, Sch.

F497 Words s. 453D(2) substituted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 153(b); S.I. 1996/517, arts. 3-6, Sch.

Modifications etc. (not altering text)

C116 Ss. 453B(7)(8), 453C–453E extended by S.I. 1988/110, rule 129(6)

453E Failure of appellant who has been granted bail to appear personally. S

Where an appellant has been granted bail, whether his appeal is under this Part of this Act or otherwise, he shall appear personally in court at the diet appointed for the hearing of the appeal. If he does not appear the High Court shall either—

(a) dispose of the appeal as if it had been abandoned (in which case subsection (4) of section 446 of this Act shall apply accordingly); or

(b) on cause shown permit the appeal to be heard in his absence.

Modifications etc. (not altering text)

C117 Ss. 453B(7)(8), 453C–453E extended by S.I. 1988/110, rule 129(6)

454 Convictions not to be quashed on certain grounds. S

(1) No conviction, sentence, judgment, order of court or other proceeding whatsoever under this Part of this Act shall be quashed for want of form or, where the accused had legal assistance in his defence, shall be suspended or set aside in respect of any objections to the relevancy of the complaint, or to the want of specification therein, or to the competency or admission or rejection of evidence at the trial in the inferior court, unless such objections shall have been timeously stated F498 . . ..

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F499

Textual Amendments

F498 Words in s. 454(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 154, Sch. 7 Pt. I; S.I. 1996/517, arts. 3-6, Sch.

F499 S. 454(2) repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Schs. 6 para. 7, Sch. 8

455 Other modes of appeal. S

(1) The provisions regulating appeals shall, subject to the provisions of this Part of this Act, be without prejudice to any other mode of appeal competent.

(2) Any officer of law may serve any bill of suspension or other writ relating to an appeal.

[F500 455A Sentencing guidelines. S

(1) In disposing of an appeal under section 442(1)(a)(ii), (iia) or (iii), (b)(ii) or (c) of this Act the High Court may, without prejudice to any other power in that regard, pronounce an opinion on the sentence or other disposal or order which is appropriate in any similar case.

(2) Without prejudice to any rule of law, a court in passing sentence shall have regard to any relevant opinion pronounced under subsection (1) above.]

Textual Amendments

F500 S. 455A inserted (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 34(2); S.I. 1996/517, arts. 3-6, Sch.

Miscellaneous S

456 Actions of damages in respect of proceedings under this Part of this Act. S

(1) No judge, clerk of court or prosecutor in the public interest shall be found liable by any court in damages for or in respect of any proceedings taken, act done, or judgment, decree or sentence pronounced under this Part of this Act, unless—

(a) the person suing has suffered imprisonment in consequence thereof; and

(b) such proceeding, act, judgment, decree or sentence has been quashed; and

(c) the person suing shall specifically aver and prove that such proceeding, act, judgment, decree or sentence was taken, done or pronounced maliciously and without probable cause.

(2) No such liability as aforesaid shall be incurred or found where such judge, clerk of court or prosecutor shall establish that the person suing was guilty of the offence in respect whereof he had been convicted, or on account of which he had been apprehended or had otherwise suffered, and that he had undergone no greater punishment than was assigned by law to such offence.

(3) No action to enforce such liability as aforesaid shall lie unless it is commenced within two months after the proceeding, act, judgment, decree or sentence founded on, or in the case where the Act under which the action is brought fixes a shorter period, within that shorter period.

(4) In this section “judge” shall not include “sheriff”, and the provisions of this section shall be without prejudice to the privileges and immunities possessed by sheriffs.

F501 457 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

Textual Amendments

F501 S. 457 repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, s. 117, Sch. 6 Pt. I para. 155, Sch. 7 Pt. I; S.I. 1996/517, arts. 3-6, Sch.