Criminal Procedure (Scotland) Act 1995

• (2) An amended verdict of guilty substituted under subsection (1)(c) above must be one which could have been returned on the complaint before the inferior court.

• (3) The Sheriff Appeal Court shall, in an appeal—

• (a) against both conviction and sentence, subject to section 190(1) of this Act, dispose of the appeal against sentence; or

• (b) by the prosecutor, against sentence, dispose of the appeal,

by exercise of the power mentioned in section 189(1) of this Act.

• (4) In setting aside, under subsection (1) above, a verdict the Sheriff Appeal Court may quash any sentence imposed on the appellant as respects the complaint, and—

• (a) in a case where it substitutes an amended verdict of guilty, whether or not the sentence related to the verdict set aside; or

• (b) in any other case, where the sentence did not so relate,

may pass another (but not more severe) sentence in substitution for the sentence so quashed.

• (5) For the purposes of subsections (3) and (4) above, “sentence” shall be construed as including disposal or order.

• (6) Where an appeal against acquittal is sustained, the Sheriff Appeal Court may—

• (a) convict and, subject to subsection (7) below, sentence the respondent;

• (b) remit the case to the inferior court with instructions to convict and sentence the respondent, who shall be bound to attend any diet fixed by the court for such purpose; or

• (c) remit the case to the inferior court with their opinion thereon.

• (7) Where the Sheriff Appeal Court sentences the respondent under subsection (6)(a) above it shall not in any case impose a sentence beyond the maximum sentence which could have been passed by the inferior court.

• (8) Any reference in subsection (6) above to convicting and sentencing shall be construed as including a reference to—

• (a) convicting and making some other disposal; or

• (b) convicting and deferring sentence.

• (9) The Sheriff Appeal Court shall have power in an appeal under this Part of this Act to award such expenses both in the Sheriff Appeal Court and in the inferior court as it may think fit.

• (10) Where, following an appeal, other than an appeal under section 175(2)(b) or (3) of this Act, the appellant remains liable to imprisonment or detention under the sentence of the inferior court, or is so liable under a sentence passed in the appeal proceedings the Sheriff Appeal Court shall have the power where at the time of disposal of the appeal the appellant—

• (a) was at liberty on bail, to grant warrant to apprehend and imprison or detain the appellant for a term, to run from the date of such apprehension, not longer than that part of the term or terms of imprisonment or detention specified in the sentence brought under review which remained unexpired at the date of liberation;

• (b) is serving a term or terms of imprisonment or detention imposed in relation to a conviction subsequent to the conviction appealed against, to exercise the like powers in regard to him as may be exercised, in relation to an appeal which has been abandoned, by a court of summary jurisdiction in pursuance of section 177(6) of this Act.

Abandonment of appeal.

184

• (1) An appellant in an appeal such as is mentioned in section 176(1) of this Act may at any time prior to lodging the case with the Clerk of the Sheriff Appeal Court abandon his appeal by minute signed by himself or his solicitor, written on the complaint or lodged with the clerk of the inferior court, and intimated to the respondent or the respondent’s solicitor, but such abandonment shall be without prejudice to any other competent mode of appeal, review, advocation or suspension.

• (2) Subject to section 191 of this Act, on the case being lodged with the Clerk of the Sheriff Appeal Court, the appellant shall be held to have abandoned any other mode of appeal which might otherwise have been open to him.

New prosecution

Authorisation of new prosecution.

185

• (1) Subject to subsection (2) below, where authority is granted under section 183(1)(d) of this Act, a new prosecution may be brought charging the accused with the same or any similar offence arising out of the same facts; and the proceedings out of which the stated case arose shall not be a bar to such prosecution.

• (2) In a new prosecution under this section the accused shall not be charged with an offence more serious than that of which he was convicted in the earlier proceedings.

• (3) No sentence may be passed on conviction under the new prosecution which could not have been passed on conviction under the earlier proceedings.

• (4) A new prosecution may be brought under this section, notwithstanding that any time limit (other than the time limit mentioned in subsection (5) below) for the commencement of such proceedings has elapsed.

• (5) Proceedings in a prosecution under this section shall be commenced within two months of the date on which authority to bring the prosecution was granted.

• (6) In proceedings in a new prosecution under this section it shall, subject to subsection (7) below, be competent for either party to lead any evidence which it was competent for him to lead in the earlier proceedings.

