Modifications etc. (not altering text)
C1 Pt. 8 (ss. 103-132): power to modify or apply (with modifications) conferred (1.3.2007) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10) , ss. 94(2) , 104 ; S.S.I. 2007/84 , art. 3(2)
(1)Subject to subsection (2) below, where authority is granted under section 118(1)(c) [F1 or 107E(3) or 107F(5)] 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 appeal arose shall not be a bar to such new prosecution.
[F2(2)In a new prosecution under this section—
(a)where authority for the prosecution is granted under section 118(1)(c), the accused must not be charged with an offence more serious than that of which the accused was convicted in the earlier proceedings,
(b)where authority for the prosecution is granted under section 107E(3), the accused must not be charged with an offence more serious than that of which the accused was acquitted in the earlier proceedings,
(c)where authority for the prosecution is granted under section 107F(5), the accused must not be charged with an offence more serious than that originally libelled in the indictment in the earlier proceedings.]
[F3(2A)In a new prosecution under this section brought by virtue of section 107F(5), the circumstances set out in the indictment are not to be inconsistent with any direction given under section 97B(2)(b) or 97C(2) in the proceedings which gave rise to the appeal in question unless the High Court, in disposing of that appeal, determined that the direction was wrong in law.]
(3)No sentence may be passed on conviction under the new prosecution which could not have been passed on conviction under the earlier proceedings.
(4)A new prosecution may be brought under this section, notwithstanding that any time limit, other than the time limit mentioned in subsection (5) below, for the commencement of such proceedings has elapsed.
(5)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.
(6)In proceedings in a new prosecution under this section it shall, subject to subsection (7) below, be competent for either party to lead any evidence which it was competent for him to lead in the earlier proceedings.
(7)The indictment in a new prosecution under this section shall identify any matters as respects which the prosecutor intends to lead evidence by virtue of subsection (6) above which would not have been competent but for that subsection.
(8)For the purposes of subsection (5) above, proceedings shall be deemed to be commenced—
[F4(a)in a case where a warrant to apprehend the accused is granted—
(i)on the date on which the warrant is executed; or
(ii)if it is executed without unreasonable delay, on the date on which it is granted;
(b)in any other case, on the date on which the accused is cited.]
(9)Where the two months mentioned in subsection (5) above elapse and no new prosecution has been brought under this section, the order under section 118(1)(c) of this Act setting aside the verdict [F5or under section 107E(3) or 107F(5) granting authority to bring a new prosecution] shall have the effect, for all purposes, of an acquittal.
(10)On granting authority under section 118(1)(c) [F6or 107E(3) or 107F(5)] of this Act to bring a new prosecution, the High Court shall, after giving the parties an opportunity of being heard, order the detention of the accused person in custody or admit him to bail.
(11)[F7Section 65(4)(aa) and (b) and (4A) to (9)] of this Act (prevention of delay in trials) shall apply to an accused person who is detained under subsection (10) above as they apply to an accused person detained by virtue of being committed until liberated in due course of law.
Textual Amendments
F1Words in s. 119(1) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 76(4)(a), 206(1); S.S.I. 2011/178, art. 2, sch.
F2S. 119(2) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 76(4)(b), 206(1); S.S.I. 2011/178, art. 2, sch.
F3S. 119(2A) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 76(4)(c), 206(1); S.S.I. 2011/178, art. 2, sch.
F4 S. 119(8)(a)(b) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5) , ss. 25 , 27(1) , Sch. para. 32 ; S.S.I. 2004/405 , art. 2 , Sch. 1 (with savings in arts. 3-5 )
F5Words in s. 119(9) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 76(4)(d), 206(1); S.S.I. 2011/178, art. 2, sch.
F6Words in s. 119(10) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 76(4)(a), 206(1); S.S.I. 2011/178, art. 2, sch.
F7 Words in s. 119(11) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) , ss. 80 , 84 , Sch. para. 16(6) (subject to art. 14 ); S.S.I. 2007/479 , art. 3(1) , Sch. (as amended by S.S. I. 2007/527 )