CRIMINAL JUSTICE (SCOTLAND) ACT 2003: COMMENCEMENT ORDER NO.1 PROVISIONS
Annex B EXPLANATION OF PROVISIONS BEING COMMENCED IN CRIMINAL JUSTICE (SCOTLAND) ACT 2003 (COMMENCEMENT NO 1) ORDER 2003
Section 2(b)- Disposal of case where accused found insane
Section 2(b) is being commenced in order to replace section 57 (3) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act") at this time. Section 57 (3) of the 1995 Act set out provision for cases where an accused was found to be insane and where the offence they had been charged with was murder. It obliged the court to order that the person be detained in a hospital and additionally order that the person should, without limit of time, be subject to the special restrictions set out in section 62(1) of the Mental Health Act 1984. With the commencement of section 2(b) these provisions will no longer apply.
The new provisions included in section 2(b) are not themselves capable of being used until section 2(a) is commenced. Section 2(a) will be commenced to coincide with the Risk Management Authority's becoming operational towards the end of 2004.
Section 3 and Schedule 2- Risk Management Authority (RMA)
This section establishes the Risk Management Authority and provides that it will exercise its functions given to it by this Act and any other legislation to ensure effective risk assessment and the minimisation of risk. The section also introduces schedule 2 of this Act and provides for the status of the body, appointment procedures, remuneration and arrangements for the employment of staff. The commencement of these provisions enables Scottish Ministers to appoint members of the RMA and to set up the RMA. The remainder of Part 1 will require to be commenced before the RMA is fully operational which will not be until towards the end of 2004.
Section 19- Amendments in relation to certain serious and sexual offences
Section 19 amends the Civic Government (Scotland) Act 1982, the Criminal Law (Consolidation) (Scotland) Act 1995 and the Crime and Punishment (Scotland) Act 1997.
Section 19(1)(a) and (b) respectively amend sections 52 (the taking, showing or distribution of indecent photographs of a children) and 52A (the possession of indecent photographs of children) of the Civic Government (Scotland) Act 1982. The amendment to section 52 will increase the period of imprisonment for conviction on indictment from three years to ten years. The amendment to section 52A will allow the prosecution of these offences on indictment, with penalties of imprisonment for up to a period of five years or a fine or both.
Section 19(2)(a) repeals sections 8(1) and (2) of the Criminal Law (Consolidation) (Scotland) Act 1995. Section 8(1) of that Act creates an offence of removing an unmarried girl from and against the will of her parents with the intent that she has unlawful sexual intercourse. Section 8(2) provides a defence that the accused had reasonable cause to believe the girl was 18 years of age or over. Repealing this provision will not affect the law on abduction or the prohibitions on intercourse with a girl under 13.
Section 19(2)(b) repeals section 15 of the Criminal Law (Consolidation) (Scotland) Act 1995 which provides a legal defence to a charge of indecent assault against a girl under 16 on the grounds that her assailant had reasonable cause to believe that the girl was his wife.
Section 19(2)(c) amends section 16B of the Criminal Law (Consolidation) (Scotland) Act 1995. It enables sex offences defined in section 16B and committed abroad by a British citizen or resident of the United Kingdom (and recognised by the relevant country as offences) to be tried in the sheriff court district in which the accused is apprehended or in custody or in such sheriff court district as the Lord Advocate may determine. Up until commencement of this provision, such offences could only be tried in the High Court.
Section 19(3) repeals Section 1 (imprisonment for life on further conviction for certain offences) of the Crime and Punishment (Scotland) Act 1997 (c.48)
Section 20 - Extended sentences
Section 20 inserts a new section 210AA into the Criminal Procedure (Scotland) Act 1995. The effect is that, where an accused is convicted on indictment of abduction, other than abduction of a woman or girl with intent to rape or ravish, that conviction is to be treated in the same fashion as a conviction for a violent offence as defined in section 210A of the 1995 Act. As a result, an extended sentence may be passed on an accused convicted on indictment of such an offence of abduction.
