Criminal Procedure (Scotland) Act 1995

175 Right of appeal. S

(1) This section is without prejudice to any right of appeal under section 191 of this Act.

(2) Any person convicted, or found to have committed an offence, in summary proceedings may, with leave granted in accordance with section 180 or, as the case may be, 187 of this Act, appeal under this section to the High Court—

(a) against such conviction, or finding;

(b) against the sentence passed on such conviction;

(c) against his absolute discharge or admonition or any probation order [F1 , drug treatment and testing order] or any community service order or any order deferring sentence;F2 . . .

[F3 (ca) against any decision to remit made under section 49(1)(a) or (7)(b) of this Act;]

[F4 (cb) against any reference proposed under section 10(1) of the Protection of Children (Scotland) Act 2003 (asp 5) in respect of the conviction or, as the case may be, against such reference and such sentence, disposal or order; or]

(d) against

[F5 (i)] both such conviction and such sentence or disposal or order.

[F6 (ii) both such a conviction and such a reference; or

(iii) such a conviction, such a reference and such sentence, disposal or order.]

(3) The prosecutor in summary proceedings may appeal under this section to the High Court on a point of law—

(a) against an acquittal in such proceedings; or

(b) against a sentence passed on conviction in such proceedings.

[F7 (4) The prosecutor in summary proceedings, in any class of case specified by order made by the Secretary of State, may, in accordance with subsection (4A) below, appeal to the High Court against any of the following disposals, namely—

(a) a sentence passed on conviction;

(b) a decision under section 209(1)(b) of this Act not to make a supervised release order;

(c) a decision under section 234A(2) of this Act not to make a non-harassment order;

[F8 (ca) a decision under section 92 of the Proceeds of Crime Act 2002 not to make a confiscation order;.]

(d) a probation order;

[F9 (dd) a drug treatment and testing order;]

(e) a community service order;

(f) a decision to remit to the Principal Reporter made under section 49(1)(a) or (7)(b) of this Act;

(g) an order deferring sentence;

(h) an admonition; or

(i) an absolute discharge.

(4A) An appeal under subsection (4) above may be made—

(a) on a point of law;

(b) where it appears to the Lord Advocate, in relation to an appeal under—

(i) paragraph (a), (h) or (i) of that subsection, that the disposal was unduly lenient;

(ii) paragraph (b) [F10 , (c) or (ca)] of that subsection, that the decision not to make the order in question was inappropriate;

(iii) paragraph (d) [F11 to] (e) of that subsection, that the making of the order concerned was unduly lenient or was on unduly lenient terms;

(iv) under paragraph (f) of that subsection, that the decision to remit was inappropriate;

(v) under paragraph (g) of that subsection, that the deferment of sentence was inappropriate or was on unduly lenient conditions.]

[F12 (4B) For the purposes of subsection (4A)(b)(i) above in its application to a confiscation order by virtue of section 92(11) of the Proceeds of Crime Act 2002, the reference to the disposal being unduly lenient is a reference to the amount required to be paid by the order being unduly low.]

[F13 (5) By an appeal under subsection (2) above, an appellant may bring under review of the High Court any alleged miscarriage of justice which may include such a miscarriage based, subject to subsections (5A) to (5D) below, on the existence and significance of evidence which was not heard at the original proceedings.

(5A) Evidence which was not heard at the original proceedings may found an appeal only where there is a reasonable explanation of why it was not so heard.

(5B) Where the explanation referred to in subsection (5A) above or, as the case may be, (5C) below is that the evidence was not admissible at the time of the original proceedings, but is admissible at the time of the appeal, the court may admit that evidence if it appears to the court that it would be in the interests of justice to do so.

(5C) Without prejudice to subsection (5A) above, where evidence such as is mentioned in F14 . . . subsection (5) above is evidence—

(a) which is—

(i) from a person; or

(ii) of a statement (within the meaning of section 259(1) of this Act) by a person,

who gave evidence at the original proceedings; and

(b) which is different from, or additional to, the evidence so given,

it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence.

(5D) For the purposes of subsection (5C) above, “independent evidence” means evidence which—

(a) was not heard at the original proceedings;

(b) is from a source independent of the person referred to in subsection (5C) above; and

(c) is accepted by the court as being credible and reliable.

(5E) By an appeal against acquittal under subsection (3) above a prosecutor may bring under review of the High Court any alleged miscarriage of justice.]

(6) The power of the Secretary of State to make an order under subsection (4) 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.

(7) Where a person desires to appeal under subsection (2)(a) or (d) or (3) above, he shall pursue such appeal in accordance with sections 176 to 179, 181 to 185, 188, 190 and 192(1) and (2) of this Act.

