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Criminal Procedure (Scotland) Act 1995

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Criminal Procedure (Scotland) Act 1995, PART V is up to date with all changes known to be in force on or before 26 December 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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PART VU.K. Children and Young Persons

[F141Age of criminal responsibilityU.K.

A child under the age of 12 years cannot commit an offence.]

Textual Amendments

F241AProsecution of children under 12U.K.

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

Textual Amendments

42 Prosecution of children.S

(1)[F3A child aged 12 years or more but under 16 years may not] be prosecuted for any offence except on the instructions of the Lord Advocate, or at [F4the instance of the Lord Advocate]; and no court other than the High Court and the sheriff court shall have jurisdiction over [F5such a child] for an offence.

(2)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.

F6(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)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 305 of this Act, for applying, with the necessary adaptations and modifications, such of the provisions of this Act relating to summary proceedings as appear appropriate for the purpose.

(5)The parent or guardian whose attendance is required under this section is—

(a)the parent who has parental responsibilities or parental rights (within the meaning of sections 1(3) and 2(4) respectively of the M1Children (Scotland) Act 1995) in relation to the child; or

(b)the guardian having actual possession and control of him.

(6)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 care or charge of his parent by an order of a court.

F7(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)Where a local authority receive notification under [F8section 24 of the Criminal Justice (Scotland) Act 2016] they shall make such investigations and submit 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.

(9)Any child F9... being conveyed to or from any criminal court, or waiting before or after attendance in such court, shall be prevented 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.

F10(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Marginal Citations

F1143 Arrangements where children arrested.S

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

Textual Amendments

44 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 [F12a residential establishment] 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 [F13the appropriate local authority] may, from time to time, consider appropriate.

(2)This section applies to any offence [F14(other than, if the child is under the age of 16 years, an offence under section 9(1) of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8) or that section as applied by section 234AA(11) of this Act)] in respect of which it is competent to impose imprisonment on a person of the age of 21 years or more.

(3)Where a child in respect of whom an order is made under this section is detained by the appropriate local authority, that authority shall have the same powers and duties in respect of the child as they would have if he were subject to a [F15compulsory supervision order].

(4)Where a child in respect of whom an order is made under this section is also subject to a [F16compulsory supervision order or interim compulsory supervision order], subject to subsection (6) below, the [F16compulsory supervision order or interim compulsory supervision order] 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 F17..., make such provision as he considers necessary as regards the detention in secure accommodation of children in respect of whom orders have been made under this section.

[F18(5A)Regulations under subsection (5) may, in particular, make provision about the circumstances in which such children may remain in secure accommodation despite attaining the age of 18 years (provided that no person may remain in such accommodation after attaining the age of 19 years).

(5B)Regulations under subsection (5) are subject to the affirmative procedure.]

(6)Where a child is detained in [F19a residential establishment] 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 (7) 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 (8) 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.

(7)Where a child released under paragraph (a) or (b)(ii) of subsection (6) above is subject to a [F16compulsory supervision order or interim compulsory supervision order], the effect of that [F20order] shall commence or, as the case may be, resume upon such release.

(8)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 the 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 [F21establishment from which the child was released] and that his detention in that [F22establishment] or any other such [F23establishment chosen by the appropriate local] authority 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.

(9)An order under subsection (8) above for return to [F24a residential establishment chosen] by the appropriate local authority—

(a)shall be taken to be an order for detention in [F25a residential establishment] for the purpose of this Act and any appeal; and

(b)shall, as the court making that order may direct, either be for a period of detention in [F26a residential establishment] before and to be followed by, or to be concurrent with, any period of such detention to be imposed in respect of the new offence (being in either case disregarded in determining the appropriate length of the period so imposed).

(10)Where a local authority consider it appropriate that a child in respect of whom an order has been made under subsection (1) or (8) 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.

(11)In this section—

  • “the appropriate local authority” means—

    (a)

    where the child usually resides in Scotland, the local authority for the area in which he usually resides;

    (b)

    in any other case, the local authority for the area in which the offence was committed; and

  • [F27“residential establishment” and “secure accommodation” have the meanings given by section 202(1) of the Children’s Hearings (Scotland) Act 2011.]

Textual Amendments

Modifications etc. (not altering text)

C1S. 44 modified (1.4.1997) by S.I. 1996/3255, art. 13(1)

[F2844AAppeal against detention in secure accommodationU.K.

