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

(The document as of February, 2008)

-- Back --

Page 8

Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9

(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".

(11) In section 96 (application of provisions relating to consent to treatment), in paragraph (b) for the words "section 177 or 378 of the Criminal Procedure (Scotland) Act 1975" there shall be substituted the words "section 58(9) of the [1995 c. 46.] Criminal Procedure (Scotland) Act 1995".

(12) In section 106(4) (protection of mentally handicapped patients), for the words "Section 18 of the [1976 c. 67.] Sexual Offences (Scotland) Act 1976" there shall be substituted the words "Section 16 of the [1995 c. 39.] Criminal Law (Consolidation)(Scotland) Act 1995".

(13) In section 107(3) (further protection of patients), for the words "section 80(6) of the [1980 c. 62.] Criminal Justice (Scotland) Act 1980" there shall be substituted the words "section 13(4) of the Criminal Law (Consolidation) (Scotland) Act 1995".

(14) In section 121A (warrants for arrest of escaped patients)--

(a) in subsection (1), for the words "section 30 or 108 of the [1961 c. 15. (N.I.)] Mental Health Act (Northern Ireland) 1961" there shall be substituted the words "Articles 29, 45(6) and 132 of the [S.I. 1986/595 (N.I. 4).] Mental Health (Northern Ireland) Order 1986";

(b) in subsection (3), for the words "section 107 of the Mental Health Act (Northern Ireland) 1961" there shall be substituted the words "Article 131 of the Mental Health (Northern Ireland) Order 1986"; and

(i) in the definition of "convicted mental patient", for the words "the Mental Health Act (Northern Ireland) 1961" there shall be substituted the words "the Mental Health (Northern Ireland) Order 1986"; and

(ii) in the definition of "place of safety", for the words "the said Act of 1961" there shall be substituted the words "the said Order of 1986".

(15) In section 125(1), after the definition of "hospital order" there shall be inserted the following definition--

" "hospital unit" means any part of a hospital which is treated as a separate unit; " .

(16) In Part II of Schedule 2 (application of provisions of Part V to restricted patients), for paragraph 6 there shall be substituted the following paragraph--

" 6 In section 29--

(a) for subsection (1) there shall be substituted--

" (1) A patient who is for the time being detained in a hospital or a hospital unit specified in a restriction order or a hospital direction or notified to the Secretary of State under section 62(1A) or 62A(2) of this Act may, with the consent of the Secretary of State, be transferred by the managers of the hospital--

(a) to another hospital, with the consent of the managers of that hospital; or

(b) to another hospital unit--

(i) in the hospital managed by them; or

(ii) in another hospital with the consent of the managers of that hospital. " ;

(b) in subsection (2)--

(i) after the word "hospital" there shall be inserted the words "within which or"; and

(ii) the words after "transferred" shall be omitted; and

(c) in subsection (3) for the words from "as follows" to the end of the subsection there shall be substituted the words "as if the order or direction by virtue of which he was liable under Part VI of this Act to be detained before being transferred were an order or direction for his admission or removal to the hospital or hospital unit to which he is transferred.". "

The Repatriation of Prisoners Act 1984 (c. 47)

10 (1) The Repatriation of Prisoners Act 1984 shall be amended in accordance with this paragraph.

(2) In section 2(4)(b) (transfer of prisoners out of the United Kingdom)--

(a) in sub-paragraph (ii), for the words "1(2), (3) or (4), 2(4) or 7(1) or (2)" there shall be substituted the words "1(4) or 2(4)"; and

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

" (iia) released subject to a supervised release order made under section 209 of the [1995 c. 46.] Criminal Procedure (Scotland) Act 1995; " .

(3) In section 3(9) (transfer of prisoners into the United Kingdom)--

(a) the words "or section 10", in the second place where they occur, shall cease to have effect; and

(b) after the word "sentence", in the second place where it occurs, there shall be inserted the words "or by virtue of section 10 as the designated part of his sentence".

