Law Reform (Miscellaneous Provisions) (Scotland) Act 1990

Prospective

Evidence by children in criminal trialsS

56 Evidence of children through television link in criminal proceedings.S

(1)Subject to subsections (2) and (3) below, where a child has been cited to give evidence in a trial, the court may, on an application being made to it, authorise the giving of evidence by the child by means of a live television link.

(2)The court may grant an application under subsection (1) above only on cause shown having regard in particular to—

(a)the possible effect on the child if required to give evidence, no such application having been granted; and

(b)whether it is likely that the child would be better able to give evidence if such application were granted.

(3)In considering whether to grant an application under subsection (1) above, the court may take into account, where appropriate, any of the following—

(a)the age and maturity of the child;

(b)the nature of the alleged offence;

(c)the nature of the evidence which the child is likely to be called on to give; and

(d)the relationship, if any, between the child and the accused.

57 Transfer of cases in which child’s evidence is to be given through television link.S

(1)Where a sheriff to whom an application has been made under section 56 of this Act would have granted the application but for the lack of accommodation or equipment necessary to achieve the purpose of the application, he may by order transfer the case to any sheriff court which has such accommodation and equipment available, being a sheriff court in the same sheriffdom.

(2)The sheriff court to which a case is transferred under this section shall be deemed to have granted an application under that section in relation to the case.

58 Identification of accused by child.S

Where a court has, or is deemed to have, granted an application made under section 56 of this Act in relation to a child cited to give evidence in a trial, and the child gives evidence that he recalls having identified, prior to the trial, a person alleged to have committed an offence, the evidence of a third party as to the identification of that person by the child prior to the trial shall be admissible as evidence as to such identification.

59 Interpretation of sections 56, 57 and 58.S

In sections 56, 57 and 58 of this Act, unless the contrary intention appears—

• “child” means a person under the age of 16 years;

• “court” means the High Court of Justiciary or the sheriff court; and

• “trial” means a trial under solemn or under summary procedure.

Prospective

Sheriff court jurisdictionS

60 Criminal jurisdiction of sheriff court.S

The following subsection shall be inserted at the end of each of sections 3 and 288 of the M1Criminal Procedure (Scotland) Act 1975 to form subsection (4) and subsection (5) respectively of these sections—

“(0)Where an offence is alleged to have been committed in one district in a sheriffdom, it shall be competent to try that offence in a sheriff court in any other district in that sheriffdom.”

Prospective

Treatment of offendersS

61 Probation and community service orders and supervision and care of persons on probation or released from prison etc.S

(1)Sections 183 and 384 of the M2Criminal Procedure (Scotland) Act 1975 (probation) shall be amended as follows—

(a)at the beginning of subsection (1) of each section there shall be inserted “Subject to subsection (1A) below,”;

(b)after subsection (1) of each section there shall be inserted the following subsection—

“(1A)A court shall not make a probation order under subsection (1) above unless it is satisfied that suitable arrangements for the supervision of the offender can be made by the local authority in whose area he resides or is to reside.”; and

(c)in subsection (4) of each section—

(i)for the words “necessary for” there shall be substituted “conducive to”; and

(ii)for the word “for” in the second place where it occurs there shall be substituted “to”.

(2)In subsection (1) of each of sections 186 and 387 of that Act (failure to comply with probation order)—

(a)after the word “from” there shall be inserted “(a)”; and

(b)after the word “probationer” where it first occurs there shall be inserted—

“(b)the director of social work of the local authority whose officer is supervising the probationer; or

(c)an officer appointed by the director of social work to act on his behalf for the purposes of this subsection,”.

(3)In section 1(1) of the M3Community Service by Offenders (Scotland) Act 1978 (community service orders), for the words “dealing with him in any other way” there shall be substituted “imposing on him a sentence of, or including, imprisonment or any other form of detention”.

(4)In section 27 of the M4Social Work (Scotland) Act 1968 (supervision and care of persons on probation or released from prison etc)—

(a)at the end of subsection (1) there shall be added— “; and

(c)the provision of advice, guidance and assistance for persons in their area who, within 12 months of their release from prison or any other form of detention, request such advice, guidance or assistance.”; and

(b)after paragraph (a) of subsection (3) there shall be inserted the following paragraph—

“(aa)the matters to be included in such a report;”.

(5)In section 27A of that Act (grants in respect of community service facilities)—

(a)at the beginning there shall be inserted “(1)”; and

(b)for the words from “for the purposes” to the end there shall be substituted—

“(a)for the purposes mentioned in section 27(1) of this Act; and

(b)for such other similar purposes as the Secretary of State may prescribe.