• (7) The complaint in a new prosecution under this section shall identify any matters as respects which the prosecutor intends to lead evidence by virtue of subsection (6) above which would not have been competent but for that subsection.

• (8) For the purposes of subsection (5) above, proceedings shall be deemed to be commenced—

• (a) in a case where such warrant is executed without unreasonable delay, on the date on which a warrant to apprehend or to cite the accused is granted; and

• (b) in any other case, on the date on which the warrant is executed.

• (9) Where the two months mentioned in subsection (5) above elapse and no new prosecution has been brought under this section, the order under section 183(1)(d) of this Act setting aside the verdict shall have the effect, for all purposes, of an acquittal.

• (10) On granting authority under section 183(1)(d) of this Act to bring a new prosecution, the Sheriff Appeal Court may, after giving the parties an opportunity of being heard, order the detention of the accused person in custody; but an accused person may not be detained by virtue of this subsection for a period of more than 40 days.

Appeals against sentence

Appeals against sentence only.

186

• (1) An appeal under section 175(2)(b), (c) or (cza) ..., or by virtue of section 175(4), of this Act shall be by note of appeal, which shall state the ground of appeal.

• (2) The note of appeal shall, where the appeal is—

• (a) under section 175(2)(b), (c) or (cza) ... be lodged, within one week of—

• (i) the passing of the sentence; . . . or

• (ii) the making of the order disposing of the case or deferring sentence; ...

• (iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

with the clerk of the court from which the appeal is to be taken; or

• (b) by virtue of section 175(4) be so lodged within four weeks of such passing or making.

• (3) The clerk of court on receipt of the note of appeal shall—

• (a) send a copy of the note to the respondent or his solicitor; and

• (b) obtain a report from the judge who sentenced the convicted person or, as the case may be, who disposed of the case or deferred sentence.

• (4) Subject to subsection (5) below, the clerk of court shall within two weeks of the passing of the sentence or within two weeks of the disposal or order against which the appeal is taken—

• (a) send to the Clerk of the Sheriff Appeal Court the note of appeal, together with the report mentioned in subsection (3)(b) above, a certified copy of the complaint, the minute of proceedings and any other relevant documents; and

• (b) send copies of that report to the appellant and respondent or their solicitors.

• (5) The sheriff principal of the sheriffdom in which the judgment was pronounced may, on cause shown, extend the period of two weeks specified in subsection (4) above for such period as he considers reasonable.

• (6) Subject to subsection (4) above, the report mentioned in subsection (3)(b) above shall be available only to the Sheriff Appeal Court, the parties and, on such conditions as may be prescribed by Act of Adjournal, such other persons or classes of persons as may be so prescribed.

• (7) Where the judge’s report is not furnished within the period mentioned in subsection (4) above or such period as extended under subsection (5) above, the Sheriff Appeal Court may extend such period, or, if it thinks fit, hear and determine the appeal without the report.

• (8) Section 181 of this Act shall apply where an appellant fails to comply with the requirement of subsection (2)(a) above as they apply where an applicant fails to comply with any of the requirements of section 176(1) of this Act.

• (9) An appellant under section 175(2)(b), (c) or (cza) ..., or by virtue of section 175(4), of this Act may at any time prior to the hearing of the appeal abandon his appeal by minute, signed by himself or his solicitor, lodged—

• (a) in a case where the note of appeal has not yet been sent under subsection (4)(a) above to the Clerk of the Sheriff Appeal Court, with the clerk of court;

• (b) in any other case, with the Clerk of the Sheriff Appeal Court,

and intimated to the respondent.

• (10) Sections 176(5), 177 and 182(5)(a) to (e) of this Act shall apply to appeals under section 175(2)(b), (c) or (cza) ..., or by virtue of section 175(4), of this Act as they apply to appeals under section 175(2)(a) or (d) of this Act, except that, for the purposes of such application to any appeal by virtue of section 175(4), references in subsections (1) to (4) of section 177 to the appellant shall be construed as references to the convicted person and subsections (6) and (7) of that section shall be disregarded.

Leave to appeal against sentence.

187

• (1) The decision whether to grant leave to appeal for the purposes of section 175(2)(b), (c) or (cza) ... of this Act shall be made by an Appeal Sheriff of the Sheriff Appeal Court who shall—

• (a) if he considers that the note of appeal and other documents sent to the Clerk of the Sheriff Appeal Court under section 186(4)(a) of this Act disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and

• (b) in any other case—

• (i) refuse leave to appeal and give reasons in writing for the refusal; and

• (ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him.