(1)A child, or a relevant person in relation to the child, may appeal to the sheriff against a decision by a local authority to detain the child in secure accommodation in pursuance of an order made under section 44 of this Act.

(2)An appeal under subsection (1) may be made jointly by—

(a)the child and one or more relevant persons in relation to the child; or

(b)two or more relevant persons in relation to the child.

(3)An appeal must not be held in open court.

(4)The sheriff may determine an appeal by—

(a)confirming the decision to detain the child in secure accommodation; or

(b)quashing that decision and directing the local authority to move the child to be detained in residential accommodation which is not secure accommodation.

(5)The Scottish Ministers may by regulations make further provision about appeals under subsection (1).

(6)Regulations under subsection (5) may in particular—

(a)specify the period within which an appeal may be made;

(b)make provision about the hearing of evidence during an appeal;

(c)provide for appeals to the [F29Sheriff Appeal Court] and Court of Session against the determination of an appeal.

(7)Regulations under subsection (5) are subject to the affirmative procedure.

(8)In this section—

  • “relevant person”, in relation to a child, means any person who is a relevant person in relation to the child for the purposes of the Children's Hearings (Scotland) Act 2011 (including anyone deemed to be a relevant person in relation to the child by virtue of section 81(3), 160(4)(b) or 164(6) of that Act);

  • “secure accommodation” has the same meaning as in section 44 of this Act.]

Textual Amendments

F28S. 44A inserted (1.8.2014 for specified purposes, 1.2.2016 in so far as not already in force) by Children and Young People (Scotland) Act 2014 (asp 8), ss. 91, 102(3); S.S.I. 2014/131, art. 2(2)(3), sch.; S.S.I. 2015/406, art. 3(1) (with art. 4)

45 Security for child’s good behaviour.S

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

(2)Subject to subsection (3) below, an order under this section shall not be made unless the parent or guardian has been given the opportunity of being heard.

(3)Where a parent or guardian has been required to attend and fails to do so, the court may make an order under this section.

(4)Any sum ordered to be paid by a parent or guardian on the forfeiture of any security given under this section 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.

(5)In this section “parent” means either of the child’s parents, if that parent has parental responsibilities or parental rights (within the meaning of sections 1(3) and 2(4) respectively of the Children (Scotland) Act 1995) in relation to him.

46 Presumption and determination of age of child.S

(1)Where a person charged with an offence [F30, whose age is not specified in the indictment or complaint in relation to that offence,]is brought before a court other than for the purpose of giving evidence, and it appears to the court that he is a child, the court shall make due enquiry 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, and the age presumed or declared by the court to be the age of that person shall, for the purposes of this Act or the M2Children and Young Persons (Scotland) Act 1937, be deemed to be the true age of that person.

(2)The court in making any inquiry in pursuance of subsection (1) above shall have regard to the definition of child for the purposes of this Act.

(3)[F31Without prejudice to section 255A of this Act,]Where in an indictment or complaint for—

(a)an offence under the Children and Young Persons (Scotland) 1937;

(b)any of the offences mentioned in paragraphs 3 and 4 of Schedule 1 to this Act; or

(c)an offence under section 1, 10(1) to (3) or 12 of the M3Criminal Law (Consolidation) (Scotland) Act 1995,

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 M4Children and Young Persons (Scotland) Act 1937 or Part I of the Criminal Law (Consolidation) (Scotland) Act 1995 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 an indictment or complaint for an offence under the 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)An order or judgement of the court shall not be invalidated by any subsequent proof that—

(a)the age of a person mentioned in subsection (1) above has not been correctly stated to the court; or

(b)the court was not informed that at the material time the person was subject to a [F32compulsory supervision order or interim compulsory supervision order] or that his case had been referred to a children’s hearing by virtue of regulations made under [F33section 190 of the Children’s Hearings (Scotland) Act 2011 (asp 1).]

(6)Where it appears to the court that a person mentioned in subsection (1) above has attained the age of 17 years, he shall for the purposes of this Act or the Children and Young Persons (Scotland) Act 1937 be deemed not to be a child.

(7)In subsection (3) above, 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 307 of this Act.