The Foster Children (Scotland) Act 1984 (c. 56)

11 In section 13 of the Foster Children (Scotland) Act, for the words "section 47 of the [1937 c. 37.] Children and Young Persons (Scotland) Act 1937" to the end there shall be substituted the words "section 55 of the [1995 c. 36.] Children (Scotland) Act 1995 (child assessment orders) as giving the local authority reasonable cause for the suspicion mentioned in subsection (1)(a) of that section".

The Legal Aid (Scotland) Act 1986 (c. 47)

12 (1) The Legal Aid (Scotland) Act 1986 shall be amended in accordance with this paragraph.

(2) In section 4 (Scottish Legal Aid Fund)--

(a) in subsection (2)--

(i) in paragraph (a), for the words "by him" there shall be substituted the words "or in respect of payments made in accordance with regulations made under section 33(3A) of this Act";

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

" (aa) any expenses incurred by the Board in connection with the provision of criminal legal assistance by solicitors employed by it by virtue of section 28A of this Act;

(ab) any sums payable by the Board under contracts made by virtue of section 33A of this Act; " ; and

(b) in subsection (3), after paragraph (a) there shall be inserted the following paragraphs--

" (aa) any contribution payable to the Board by any person in pursuance of section 11 of this Act;

(ab) any award of expenses made by a criminal court to a person to whom criminal legal assistance has been provided by a solicitor employed by the Board by virtue of section 28A of this Act; " .

(3) In section 11 (clients' contributions)--

(a) in subsection (1), after the words "subsection (2)" there shall be inserted the words "or (3)"; and

(b) after subsection (2) there shall be inserted the following subsections--

" (3) Where a client to whom paragraphs (a) and (b) of subsection (2) above apply receives criminal legal assistance from a solicitor employed by the Board by virtue of section 28A of this Act, he shall pay to the Board such contribution in respect of that assistance as the Board may, subject to subsection (4) below, determine.

(4) The amount determined by the Board under subsection (3) above shall not exceed the amount which could have been charged in respect of the assistance in question by a solicitor. " .

(4) In section 12 (payment of fees or outlays otherwise than through clients' contributions)--

(a) at the end of subsection (2) there shall be inserted the words--

" ; but does not apply to the salary payable to a solicitor employed by the Board by virtue of section 28A of this Act. " ; and

(b) for the word "contribution", where it appears in subsection (3)(a), there shall be substituted the word "amount".

(5) In section 21 (scope and nature of criminal legal aid), in subsection (1)(aa), for the word "discretionary" there shall be substituted the word "designated".

(6) In section 22 (automatic availability of legal aid), at the end of subsection (1) there shall be inserted the words--

" and, in relation to paragraph (dc) above, "accused person" includes a person authorised to institute or continue an appeal under section 303A(4) of the Criminal Procedure (Scotland) Act 1995 (transfer of rights of appeal of deceased person). " .

(7) After section 25 (legal aid in appeals) there shall be inserted the following section--

" 25AA Legal aid in respect of appeals under section 303A of the 1995 Act

(1) Subject to the provisions of this section, section 25 of this Act applies to any appeal, within the meaning of section 303A of the Criminal Procedure (Scotland) Act 1995 (transfer of rights of appeal of deceased person), instituted or continued by a person (an "authorised person") authorised under subsection (4) of the said section 303A.

(2) Where an authorised person is continuing an appeal which has been instituted by the deceased person, and criminal legal aid, within the meaning of section 25, has been awarded to the deceased person in connection with any proceedings, such legal aid shall continue to be made available to the authorised person in respect of those proceedings.

(3) Where--

(a) the deceased person had applied for criminal legal aid within the meaning of section 25, but the application had not been determined prior to his death; or

(b) the deceased person had not applied for such legal aid,

the authorised person shall be regarded as the applicant and, in a case to which paragraph (b) applies, may apply for such legal aid.

