Criminal Procedure (Scotland) Act 1995

[F1 Convention rights F2 ... compatibility issues [F3 , devolution issues and UNCRC compatibility issues]] S

Textual Amendments

F1 Cross-heading substituted (22.4.2013) by Scotland Act 2012 (c. 11), ss. 34(2), 44(5); S.I. 2013/6, art. 2(a)

F2 Words in s. 288ZA cross-heading omitted (31.3.2022) by virtue of The European Union (Withdrawal) Act 2018 (Repeal of EU Restrictions in Devolution Legislation, etc.) Regulations 2022 (S.I. 2022/357), regs. 1(1), 5(2)

F3 Words in s. 288ZA cross-heading substituted (16.7.2024) by United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (asp 1), ss. 32(2), 47(2)(a) (with s. 43)

[F4 288ZA Right of Advocate General to take part in proceedings S

(1) The Advocate General for Scotland may take part as a party in criminal proceedings so far as they relate to a compatibility issue.

(2) In this section “compatibility issue” means a question, arising in criminal proceedings, as to—

(a) whether a public authority has acted (or proposes to act)—

(i) in a way which is made unlawful by section 6(1) of the Human Rights Act 1998, or

F5 (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is incompatible with any of the Convention rights F6 ...).

(3) In subsection (2)—

(a) “public authority” has the same meaning as in section 6 of the Human Rights Act 1998;

(b) references to acting include failing to act;]

F7 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F4 S. 288ZA inserted (22.4.2013) by Scotland Act 2012 (c. 11), ss. 34(3), 44(5); S.I. 2013/6, art. 2(a)

F5 S. 288ZA(2)(a)(ii) and word omitted (31.3.2022) by virtue of The European Union (Withdrawal) Act 2018 (Repeal of EU Restrictions in Devolution Legislation, etc.) Regulations 2022 (S.I. 2022/357), regs. 1(1), 5(3)(b)

F6 Words in s. 288ZA(2)(b) omitted (31.3.2022) by virtue of The European Union (Withdrawal) Act 2018 (Repeal of EU Restrictions in Devolution Legislation, etc.) Regulations 2022 (S.I. 2022/357), regs. 1(1), 5(3)(b)

F7 S. 288ZA(3)(c) omitted (31.12.2020) by virtue of European Union (Withdrawal) Act 2018 (c. 16), s. 25(4), Sch. 8 para. 29(3) (with s. 19, Sch. 8 para. 37); S.I. 2020/1622, reg. 3(n) (with reg. 22)

Modifications etc. (not altering text)

C1 S. 288ZA(1) modified (22.4.2013) by The Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 (S.I. 2013/7), arts. 1(1), 8

[F8 288ZB References of compatibility issues to the High Court or Supreme Court S

(1) Where a compatibility issue has arisen in criminal proceedings before a court, other than a court consisting of two or more judges of the High Court, the court may, instead of determining it, refer the issue to the High Court.

(2) The Lord Advocate or the Advocate General for Scotland, if a party to criminal proceedings before a court, other than a court consisting of two or more judges of the High Court, may require the court to refer to the High Court any compatibility issue which has arisen in the proceedings.

(3) The High Court may, instead of determining a compatibility issue referred to it under subsection (2), refer it to the Supreme Court.

(4) Where a compatibility issue has arisen in criminal proceedings before a court consisting of two or more judges of the High Court, otherwise than on a reference, the court may, instead of determining it, refer it to the Supreme Court.

(5) The Lord Advocate or the Advocate General for Scotland, if a party to criminal proceedings before a court consisting of two or more judges of the High Court, may require the court to refer to the Supreme Court any compatibility issue which has arisen in the proceedings otherwise than on a reference.

(6) On a reference to the Supreme Court under this section—

(a) the powers of the Supreme Court are exercisable only for the purpose of determining the compatibility issue;

(b) for that purpose the Court may make any change in the formulation of that issue that it thinks necessary in the interests of justice.

(7) When it has determined a compatibility issue on a reference under this section, the Supreme Court must remit the proceedings to the High Court.

(8) An issue referred to the High Court or the Supreme Court under this section is referred to it for determination.

(9) In this section “compatibility issue” has the meaning given by section 288ZA.]

Textual Amendments

F8 S. 288ZB inserted (22.4.2013) by Scotland Act 2012 (c. 11), ss. 35, 44(5); S.I. 2013/6, art. 2(b)

Modifications etc. (not altering text)

C2 S. 288ZB(1)(4)(5)(7) modified (22.4.2013) by The Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 (S.I. 2013/7), arts. 1(1), 6

288A F9 Rights of appeal for Advocate General: [F10 compatibility issues and] devolution issues. S

(1) This section applies where—

(a) a person is acquitted or convicted of a charge (whether on indictment or in summary proceedings), and

(b) the Advocate General for Scotland was a party to the proceedings F11 ....

