Crime and Punishment (Scotland) Act 1997 (c. 48)

(The document as of February, 2008)

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" 35A Power of Board to require information

(1) The Board may, for the purpose of determining whether--

(a) a solicitor or any employee of him or of his firm may be committing a criminal offence in connection with criminal legal assistance; or

(b) a solicitor may be seeking, in relation to criminal legal assistance, to recover from the Fund money to which he is not entitled, as, for example, by performing unnecessary work; or

require any solicitor or firm to produce such information and documents relating wholly or partly to the provision of criminal legal assistance as it may specify, at such time and place as it may specify.

(2) If it appears to the Board that there is good reason to do so, it may authorise any of its officers to require any solicitor or firm to produce forthwith any such information or documents as are mentioned in subsection (1) above.

(3) An officer of the Board acting under subsection (2) above shall, if requested to do so, produce evidence of his authorisation by the Board.

(4) The power under this section to require production of information and documents includes power--

(a) to require any person, who is a present or past partner or employee of any such solicitor or firm and who appears to the Board or one of its officers to have any information or documents, to produce them;

(b) if any documents are produced--

(i) to take copies of them or extracts from them; and

(ii) to require the person producing them, or any other person who is a present or past partner or employee of the solicitor or firm in question, to provide an explanation of them;

(c) if any document or information is held other than in legible form, to require the production of a copy of it in legible form; and

(d) if documents are not produced, to require the person who was required to produce them to state, to the best of his knowledge and belief, where they are.

(5) Where any person claims a lien over any documents required to be produced under this section the production is without prejudice to the lien.

(6) Any person who is required under this section to produce information or documents shall, notwithstanding any duty of confidentiality, comply with that requirement; and if he fails to comply he shall be guilty of an offence and liable--

(a) on conviction on indictment, to a fine; and

(b) on summary conviction, to a fine not exceeding the statutory maximum.

(7) Where a person is charged with an offence under subsection (6) above in respect of a requirement to produce documents, it shall be a defence for him to prove that they were not in his possession or under his control and that it was not reasonably practicable for him to comply with the requirement.

(8) No information or documents obtained by the Board by virtue of this section or section 35B of this Act shall be used by it or by any of its employees for any purpose other than the purposes mentioned in subsection (1) above.

(9) Section 34 of this Act applies in relation to a contravention of subsection (8) above as it applies in relation to a contravention of subsection (1) of that section.

Power of entry

35B Power of Board to enter premises and investigate

(1) Where a sheriff is satisfied, by evidence on oath given on behalf of the Board by a person authorised by the Board for that purpose, that there are reasonable grounds for believing that--

(a) a solicitor or any employee of him or his firm may be committing a criminal offence in connection with criminal legal assistance; or

(b) a solicitor may be seeking, in relation to criminal legal assistance, to recover from the Fund money to which he is not entitled, as, for example, by performing unnecessary work; or

(d) there are on any premises documents the production of which has been required under section 35A of this Act and which have not been produced in accordance with that requirement,

he may issue a warrant under this section to a person authorised for that purpose by the Board.

(2) A person holding a warrant under this section may--

(a) search the premises named in the warrant;

(b) take possession of any documents which appear to him to relate, wholly or partly, to any criminal legal assistance provided in or from those premises;

(d) take any other steps which appear to him to be necessary for preserving those documents or preventing their destruction or interference with them; and

(e) require any person named in the warrant to provide an explanation of the documents or to state where they may be found.

(3) The duty to produce documents and to provide explanations applies notwithstanding any duty of confidentiality, but where any person claims a lien over any documents the production is without prejudice to that lien.

(4) A warrant under this section shall continue in force for the period of one month from the date when it is issued.

(5) The Board may retain any documents which it has obtained under this section for--

(a) a period of not more than 12 months; or

(b) where, within that period, proceedings to which the documents are relevant are commenced by the Board, the Law Society or a prosecutor, until the conclusion of those proceedings.