• (2) A warrant granted under subsection (1)(b)(ii) above shall not take effect until the expiry of the period of 14 days mentioned in subsection (3) below (and if that period is extended under subsection (3A) below before the period being extended expires, until the expiry of the period as so extended) without an application to the Sheriff Appeal Court for leave to appeal having been lodged by the appellant under subsection (3) below.

• (3) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 days of intimation under subsection (9) below, apply to the Sheriff Appeal Court for leave to appeal.

• (3A) The Sheriff Appeal Court may, on cause shown, extend the period of 14 days mentioned in subsection (3) above, or that period as extended under this subsection, whether or not the period to be extended has expired (and if that period of 14 days has expired, whether or not it expired before section 25(3) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) came into force).

• (4) In deciding an application under subsection (3) above the Sheriff Appeal Court shall—

• (a) if, after considering the note of appeal and other documents mentioned in subsection (1) above and the reasons for the refusal, it is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and

• (b) in any other case—

• (i) refuse leave to appeal and give reasons in writing for the refusal; and

• (ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him.

• (5) The question whether to grant leave to appeal under subsection (1) or (4) above shall be considered and determined in chambers without the parties being present.

• (6) Comments in writing made under subsection (1)(a) or (4)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted.

• (7) Where the arguable grounds of appeal are specified by virtue of subsection (6) above it shall not, except by leave of the Sheriff Appeal Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified.

• (8) Any application by the appellant for the leave of the Sheriff Appeal Court under subsection (7) above—

• (a) shall be made within 14 days of the date of intimation under subsection (9) below; and

• (b) shall, within 14 days of that date, be intimated by the appellant to the prosecutor.

• (8A) The Sheriff Appeal Court may, on cause shown, extend the periods of 14 days mentioned in subsection (8) above.

• (9) The Clerk of the Sheriff Appeal Court shall forthwith intimate—

• (a) a decision under subsection (1) or (4) above; and

• (b) in the case of a refusal of leave to appeal, the reasons for the decision,

to the appellant or his solicitor and to the prosecutor.

Disposal of appeals

Setting aside conviction or sentence: prosecutor’s consent or application.

188

• (1) Without prejudice to section 175(3) or (4) of this Act, where—

• (a) an appeal has been taken under section 175(2) of this Act or by suspension or otherwise and the prosecutor is not prepared to maintain the judgment appealed against he may, by a relevant minute, consent to the conviction or sentence or, as the case may be, conviction and sentence (“sentence” being construed in this section as including disposal or order) being set aside either in whole or in part; or

• (b) no such appeal has been taken but the prosecutor is, at any time, not prepared to maintain the judgment on which a conviction is founded or the sentence imposed following such conviction he may, by a relevant minute, apply for the conviction or sentence or, as the case may be, conviction and sentence to be set aside.

• (2) For the purposes of subsection (1) above, a “relevant minute” is a minute, signed by the prosecutor—

• (a) setting forth the grounds on which he is of the opinion that the judgment cannot be maintained; and

• (b) written on the complaint or lodged with the clerk of court.

• (3) A copy of any minute under subsection (1) above shall be sent by the prosecutor to the convicted person or his solicitor and the clerk of court shall—

• (a) thereupon ascertain and note on the record, whether that person or solicitor desires to be heard by the Sheriff Appeal Court before the appeal, or as the case may be application, is disposed of; and

• (b) thereafter transmit the complaint and relative proceedings to the Clerk of the Sheriff Appeal Court.

• (4) The Clerk of the Sheriff Appeal Court, on receipt of a complaint and relative proceedings transmitted under subsection (3) above, shall lay them before any Appeal Sheriff of the Sheriff Appeal Court either in court or in chambers who, after hearing parties if they desire to be heard, may—

• (a) set aside the conviction or the sentence, or both, either in whole or in part and—

• (i) award such expenses to the convicted person, both in the Sheriff Appeal Court and in the inferior court, as the Appeal Sheriff may think fit;

• (ii) where the conviction is set aside in part, pass another (but not more severe) sentence in substitution for the sentence imposed in respect of that conviction; and

• (iii) where the sentence is set aside, pass another (but not more severe) sentence; or

• (b) refuse to set aside the conviction or sentence or, as the case may be, conviction and sentence, in which case the complaint and proceedings shall be returned to the clerk of the inferior court.

