Scottish Government

Justice Department Criminal Procedure Division
Circular No JD/11/2004
THE CRIMINAL PROCEDURE (AMENDMENT) (SCOTLAND) ACT 2004 (COMMENCEMENT, TRANSITIONAL PROVISION AND SAVINGS) ORDER 2004.

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Dear Sir/Madam,

The Criminal Procedure (Amendment) (Scotland) Act 2004 ("the 2004 Act") received Royal Assent on 4 June 2004. This circular contains basic information on the provisions of the Act which are being brought into effect by the Criminal Procedure (Amendment) (Scotland) Act 2004 (Commencement, Transitional Provisions and Savings) Order 2004 ("the Order").

Annex A sets out the sections that are being commenced, gives details of when each provision comes into force, and explains briefly the reasons behind the order of their commencement. A detailed account of the individual provisions can be found in the Explanatory Notes to the 2004 Act, which can be accessed at : http:www.scotland-legislation.hmso.gov.uk/legislation/Scotland/en2004/2004en05.htm

Some of the provisions of the 2004 Act refer to or amend provisions of the Vulnerable Witnesses (Scotland) Act 2004 which have not yet been brought into force. In some cases, the Order brings into force provisions of the 2004 Act containing references to the Vulnerable Witnesses (Scotland) Act 2004 because it is not thought that these references will affect the operation of the 2004 Act provisions. However, in some cases it was considered that the provisions in the 2004 Act had to come into force on the same day as the corresponding provisions of the Vulnerable Witnesses (Scotland) Act. Annex B sets out the relevant provisions of the 2004 Act and the corresponding provision of the Vulnerable Witnesses (Scotland) Act to which their commencement is linked.

Copies of the Criminal Procedure (Amendment) (Scotland) Act 2004 and of the order can be obtained from HMSO bookshops: www.hmso.gov.uk.

A copy of this circular can be found on the Scottish Executive website: www.scotland.gov.uk.

Yours faithfully
TOM FYFFE.

Annex A.

PROVISIONS BEING COMMENCED IN THE CRIMINAL PROCEDURE (AMENDMENT) (Scotland) act 2004 (COMMENCEMENT, TRANSITIONAL provisionS and savings) order 2004

Commencement on 4 October 2004

Section 17 - Bail conditions: remote monitoring of restrictions on movements.

Section 20 - Sentence following guilty plea.

Section 21 - Increase in extended sentence which may be passed by sheriff court in certain cases.

Section 22 - Citation of witnesses for precognition.

Section 23 - Admissibility of prior statements of witnesses.

Section 24 - Protection of Children (Scotland) Act 2003: references following conviction.

Schedule - paragraphs 6, 17, 33, 35 to 37

Section 17 makes provision for remote electronic monitoring of movements as a condition of bail.

Section 20 amends section 196 of the 1995 Act and applies across solemn and summary procedure. It requires the sentencing judge to take into account the stage at which an accused has indicated his intention to plead guilty and requires the judge to state whether consideration of this stage and circumstances of the plea has lead to the imposing of a sentence different to the one the court could otherwise have passed. If it has not, the judge is required to state his reasons.

Section 21 increases from 3 to 5 years the maximum extended sentence which may be passed by a sheriff in solemn proceedings on sex and violent offenders (this is consequential on the implementation on 1 May 2004 of the increase in the sheriff's solemn sentencing powers from 3 to 5 years - see the Crime and Punishment (Scotland) Act 1997 (Commencement No. 6 and Savings) Order 2004).

Section 22 makes provision for the citation of witnesses for precognition by the prosecutor.

Paragraphs 17 and 33 of the schedule are consequential on that provision.

Section 23 makes a minor clarification to the law on the admissibility of prior statements by witnesses.

Section 24 provides that the period within which a convicted person may appeal against a proposed reference to the Scottish Ministers for inclusion on the list of persons considered unsuitable to work with children cannot be extended by the court. The court's power to extend appeals against conviction, sentence or other disposal is unaffected. This section also relates to both solemn and summary proceedings.

Paragraph 6 of the schedule ensures that, where bail is granted by the Lord Advocate, the bail order also specifies a proper domicile of citation.

Paragraph 35 to 37 of the schedule ensure consistency between provisions relating to the electronic monitoring of movement restriction conditions of bail and restriction of liberty orders.

Provisions Commencing on 4 December 2004

Section 8 - Engagement dismissal and withdrawal of solicitor presenting accused.

Section 12 - Service etc. through a solicitor.

Schedule - paragraphs 3, 12 and 21.