(6) Any person who intentionally obstructs the execution of a warrant issued under this section or who fails without reasonable excuse to comply with any requirement imposed in accordance with subsection (2)(e) above shall be guilty of an offence, and liable--

(a) on conviction on indictment, to a fine; and

(b) on summary conviction, to a fine not exceeding the statutory maximum.

Suspension of payments to solicitor

35C Suspension of payments to solicitor

(1) Where it appears to the Board that any solicitor has, in connection with the provision of criminal legal assistance, acted in such a way as to justify action being taken against him by the Law Society or the Scottish Solicitors' Discipline Tribunal it shall refer the matter to either of those bodies so that they can consider whether to take action under section 31(3) of this Act.

(2) Where it appears to the Board that any solicitor may have been guilty of a criminal offence it shall refer the matter to the police or the procurator fiscal, so that they can consider whether any criminal offence may have been committed.

(3) Where the Board refers a matter to any of the bodies mentioned in subsections (1) or (2) above, it may disclose to that body any information or documents which it has obtained from the solicitor concerned under this Act.

(4) Where the Board has referred a matter to any of the bodies mentioned in subsections (1) or (2) above it may--

(a) suspend the solicitor concerned from providing criminal legal assistance; and

(b) withhold payment of any fees due to him in respect of such work,

pending the outcome of the investigation by the body or bodies to which the matter has been referred.

(5) A solicitor who is suspended from providing criminal legal assistance under subsection (4)(a) above shall, in accordance with arrangements approved by the Board, transfer--

(a) any work currently being undertaken by him for any client by way of criminal legal assistance; and

(b) notwithstanding any lien to which he might otherwise be entitled, any documents connected with any such work,

to a solicitor (or, where registration is in force, a registered solicitor). " .

54 Regulations in relation to criminal legal assistance

After section 41 of the 1986 Act there shall be inserted the following section--

" 41A Regulations in relation to criminal legal assistance

(1) The Secretary of State may by regulations made under this section provide that any reference in, under or by virtue of this Act to "criminal legal assistance" shall relate, for any of the purposes of this Act, to such class or classes of criminal legal assistance as he thinks appropriate.

(2) Without prejudice to the generality of subsection (1) above, the power conferred by that subsection may be exercised by reference to--

(a) the class or classes of person who are to receive criminal legal assistance;

(b) the class or classes of case in respect of which such assistance is to be given;

(d) the place or places where the assistance is to be provided;

(e) the period for which it is to be provided,

or to any combination of the foregoing; and different provision may be made under that subsection for different purposes, or in relation to different areas or different periods. " .

Part VI Miscellaneous and General

Miscellaneous

55 Liberation of child by police

(1) Section 43 of the 1995 Act (arrangements where child arrested) shall be amended in accordance with this section.

(2) In subsection (1), for the words from "shall", in the second place where it occurs, to the end there shall be substituted the words-- " may liberate him--

(a) on a written undertaking being entered into by him or his parent or guardian that he will attend at a court and at a time specified in the undertaking; or

(b) unconditionally. " .

(3) In subsection (6)--

(a) for the words from "is" to "diet" there shall be substituted the words "fails to appear at the court and at the time specified in the undertaking entered into by him or on his behalf under subsection (1) above"; and

(b) after the word "conviction" there shall be inserted the words "of any charge made against him at the time he was liberated under that subsection".

56 Powers of the court on remand or committal of children and young persons

(1) Section 51 of the 1995 Act (remand or committal of children and young persons) shall be amended in accordance with this section.

(2) In subsection (1)--

(a) in paragraph (a), for the words "in whose area the court is situated" there shall be substituted the words "which it considers appropriate";

(b) after paragraph (a) there shall be inserted the following paragraph--

" (aa) if the person is over 16 years of age and subject to a supervision requirement, the court may, instead of committing him to prison, commit him to the local authority which it considers appropriate to be detained as mentioned in sub-paragraphs (i) or (ii) of paragraph (a) above; " and

(c) in paragraph (b), after the "age", where it first occurs, there shall be inserted the words "to whom paragraph (aa) above does not apply".