Section 22- Traffic in prostitution
Section 22 creates new offences of trafficking for the purposes of sexual exploitation. The provisions outlaw the practice of trafficking people for use in the sex industry. It will be an offence to engage in trafficking for the purpose of sexual exploitation (control over an individual for prostitution or involvement in the making or production of obscene or indecent material). The offences apply both cross border (in to and out of the UK) and within the UK. The offences do not have to involve arrival into or departure from the UK (see subsection (4)). The offences will also cover behaviour outwith the UK by British citizens (and others specified in subsection (6)). In that event, proceedings may be brought anywhere in Scotland. The maximum sentence where the case is prosecuted on indictment is 14 years and on summary conviction, imprisonment not exceeding 6 months, a fine or both (subsection (3)).
Section 23- Remand and committal of children and young persons
Section 23 amends section 51 of the Criminal Procedure (Scotland) Act 1995 so that persons aged under 21 who are remanded in custody awaiting trial or sentence can be held in a young offenders institution. This is in addition to the existing powers in section 51 for such persons to be held in local authority accommodation, a prison or a remand centre.
Section 24- Legal Custody
Section 24 amends the definition of "legal custody" in section 13 of the Prisons (Scotland) Act 1989 to include being in the custody of a police constable or a police custody and security officer. The section also makes consequential amendments to section 295 of the Criminal Procedure (Scotland) Act 1995. The changes mean that when the police take a prisoner from a prison to a police station or other place for a purpose such as interview or the taking of samples for DNA testing, the prisoner will not as at present require to be accompanied by prison officers.
Section 25- Temporary detention of person being returned to prison in England and Wales etc.
Section 25 adds a new section 40A to the Prisons (Scotland) Act 1989. That new section means that a person who is unlawfully at large from another jurisdiction in the UK or the Channel Islands can be held in a Scottish prison or young offenders institution until arrangements can be made for his return to that jurisdiction.
Sections 27-29, Section 31 and 34-39- Release of prisoners
The provisions in Part 4 of the Act relating to the release of prisoners that are being commenced are sections 27, 28, 29, 31 and 34-39. The main changes to existing law will mean that:
- The Scottish Ministers will exercise no discretion over the release, on licence, of prisoners sentenced to 10 years or more and children sentenced to detention under solemn proceedings, if their release is recommended by the Parole Board under the relevant provisions of the Prisons (Scotland) Act 1989 or the Prisoners and Criminal Proceedings (Scotland) Act 1993. This brings the Board's powers in respect of being able to order the release of these prisoners and detainees into line with those that it exercises in respect of long-term prisoners sentenced to less than 10 years and life sentence prisoners. Similarly, the Scottish Ministers will be obliged to include on release or subsequently insert, vary or cancel any condition in the licence of a person released from custody which is recommended by the Board and will be obliged to recall to custody any person released on licence if this is recommended by the Board. In order to ensure an orderly introduction of these measures, the existing law will be saved as regards Parole Board recommendations received before the coming into force of the relevant sections of the Act.
- A life sentence prisoner who has served the punishment part of his or her life sentence and who has been given a further sentence will not have the right to have their case considered by the Parole Board until they are eligible to be released or to be considered for release from the new sentence. Similarly, prisoners subject to an extended sentence who have been recalled to custody and who subsequently receive a life sentence before the Parole Board considers whether to direct immediate re-release, shall not be eligible to be considered for release until they have served the punishment part of the life sentence. Also, such prisoners who receive a further determinate sentence will not be able to be considered for release until they are eligible for release from the new sentence.
Other changes include the suspension of certain licence conditions where a person is lawfully detained in custody while the licence is still in force; the removal of the automatic effect of licence revocation where a court orders a person's return to custody under section 16 of the 1993 Act; and clarification of the law relating to the recall to custody of extended sentence prisoners so that they have the automatic right to be released once they reach the expiry of the extension period.
Section 33- Prisoners repatriated to Scotland
Section 33 amends the Schedule to the Repatriation of Prisoners Act 1984 so that for the purpose of calculating eligibility for early release, the sentence of a prisoner who is repatriated to Scotland will be deemed to begin on the date of repatriation. This means that all prisoners who are repatriated to Scotland will require to serve some time in custody in Scotland prior to release. Section 33 will only apply to prisoners who are repatriated after it comes into force: the position of prisoners repatriated before that date is unaffected.
Section 42- Drug Courts
Section 42 provides for the establishment of Drugs Courts (courts which are especially appropriate to deal with cases involving persons dependant on or with a propensity to misuse drugs). Section 42(4) provides for those courts designated as a Drugs Court to impose interim sanctions (being a short custodial sentence of up to a maximum period of 28 days, or community service for up to a maximum period of 40 hours) for failure to comply with the requirements of a drug treatment and testing order or probation order without the need to revoke the original order. The Drugs Court order prescribes the sheriffdoms of Glasgow and Strathkelvin and Tayside, Central and Fife. It will be for the sheriff principal in those sheriffdoms to nominate a court within their sheriffdom to be a drugs court.