[F12 (2) Where the Advocate General for Scotland was a party in pursuance of paragraph 6 of Schedule 6 to the Scotland Act 1998 (devolution issues), the Advocate General may refer to the High Court for their opinion any devolution issue which has arisen in the proceedings.

(2A) Where the Advocate General for Scotland was a party in pursuance of section 288ZA, the Advocate General may refer to the High Court for their opinion any compatibility issue (within the meaning of that section) which has arisen in the proceedings.

(2B) If a reference is made under subsection (2) or (2A) the Clerk of Justiciary shall send to the person acquitted or convicted and to any solicitor who acted for that person at the trial a copy of the reference and intimation of the date fixed by the Court for a hearing.]

(3) The person may, not later than seven days before the date so fixed, intimate in writing to the Clerk of Justiciary and to the Advocate General for Scotland either—

(a) that he elects to appear personally at the hearing, or

(b) that he elects to be represented by counsel at the hearing,

but, except by leave of the Court on cause shown, and without prejudice to his right to attend, he shall not appear or be represented at the hearing other than by and in conformity with an election under this subsection.

(4) Where there is no intimation under subsection (3)(b), the High Court shall appoint counsel to act at the hearing as amicus curiae.

(5) The costs of representation elected under subsection (3)(b) or of an appointment under subsection (4) shall, after being taxed by the Auditor of the Court of Session, be paid by the Advocate General for Scotland out of money provided by Parliament.

(6) The opinion on the point referred under subsection (2) [F13 or (2A)] shall not affect the acquittal or (as the case may be) conviction in the trial.

Textual Amendments

F9 Ss. 288A-288B and preceding cross-heading inserted (20.5.1999) by 1998 c. 46, s. 125, Sch. 8 para. 32(2) (with s. 126(3)-(11)); S.I. 1998/3178, art. 2(2), Sch. 4

F10 Words in s. 288A heading inserted (22.4.2013) by Scotland Act 2012 (c. 11), ss. 34(5), 44(5); S.I. 2013/6, art. 2(a)

F11 Words in s. 288A(1) omitted (22.4.2013) by virtue of Scotland Act 2012 (c. 11), ss. 34(6), 44(5); S.I. 2013/6, art. 2(a)

F12 S. 288A(2)-(2B) substituted for s. 288A(2) (22.4.2013) by Scotland Act 2012 (c. 11), ss. 34(7), 44(5); S.I. 2013/6, art. 2(a)

F13 Words in s. 288A(6) inserted (22.4.2013) by Scotland Act 2012 (c. 11), ss. 34(8), 44(5); S.I. 2013/6, art. 2(a)

[F14 288AA Appeals to the Supreme Court: compatibility issues S

(1) For the purpose of determining any compatibility issue an appeal lies to the Supreme Court against a determination in criminal proceedings by a court of two or more judges of the High Court.

(2) On an appeal under this section—

(a) the powers of the Supreme Court are exercisable only for the purpose of determining the compatibility issue;

(b) for that purpose the Court may make any change in the formulation of that issue that it thinks necessary in the interests of justice.

(3) When it has determined the compatibility issue the Supreme Court must remit the proceedings to the High Court.

(4) In this section “compatibility issue” has the same meaning as in section 288ZA.

(5) An appeal under this section against a determination lies only with the permission of the High Court or, failing that permission, with the permission of the Supreme Court.

(6) Subsection (5) does not apply if it is an appeal by the Lord Advocate or the Advocate General for Scotland against a determination by the High Court of a compatibility issue referred to it under section 288ZB(2).

(7) An application to the High Court for permission under subsection (5) must be made—

(a) within 28 days of the date of the determination against which the appeal lies, or

(b) within such longer period as the High Court considers equitable having regard to all the circumstances.

(8) An application to the Supreme Court for permission under subsection (5) must be made—

(a) within 28 days of the date on which the High Court refused permission under that subsection, or

(b) within such longer period as the Supreme Court considers equitable having regard to all the circumstances.]

Textual Amendments

F14 S. 288AA inserted (22.4.2013) by Scotland Act 2012 (c. 11), ss. 36(6), 44(5); S.I. 2013/6, art. 2(c)

Modifications etc. (not altering text)

C3 S. 288AA(1)(5) modified (22.4.2013) by The Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 (S.I. 2013/7), arts. 1(1), 7

C4 S. 288AA(7) modified (22.4.2013) by The Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 (S.I. 2013/7), arts. 1(1), 9

C5 S. 288AA applied (22.4.2013) by The Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 (S.I. 2013/7), arts. 1(1), 14

[F15 288AB References of UNCRC compatibility issues to the High Court or Supreme Court S

(1) In this section and section 288AC, “UNCRC compatibility issue” means a question, arising in criminal proceedings as to—

(a) whether words in an enactment to which section 29 or 30 of the UNCRC Incorporation Act applies give rise to an incompatibility with the UNCRC requirements,

(b) whether a public authority has acted (or proposed to act) in a way which is made unlawful by section 6(1) of the UNCRC Incorporation Act.