(4) Notwithstanding subsection (3) above--

(a) in section 25(2)(a) of this Act, where the authorised person is the executor of the deceased, any reference to--

(i) the financial circumstances of the applicant shall be construed as a reference to the value of the deceased person's estate; and

(ii) the applicant's dependants shall be construed as a reference to the beneficiaries of the deceased's estate; and

(b) any reference in section 25(2)(c) or (2A) of this Act to whether it is in the interests of justice that the applicant should receive legal aid shall be construed as a reference to whether it would have been in the interests of justice that the deceased should have received legal aid. " .

(8) In section 31 (solicitors and counsel)--

(a) in subsection (1), for the words from the beginning to "below" there shall be substituted the words "Subject to subsection (1A) below,";

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

" (1A) Subsection (1) above is subject to--

(a) section 25A(3) of this Act;

(b) section 30(2) of this Act;

(d) regulations made under section 33A(4) of this Act; and

(e) regulations made under subsection (9) below. " .

(9) In section 33 (fees and outlays of counsel and solicitors), in subsection (1), at the beginning there shall be inserted the words "Subject to subsections (3A) and (3B) below,".

(10) In section 41 (interpretation)--

(a) after the definition of "civil legal aid" there shall be inserted the following definition--

" "the code" means the code of practice in relation to criminal legal assistance for the time being in force under section 25B of this Act; " ;

(b) after the definition of "criminal legal aid" there shall be inserted the following definitions--

" "criminal legal assistance" means criminal legal aid and advice and assistance in relation to criminal matters;

"document" includes information recorded in any form;

"firm" includes an incorporated practice, a sole solicitor and a law centre; " ;

" "law centre" means a body--

(a) established for the purpose of providing legal services to the public generally as well as to individual members of the public; and

(b) which does not distribute any profits made either to its members or otherwise, but reinvests any such profits for the purposes of the law centre; " and

(d) after the definition of "person" there shall be inserted the following definitions--

" "the Register" means the Register established and maintained under section 25A of this Act;

"registered firm" means a firm whose name appears on the Register;

"registered solicitor" means a solicitor whose name appears on the Register;

"sole solicitor" means a solicitor practising under his own name or as a single solicitor under a firm name; and

"solicitor connected with a firm" includes a sole solicitor and a solicitor who is a partner, director or employee of a firm, and cognate expressions shall be construed accordingly. " .

The Prisons (Scotland) Act 1989 (c. 45)

13 (1) The Prisons (Scotland) Act 1989 shall be amended in accordance with this paragraph.

(2) In section 19(4) (application of enactments to young offenders institutions and remand centres), in paragraph (b)--

(a) for the words "and 41B" there shall be substituted the words ", 41B, 41C"; and

(b) before the word "of" there shall be inserted the words "and 41D".

(3) In section 20A(3) (transfer of young offenders to prison or remand centre) for the words from "the 1975 Act" to the words "and this Act" there shall be substituted the words "this Act, the [1993 c. 9.] Prisoners and Criminal Proceedings (Scotland) Act 1993, the 1995 Act and the Crime and Punishment (Scotland) Act 1997".

(4) In section 27(5) (power of the Secretary of State to discharge prisoners not to affect duties of medical officer) (so far as that subsection continues to have effect by virtue of Schedule 6 to the Prisoners and Criminal Proceedings (Scotland) Act 1993 (existing provisions which continue to have effect in relation to prisoners sentenced before 1st October 1993)) for the word "the", where it occurs for the second time, there shall be substituted the word "any".

The Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9)

14 (1) The Prisoners and Criminal Proceedings (Scotland) Act 1993 shall be amended in accordance with this paragraph.

(2) In section 1 (release of prisoners)--

(a) subsections (1) to (3) and (8) shall cease to have effect; and

(b) in subsection (4), for the word "discretionary" there shall be substituted the word "designated".