Specific guidance on the operation of these provisions will be issued to agencies in due course.
Section 43- Restriction of Liberty Orders
Section 43 provides for the transfer of a restriction of liberty order from one court jurisdiction within Scotland to another when an offender subject to the order intends to change address. It provides that the Court is to have the power to vary the terms of the order, including the arrangements for monitoring, and for the Court in the area in which the offender is to reside to have the power to deal with any breach and application for review and variation of the order. Section 43 also provides for a Court to have the power to impose an RLO on an offender who resides, or intends to reside, outwith the jurisdiction of the Court. The Court in the area in which the offender resides or intends to reside will be given the power to vary, review and deal with a breach of the order.
Specific guidance on the operation of these provisions will be issued to Agencies in due course.
Section 44- Interim anti-social behaviour orders
Section 44 amends the Crime and Disorder Act 1998 to introduce interim Anti-Social Behaviour Orders (ASBOs). Interim ASBOs are intended to provide more immediate protection from anti-social behaviour and can be granted pending the outcome of the substantive application for an ASBO.
Section 45- Application by registered social landlord for anti-social behaviour order
Section 45 extends the power to apply for ASBOs to Registered Social Landlords (i.e.bodies registered under section 57 of the Housing (Scotland) Act 2001 (asp 10)).
More detailed guidance will follow on Sections 44 and 45 prior to commencement
Sections 46 and 47- Requirement for remote monitoring in a probation order and a DTTO
Sections 46 and 47 amend the Criminal Procedure (Scotland) Act 1995 to allow the Court to include, as a condition of a probation order or a drug treatment and testing order (DTTO), that the offender comply with certain restrictions on his or her movements and that compliance with those requirements be remotely monitored.
Specific guidance on the operation of these provisions will be issued to Agencies in due course.
Section 48- Court Powers in relation to alleged breach of community disposals
Section 48 provides clarification of the powers of courts to remand to custody (or release on bail) offenders, who are appearing before the court in relation to an apparent breach of a community disposal. In addition to identifying the orders to which it applies it also sets out appeal procedures under this sub-section.
Section 49- Power of arrest where breach of non-harassment order
Section 49 amends the Criminal Procedure (Scotland) Act 1995 and the Protection from Harassment Act 1997 to provide for a statutory power of arrest without warrant, by the police, where the police reasonably believe that a person to be in breach of a non-harassment order. The police already have powers at common law to arrest without warrant if necessary in the interests of justice, and the new statutory power of arrest given in this Act is to be exercised without prejudice to other common law and statutory powers of arrest. The power may be exercised where the non-harassment order is imposed in criminal proceedings following conviction for an offence involving harassment or where it has been granted in civil proceedings following an application to the court.
Sections 50 (1)(2)(4)- Amendments in relation to certain non-custodial punishments-SAOs
Section 50 (1) amends section 235 of the Criminal Procedure (Scotland) Act to allow a Supervised Attendance Order (SAO) to be used with offenders aged 16 years and over who have defaulted in payment of their fine. Section 50(2) amends section 236 of the same Act to offenders aged 16 and over, where an SAO is used as a disposal of first instance. (Section 236 will be subject to piloting arrangements in the first instance). Section 50(4) amends the maximum periods of imprisonment for revocation of or failure to comply with a SAO to 30 days in the sheriff court and 20 days in the district court.
Section 50 (3)- RLO as alternative to custody-
Section 50(3) amends section 245A of the Criminal Procedure (Scotland) Act 1995 to allow a Court to impose a RLO made under that section as an alternative to imprisonment or any other form of detention (other than for an offence for which the sentence is fixed by law).
Section 52- Prohibition of publication of proceedings at children's hearing etc
Section 52 extends section 44 of the Children (Scotland) Act 1995 to cover cases referred to the Principal Reporter. The amended provision will cover any child connected with a case or hearing convened on offence grounds. Previously, only the child who has been referred to the hearings system had the right to confidentiality. The new provisions will also cover other children involved in the case (eg victims or witnesses).