• (5) Where an appeal has been taken and the complaint and proceedings in respect of that appeal returned under subsection (4)(b) above, the appellant shall be entitled to proceed with the appeal as if it had been marked on the date of their being received by the clerk of the inferior court on such return.

• (6) Where an appeal has been taken and a copy minute in respect of that appeal sent under subsection (3) above, the preparation of the draft stated case shall be delayed pending the decision of the Sheriff Appeal Court.

• (7) The period from an application being made under subsection (1)(b) above until its disposal under subsection (4) above (including the day of application and the day of disposal) shall, in relation to the conviction to which the application relates, be disregarded in any computation of time specified in any provision of this Part of this Act.

Disposal of appeal against sentence.

189

• (1) An appeal against sentence by note of appeal shall be heard by the Sheriff Appeal Court on such date as it may fix, and the Sheriff Appeal Court may, subject to section 190(1) of this Act, dispose of such appeal by—

• (a) affirming the sentence; or

• (b) if the Court thinks that, having regard to all the circumstances, including any . . . evidence such as is mentioned in section 175(5) of this Act, a different sentence should have been passed, quashing the sentence and, subject to subsection (2) below, passing another sentence, whether more or less severe, in substitution therefor.

• (2) In passing another sentence under subsection (1)(b) above, the Court shall not in any case increase the sentence beyond the maximum sentence which could have been passed by the inferior court.

• (2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) The Sheriff Appeal Court shall have power in an appeal by note of appeal to award such expenses both in the Sheriff Appeal Court and in the inferior court as it may think fit.

• (4) Where, following an appeal under section 175(2)(b) or (c), or by virtue of section 175(4), of this Act, the convicted person remains liable to imprisonment or detention under the sentence of the inferior court or is so liable under a sentence passed in the appeal proceedings, the Sheriff Appeal Court shall have power where at the time of disposal of the appeal the convicted person—

• (a) was at liberty on bail, to grant warrant to apprehend and imprison or detain the appellant for a term, to run from the date of such apprehension, not longer than that part of the term or terms of imprisonment or detention specified in the sentence brought under review which remained unexpired at the date of liberation; or

• (b) is serving a term or terms of imprisonment or detention imposed in relation to a conviction subsequent to the conviction in respect of which the sentence appealed against was imposed, to exercise the like powers in regard to him as may be exercised, in relation to an appeal which has been abandoned, by a court of summary jurisdiction in pursuance of section 177(6) of this Act.

• (5) In subsection (1) above, “appeal against sentence” shall, without prejudice to the generality of the expression, be construed as including an appeal under section 175(2)(c) or (cza), and any appeal by virtue of section 175(4), of this Act; and without prejudice to subsection (6) below, other references to sentence in that subsection and in subsection (4) above shall be construed accordingly.

• (6) In disposing of any appeal in a case where the accused has not been convicted, the Sheriff Appeal Court may proceed to convict him; and where it does, the reference in subsection (4) above to the conviction in respect of which the sentence appealed against was imposed shall be construed as a reference to the disposal or order appealed against.

• (7) In disposing of an appeal under section 175(2)(b) to (d), (3)(b) or (4) of this Act the Sheriff Appeal Court may, without prejudice to any other power in that regard, pronounce an opinion on

• (a) the sentence or other disposal or order which is appropriate in any similar case; ...

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Disposal of appeal where appellant not criminally responsible.

190

• (1) In relation to any appeal under section 175(2) of this Act, the Sheriff Appeal Court shall, where it appears to it that the appellant committed the act charged against him but that he was not, because of section 51A of this Act, criminally responsible for it, dispose of the appeal by—

• (a) setting aside the verdict of the inferior court and substituting therefor a verdict of acquittal by reason of the special defence set out in section 51A of this Act; and

• (b) quashing any sentence imposed on the appellant as respects the complaint and—

• (i) making, in respect of the appellant, any order mentioned in section 57(2)(a) to (d) of this Act; or

• (ii) making no order.

• (2) Subsections (3) to (6) of section 57 of this Act shall apply to an order made under subsection (1)(b)(i) above as it applies to an order made under subsection (2) of that section.