(3) In section 2 (duty to release discretionary life prisoners)--

(a) in subsection (2)--

(i) for the words "subsection (1)(b)" there shall be substituted the words "subsection (1)"; and

(ii) before the word "life", in both places where it occurs, there shall be inserted the word "designated";

(b) in subsection (3), for the words "subsection (1)(a)" there shall be substituted the word "subsection (1)";

(c) for the word "relevant", where it occurs in subsections (2), (8) and (9), there shall be substituted the word "designated";

(d) for the word "discretionary" where it occurs in subsections (4), (6), (8) and (9) there shall be substituted the word "designated"; and

(e) in subsection (7), for paragraph (a) there shall be substituted the following paragraph--

" (a) where the prisoner is serving--

(i) a sentence of imprisonment for life; and

(ii) a sentence of imprisonment for a term of more than three months,

before he has served five-sixths of the sentence mentioned in sub-paragraph (ii) above; " .

(4) In section 3(2) (release on compassionate grounds), the words "any long-term prisoner or" shall cease to have effect.

(5) Section 5 shall cease to have effect.

(6) In section 6 (application of Act to young persons and children detained without limit of time), in subsection (1)--

(a) paragraph (a) and the word "and" following that paragraph shall cease to have effect;

(b) in paragraph (b)(i) for the words "that Act" there shall be substituted the words "the 1995 Act"; and

(c) for the words "prisoners (whether short-term, long-term or life)" there shall be substituted the words "life prisoners".

(7) Sections 7 and 9 shall cease to have effect.

(8) In section 10 (life prisoners transferred to Scotland)--

(a) for subsection (1) there shall be substituted the following subsection--

" (1) In a case where a transferred life prisoner transferred from England and Wales (whether before or after the commencement of this enactment) is a life prisoner to whom section 28 of the [1997 c. 43.] Crime (Sentences) Act 1997 (duty to release certain life prisoners) applies, this Part of this Act except sections 1(4) and 2(9) shall apply as if--

(a) the prisoner were a designated life prisoner within the meaning of section 2 of this Act; and

(b) the designated part of his sentence within the meaning of that section were the relevant part specified in an order or direction made under the said section 28. " ;

(b) in subsection (3)(a), for the word "discretionary" there shall be substituted the word "designated";

(d) in subsection (5)(a), for the word "discretionary" there shall be substituted the word "designated"; and

(e) in subsection (5)(b), for the words "section 34 of the said Act of 1991" there shall be substituted the words "the said section 28 of the [1997 c. 43.] Crime (Sentences) Act 1997".

(9) For section 11 (duration of licences) there shall be substituted the following section--

" 11 Duration of licences

(1) Where a life prisoner is released on licence under this Part of this Act, the licence shall (unless revoked) remain in force until his death.

(2) Without prejudice to any order under section 209 of the 1995 Act (supervised release orders), where a prisoner is released on licence under section 3(1) of this Act, the licence shall (unless revoked) remain in force until the date on which, but for such release, he would have been released by virtue of section 34 of the Crime and Punishment (Scotland) Act 1997 (early release).

(3) For the purposes of fixing the date mentioned in subsection (2) above, there shall be taken into account--

(a) any early release days actually awarded to the prisoner under section 34 of that Act prior to his release; and

(b) the maximum number of such days which he could have been awarded had he remained in prison during the period when he was released on licence. " .

(10) In section 12(3) (insertion, variation and cancellation of conditions in licences)--

(a) the words "a long-term or" shall cease to have effect; and

(b) for the word "discretionary" there shall be substituted the word "designated".

(11) In section 14 (supervised release orders)--

(a) in subsection (2)--

(i) the words from the beginning to "209(1) of the 1995 Act" shall cease to have effect; and

(ii) after the words "prison in Scotland" there shall be inserted the words "under Schedule 1 to the [1997 c. 43.] Crime (Sentences) Act 1997 in an unrestricted transfer within the meaning of that Schedule"; and

(b) in subsection (4), the words "short-term" shall cease to have effect.

(12) Section 16 shall cease to have effect.

