Criminal Justice (Scotland) Act 1980

41 Restriction on passing sentence of imprisonment or detention on person not legally represented. S

(1) A court shall not pass a sentence of imprisonment or of detention in respect of any offence, nor impose imprisonment, or detention, under section 396(2) of the 1975 Act in respect of failure to pay a fine, on an accused who is not legally represented in that court and has not been previously sentenced to imprisonment or detention by a court in any part of the United Kingdom, unless the accused either—

(a) applied for legal aid and the application was refused on the ground that he was not financially eligible; or

(b) having been informed of his right to apply for legal aid, and having had the opportunity, failed to do so.

(2) The court shall, for the purpose of determining whether a person has been previously sentenced to imprisonment or detention by a court in any part of the United Kingdom—

(a) disregard a previous sentence of imprisonment which, having been suspended, has not taken effect under section 23 of the M1 Powers of Criminal Courts Act 1973 or under section 19 of the M2 Treatment of Offenders Act (Northern Ireland) 1968;

(b) construe detention as meaning—

(i) in relation to Scotland, detention in a young offenders institution or detention centre;

(ii) in relation to England and Wales, [F1 a sentence of youth custody,] borstal training or detention in a [F2 young offender institution or] detention centre; and

(iii) in relation to Northern Ireland, detention in a young offenders centre.

(3) Subsection (1) above does not affect the power of a court to pass sentence on any person for an offence the sentence for which is fixed by law.

(4) In this section—

• “legal aid” means legal aid for the purposes of any part of the proceedings before the court;

• “legally represented” means represented by counsel or a solicitor at some stage after the accused is found guilty and before he is dealt with as referred to in sub-section (1) above.

Textual Amendments

F1 Words inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(1), Sch. 1 para. 17

F2 Words inserted by Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 124, Sch. 8 para. 16, Sch. 9 para. 5

Marginal Citations

M1 1973 c. 62.

M2 1968 c. 29 (N.I.)