(3) In subsection (4), for the words "in whose area the court is situated" there shall be substituted the words "which he considers appropriate".

(4) After subsection (4) there shall be inserted the following subsection--

" (4A) The local authority which may be appropriate in relation to a power to commit a person under paragraphs (a) or (aa) of subsection (1) or subsection (4) above may, without prejudice to the generality of those powers, be--

(a) the local authority for the area in which the court is situated;

(b) if the person is usually resident in Scotland, the local authority for the area in which he is usually resident;

(c) if the person is subject to a supervision requirement, the relevant local authority within the meaning of Part II of the [1995 c. 36.] Children (Scotland) Act 1995 in relation to that requirement. " .

57 Precognitions

(1) After section 67 of the 1995 Act, there shall be inserted the following section--

" 67A Failure of witness to attend for, or give evidence on, precognition

(1) This section applies where a prosecutor has obtained a warrant to cite a witness for precognition and has served a citation for precognition on the witness.

(2) Where this section applies, a witness who--

(a) fails without reasonable excuse, after receiving at least 48 hours notice, to attend for precognition by a prosecutor at the time and place mentioned in the citation served on him; or

(b) refuses when so cited to give information within his knowledge regarding any matter relative to the commission of the offence in relation to which such precognition is taken,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale or to a term of imprisonment not exceeding 21 days. " .

(2) In section 140 of the 1995 Act (citation)--

(a) in subsection (1), after the words "for" there shall be inserted the words " --

(a) the citation of witnesses for precognition by the prosecutor, whether or not any person has been charged with the offence in relation to which the precognition is taken; and

(b) " ; and

(b) subsection (3) shall cease to have effect.

58 Information concerning jurors

(1) Section 85 of the 1995 Act (citation and attendance of jurors) shall be amended as follows.

(2) In subsection (1), the words from "but" to the end shall cease to have effect.

(3) For subsection (2), there shall be substituted the following subsections--

" (2) A list of jurors shall--

(a) contain not less than 30 names;

(b) be prepared under the directions of the clerk of the court before which the trial is to take place;

(d) be headed "List of Assize for the sitting of the High Court of Justiciary (or the sheriff court of . at .) on the . of .".

(2A) The clerk of the court before which the trial is take place shall, on an application made to him by or on behalf of an accused, supply the accused, free of charge, on the day on which the trial diet is called, and before the oath has been administered to the jurors for the trial of the accused, with a copy of a list of jurors prepared under subsection (2) above.

(2B) Where an accused has been supplied under subsection (2A) above with a list of jurors--

(a) neither he nor any person acting on his behalf shall make a copy of that list, or any part thereof; and

(b) he or his representative shall return the list to the clerk of the court after the oath has been administered to the jurors for his trial.

(2C) A person who fails to comply with subsection (2B) above shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale. " .

59 Certification of previous convictions in criminal proceedings

(1) Section 285 of the 1995 Act (proof of previous convictions) shall be amended in accordance with the following provisions of this section.

(2) In subsection (2)--

(a) for the words "or on behalf of the Chief Constable of Strathclyde" there shall be substituted the words "the Secretary of State or by a person authorised by him to sign such a certificate";

(b) for the words "by the person by or on whose behalf the certificate is signed" there shall be substituted the words "in pursuance of a service provided and maintained by the Secretary of State under or by virtue of section 36 of the [1967 c. 77.] Police (Scotland) Act 1967 or by or on behalf of the Commissioner of Police of the Metropolis".

(3) In subsection (5)--

(a) for the words "or on behalf of the Chief Constable of Strathclyde" there shall be substituted the words "the Secretary of State or by a person authorised by him to sign such a certificate";

(b) for the words "or on behalf of the Chief Constable" there shall be substituted the words "the Secretary of State or by a person authorised by him to sign such a certificate or by or on behalf of".

60 Grants for forensic medical services

The Lord Advocate may out of money provided by Parliament make grants of such amount and on such conditions as he considers appropriate to any person for the provision to him by that person of forensic medical services.