(13) In section 17(1) (revocation of licence)--

(a) in paragraph (a), the words "long-term or"; and

(b) paragraph (b),

shall cease to have effect.

(14) In section 20 (the Parole Board for Scotland), in subsection (3), paragraphs (a) and (b) and the word "and" following those paragraphs shall cease to have effect.

(15) Section 24 shall cease to have effect.

(16) In section 27 (interpretation)

(a) in subsection (1)--

(i) the definitions of "short-term prisoner" and "long-term prisoner" shall cease to have effect; and

(ii) in the definition of "supervised release order" the words "(as inserted by section 14 of this Act)" and the words from "but" to the end shall cease to have effect; and

(b) subsections (2), (3), (5) and (6) shall cease to have effect.

(17) Schedule 1 shall cease to have effect.

(18) In Schedule 6 (transitional provisions and savings)--

(a) for the word "relevant" in each place where it occurs in paragraph 6(2) and (3) and 6A(2) , there shall be substituted the word "designated"; and

(b) for the word "discretionary" in each place where it occurs in paragraphs 6, 6A(2) and 7, there shall be substituted the word "designated".

The Criminal Justice and Public Order Act 1994 (c. 33)

15 In section 110 of the Criminal Justice and Public Order Act 1994 (modifications of the [1989 c. 45.] Prisons (Scotland) Act 1989 in its application to contracted out prisons)--

(a) in subsection (3) for the words "and 41B(3) (testing prisoners for drugs)" there shall be substituted the words ", 41B(3) (testing prisoners for drugs) and 41C(3) (testing prisoners for alcohol)"; and

(b) in subsection (4) for the words "and 41B(1)(testing prisoners for drugs)" there shall be substituted the words ", 41B(1) (testing prisoners for drugs) and 41C(1) (testing prisoners for alcohol)".

The Criminal Justice (Scotland) Act 1995 (c. 20)

16 Section 66 of the Criminal Justice (Scotland) Act 1995 shall cease to have effect.

The Children (Scotland) Act 1995 (c. 36)

17 In Schedule 4 to the Children (Scotland) Act 1995, paragraph 35(6) shall cease to have effect.

The Criminal Law (Consolidation)(Scotland) Act 1995 (c. 39)

18 (1) The Criminal Law (Consolidation) (Scotland) Act 1995 shall be amended in accordance with this paragraph.

(2) In section 5 (unlawful sexual intercourse with a girl under the age of 13 years)--

(a) in subsection (1), at the beginning there shall be inserted the words "Subject to section 205A of the [1995 c. 46.] Criminal Procedure (Scotland) Act 1995 (imprisonment for life on further conviction of certain offences),"; and

(b) in subsection (6) (definition of "like offence" for purposes of that section), for the words "section 10(1) of this Act" there shall be substituted the words "section 9(1) of this Act".

(3) In section 7(3) (deemed rape where husband impersonated) after the word "with" there shall be inserted the word "her".

(4) In section 19(3) (vehicles in relation to which certain offences relating to alcohol at sporting events may be committed), for the word "principle" there shall be substituted the word "principal".

(5) In section 21 (police powers in relation to control of alcohol etc. at sporting events), in paragraph (e), after sub-paragraph (ii) there shall be inserted the following sub-paragraph-- " ; or

(iii) a controlled article or substance as defined in section 20(8) of this Act. " .

(6) In section 23 (interpretation of Part II), after the definition of "keeper" there shall be inserted the following definition--

" "motor vehicle" means a mechanically propelled vehicle intended or adapted for use on roads; " .

(7) In section 26(11) (interpretation of powers of Customs and Excise officers to detain persons in connection with drug smuggling) for the definition of superior officer there shall be substituted the following definition--

" "superior officer" means an officer whose title is specified for the purposes of this section by the Treasury in an order made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament. " .

(8) In section 45(1) (aiding and abetting offences under section 44), for the word "principle" there shall be substituted the word "principal".