(8) A person who has appealed [F15 under subsection (2)(cb) or (d) above may abandon the appeal in so far as it is against conviction, reference or sentence and may proceed with it against—

(a) both reference and sentence; or

(b) reference alone; or, as the case may be

(c) sentence alone,]

subject to such procedure as may be prescribed by Act of Adjournal.

(9) Where a convicted person or as the case may be a person found to have committed an offence desires to appeal under subsection (2)(b) or (c) [F16 or (cb)] above, or the prosecutor desires so to appeal by virtue of subsection (4) above, he shall pursue such appeal in accordance with sections 186, 189(1) to (6), 190 and 192(1) and (2) of this Act; 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 sentence.

(10) Where any statute provides for an appeal from summary proceedings to be taken under any public general or local enactment, such appeal shall be taken under this Part of this Act.

Textual Amendments

F1 Words in s. 175(2)(c) inserted (30.9.1998) by 1998 c. 37, s. 94(2), Sch. 6 Pt. II para. 7(2); S.I. 1998/2327, art. 2(1)(s) (subject to arts. 5-8)

F2 Word in s. 175(2)(c) repealed (10.1.2005) by Protection of Children (Scotland) Act 2003 (asp 5), ss. 16(7)(a), 22(2); S.S.I. 2004/522, art. 2 (as amended by S.S.I. 2004/556, art. 2)

F3 S. 175(2)(ca) inserted (1.8.1997) by 1997 c. 48, s. 23(c); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F4 S. 175(2)(cb) inserted (10.1.2005) by Protection of Children (Scotland) Act 2003 (asp 5), ss. 16(7)(b), 22(2); S.S.I. 2004/522, art. 2 (as amended by S.S.I. 2004/556, art. 2)

F5 S. 175(2): words in para. (d) become s. 175(2)(d)(i) (10.1.2005) by virtue of Protection of Children (Scotland) Act 2003 (asp 5) {ss. 16(7)(c)}, 22(2); S.S.I. 2004/522, art. 2 (as amended by S.S.I. 2004/556, art. 2)

F6 S. 175(2)(d)(ii)(iii) inserted (10.1.2005) by Protection of Children (Scotland) Act 2003 (asp 5), ss. 16(7)(d), 22(2); S.S.I. 2004/522, art. 2 (as amended by S.S.I. 2004/556, art. 2)

F7 S. 175(4)(4A) substituted (1.8.1997) for s. 175(4) by 1997 c. 48, s. 21(2); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F8 S. 175(4)(ca) inserted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 115(6), 458; S.S.I. 2003/210, art. 2(1)(a) (subject to arts. 3-7)

F9 S. 175(4)(dd) inserted (30.9.1998) by 1998 c. 37, s. 94(2), Sch. 6 Pt. II para. 7(3); S.I. 1998/2327, art. 2(1)(s) (subject to arts. 5-8)

F10 Words in s. 175(4A)(b)(ii) substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 115(7), 458; S.S.I. 2003/210, art. 2(1)(a) (subject to arts. 3-7)

F11 Word in s. 175(4A)(b)(iii) substituted (30.9.1998) by 1998 c. 37, s. 94(2), Sch. 6 Pt. II para. 7(4); S.I. 1998/2327, art. 2(1)(s) (subject to arts. 5-8)

F12 S. 175(4B) inserted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 115(8), 458; S.S.I. 2003/210, art. 2(1)(a) (subject to arts. 3-7)

F13 S. 175(5)-(5E) substituted (1.8.1997) for s. 175(5) by 1997 c. 48, s. 17(2); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F14 Words in s. 175(5C) repealed (30.9.1998) by 1998 c. 37, ss. 119, 120(2), Sch. 8 para. 123, Sch. 10; S.I. 1998/2327, art. 2(1)(y)(aa)(2)(kk)(3)(w) (subject to arts. 5-8)

F15 S. 175(8): paras. (a)-(c) and preceding words substituted (10.1.2005) for words by Protection of Children (Scotland) Act 2003 (asp 5), ss. 16(7)(e), 22(2); S.S.I. 2004/522, art. 2 (as amended by S.S.I. 2004/556, art. 2)

F16 Words in s. 175(9) inserted (10.1.2005) by Protection of Children (Scotland) Act 2003 (asp 5) , ss. 16(7)(f) , 22(2) ; S.S.I. 2004/522 , art. 2 (as amended by S.S.I. 2004/556 , art. 2 )

Modifications etc. (not altering text)

C1 S. 175(2)(b) amended (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 100(9), 458; S.S.I. 2003/210, art. 2(1)(a) (subject to arts. 3-7)

C2 S. 175(3)(b) amended (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 100(9), 458; S.S.I. 2003/210, art. 2(1)(a) (subject to arts. 3-7)