(2) In subsection (1)—

• “public authority” has the same meaning as in section 6(5) of the UNCRC Incorporation Act,

• “the UNCRC requirements” has the meaning given in section 1(2) of that Act,

• “UNCRC Incorporation Act” means the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024.

(3) Where a UNCRC compatibility issue has arisen in criminal proceedings before a court, other than a court consisting of 2 or more judges of the High Court, the court may, instead of determining it, refer the issue to the High Court.

(4) The Lord Advocate, if a party to criminal proceedings before a court, other than a court consisting of 2 or more judges of the High Court, may require the court to refer to the High Court any UNCRC compatibility issue which has arisen in the proceedings.

(5) The High Court may, instead of determining a UNCRC compatibility issue referred to it under subsection (4), refer it to the Supreme Court.

(6) Where a UNCRC compatibility issue has arisen in criminal proceedings before a court consisting of 2 or more judges of the High Court, otherwise than on a reference, the court may, instead of determining it, refer it to the Supreme Court.

(7) The Lord Advocate, if a party to criminal proceedings before a court consisting of 2 or more judges of the High Court, may require the court to refer to the Supreme Court any UNCRC compatibility issue which has arisen in the proceedings otherwise than on a reference.

(8) On a reference to the Supreme Court under this section—

(a) the powers of the Supreme Court are exercisable only for the purpose of determining the UNCRC compatibility issue,

(b) for that purpose the Court may make any change in the formulation of that issue that it thinks necessary in the interests of justice.

(9) When it has determined a compatibility issue on a reference under this section, the Supreme Court must remit the proceedings to the High Court.

(10) An issue referred to the High Court or the Supreme Court under this section is referred to it for determination.

Textual Amendments

F15 Ss. 288AB, 288AC inserted (16.7.2024) by United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (asp 1), ss. 32(3), 47(2)(a) (with s. 43)

288AC Appeals to the Supreme Court: UNCRC compatibility issues S

(1) For the purpose of determining any UNCRC compatibility issue an appeal lies to the Supreme Court against a determination in criminal proceedings by a court of 2 or more judges of the High Court.

(2) On an appeal under this section—

(a) the powers of the Supreme Court are exercisable only for the purpose of determining the UNCRC compatibility issue,

(b) for that purpose the Court may make any change in the formulation of that issue that it thinks necessary in the interests of justice.

(3) When it has determined the UNCRC compatibility issue, the Supreme Court must remit the proceedings to the High Court.

(4) An appeal under this section against a determination lies only—

(a) with the permission of the High Court, or

(b) if the High Court has refused permission, with the permission of the Supreme Court.

(5) Subsection (4) does not apply if it is an appeal by the Lord Advocate against a determination by the High Court of a UNCRC compatibility issue referred to it under section 288AB(4).

(6) An application to the High Court for permission under subsection (4)(a) must be made—

(a) within 28 days of the date of the determination against which the appeal lies, or

(b) within such longer period as the High Court considers equitable having regard to all the circumstances.

(7) An application to the Supreme Court for permission under subsection (4)(b) must be made—

(a) within 28 days of the date on which the High Court refused permission under subsection (4)(b), or

(b) within such longer period as the Supreme Court considers equitable having regard to all the circumstances.]

Textual Amendments

F15 Ss. 288AB, 288AC inserted (16.7.2024) by United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (asp 1), ss. 32(3), 47(2)(a) (with s. 43)

F17 288B [F16 Appeals to the Supreme Court: general]. S

(1) This section applies where the [F18 Supreme Court] determines an appeal under [F19 section 288AA [F20 or 288AC] of this Act or] paragraph 13(a) of Schedule 6 to the Scotland Act 1998 against a determination F21 ... by the High Court in the ordinary course of proceedings.

(2) The determination of the appeal shall not affect any earlier acquittal or earlier quashing of any conviction in the proceedings.

(3) Subject to subsection (2) above, the High Court shall have the same powers in relation to the proceedings when remitted to it by the [F22 Supreme Court] as it would have if it were considering the proceedings otherwise than as a trial court.