The Criminal Procedure (Consequential Provisions)(Scotland) Act 1995 (c. 40)

19 (1) The Criminal Procedure (Consequential Provisions)(Scotland) Act 1995 shall be amended in accordance with this paragraph.

(2) In Part II of Schedule 2 (increase in certain penalties), the entry relating to section 1 of the [1912 c. 14.] Protection of Animals (Scotland) Act 1912 shall cease to have effect.

(3) In Schedule 4 (minor and consequential amendments)--

(a) paragraph 6(4)(a) and (d) shall cease to have effect;

(b) paragraph 16 shall cease to have effect;

(d) paragraph 53(3) shall cease to have effect.

The Proceeds of Crime (Scotland) Act 1995 (c. 43)

20 In section 42(1) of the Proceeds of Crime (Scotland) Act 1995 (power to make Order in Council with respect to enforcement of orders in England and Wales), in paragraph (a) after the word "offence" there shall be inserted the words ", other than a drug trafficking offence,".

The Criminal Procedure (Scotland) Act 1995 (c. 46.)

21 (1) The 1995 Act shall be amended as follows.

(2) In section 15 (rights of persons arrested or detained), in subsection (6)(b), for the words "actual custody" there shall be substituted the word "care".

(3) In section 44 (detention of children in summary proceedings)--

(a) in subsection (4), the words ", subject to subsection (6) below,";

(b) subsections (6) to (9); and

shall cease to have effect.

(4) In section 46 (presumption and determination of age of child)--

(a) in subsection (1), after the word "offence" there shall be inserted the words ", whose age is not specified in the indictment or complaint in relation to that offence,";

(b) in subsection (3) at the beginning there shall be inserted the words "Without prejudice to section 255A of this Act,".

(5) In section 53 (power to make interim hospital order)--

(a) in subsection (1), after the word "way" there shall be inserted the words ", including imposing a sentence of imprisonment and making a hospital direction,";

(b) in subsection (3), for the words "28" there shall be substituted the word "7";

(d) in subsection (5), for the words "28" there shall be substituted the word "7";

(e) after subsection (5), there shall be inserted the following subsection--

" (5A) Subsections (1) and (4) of section 60 of the [1984 c. 36.] Mental Health (Scotland) Act 1984 shall apply to an interim hospital order as they apply to a hospital order. " ; and

(f) in subsection (6), after the word "way" there shall be inserted the words ", including imposing a sentence of imprisonment and making a hospital direction".

(6) In section 58 (hospital orders)--

(a) in subsection (4), for the words "28" there shall be substituted the word "7"; and

(b) in subsection (9), for the words "28" there shall be substituted the word "7".

(7) In section 62(6)(b) (disposal in appeals by accused in cases involving insanity), for the words "or order" there shall be substituted the words ", order or other disposal".

(8) In section 63 (appeals by prosecutor in cases involving insanity)--

(a) in subsection (1), paragraph (d) shall cease to have effect;

(b) in subsection (2)(b)(ii), the words "or (d)" shall cease to have effect; and

(i) for the words "or order", in the first place where they occur, there shall be substituted the words "order or disposal"; and

(ii) for the words "or order", in the second place where they occur, there shall be substituted the words "or acquittal".

(9) In section 65 (prevention of delay), after subsection (3) there shall be inserted the following subsection--

" (3A) An application under subsection (3) shall not be made at any time when an appeal made with leave under section 74(1) of this Act has not been disposed of by the High Court. " .

(10) In section 74(4) (disposal of appeals in connection with preliminary diets)--

(a) the word "and" after paragraph (a) shall cease to have effect; and

(b) after paragraph (b) there shall be inserted the following words " ; and

(11) In section 81(6) (list of jurors where trial does not take place)--

(a) the word ", signed" shall cease to have effect; and

(b) for the words "85(1) and (2)" there shall be substituted the words "85(2)".

Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9

-- Back --

Stat