61 Confiscation of alcohol from persons under 18

(1) Where a constable has reasonable grounds for suspecting that a person in a public place--

(a) is under the age of 18; and

(b) is in possession of alcoholic liquor, within the meaning of the [1976 c. 66.] Licensing (Scotland) Act 1976,

he may require that person to surrender that liquor to him, and may dispose of it in such manner as he considers appropriate; and he may also require that person to supply him with his name and address.

(2) Where a constable has reasonable grounds for suspecting that a person of or over the age of 18 has alcoholic liquor in his possession in a public place and that that person--

(a) has supplied such liquor to a person under the age of 18 for consumption in a public place; or

(b) intends that that liquor should be consumed in a public place by a person under the age of 18,

the constable may require the person in possession of the liquor to surrender it to him, and may dispose of it in such manner as he considers appropriate; and he may also require that person to supply him with his name and address.

(3) Subject to subsection (4) below, it shall be an offence punishable on summary conviction by a fine not exceeding level 2 on the standard scale for a person to fail to comply with a requirement made under subsection (1) or (2) above.

(4) Where a constable makes a requirement such as is mentioned in subsection (1) or (2) above he shall inform the person concerned--

(a) of his suspicion; and

(b) of the fact that failure to comply with a requirement made under either of those provisions is an offence.

(5) A constable may arrest without warrant any person who fails to comply with a requirement made under subsection (1) or (2) above.

(6) In this section "public place" includes--

(a) any place to which the public have access for the time being (whether on payment of a fee or otherwise); and

(b) any place to which the public do not have access but to which the persons mentioned in subsection (1) or (2) have unlawfully gained access,

but does not include licensed premises within the meaning of the [1976 c. 66.] Licensing (Scotland) Act 1976.

General

62 Minor and consequential amendments, and repeals

(1) The enactments mentioned in Schedule 1 to this Act shall have effect subject to the amendments specified therein, being minor amendments and amendments consequential upon the provisions of this Act.

(2) The enactments mentioned in Schedule 3 to this Act are repealed to the extent specified in the third column of that Schedule.

63 Financial provisions

(1) There shall be paid out of money provided by Parliament any expenses incurred--

(a) by the Secretary of State, under--

(i) section 245C(1) of the 1995 Act (remote monitoring of restriction of liberty orders) (as inserted by section 5 of this Act);

(ii) Part XA of the 1995 Act (Scottish Criminal Cases Review Commission) (as inserted by section 25 of this Act);

(iii) section 36(1) of the [1967 c. 77.] Police (Scotland) Act 1967 (common police services) (as inserted by section 46 of this Act); or

(b) by the Scottish Legal Aid Board under--

(i) section 28A(1) of the 1986 Act (power of Board to employ solicitors for criminal legal assistance) (as inserted by section 50 of this Act); or

(ii) section 33A(1) of the 1986 Act (power of Board to enter into contracts for provision of criminal legal assistance) (as inserted by section 52 of this Act); or

(2) There shall be paid out of money provided by Parliament any increase attributable to this Act in the sums payable out of money so provided under any other Act.

64 Interpretation

In this Act, unless the context otherwise requires--

"supervised release order" has the same meaning as in section 209 of the 1995 Act (supervised release orders);
"the 1984 Act" means the [1984 c. 36.] Mental Health (Scotland) Act 1984;
"the 1986 Act" means the [1986 c. 47.] Legal Aid (Scotland) Act 1986;
"the 1989 Act" means the [1989 c. 45.] Prisons (Scotland) Act 1989;
"the 1993 Act" means the [1993 c. 9.] Prisoners and Criminal Proceedings (Scotland) Act 1993;
"the 1995 Act" means the [1995 c. 46.] Criminal Procedure (Scotland) Act 1995.

65 Short title, commencement and extent

(1) This Act may be cited as the Crime and Punishment (Scotland) Act 1997.

(2) This Act, except sections 45 and 46, shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint, and different days may be appointed for different purposes.