Textual Amendments

F16 S. 288B heading substituted (22.4.2013) by Scotland Act 2012 (c. 11), ss. 36(8), 44(5); S.I. 2013/6, art. 2(c)

F17 Ss. 288A-288B and preceding cross-heading inserted (20.5.1999) by 1998 c. 46, s. 125, Sch. 8 para. 32(2) (with s. 126(3)-(11)); S.I. 1998/3178, art. 2(2), Sch. 4

F18 Words in s. 288B(1) and in sidenote substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 86(a); S.I. 2009/1604, art. 2(d)

F19 Words in s. 288B(1) inserted (22.4.2013) by Scotland Act 2012 (c. 11), ss. 36(9)(a), 44(5); S.I. 2013/6, art. 2(c)

F20 Words in s. 288B(1) inserted (16.7.2024) by United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (asp 1), ss. 32(4), 47(2)(a) (with s. 43)

F21 Words in s. 288B(1) omitted (22.4.2013) by virtue of Scotland Act 2012 (c. 11), ss. 36(9)(b), 44(5); S.I. 2013/6, art. 2(c)

F22 Words in s. 288B(3) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 86(b); S.I. 2009/1604, art. 2(d)

[F23 288BZA UNCRC compatibility issue in relation to decision to prosecute child: restriction on judicial remedies S

(1) This section applies where—

(a) by virtue of section 7(1)(b) of the UNCRC Incorporation Act, a UNCRC compatibility issue has arisen—

(i) in criminal proceedings brought against a person who is a child, or who was a child at the time the proceedings were brought,

(ii) otherwise than in connection with an appeal against conviction or an appeal against both conviction and sentence,

(b) in determining the UNCRC compatibility issue, a court finds that the prosecutor, by bringing criminal proceedings against the person, has acted in a way which is made unlawful by section 6(1) of the UNCRC Incorporation Act, and

(c) by reason only of the finding mentioned in paragraph (b), a court is considering—

(i) deserting the proceedings pro loco et tempore or simpliciter, or

(ii) dismissing the indictment or (as the case may be) the complaint or any part of it.

(2) Despite section 8(1) of the UNCRC Incorporation Act, a court—

(a) may not—

(i) desert the proceedings pro loco et tempore or simpliciter, except on the motion of the prosecutor, or

(ii) dismiss the indictment or (as the case may be) the complaint or any part of it, but

(b) must instead—

(i) give the prosecutor an opportunity to reconsider the bringing of criminal proceedings against the person in a way which is compatible with the UNCRC requirements,

(ii) adjourn or continue the proceedings to another diet to allow such reconsideration, and

(iii) following any such reconsideration, decide whether the bringing of criminal proceedings against the person is compatible with the UNCRC requirements.

(3) But a court is not required to act in accordance with subsection (2) if—

(a) it considers that there is no reasonable prospect of the bringing of criminal proceedings against the person being reconsidered in a way which is compatible with the UNCRC requirements,

(b) it considers that there are exceptional circumstances which justify not doing so, or

(c) it decides under subsection (2)(b)(iii) that the bringing of criminal proceedings against the person is incompatible with the UNCRC requirements.

(4) Subsection (5) applies where—

(a) the court adjourns or continues the proceedings in accordance with subsection (2)(b)(ii), or

(b) by virtue of subsection (3), the court decides to desert the proceedings pro loco et tempore.

(5) Before adjourning or continuing the proceedings or (as the case may be) deserting the proceedings pro loco et tempore, the court must give the prosecutor an opportunity—

(a) in solemn proceedings, to make an application under section 65(3) or (5) for an extension of any of the following periods which apply in respect of the proceedings—

(i) the periods of 11 months and 12 months mentioned in section 65(1), including those periods as extended under section 65(3), on appeal under section 65(8) or under section 74(4)(c),

(ii) the periods of 80 days, 110 days and 140 days mentioned in section 65(4), including those periods as extended under section 65(5) or on appeal under section 65(8),

(b) in summary proceedings in respect of which the period of 40 days mentioned in section 147(1) applies, to make an application under section 147(2) for an extension of that period, including that period as extended under section 147(2) or on appeal under section 147(3).

(6) For the purposes of subsection (1)(a)(i), the proceedings are taken to be brought—

(a) in solemn proceedings, on the date on which the indictment is served,

(b) in summary proceedings—

(i) in a case where a warrant to apprehend or cite the accused is granted, on the date on which the warrant is granted, or

(ii) in any other case, on the date on which the complaint is served.

(7) In this section—

• “prosecutor” does not include a private prosecutor,

• “the UNCRC requirements” has the meaning given in section 1(2) of the UNCRC Incorporation Act,

• “UNCRC compatibility issue” means a question of the kind mentioned in section 288AB(1)(b),

• “UNCRC Incorporation Act” means the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024.]

Textual Amendments

F23 S. 288BZA inserted (16.7.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 33(2), 38(2)