(2)Before exercising his power under subsection (1)(b) above the Secretary of State shall consult local authorities and such other bodies as he considers appropriate.”.

(6)In section 27B of that Act (grants in respect of hostel accommodation for certain persons)—

(a)at the beginning there shall be inserted “(1)”; and

(b)for the words from “sub-paragraphs (i) and (ii)” to the end there shall be substituted— “subsection (2) below.

(2)The persons referred to in subsection (1) above are—

(a)persons mentioned in section 27(1)(b)(i) and (ii) of this Act;

(b)persons who have been charged with an offence and are on bail;

(c)persons who have been released from prison or any other form of detention but do not fall within section 27(1)(b)(ii) of this Act; and

(d)such other classes of persons as the Secretary of State may prescribe.

(3)Before exercising his power under subsection (2)(d) above the Secretary of State shall consult local authorities and such other persons as he considers appropriate.”.

(7)In section 94(1) of that Act (interpretation), in paragraph (c) of the definition of “prescribed”, after the word “sections” there shall be inserted “27A, 27B,”.

62 Supervised attendance orders as alternative to imprisonment on fine default.S

(1)A court may make a supervised attendance order in the circumstances specified in subsection (3) below [F1and shall, subject to paragraph 1 of Schedule 6 to this Act, make such an order where subsection (3A) below applies].

(2)A supervised attendance order is an order made by a court [F2in respect] of an offender requiring him—

(a)to attend a place of supervision for such [F3period, being a period of not less than 10 hours and not more than—

(i)where the amount of the fine, part or instalment which the offender has failed to pay does not exceed level 1 on the standard scale, 50 hours; and

(ii)in any other case, 100 hours]

, as is specified in the order; and

(b)during that [F4period], to carry out such instructions as may be given to him by the supervising officer.

(3)The circumstances are where—

(a)the offender is of or over [F518] years of age; and

(b)having been convicted of an offence, he has had imposed on him a fine which (or any part or instalment of which) he has failed to pay and either of the following sub-paragraphs applies—

(i)the court, prior to the commencement of this section, has imposed on him a period of imprisonment under paragraph (a) of subsection (1) of section 407 of the M5Criminal Procedure (Scotland) Act 1975 (power of court, when imposing a fine, to impose also imprisonment on default) but he has not served any of that period of imprisonment;

(ii)the court, but for this section, would also have imposed on him a period of imprisonment under that paragraph or paragraph (b) of that subsection (power of court to impose imprisonment when a person fails to pay a fine or any part or instalment thereof); and

(c)the court considers a supervised attendance order more appropriate than the serving of or, as the case may be, imposition of such a period of imprisonment.

[F6(3A)This subsection applies where—

(a)the court is a court prescribed for the purposes of this subsection by order made by the Secretary of State;

(b)the offender is of or over 18 years of age and is not serving a sentence of imprisonment;

(c)having been convicted of an offence, he has had imposed on him a fine which (or any part or instalment of which) he has failed to pay and the court, but for this section, would have imposed on him a period of imprisonment under section 407(1)(b) of the Criminal Procedure (Scotland) Act 1975 (power of court to impose imprisonment for non-payment of fine); and

(d)the fine, or as the case may be, the part or instalment, is of an amount not exceeding level 2 on the standard scale.

(3B)An order under subsection (3A)(a) above shall be made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

(4)Where, in respect of an offender, a court makes a supervised attendance order in circumstances where sub-paragraph (i) of paragraph (b) of subsection (3) above applies, the making of that order shall have the effect of discharging the sentence of imprisonment imposed on the offender.

[F7(4A)The coming into force of a supervised attendance order shall have the effect of discharging the fine referred to in subsection (3)(b) or (3A)(c) above or, as the case may be, section 412A(3)(a) or 412B(1) of the Criminal Procedure (Scotland) Act 1975.]

(5)Schedule 6 to this Act has effect for the purpose of making further and qualifying provision as to supervised attendance orders.

(6)In this section—

• [F8“imprisonment” includes detention;]

• “local authority” means a [F9council constituted under section 2 of the Local Government etc. (Scotland) Act 1994];

• “place of supervision” means such place as may be determined for the purposes of a supervised attendance order by the supervising officer; and

• “supervising officer”, in relation to a supervised attendance order, means a person appointed or assigned under Schedule 6 to this Act by the local authority whose area includes the locality in which the offender resides or will be residing when the order comes into force.