Section 53- Provision by Principal Reporter of information to victims
Section 53 enables the provision by the Principal Reporter of information to victims, relevant persons and others. Written, general information on the hearings system and relevant local service provision will be provided to victims following an offence referral, along with advice on further sources of support and advice that the victim may wish to access. The second element will provide information about the action being taken in specific cases where it is appropriate to share that information. Attention will be given to identifying the third parties with a legitimate interest in receiving information about hearing cases under section 53(3)(b). The Executive will promote secondary legislation and the Scottish Children's Reporter Administration will co-operate with the development of a forthcoming pilot scheme.
Section 54- Certificates relating to physical data
Section 54 of the Act amends Section 284 of the Criminal Procedure (Scotland) Act 1995 so as to ensure that an accused will have the right to challenge a certificate relating to physical data which has been served upon him by the prosecution. This is providing he does so not later than 7 days after service of the certificate upon him.
There may be instances however of cases where trials are due to commence on or shortly after the commencement date and which a certificate has already been served. In such circumstances an accused would be unable to give sufficient notice to the prosecution of any challenge to it.
So as to avoid this, it was necessary for a transitional provision under a separate order to be made. The transitional provision stipulates that in relation to prosecutions started prior to the commencement date, that Section 54 would apply provided at the commencement date there was at least 11 clear days before the commencement of the trial. The reason for this specific period of time being set was simply to allow some flexibility for the new provision to "bed in".
Section 55- Taking samples by swabbing
Section 55 amends the Criminal Procedure (Scotland) Act 1995 to remove the requirement to obtain authorisation from an inspector before a police constable can exercise compulsory powers to take a DNA sample by mouth swab, without force.
Section 56- Retaining prints and samples where given voluntarily
Section 56 provides statutory arrangements for the police to take fingerprints and DNA samples with the written consent of an individual for the investigation of an offence or any offence, depending on the consent given. It also makes provision for the withdrawal of such written consent.
Section 57- Convictions in other Member States of the European Union
Section 57 inserts section 286A into the Criminal Procedure (Scotland) Act 1995 and enables previous convictions in European Union Member States to be libelled and taken into account in criminal proceedings in Scotland in a similar way to previous convictions obtained in the UK. It makes provision, therefore, for the situation where it is necessary to prove a previous foreign conviction. Reference to records of previous convictions held by the clerk of court shall apply, in the case of previous foreign convictions, to officials of EU courts or States having custody of such records. A certificate with the official seal of a Minister of the Member State in question containing particulars relating to a conviction extracted from the criminal records of that State, including copies of fingerprints will be sufficient evidence of the conviction and all preceding convictions. Such information as is provided can then be received in evidence in a similar way to that provided for by section 285 of the Criminal Procedure (Scotland) Act 1995 for previous convictions obtained in the UK. However, as with domestic procedure, the methods of proving a previous conviction authorised by the section are to be in addition to any other method of proof.
Section 58- Transfer of sheriff court proceedings
There was previously no provision to enable business to be transferred across sheriffdom boundaries or indeed for the general transfer of criminal business between courts in the same sheriffdom. Section 58 of the Act provides for the transfer of court business to take place between sheriffdoms in exceptional circumstances with the approval of the respective Sheriffs Principal and to extend current provisions for the transfer of summary and solemn criminal business within sheriffdoms.
Section 58 amends sections 83 and 137 of the Criminal Procedure (Scotland) Act 1995 to allow cases to be transferred from one sheriffdom to another, as well as within a sheriffdom. Where, in summary or solemn proceedings, due to exceptional circumstances it is not practical for a case to be held in the respective sheriff court or any other in the sheriffdom, the prosecutor may, at any stage in the proceedings, apply to the sheriff principal for an order to transfer it to a sitting of a sheriff court, including one set up as in section 66(1) of the 1995 Act, in another sheriffdom. Where the request involves a solemn trial, the order may be granted on joint motion or after giving the accused or his counsel an opportunity to be heard by a sheriff.
The section also enables a general power to transfer both solemn and summary proceedings, at any stage, to another court district within the sheriffdom. Again where the request involves a solemn trial, the order may be granted on joint motion or after giving the accused or his counsel an opportunity to be heard by a sheriff.