The provisions which come into effect on 4 December 2004 are designed to pave the way for smooth operation of the provisions relating to preliminary hearings.

Section 8 relates to the responsibility of a solicitor engaged by the accused to notify the court and the prosecutor in writing of that fact and any subsequent dismissal or withdrawal from acting forthwith.

Paragraph 21 of the schedule is consequential on that provision.

Article 5 of the Order contains a transitional provision to ensure that the notification requirement in section 8 will be met if notification has already been given in a manner that satisfies the new requirement. If such notification has not been given by the time section 8 commences, then it must be given forthwith.

Section 12 deals with the service of documents through the accused's solicitor.

Paragraph 3 of the schedule makes provision for a person accused of a sexual offence to be informed on arrest that if he is indicted to the High Court his defence must be conducted by a lawyer at the preliminary hearing, as well as the trial.

Paragraph 12 of the schedule makes similar provision in relation to information to be given at judicial examination to a person accused of a sexual offence.

Provisions Commencing on 1 February 2005

Section 1 - Preliminary hearings (except for certain purposes relating to the Vulnerable Witnesses (Scotland) Act 2004) .

Section 2 - Written record of state of preparation in certain cases.

Section 3 - Appeals.

Section 4 - Prohibition on accused conducting case in person in certain cases (except for certain purposes relating to the Vulnerable Witnesses (Scotland) Act 2004)

Section 5 - Continuation of trial diet

Section 6 - Time Limits.

Section 7 - Citation.

Section 9 - Procedure where trial diet does not take place.

Section 10 - Trial in absence of accused.

Section 11 - Obstructive witnesses (except for the purposes of the provisions relating to the remote monitoring of movement restriction conditions for witnesses on bail)

Section 13 - Preliminary pleas and preliminary issues.

Section 14 - Objections to admissibility of evidence raised without due notice.

Section 15 - Alteration of diets.

Section 16 - Uncontroversial evidence.

Section 18 - Bail review: rights of prosecutor to be heard etc.

Section 19 - First diet in sheriff court solemn proceedings; witnesses and bail.

Schedule - paragraphs 2, 4, 5, 7 to 11, 13 to 16, 18 to 20, 22 to 32, 34, 38 to 42, 45 to 49 and 51 to 58.

Most of the remaining provisions of the 2004 Act, including those which relate to the arrangements for preliminary hearings and to the new time limits and the consequences of failure to meet them, come into effect on 1 February 2005.

The effect of the Criminal Procedure (Amendment) (Scotland) Act 2004 (Commencement, Transitional Provisions and Savings) Order 2004 is that from 1 April 2005 cases will be governed entirely by the new system set out in the Act (subject only to a transitional provision in relation to a very limited number of cases where a diet commences before 1 April or a time limit mentioned in section 65 of the 1995 Act expires before 1 April , as set out in article 3(3) of the Order).

The Order makes it clear that no preliminary hearing shall be held before 1 April 2005 and that the new provisions are to apply for the purposes of all solemn hearings commencing in the Sheriff and High Court after 31 March 2005 (article 3(1) and 3(2) of the Order).

The effect of the Order is that, during the month of February 2005, the Crown will have a choice as to whether an accused person is to be cited to a trial diet commencing on or before 31 March 2005, or to a preliminary hearing commencing on or after 1 February 2005 (subject to compliance with the statutory time limits). From 1 March 2005 onwards, no person will be cited by the Crown to a trial diet in the High Court. All High Court citations will be to a preliminary hearing commencing on or after 1 April 2005.

Where a trial diet is fixed for a date between 1 February and 31 March 2005 but does not commence on that date, then article 4 of the Order contains a transitional provision that allows certain new provisions of the 1995 Act (as inserted by the 2004 Act) to apply to any further diet that commences after 1 April 2005.

Annex B.

Provisons of the Act which will come into force on the same date as provisions of the Vulnerable Witnesses (Scotland) Act 2004 commenced by Order under that Act.

Provison of the Criminal Procedure (Scotland) Act 2004

Provision of the Vulnerable Witnesses (Scotland) Act 2004.

Section 1(3) so far as it inserts sections 72(6)(b)(ii), (6)(e), (7) and 72B(1)(c) into the 1995 Act and section 25 and paragraph 1 of the schedule for the purposes of bringing into force paragraphs 43 and 44 of the schedule

Section 1 so far as it inserts sections 271A, 271C and 271D into the 1995 Act

Section 4(3) and(4)

Section 6 so far as it inserts sections 288E and 288F into the 1995 Act

Section 25 and paragraph 1 of the schedule for the purposes of bringing into force paragraph 50 of the schedule

Section 4