EXPLANATORY NOTE
(This note is not part of the Order)
This Order makes transitional and consequential provision on the coming into force of sections 34 to 37 of the Scotland Act 2012 (“the Act”). Sections 34 to 36 of the Act introduce a new system of “compatibility issues” in criminal proceedings in Scotland. Section 37 of the Act makes provision for time limits for seeking permission to appeal to the Supreme Court against a determination of a devolution issue in Scottish criminal proceedings.
From 22nd April 2013 any new European Convention of Human Rights (“ECHR”) issues or EU law issues arising in Scottish criminal proceedings will be compatibility issues. This Order makes provision in relation to existing cases and sets out how the new law will be applied and adapted. The Order converts most existing devolution issues that relate to ECHR and EU law issues into compatibility issues. Generally existing devolution issues will be converted into compatibility issues on 22nd April 2012. In some cases conversion will happen at a later date depending upon the particular stage that the devolution issue has reached – notably those cases that are midway through being heard by the courts at the point when the relevant provisions in the Act are commenced.
Article 2 of the Order defines a “convertible devolution issue”. This is a question arising in criminal proceedings before the relevant date which would have been a compatibility issue if it had arisen after the relevant date.
Article 3 provides for convertible devolution issues to be treated as compatibility issues and sets out when this conversion will take place. A convertible devolution issue will be treated for all purposes as a compatibility issue, subject to certain exceptions.
Article 4 sets out when articles 5 to 8 have effect.
Articles 5 to 7 set out the consequences of a convertible devolution issue becoming a compatibility issue.
Articles 8 provides that where a convertible devolution issue is treated as compatibility issue and the Advocate General for Scotland was a party to proceedings relating to that convertible devolution issue, then the Advocate General is to be treated as a party to the proceedings that the compatibility issue relates to.
Articles 9 to 12 make provision imposing time limits for seeking permission to appeal to the Supreme Court against a determination of a devolution issue that was determined before the commencement of section 37 of the Act.
Section 112(6) of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) makes provision for a person to be admitted to bail pending the determination of an appeal to the Supreme Court in respect of a devolution issue or a compatibility issue. Article 13 provides that where a person is admitted to bail pending the determination of a devolution issue and that devolution issue becomes a compatibility issue then from the time of conversion the person is treated as being admitted to bail pending the determination of the compatibility issue.
Section 121 of the 1995 Act makes provision in respect of disqualification, forfeiture and disability attaching to a person as a result of a conviction. Article 14 provides that where provision is made in respect of an appeal under paragraph 13(a) of Schedule 6 to the Scotland Act 1998 Act and the devolution issue in respect of the appeal becomes a compatibility issue then for the purposes of section 121 the appeal is to be treated as an appeal under section 288AA of the 1995 Act.
Articles 15 to 17 make consequential changes to various legal aid regulations so that these regulations take account of compatibility issues.