Section 59- Competence of the justice's actings outwith jurisdiction
Section 59 inserts a new section 9A in the Criminal Procedure (Scotland) Act 1995 to provide that a sheriff, justice of the peace or stipendiary magistrate justice may sign a warrant, judgement, interlocutor or other document relating to proceedings within that jurisdiction, while they are outwith their jurisdiction, as long as they are within Scotland.
It is intended this provision will apply equally to traditional warrants and their proposed electronic counterparts. This will be particularly relevant in dealing with out of hour requests, as not all sheriffs reside within their jurisdictions.
Section 61- Citation other than by service of indictment or complaint
Section 61 amends sections 66, 140 and 141 of the Criminal Procedure (Scotland) Act 1995 to provide that in addition to the existing methods of service of an indictment or complaint, the police may affix a notice on the door of an accused's home or place of business that states the date upon which the notice was left, that a complaint or indictment can be collected from a specified police station and calling upon the accused to appear and answer the indictment or complaint. The effect of such a notice is that the accused has been lawfully and properly cited to appear at court.
Section 62- Leave to appeal: extension of time limit for application under section 107(4) of 1995 Act
Section 62 amends section 107 of the Criminal Procedure (Scotland) Act 1995 to give the High Court of Justiciary the power to extend the time limit in which a convicted person may apply for leave to appeal against conviction or sentence or both following the decision by a single High Court judge to refuse leave to appeal. Under the new provision the High Court has the discretion to extend the 14-day time limit notwithstanding that the application for leave to appeal is presented outwith the 14 day period and whether or not the 14 day period for lodging an application expired prior to the commencement of section 62.
Section 63- Adjournment at first diet in summary proceedings
Section 63 amends sections 144 and 145 of the Criminal Procedure (Scotland) Act 1995 and introduces a new section 145A into that Act. The effect of the introduction of section 145A is to permit the court to continue the case in the absence of the accused or where the prosecutor is unable to provide evidence to the court that the accused has been cited to appear at the diet. In addition, section 145A permits adjournments of up to 28 days in order to allow the accused to answer the complaint, for further time for enquiry or for any other reasonable cause.
Section 64-Review Hearing of Drug Testing and Treatment Order
A drug treatment and testing order is an order made under the Criminal Procedure (Scotland) Act 1995. Section 234F of that Act provides for the periodic review of the order. Although not specified in that Act, a practice has developed where the courts have shown a reluctance to deal with the review in the absence of the Procurator Fiscal. The current provision clarifies the position. A review hearing can be held whether or not a Procurator Fiscal is present.
Section 65- Transcript of record
Section 65 amends section 94 of the Criminal Procedure (Scotland) Act 1995 Act to give the High Court of Justiciary the power to regulate the transcription of the record of a trial under solemn procedure where the transcription is required for the purposes of an appeal. Under the new provisions both the Crown and the defence must seek the approval of the High Court to the production of a transcript of a trial under solemn procedure for the purposes of an appeal and to show cause to the court why such an application should be granted.
Section 66- Bail and Related matters
Section 66 makes a number of amendments to sections 103, 105 and 112 of the Criminal Procedure (Scotland) Act 1995 and inserts a new section 105A into the Act. These amendments give the Crown a new right to be heard by a judge considering an application by a convicted person serving a custodial sentence who seeks bail pending his appeal. They also ensure that when a convicted person is refused bail and appeals to the High Court to reverse that decision, the prosecutor also has a right to be heard at that further hearing before the full court. And they also give the Crown the right to appeal against the grant of bail, with bail suspended until that appeal is heard.
Section 67- Adjournment of case before sentence
Section 67 amends section 201 of the Criminal Procedure (Scotland) Act 1995 to provide that when a court adjourns a case following conviction and pending sentence, and the convicted person is remanded in custody, the maximum period for which an adjournment can last before a further court hearing is four weeks, or on cause shown, eight weeks instead of only three weeks.
Sections 68 and 69- Corruption
Sections 68 and 69 increase the effectiveness of Scots law in dealing with international aspects of corruption and fulfil international obligations. Section 68 puts beyond doubt that it is an offence under Scots law to bribe or corrupt a foreign official of another state or of an intergovernmental organisation. Section 69 gives Scottish courts extra-territorial jurisdiction over bribery and corruption offences committed abroad by UK nationals, Scottish partnerships and bodies incorporated under UK law.
Section 70(1)(3)(4)(7)- Criminal Records
Section 70 amends the Police Act 1997 so as to provide greater protection for the public, and in particular children and vulnerable adults, in relation the criminal record certificates available under Part V of the Act.
