2016 No. 426 (C. 44)

Criminal Law

The Criminal Justice (Scotland) Act 2016 (Commencement No. 3 and Saving Provision) Order 2016

Made

Laid before the Scottish Parliament

Coming into force

The Scottish Ministers make the following Order in exercise of the powers conferred by section 117(2) and (3) of the Criminal Justice (Scotland) Act 20161.

Citation, commencement and interpretation1

1

This Order may be cited as the Criminal Justice (Scotland) Act 2016 (Commencement No. 3 and Saving Provision) Order 2016 and comes into force on 17th January 2017.

2

In this Order—

  • “the 1995 Act” means the Criminal Procedure (Scotland) Act 19952; and

  • “the 2016 Act” means the Criminal Justice (Scotland) Act 2016.

Appointed day2

17th January 2017 is the day appointed for the coming into force of the provisions of the 2016 Act specified in column 1 of the table in the schedule (the subject matter of which is described in column 2 of that table).

Saving provision – judicial examination3

Despite their repeal by section 78 of the 2016 Act, the following provisions of the 1995 Act have effect on and after 17th January 2017 (“the appointed day”) as they had effect immediately before that date—

a

sections 36(10) and (11) and 37, but only in relation to any examination, or further examination, occurring before the appointed day;

b

section 38, but only in relation to any transcript served on the accused under section 37(6)(a) of the 1995 Act in relation to any examination, or further examination, occurring before the appointed day;

c

section 68(1), but only in relation to a record made under section 37 of the 1995 Act in relation to any examination, or further examination, occurring before the appointed day;

d

section 79(2)(b)(iii), but only in relation to an application under section 278(2) of the 1995 Act in respect of a record made under section 37 of that Act in relation to any examination, or further examination, occurring before the appointed day; and

e

section 278, but only in relation to a record made under section 37 of the 1995 Act in relation to any examination, or further examination, occurring before the appointed day.

MICHAEL MATHESONA member of the Scottish GovernmentSt Andrew’s House,Edinburgh

SCHEDULE

Article 2

Column 1

Provisions of the 2016 Act

Column 2

Subject matter

Section 60

Power to modify application of Part 1

Section 61

Further provision about vulnerable persons

Section 62

Meaning of constable

Section 63

Meaning of officially accused

Section 64

Meaning of police custody

Section 78

Proceedings on petition

Section 82

Preliminary hearings

Section 83

Plea of guilty

Section 87

Preliminary pleas in summary cases

Section 88

Preliminary diets in solemn cases

Section 89

Extending certain time limits: summary

Section 90

Extending certain time limits: solemn

Section 91

Certain lateness not excusable

Section 92

Advocation in solemn proceedings

Section 93

Advocation in summary proceedings

Section 94

Finality of appeal proceedings

Section 95

Courts reform: spent provisions

Section 96

References by SCCRC

Section 98

Meaning of appropriate adult support

Section 99

Responsibility for ensuring availability of appropriate adult support

Section 100

Assessment of quality of appropriate adult support

Section 101

Training for appropriate adults

Section 104

Elaboration of regulation making powers under Chapter

Section 105

Procedure for making regulations under Chapter

Section 106

Other powers of Ministers unaffected

Section 110(2)(a)

Live television links: related repeals

Section 111(1)

Electronic proceedings: court rules

EXPLANATORY NOTE

(This note is not part of the Order)

This Order brings into force various provisions of the Criminal Justice (Scotland) Act 2016 (“the 2016 Act”).

Article 2 brings into force, on 17th January 2017, the provisions of the 2016 Act specified in the schedule of the Order.

Sections 60 to 64 of the 2016 Act make provision in relation to arrest and custody.

Sections 78, 82 and 83 of the 2016 Act make amendments to the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) in relation to solemn procedure.

Sections 87 to 96 of the 2016 Act make amendments to the 1995 Act in relation to appeals and references to the High Court by the Scottish Criminal Cases Review Commission.

Sections 98 to 101 and sections 104 to 106 of the 2016 Act make provision in relation to appropriate adult support for vulnerable persons.

Sections 110(2)(a) and 111(1) of the 2016 Act make provision in relation to, respectively, an appellant’s appearance at certain diets and the power of the High Court to make rules in relation to electronic proceedings.

Article 3 makes saving provision to continue the effect of certain provisions of the 1995 Act repealed by section 78 of the 2016 Act in relation to examinations occurring before 17th January 2017 (“the appointed day”).

Paragraph (a) of that article continues the effect of section 36(10) of the 1995 Act so as to ensure that where an ostensible defence is disclosed in the course of an examination, or further examination, occurring before the appointed day, the prosecutor is required to secure the investigation of that defence so far as is reasonably practical. That paragraph also continues the effect of section 36(11) of the 1995 Act, so that the duty to investigate a defence under section 36(10) continues not to apply where that defence is not capable of being investigated. Finally, paragraph (a) continues the effect of section 37 of the 1995 Act in respect of an examination, or further examination, occurring before the appointed day so as to ensure that the records of such an examination continue to be prepared in accordance with that section.

Paragraph (b) of article 3 continues the effect of section 38 of the 1995 Act so as to ensure that any verbatim transcript of an examination, or further examination, occurring before the appointed day which is served on the accused under section 37(6)(a) of the 1995 Act may be rectified in accordance with section 38.

Paragraph (c) of article 3 continues the effect of section 68(1) of the 1995 Act in relation to a record made under section 37 in respect of an examination, or further examination, occurring before the appointed day. This ensures that a list of productions with an indictment must continue to include such a record.

Finally, paragraphs (d) and (e) make provision about the leading as evidence of a record made under section 37 of the 1995 Act in relation to an examination, or further examination, occurring before the appointed day. Paragraph (e) continues the effect of section 278 of the 1995 Act so as to ensure that such a record may be received in evidence without being sworn to by witnesses, subject to any application under section 278(2) to have that record excluded from evidence. Paragraph (d) continues the effect of section 79(2)(b)(iii) of the 1995 Act so as to ensure that an application under section 278(2) continues to be a preliminary issue in proceedings of which notice requires to be given under section 79(1) of the 1995 Act.

The Bill for the 2016 Act received Royal Assent on 13th January 2016. Sections 71, 73 to 77 and 115 to 118 came into force on the following day.

NOTE AS TO EARLIER COMMENCEMENT ORDERS

(This note is not part of the Order)

The following provisions of the 2016 Act have been brought into force by commencement orders made before the date of this Order.

Provision

Date of Commencement

Instrument. No.

Section 84

10th March 2016

S.S.I. 2016/95

Section 112

1st July 2016

S.S.I. 2016/199