(3) In an order under subsection (2) above made in respect of any provision of sections 49 to 54 of this Act, or of paragraph 12 of Schedule 1 to this Act--

(a) different days may be appointed for different provisions;

(b) different days may be appointed for different areas; and

(4) An order under subsection (2) above may contain such transitional and consequential provisions and savings as appear to the Secretary of State to be necessary or expedient in connection with the provisions brought into force.

(5) Subject to subsections (6) and (7) below, this Act shall extend to Scotland only.

(6) Section 4(3) and (5) of this Act shall extend to England and Wales, and section 37(4) of this Act shall extend to England and Wales and Northern Ireland.

(7) The amendment or repeal of any enactment by Schedules 1 or 3 to this Act shall have the same extent as the enactment so amended or, as the case may be, repealed.

SCHEDULES

Section 62(1).

SCHEDULE 1 Minor and Consequential Amendments

The Public Records Act 1958 (c. 51)

1 In the First Schedule to the Public Records Act 1958 (definition of public records), in Part II of the Table at the end of paragraph 3, at the appropriate place insert--

" Scottish Criminal Cases Review Commission. " .

The Police (Scotland) Act 1967 (c. 77)

2 (1) The Police (Scotland) Act 1967 shall be amended in accordance with this paragraph.

(2) Section 6(2) (application of certain provisions to appointments of ranks below assistant chief constable) shall cease to have effect.

(3) In section 17 (general functions and duties of constables)--

(a) in subsection (1), for the words "section 321(1) of the [1975 c. 21.] Criminal Procedure (Scotland) Act 1975" there shall be substituted the words "section 135(3) and (4) of the [1995 c. 46.] Criminal Procedure (Scotland) Act 1995"; and

(b) in subsection (7)(a) after the word "agreements" there shall be inserted the words "or of section 98 of the [1996 c. 16.] Police Act 1996 (cross-border aid of one police force by another)".

(4) In section 19(3) (amalgamation schemes) for the words from "reimbursed" to the end there shall be substituted the words "provided for by a grant made to the board under section 32 of this Act".

(5) In section 41(1)(b)(ii) (penalty for assaults on constables) for the words "section 289B of the Criminal Procedure (Scotland) Act 1975" there shall be substituted the words "section 225(8) of the Criminal Procedure (Scotland) Act 1995".

(6) In section 46(1)(b) (rewards) after the word "agreements" there shall be inserted the words "or of section 98 of the Police Act 1996 (cross-border aid of one police force by another)".

The Firearms Act 1968 (c. 27)

3 In section 51 of the Firearms Act 1968 (penalties for offences), after subsection (2) there shall be inserted the following subsection--

" (2A) Nothing in subsection (2) above or Schedule 6 to this Act shall prejudice the operation of section 205A of the Criminal Procedure (Scotland) Act 1995 (imprisonment for life on further conviction of certain offences). " .

The Superannuation Act 1972 (c. 11)

4 In Schedule 1 to the Superannuation Act 1972 (kinds of employment to which a scheme under section 1 of that Act may apply), at the end of the list of "Royal Commissions and other Commissions" insert--

" Scottish Criminal Cases Review Commission. " .

The House of Commons Disqualification Act 1975 (c. 24)

5 In the House of Commons Disqualification Act 1975, in Part II of Schedule 1 (bodies of which all members are disqualified), at the appropriate place insert--

" The Scottish Criminal Cases Review Commission. " .

The Sexual Offences (Scotland) Act 1976 (c. 67)

6 (1) The Sexual Offences (Scotland) Act 1976 shall cease to have effect.

(2) This paragraph shall be deemed to have come into force on 1st April 1996 and the Sexual Offences (Scotland) Act 1976 shall for the purposes of the [1995 c. 40.] Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 be regarded as a repealed enactment within the meaning of that Act.

The Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c. 55)

7 In Part I of Schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (persons ineligible for jury service), in Group B, after paragraph (w) insert--

" (wa) members and employees of the Scottish Criminal Cases Review Commission; " .

The Criminal Justice (Scotland) Act 1980 (c. 62)

8 In section 3D(1)(b) of the Criminal Justice (Scotland) Act 1980 (interpretation of sections 3A to 3C), for the words "section 3 of this Act" there shall be substituted the words "section 15(6) of the [1995 c. 46.] Criminal Procedure (Scotland) Act 1995".