Textual Amendments

F30Words in s. 46(1) inserted (1.8.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 21(4)(a); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F31Words in s. 46(3) inserted (1.8.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 21(4)(a); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

Marginal Citations

47 Restriction on report of proceedings involving children.U.K.

(1)Subject to subsection (3) below, 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 [F3418] 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 in the proceedings.

(2)Subject to subsection (3) below, no picture which is, or includes, a picture of a person under the age of [F3518] years concerned in proceedings as mentioned in subsection (1) above shall be published in any newspaper in a context relevant to the proceedings.

(3)The requirements of subsections (1) and (2) above shall be applied in any case mentioned in any of the following paragraphs to the extent specified in that paragraph—

(a)where a person under the age of [F3618] years is concerned in the proceedings as a witness only and no one against whom the proceedings are taken is under the age of [F3618] years, the requirements shall not apply unless the court so directs;

(b)where, at any stage of the proceedings, the court, if it is satisfied that it is in the public interest so to do, directs that the requirements (including the requirements as applied by a direction under paragraph (a) above) shall be dispensed with to such extent as the court may specify; and

(c)where the Secretary of State, after completion of the proceedings, if satisfied as mentioned in paragraph (b) above, by order dispenses with the requirements to such extent as may be specified in the order.

(4)This section shall, with the necessary modifications, apply in relation to sound and television programmes included in a programme service (within the meaning of the M5Broadcasting Act 1990) as it applies in relation to newspapers.

(5)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 level 4 of the standard scale.

(6)In this section, references to a court shall not include a court in England, Wales or Northern Ireland.

Textual Amendments

Modifications etc. (not altering text)

Marginal Citations

48 Power to refer certain children to reporter.S

(1)A court by or before which a person is convicted of having committed an offence to which this section applies may refer—

(a)a child in respect of whom an offence mentioned in paragraph (a) or (b) of subsection (2) below has been committed; or

(b)any child who is, or who is likely to become, a member of the same household as the person who has committed an offence mentioned in paragraph (b) or (c) of that subsection or the person in respect of whom the offence so mentioned was committed,

to the Principal Reporter, and certify that the offence shall be a ground established for the purposes of [F37the Children’s Hearings (Scotland) Act 2011 (asp 1).]

(2)This section applies to an offence—

(a)under section 21 of the M6Children and Young Persons (Scotland) Act 1937;

(b)mentioned in Schedule 1 to this Act; or

(c)in respect of a person aged 17 years or over which constitutes the crime of incest.

Textual Amendments

Marginal Citations

49 Reference or remit to children’s hearing.S

(1)Where a child who is not subject to a [F38compulsory supervision order or interim compulsory supervision order] pleads guilty to, or is found guilty of, an offence the court—

(a)instead of making an order on that plea or finding, may remit the case to the Principal Reporter to arrange for the disposal of the case by a children’s hearing; or

(b)on that plea or finding may request the Principal Reporter 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 subsection (1) above, 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 mentioned in paragraph (a) of that subsection.

(3)Where a child who is subject to a [F39compulsory supervision order or interim compulsory supervision order] pleads guilty to, or is found guilty of, an offence the court dealing with the case if it is—

(a)the High Court, may; and

(b)the sheriff [F40JP court] , shall,

request the Principal Reporter 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 mentioned in subsection (1)(a) above [F41except that where [F42section 51A of the Firearms Act 1968 or section 29 of the Violent Crime Reduction Act 2006 applies] it shall itself dispose of the case] .

(4)[F43Subject to any appeal against any decision to remit made under subsection (1)(a) above or (7)(b) below,] where a court has remitted a case to the Principal Reporter under this section, the jurisdiction of the court in respect of the child shall cease, and his case shall stand referred to a children’s hearing.

(5)Nothing in this section shall apply to a case in respect of an offence the sentence for which is fixed by law.

(6)Where a person who is—

(a)not subject to a [F44compulsory supervision order or interim compulsory supervision order] ;

(b)over the age of 16; and

(c)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, the offence the court may request the Principal Reporter to arrange a children’s hearing for the purpose of obtaining their advice as to the treatment of the person.

(7)On consideration of any advice obtained under subsection (6) above, the court may, as it thinks proper—

(a)itself dispose of the case; or

(b)where the hearing have so advised, remit the case to the Principal Reporter for the disposal of the case by a children’s hearing.

