Law Reform (Miscellaneous Provisions) (Scotland) Act 1990

Part IVE+W+S Miscellaneous Reforms

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, ”.

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Drug trafficking confiscation ordersS

63 Registration and enforcement of external confiscation orders.S

The following sections shall be substituted for section 30 of the M5Criminal Justice (Scotland) Act 1987—

“30 Enforcement of other external orders.

(1)Her Majesty may by Order in Council—

(a)direct in relation to a country or territory outside the United Kingdom designated by the order (“a designated country”) that, subject to such modifications as may be specified, this Part of this Act shall apply to external confiscation orders and to proceedings which have been or are to be instituted in the designated country and may result in an external confiscation order being made there;

(b)make—

(i)such provision in connection with the taking of action in the designated country with a view to satisfying a confiscation order; and

(ii)such provision as to evidence or proof of any matter for the purposes of this section and section 30A of this Act; and

(iii)such incidental, consequential and transitional provision,

as appears to Her Majesty to be expedient; and

(c)without prejudice to the generality of this subsection, direct that in such circumstances as may be specified proceeds which arise out of action taken in the designated country with a view to satisfying a confiscation order shall be treated as reducing the amount payable under the order to such extent as may be specified.

(2)In this Part of this Act—

• “external confiscation order” means an order made by a court in a designated country for the purpose of recovering payments or other rewards received in connection with drug trafficking or their value; and

• “modifications” includes additions, alterations and omissions.

(3)An Order in Council under this section may make different provision for different cases or classes of case.

(4)The power to make an Order in Council under this section includes power to modify this Part of this Act in such a way as to confer power on a person to exercise a discretion.

(5)An Order in Council under this section shall not be made unless a draft of the Order has been laid before Parliament and approved by a resolution of each House of Parliament.

30A Registration of external confiscation orders.

(1)On an application made by or on behalf of the Government of a designated country, the Court of Session may register an external confiscation order made there if—

(a)it is satisfied that at the time of registration the order is in force and not subject to appeal;

(b)it is satisfied, where the person against whom the order is made did not appear in the proceedings, that he received notice of the proceedings in sufficient time to enable him to defend them; and

(c)it is of the opinion that enforcing the order in Scotland would not be contrary to the interests of justice.

(2)In subsection (1) above “appeal” includes—

(a)any proceedings by way of discharging or setting aside a judgment; and

(b)an application for a new trial or a stay of execution.

(3)The Court of Session shall cancel the registration of an external confiscation order if it appears to the court that the order has been satisfied by payment of the amount due under it or by the person against whom it was made serving imprisonment in default of payment or by any other means.”

Matrimonial interdictsS

64 Matrimonial interdicts.S

In section 15 of the M6Matrimonial Homes (Family Protection) (Scotland) Act 1981 (powers of arrest attached to matrimonial interdicts)—

(a)in subsection (2), after the words “such interdict” there shall be inserted “ together with the attached power of arrest ”; and

(b)in subsection (4)—

(i)after the word “interdict” in the second place where it occurs there shall be inserted “ together with the attached power of arrest ”; and

(ii)at the end there shall be added “ and, where the application to attach the power of arrest to the interdict was made after the interdict was granted, a copy of that application and of the interlocutor granting it and a certificate of service of the interdict together with the attached power of arrest ”.

HomelessnessS

65 Homelessness.S

(1)Section 24 of the M7Housing (Scotland) Act 1987 (definition of homelessness and persons threatened with homelessness) shall be amended as follows.

(2)After subsection (2) there shall be inserted the following subsections—

“(2A)A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.

(2B)Regard may be had, in determining whether it would be reasonable for a person to continue to occupy accommodation, to the general circumstances prevailing in relation to housing in the area of the local authority to whom he has applied for accommodation or for assistance in obtaining accommodation.”

(3)In subsection (3), after paragraph (b) there shall be inserted—

“(bb)it is probable that occupation of it will lead to—

(i)violence; or

(ii)threats of violence which are likely to be carried out,

from some other person who previously resided with that person, whether in that accommodation or elsewhere, or”.

ArbitrationS

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Judicial factorsS

67 Further provision as to discharge of judicial factors.S

After section 34 (discharge of factors, tutors and curators) of the M8Judicial Factors Act 1849 there shall be inserted the following section—

“34A Further provision as to discharge of factors, tutors and curators.

The Court may by act of sederunt make provision for the discharge of factors, tutors and curators by means other than the presentation of a petition under section 34 of this Act where the factory, tutory or curatory is terminated by reason of the recovery, death or coming of age of the ward, or by reason of the exhaustion of the estate.”.

Avoidance of civil liability by non-contractual noticeS

68 Amendment of Unfair Contract Terms Act 1977.S

(1)The M9Unfair 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.

Liability in respect of services to injured personsS

69 Future services to injured person.S

(1)For subsection (2) of section 8 of the M10Administration of Justice Act 1982 (services rendered to injured person) there shall be substituted the following subsections—

“(2)The injured person shall be under an obligation to account to the relative for any damages recovered from the responsible person under subsection (1) above.

(3)Where, at the date of an award of damages in favour of the injured person, it is likely that necessary services will, after that date, be rendered to him by a relative in consequence of the injuries in question, then, unless the relative has expressly agreed that no payment shall be made in respect of those services, the responsible person shall be liable to pay to the injured person by way of damages such sum as represents—

(a)reasonable remuneration for those services; and

(b)reasonable expenses which are likely to be incurred in connection therewith.

(4)The relative shall have no direct right of action in delict against the responsible person in respect of any services or expenses referred to in this section.”

(2)Without prejudice to Parts II and III of the M11Prescription and Limitation (Scotland) Act 1973, this section shall apply to rights accruing both before and after the date appointed for its coming into force, but shall not affect any proceedings commenced before that date.

Blood and other samples in civil proceedingsS

70 Blood and other samples in civil proceedings.S

(1)In any civil proceedings to which this section applies, the court may (whether or not on application made to it) request a party to the proceedings—

(a)to provide a sample of blood or other body fluid or of body tissue for the purpose of laboratory analysis;

(b)to consent to the taking of such a sample from a child in relation to whom the party has power to give such consent.

(2)Where a party to whom a request under subsection (1) above has been made refuses or fails—

(a)to provide or, as the case may be, to consent to the taking of, a sample as requested by the court, or

(b)to take any step necessary for the provision or taking of such a sample,

the court may draw from the refusal or failure such adverse inference, if any, in relation to the subject matter of the proceedings as seems to it to be appropriate.

(3)In section 6 of the M12Law Reform (Parent and Child) (Scotland) Act 1986 (determination of parentage by blood sample)—

(a)in subsection (1), for the words “blood sample” there shall be substituted “ sample of blood or other body fluid or of body tissue ”; and

(b)in each of subsections (2), (3) and (4), for the words “a blood” there shall be substituted “ such a ”.

(4)This section applies to any civil proceedings brought in the Court of Session or the sheriff court—

(a)on or after the date of the commencement of this section; or

(b)before the said date in a case where the proof has not by that date begun.

Powers of attorneyS

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Execution of documents by companiesS

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