Subsections 70(1), (3), (4) and (7) are being commenced through Commencement Order No 1.
Subsection 70(1) provides for the 1997 Act to be amended in accordance with the subsections that follow it.
Subsection 70(3) adds to the list of persons for whom the Enhanced Criminal record Certificate (the highest level available) may be available.
Subsection 70(4) amends the 1997 Act to extend the duty to supply information to cover the supply of information for purposes of considering a person's suitability to be registered or to continue to be registered.
Subsection 70(7) amends the 1997 Act to extend the scope of the Code of Practice with which registered persons must comply. It also makes failure to comply with the Code a ground for deregistration.
More detailed advice is being provided for those affected by the changes being made to the Police Act.
Section 71(1)(2)(3)- Advice, guidance & assistance to persons arrested or on whom sentence is deferred
Section 71(1) and (2) amends section 27 of the Social Work (Scotland) Act 1968 by inserting subsection (ac) which makes provision for local authorities to provide advice, guidance and assistance to prisoners during their period of imprisonment or detention and who will be subject to supervision following release. Responsibility for the provision of this service will fall to the local authority in whose area the offender resided prior to the period of imprisonment or detention; or the local authority in whose area the offender will reside following release.
Section 71(3) amends section 27(1) of the Social Work (Scotland) Act 1968 by inserting subsection (1A) which makes provision for local authorities to provide advice, guidance and assistance to prisoners during the period of their imprisonment or detention who would not be subject to supervision on release and who requests such services. Responsibility for providing this service is as detailed in section 27(1)(ac). It also inserts subsection 1B which provides that where more than one local authority is required to provide to one person, advice, guidance and assistance under subsection(1)(ac), the local authorities concerned may agree between themselves who will provide the necessary services.
Section 71 (4)(5)- Advice,guidance and & assistance to persons arrested or on whom sentence deferred
Sections 71 (4) inserts a new section 27AA into the Social Work (Scotland) Act 1968 by providing for it to be a local authority function where directed by Scottish Ministers to provide advice, guidance and assistance to persons detained in custody or those on whom sentence is deferred, particularly those suffering from substance misuse. Section 71 (5) amends section 27A(1) to provide local authorities with the funding powers to provide these services.
Section 72- Grants to Local Authorities
Section 72 amends section 27A of the Social Work (Scotland) Act 1968 to make provision for grant payments by Scottish Ministers under this section to groupings of local authorities in addition to individual authorities.
Section 73- Public Defence
This makes a number of changes to Section 28A of the Legal Aid (Scotland) Act 1986 which deals with the Public Defence Solicitors Office (PDSO) to remove redundant elements as well as allow Scottish Ministers to consider additional pilot Offices. The main changes are; to remove the cap on the number of solicitors than can be employed (sub-Section (2)); to repeal the authority to Scottish Ministers to begin preparations for the pilot before the Office opened as this is now redundant; to repeal the obligation on Scottish Ministers to produce a report on the PDSO (sub-Section (3)) as this has now been published but substitutes a new obligation (sub-Section (9A)) to report by 31 December 2008; to repeal the "sunset" provision in sub-Section (11) that prescribes that Office will close after 5 years. The remaining changes are technical in nature.
Section 74- Offences aggravated by religious prejudice
Section 74 makes provision to deal with offences that are aggravated by religious prejudice. Prior to commencement of this section, at common law the courts have been able to take account of such aggravations when sentencing. This provision now requires them to do so. For the provisions in the section to apply, the aggravation will require to be libelled in the indictment or specified in a complaint by the Crown and proved.
The section requires a court to consider whether any element of religious prejudice is involved in an offence and if it finds that the offence has been aggravated by religious prejudice to take that factor into account when sentencing. The court is also required to state the extent of and reasons for any difference in the sentence from that which would have been given had the offence not been aggravated by religious prejudice .