The Mental Health (Scotland) Act 1984 (c. 36.)

9 (1) The Mental Health (Scotland) Act 1984 shall be amended in accordance with this paragraph.

(2) In section 60 (effect of hospital orders)--

(a) in subsection (1)(a)--

(i) after the word "officer" there shall be inserted the words ", an officer on the staff of the hospital specified in the order"; and

(ii) for the words "28" there shall be substituted the word "7";

(b) in subsection (4), for the words "28" there shall be substituted the word "7".

(3) In section 62 (restriction orders)--

(a) after subsection (1) there shall be inserted the following subsection--

" (1A) Where the managers of a hospital specified in a restriction order propose to admit the patient to a hospital unit in that hospital, they shall, if that unit was not so specified, notify the Secretary of State and the Mental Welfare Commission of the patient's proposed admission to and detention in that unit; and the patient shall not be so admitted unless the Secretary of State has consented to the proposed admission. " ; and

(b) in subsection (3), for the words "section 178(3) and 379(3) of the said Act of 1975" there shall be substituted the words "section 59(3) of the said Act of 1995".

(4) In section 71 (removal to hospital of persons serving sentences of imprisonment and other persons), in subsection (4) at the beginning there shall be inserted the following words "Subject to section 71A of this Act,".

(5) After section 71 there shall be inserted the following section--

" 71A Further provision as to persons removed to hospital under section 71

(1) Where the Secretary of State is satisfied, in relation to a person in respect of whom he has made a transfer direction under section 71(1) of this Act, that--

(a) either--

(i) the person is not suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or

(ii) it is not necessary for the health or safety of the person or for the protection of other persons that he should receive such treatment; and

(b) it is not appropriate for the person to remain liable to be recalled to hospital for further treatment,

he shall by warrant direct that the person be remitted to any prison or other institution or place in which he might have been detained had he not been removed to hospital and that he be dealt with there as if he had not been so removed.

(2) Where the Secretary of State is satisfied as to the matters mentioned in subsection (1)(a) above, but not as to the matters mentioned in subsection (1)(b) above, he may either--

(a) by warrant give such direction as is mentioned in subsection (1) above; or

(b) decide that the person shall continue to be detained in hospital.

(3) If a direction is given under subsection (1) or (2)(a) above, then on the person's arrival in the prison or other institution or place to which he is remitted by virtue of that subsection the transfer direction shall cease to have effect. " .

(6) In section 72(2) (restriction directions) for the words "section 178 or 379 of the [1975 c. 21.] Criminal Procedure (Scotland) Act 1975" there shall be substituted the words "section 59 of the [1995 c. 46.] Criminal Procedure (Scotland) Act 1995".

(7) In section 74 (further provision as to transfer directions and restriction orders) in subsection (6), at the end there shall be added the words "or under Chapter I of Part III of the Crime and Punishment (Scotland) Act 1997".

(8) In section 77 (transfers to England and Wales), after subsection (5) there shall be inserted the following subsection--

" (5A) Where a patient removed under this section was immediately before his removal liable to be detained under this Act by virtue of a hospital direction made by a court in Scotland, he shall be treated as if any sentence of imprisonment passed at the time at which the hospital direction was made had been imposed by a court in England and Wales. " .

(9) In section 80 (transfers to Northern Ireland), after subsection (6), there shall be inserted the following subsection--

" (6A) Where a patient removed under this section was immediately before his removal liable to be detained under this Act by virtue of a hospital direction made by a court in Scotland, he shall be treated as if any sentence of imprisonment passed at the time at which the hospital direction was made had been imposed by a court in Northern Ireland. " .

(10) In section 82(2) (removal of certain patients from the Channel Islands), for the words "section 174 of the Criminal Procedure (Scotland) Act 1975" there shall be substituted the words "section 57(2)(a) and (b) of the Criminal Procedure (Scotland) Act 1995".

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