Textual Amendments

F40Words in s. 49(3)(b) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 26(d); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F41Words in s. 49(3) inserted (22.1.2004) by Criminal Justice Act 2003 (c. 44), ss. 290(2), 336; S.I. 2004/81, art. 3(2)(b)

F43Words in s. 49(4) inserted (1.8.1997) by 1997 c. 48, s. 23(a); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

Modifications etc. (not altering text)

C3S. 49(3): power to amend conferred (22.1.2004) by Criminal Justice Act 2003 (c. 44), ss. 291(1)(c), 336; S.I. 2004/81, art. 3(2)(b)

50 Children and certain proceedings.S

(1)No child under 14 years of age (other than an infant in arms) shall be permitted to be present in court during any proceedings against any other person charged with an offence unless his presence is required as a witness or otherwise for the purposes of justice [F45or the court consents to his presence].

(2)Any child present in court when, under subsection (1) above, he is not to be permitted to be so shall be ordered to be removed.

(3)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—

(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.

(4)The powers conferred on a court by subsection (3) above shall be in addition and without prejudice to any other powers of the court to hear proceedingsin camera.

(5)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.

(6)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.

Textual Amendments

F45Words in s. 50(1) inserted (27.9.1999) by 1999 c. 22, ss. 73(2), 108(3)(b) (with s. 107, Sch. 14 para. 7(2))

51 Remand and committal of children and young persons.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 or ordained to appear, then, except as otherwise expressly provided by this section, the following provisions shall have effect—

(a)F46. . . if he is under [F4718] years of age F48[F49. . . , the court shall] commit him to the local authority [F50which it considers appropriate] to be detained—

(i)where the court so requires, in secure accommodation [F51(as defined in section 202(1) of the Children’s Hearings (Scotland) Act 2011 (asp 1))] ; and

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

F52(aa). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F53(b)if he is a person who has attained the age of [F5418 years, the court may commit the person to a young offenders institution,]

(bb)F55. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(2)Where any person is committed to a local authority F56. . . under any provision of this Act, that authority F57. . . shall be specified in the warrant, and he shall be detained by the authority F58. . . for the period for which he is committed or until he is liberated in due course of law.

F59(2A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)F60. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)F60. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F61(4A)The local authority which may be appropriate in relation to a power to commit a person under [F62paragraph (a)] of subsection (1) F63. . . may, without prejudice to the generality of those powers, be—

(a)the local authority for the area in which the court is situated;

(b)if the person is usually resident in Scotland, the local authority for the area in which he is usually resident;

(c)if the person is subject to a [F64compulsory supervision order or interim compulsory supervision order, the implementation authority (as defined in section 202(1) of the Children’s Hearings (Scotland) Act 2011 (asp 1).]]

F65(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F66(6)The Scottish Ministers may by regulations make provision about the detention in secure accommodation of children who have been committed to a local authority under subsection (1)(a).

(7)Regulations under subsection (6) may, in particular, make provision about the circumstances in which such children may remain in secure accommodation despite attaining the age of 18 years (provided that no person may remain in such accommodation after attaining the age of 19 years).

(8)Regulations under subsection (6) are subject to the affirmative procedure.]

Textual Amendments

F49Words in s. 51(1)(a) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{23(3)(a)(ii)}, 89; S.S.I. 2003/288, art. 2, Sch.

F50Words in s. 51(1)(a) substituted (1.8.1997) by 1997 c. 48, s. 56(2)(a); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F53S. 51(1)(b)(bb) substituted for (b) (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{23(3)(c)}, 89; S.S.I. 2003/288, art. 2, Sch.

F56Words in s. 51(2) repealed (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{23(4)}, 89; S.S.I. 2003/288, art. 2, Sch.

F57Words in s. 51(2) repealed (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{23(4)}, 89; S.S.I. 2003/288, art. 2, Sch.

F58Words in s. 51(2) repealed (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{23(4)}, 89; S.S.I. 2003/288, art. 2, Sch.

F61S. 51(4A) inserted (1.8.1997) by 1997 c. 48, s. 56(4); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

Modifications etc. (not altering text)

C5S. 51(1)(a)(ii) modified (1.4.1997) by S.I. 1996/3255, reg. 14(1)(a)

S. 51(4)(b) modified (1.4.1997) by S.I. 1996/3255, reg. 14(1)(a)

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