Miscellaneous

Appeal by suspension or advocation on ground of miscarriage of justice.

191

• (1) Notwithstanding section 184(2) of this Act, a party to a summary prosecution may, where an appeal under section 175 of this Act would be incompetent or would in the circumstances be inappropriate, appeal to the Sheriff Appeal Court, by bill of suspension against a conviction or, as the case may be, by advocation against an acquittal on the ground of an alleged miscarriage of justice in the proceedings.

• (2) Where the alleged miscarriage of justice is referred to in an application under section 176(1) of this Act, for a stated case as regards the proceedings (or in a duly made amendment or addition to that application), an appeal under subsection (1) above shall not proceed without the leave of the Sheriff Appeal Court until the appeal to which the application relates has been finally disposed of or abandoned.

• (3) Sections 182(5)(a) to (e), 183(1)(d) and (4) and 185 of this Act shall apply to appeals under this section as they apply to appeals such as are mentioned in section 176(1) of this Act.

• (4) This section is without prejudice to any rule of law relating to bills of suspension or advocation in so far as such rule of law is not inconsistent with this section.

Time limit for lodging bills of advocation and bills of suspension

191A

• (1) This section applies where a party wishes—

• (a) to appeal to the Sheriff Appeal Court under section 191(1) of this Act by bill of suspension against a conviction or by advocation against an acquittal, or

• (b) to appeal to the Sheriff Appeal Court against, or to bring under review of the Sheriff Appeal Court, any other decision in a summary prosecution by bill of suspension or by advocation.

• (2) The party must lodge the bill of suspension or bill of advocation within 3 weeks of the date of the conviction, acquittal or, as the case may be, other decision to which the bill relates.

• (3) The Sheriff Appeal Court may, on the application of the party, extend the time limit in subsection (2).

• (4) An application under subsection (3) must—

• (a) state—

• (i) the reasons why the applicant failed to comply with the time limit in subsection (2), and

• (ii) the proposed grounds of appeal or review, and

• (b) be intimated in writing by the applicant to the other party to the prosecution.

• (5) If the other party so requests within 7 days of receipt of intimation of the application under subsection (4)(b), the other party must be given an opportunity to make representations before the application is determined.

• (6) Any representations may be made in writing or, if the other party so requests, orally at a hearing; and if a hearing is fixed, the applicant must also be given an opportunity to be heard.

Bill of advocation not competent in respect of certain decisions

191B

It is not competent to bring under review of the Sheriff Appeal Court by way of bill of advocation a decision of the court of first instance that relates to such objection or denial as is mentioned in section 144(4).

Appeals: miscellaneous provisions.

192

• (1) Where an appellant has been granted bail, whether his appeal is under this Part of this Act or otherwise, he shall appear personally in court at the diet appointed for the hearing of the appeal.

• (2) Where an appellant who has been granted bail does not appear at such a diet, the Sheriff Appeal Court shall either—

• (a) dispose of the appeal as if it had been abandoned (in which case subsection (5) of section 177 of this Act shall apply accordingly); or

• (b) on cause shown permit the appeal to be heard in his absence.

• (3) No conviction, sentence, judgement, order of court or other proceeding whatsoever in or for the purposes of summary proceedings under this Act—

• (a) shall be quashed for want of form; or

• (b) where the accused had legal assistance in his defence, shall be suspended or set aside in respect of any objections to—

• (i) the relevancy of the complaint, or to the want of specification therein; or

• (ii) the competency or admission or rejection of evidence at the trial in the inferior court,

unless such objections were timeously stated.

• (4) The provisions regulating appeals shall, subject to the provisions of this Part of this Act, be without prejudice to any other mode of appeal competent.

• (5) Any officer of law may serve any bill of suspension or other writ relating to an appeal.

Suspension of disqualification, forfeiture etc.

193

• (1) Where upon conviction of any person—

• (a) any disqualification, forfeiture or disability attaches to him by reason of such conviction; or

• (b) any property, matters or things which are the subject of the prosecution or connected therewith are to be or may be ordered to be destroyed or forfeited,

if the court before which he was convicted thinks fit, the disqualification, forfeiture or disability or, as the case may be, destruction or forfeiture or order for destruction or forfeiture shall be suspended pending the determination of any appeal against conviction or sentence (or disposal or order).