62 Supervised attendance orders as alternative to imprisonment on fine default.S

(1)A court may make a supervised attendance order in the circumstances specified in subsection (3) below.

(2)A supervised attendance order is an order made by a court with the consent of an offender requiring him—

(a)to attend a place of supervision for such time, being 10, 20, 30, 40, 50 or 60 hours, as is specified in the order; and

(b)during that time, to carry out such instructions as may be given to him by the supervising officer.

(3)The circumstances are where—

(a)the offender is of or over 16 years of age; and

(b)having been convicted of an offence, he has had imposed on him a fine which (or any part or instalment of which) he has failed to pay and either of the following sub-paragraphs applies—

(i)the court, prior to the commencement of this section, has imposed on him a period of imprisonment under paragraph (a) of subsection (1) of section 407 of the M18Criminal Procedure (Scotland) Act 1975 (power of court, when imposing a fine, to impose also imprisonment on default) but he has not served any of that period of imprisonment;

(ii)the court, but for this section, would also have imposed on him a period of imprisonment under that paragraph or paragraph (b) of that subsection (power of court to impose imprisonment when a person fails to pay a fine or any part or instalment thereof); and

(c)the court considers a supervised attendance order more appropriate than the serving of or, as the case may be, imposition of such a period of imprisonment.

(4)Where, in respect of an offender, a court makes a supervised attendance order in circumstances where sub-paragraph (i) of paragraph (b) of subsection (3) above applies, the making of that order shall have the effect of discharging the sentence of imprisonment imposed on the offender.

(5)Schedule 6 to this Act has effect for the purpose of making further and qualifying provision as to supervised attendance orders.

(6)In this section—

• “local authority” means a regional or islands council;

• “place of supervision” means such place as may be determined for the purposes of a supervised attendance order by the supervising officer; and

• “supervising officer”, in relation to a supervised attendance order, means a person appointed or assigned under Schedule 6 to this Act by the local authority whose area includes the locality in which the offender resides or will be residing when the order comes into force.

Prospective

68 Amendment of Unfair Contract Terms Act 1977.S

(1)The M10Unfair Contract Terms Act 1977 shall be amended in accordance with this section.

(2)In section 15(1) (scope of Part II), the words “applies only to contracts,” shall cease to have effect.

(3)In section 16 (liability for breach of duty)—

(a)in subsection (1)—

(i)at the beginning there shall be inserted the words “Subject to subsection (1A) below,”;

(ii)after the word “contract” in the first place where it occurs there shall be inserted “, or a provision of a notice given to persons generally or to particular persons,”;

(iii)after the word “term” in the second place where it occurs there shall be inserted “or provision”; and

(iv)at the end of paragraph (b) there shall be inserted the words “or, as the case may be, if it is not fair and reasonable to allow reliance on the provision”;

(b)after subsection (1) there shall be inserted the following subsection—

“(1A)Nothing in paragraph (b)

of subsection (1) above shall be taken as implying that a provision of a notice has effect in circumstances where, apart from that paragraph, it would not have effect.”; and

(c)in subsection (3)—

(i)after the word “contract” there shall be inserted “or a provision of a notice”; and

(ii)after the word “term” in the second place where it occurs there shall be inserted “or provision”.

(4)In section 24 (the “reasonableness” test)—

(a)after subsection (2) there shall be inserted the following subsection—

“(2A)In determining for the purposes of this Part of this Act whether it is fair and reasonable to allow reliance on a provision of a notice (not being a notice having contractual effect), regard shall be had to all the circumstances obtaining when the liability arose or (but for the provision) would have arisen.”;

(b)in subsection (3)—

(i)after the word “contract” in the first place where it occurs there shall be inserted “or a provision of a notice”;

(ii)after the word “contract” in the second place where it occurs there shall be inserted “or whether it is fair and reasonable to allow reliance on the provision”;

(iii)after the word “above” there shall be inserted “in the case of a term in a contract”; and

(iv)in paragraph (a), after the word “term” there shall be inserted “or provision”; and

(c)in subsection (4), after the word “contract” there shall be inserted “or that it is fair and reasonable to allow reliance on a provision of a notice”.

(5)In section 25 (interpretation of Part II)—

(a)in subsection (1), after the definition of “hire-purchase agreement” there shall be inserted—

(b)subsections (3)(d) and (4) shall cease to have effect.

(6)This section shall have effect only in relation to liability for any loss or damage which is suffered on or after the date appointed for its coming into force.