Section 76- Police Custody and Security Officers
Section 76 amends the Police (Scotland) Act 1967 to give statutory powers to certain civilian support staff (to be known as Police Custody and Security Officers or PCSOs) in dealing with people in legal custody in courts, prisons and police stations, or in transfer between such premises. The section enables police authorities to employ or appoint suitably skilled and trained PCSOs under the direction and control of chief constables to exercise powers and undertake duties in carrying out specified functions. A police authority can directly employ or appoint PCSOs to perform functions in three categories: police custody; court security; and prisoner escorting. A police authority can also contract out the employment or appointment of PCSOs. However, by virtue of Subsection (1B) of the 1967 Act a police authority cannot contract out PSCO services in the premises of any court or in land connected with such premises. The specific powers of a PCSO are set out in Section 9 (1C) of the 1967 Act (as inserted by section 76 (2) of the 2003 Act. Section 9 (1E) of the 1967 Act lists the duties of PCSOs. The powers relate to the apprehension, search and photographing of such persons and the use of reasonable force in the exercise of these powers.
Section 78 - Disqualification from jury service
Section 78 amends Schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 to disqualify for a specified period offenders subject to certain community disposals from serving on juries. These disposals are probation orders, drug treatment and testing orders, community service orders and restriction of liberty orders. The section also provides for disqualification from jury service in Scotland of those persons who receive equivalent English and Northern Irish community orders and drug treatment and testing orders, who are disqualified in these jurisdictions, and who move to Scotland. The disqualification applies even if the relevant order was imposed before 27 th June but persons cited or summoned prior to that date with the relevant community disposals are not affected.
Section 79- Separation of jury after retiral
Section 99 of the Criminal Procedure (Scotland) Act 1995 makes provision for the retiral of the jury to consider their verdict. Section 99(4) provides that the judge may give appropriate instructions as regards the making of arrangements for overnight accommodation for the jury and for their continued seclusion if such accommodation is provided.
Section 79 of the 2003 Act amends these provisions to provide judges with the power to allow jurors to go home overnight even after they have retired to consider their verdict.
Section 80- Television link from court to prison or other place of detention
Section 80 provides for certain court proceedings - not including a first appearance from custody or a hearing at which evidence is to be heard on the charge(s) - to take place by live television link between a prison and the High Court and the Sheriff Court. The accused will use this link to watch the proceedings and communicate with the court and with those representing him or her as if present in court in person. Facilities will be in place to allow defence counsel and solicitors to consult with their clients over the link before, during and after the hearings.
This will remove the need for remand prisoners to attend court for every routine hearing, some of which in solemn proceedings can take as little as a few minutes, thereby reducing the cost and inconvenience to both the prison and the prisoners of conveying them to and from court facilities. It will also reduce the stress felt by prisoners as a result of the disruption to their daily routine occasioned by these short absences from the prison and enhance the security aspect of the remand of these prisoners.
The court is empowered to halt this arrangement before or during the diet and to postpone or adjourn the proceedings to the next court day, not being a Saturday, Sunday or court holiday in order that the accused may be brought physically before the court. Where a postponement or adjournment occurs any delay will not count towards any time limit in respect of the case.
Section 81-Warrants issued in Northern Ireland for search of premises in Scotland
Section 81 provides that a search warrant granted by a judge in Northern Ireland to search premises in Scotland, may be endorsed by a judge in Scotland within whose jurisdiction the premises may be found. This authorises the search of the premises in Scotland as if the Scottish judge had originally granted the search warrant. This provision brings warrants granted in Northern Ireland into line with procedure which already exists for warrants granted in England and Wales.
Section 82-Use of electronic communication or electronic storage in connection with warrants to search.
Section 82 enables the Scottish Ministers, by order, to authorise the use of electronic communications or electronic storage in connection with search warrants granted under section 134(1) of the Criminal Procedure (Scotland) Act 1995. Subsection (2) makes provision so that the Scottish Ministers may, by order, in relation to these search warrants, modify any rule of law or practice and procedure in relation to criminal proceedings (i.e. common law) so as to facilitate the use of electronic communication or electronic storage, instead of other forms of communication or storage. However, before making an order they must consider that authorising the option of electronic communication or storage will not result in arrangements for record keeping that are less satisfactory than those in existence. When making the order Scottish Ministers may make certain provisions about such electronic communications or storage. These relate to certain practical matters e.g. provision as to the electronic form to be taken. However, any order made cannot require the use of electronic communications or storage. Finally, by virtue of section 59 of the Criminal Justice (Scotland) 2003, sheriffs, justices and stipendiary magistrates will be able to sign warrants outside their own jurisdiction provided they are in Scotland. This will apply equally to electronic warrants if provision is made under the order making power in this section. The electronic signature will therefore be able to be applied by the sheriff anywhere in Scotland.