• (2) Subsection (1) above does not apply in respect of any disqualification, forfeiture or, as the case may be, destruction or forfeiture or order for destruction or forfeiture under or by virtue of any enactment which contains express provision for the suspension of such disqualification, forfeiture or, as the case may be, destruction or forfeiture or order for destruction or forfeiture pending the determination of any appeal against conviction or sentence (or disposal or order).

• (3) Where, upon conviction, a fine has been imposed upon a person or a compensation order has been made against him under section 249 of this Act—

• (a) the fine or compensation order shall not be enforced against him and he shall not be liable to make any payment in respect of the fine or compensation order; and

• (b) any money paid under the compensation order shall not be paid by the clerk of court to the entitled person under subsection (9) of that section,

pending the determination of any appeal against conviction or sentence (or disposal or order).

Suspension of certain sentences pending determination of appeal.

193A

• (1) Where a convicted person or the prosecutor appeals to the Sheriff Appeal Court under section 175 of this Act ..., the court may on the application of the appellant direct that the whole, or any remaining part, of a relevant sentence shall be suspended until the appeal, if it is proceeded with, is determined.

• (2) Where the court has directed the suspension of the whole or any remaining part of a person’s relevant sentence, the person shall, unless the Sheriff Appeal Court otherwise directs, appear personally in court on the day or days fixed for the hearing of the appeal.

• (3) Where a person fails to appear personally in court as mentioned in subsection (2) above, the court may—

• (a) if he is the appellant—

• (i) decline to consider the appeal; and

• (ii) dismiss it summarily; or

• (b) whether or not he is the appellant—

• (i) consider and determine the appeal; or

• (ii) make such other order as the court thinks fit.

• (4) In this section “relevant sentence” means any one or more of the following—

• (aa) a community payback order;

• (d) a restriction of liberty order.

• (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Computation of time.

194

• (1) If any period of time specified in any provision of this Part of this Act relating to appeals expires on a Saturday, Sunday or court holiday prescribed for the relevant court, the period shall be extended to expire on the next day which is not a Saturday, Sunday or such court holiday.

• (2) The sheriff principal of the sheriffdom in which the judgment was pronounced may, on cause shown, extend any period specified in sections 178(1) and 179(4) and (7) of this Act for such period as he considers reasonable.

• (3) For the purposes of sections 176(1)(a) and 178(1) of this Act, summary proceedings shall be deemed to be finally determined on the day on which sentence is passed in open court; except that, where in relation to an appeal—

• (a) under section 175(2)(a) or (3)(a); or

• (b) in so far as it is against conviction, under section 175(2)(d),

of this Act sentence is deferred under section 202 of this Act, they shall be deemed finally determined on the day on which sentence is first so deferred in open court.

PART 10ZA — APPEALS FROM SHERIFF APPEAL COURT

Appeal from the Sheriff Appeal Court

194ZB

• (1) An appeal on a point of law may be taken to the High Court against any decision of the Sheriff Appeal Court in criminal proceedings, but only with the permission of the High Court.

• (2) An appeal under subsection (1) may be taken by any party to the appeal in the Sheriff Appeal Court.

• (3) The High Court may give permission for an appeal under subsection (1) only if the Court considers that—

• (a) the appeal would raise an important point of principle or practice, or

• (b) there is some other compelling reason for the Court to hear the appeal.

• (4) An application for permission for an appeal under subsection (1) must be made before the end of the period of 14 days beginning with the day on which the decision of the Sheriff Appeal Court that would be the subject of the appeal was made.

• (5) The High Court may extend the period of 14 days mentioned in subsection (4) if satisfied that doing so is justified by exceptional circumstances.

Appeals: applications and procedure

194ZC

• (1) An appeal under section 194ZB(1) is to be made by way of note of appeal.

• (2) A note of appeal must specify the point of law on which the appeal is being made.

• (3) For the purposes of considering and deciding an appeal under section 194ZB(1)—

• (a) three of the judges of the High Court are to constitute a quorum of the Court,

• (b) decisions are to be taken by a majority vote of the members of the Court sitting (including the presiding judge),

• (c) each judge sitting may pronounce a separate opinion.

Application for permission for appeal: determination by single judge

194ZD

• (1) An application to the High Court for permission for an appeal under section 194ZB(1) is to be determined by a single judge of the High Court.

• (2) If the judge gives permission for the appeal, the judge may make comments in writing in relation to the appeal.

• (3) If the judge refuses permission for the appeal—

• (a) the judge must give reasons in writing for the refusal, and

• (b) where the appellant is on bail and the sentence imposed on the appellant on conviction is one of imprisonment, the judge must grant a warrant to apprehend and imprison the appellant.

• (4) A warrant under subsection (3)(b) does not take effect until the expiry of the period of 14 days mentioned in section 194ZE(1) (or, where that period is extended under section 194ZE(2) before the period being extended expires, until the expiry of the period as so extended) without an application for permission having been lodged by the appellant under section 194ZE(1).

Further application for permission where single judge refuses permission

194ZE

• (1) Where the judge refuses permission for the appeal under section 194ZD, the appellant may, within the period of 14 days beginning with the day on which intimation of the decision is given under section 194ZF(2), apply again to the High Court for permission for the appeal.

• (2) The High Court may extend the period of 14 days mentioned in subsection (1), or that period as extended under this subsection, whether or not the period to be extended has expired.

• (3) The High Court may extend a period under subsection (2) only if satisfied that doing so is justified by exceptional circumstances.

• (4) Three of the judges of the High Court are to constitute a quorum for the purposes of considering an application under subsection (1).

• (5) If the High Court gives permission for the appeal, the Court may make comments in writing in relation to the appeal.

• (6) If the High Court refuses permission for the appeal—

• (a) the Court must give reasons in writing for the refusal, and

• (b) where the appellant is on bail and the sentence imposed on the appellant on conviction is one of imprisonment, the Court must grant a warrant to apprehend and imprison the appellant.

Applications for permission: further provision

194ZF

• (1) An application for permission for an appeal under section 194ZB(1) is to be considered and determined (whether under section 194ZD or 194ZE)—

• (a) in chambers without the parties being present,

• (b) by reference to section 194ZB(3), and

• (c) on the basis of consideration of—

• (i) the note of appeal under section 194ZC(1), and

• (ii) such other document or information (if any) as may be specified by act of adjournal.

• (2) The Clerk of Justiciary must, as soon as possible, intimate to the appellant or the appellant's solicitor and to the Crown Agent—

• (a) a decision under section 194ZD or 194ZE determining the application for permission for an appeal, and

• (b) in the case of a refusal of permission for the appeal, the reasons for the decision.

Restriction of grounds of appeal

194ZG

• (1) Comments in writing made under section 194ZD(2) or 194ZE(5) may specify the arguable grounds of appeal (whether or not they were stated in the note of appeal) on the basis of which permission for the appeal was given.

• (2) Where the arguable grounds of appeal are specified under subsection (1), the appellant may not, except with the permission of the High Court on cause shown, found any aspect of the appeal on a ground of appeal stated in the application for permission but not specified under subsection (1).

• (3) An application by the appellant for permission under subsection (2) must—

• (a) be made before the end of the period of 14 days beginning with the date of intimation under section 194ZF(2), and

• (b) be intimated by the appellant to the Crown Agent before the end of that period.

• (4) The High Court may extend the period of 14 days mentioned in subsection (3) if satisfied that doing so is justified by exceptional circumstances.

• (5) The appellant may not, except with the permission of the High Court on cause shown, found any aspect of the appeal on a matter not stated in the note of appeal (or in a duly made amendment or addition to the note of appeal).

• (6) Subsection (5) does not apply in relation to a matter specified as an arguable ground of appeal under subsection (1).

Disposal of appeals

194ZH

• (1) In disposing of an appeal under section 194ZB(1), the High Court may—

• (a) remit the case back to the Sheriff Appeal Court with its opinion and any direction as to further procedure in, or disposal of, the case, or

• (b) exercise any power that the Sheriff Appeal Court could have exercised in relation to disposal of the appeal proceedings before that Court.

• (2) So far as necessary for the purposes or in consequence of the exercise of a power by the High Court by virtue of subsection (1)(b)—

• (a) references in Part X to the Sheriff Appeal Court are to be read as including references to the High Court, and

• (b) references in Part X to a verdict of or sentence passed by the inferior court are to be read as incuding references to a verdict of or sentence passed by the Sheriff Appeal Court in disposing of the appeal before it.

• (3) Subsections (1)(b) and (2) do not affect any power in relation to the consideration or disposal of appeals that the High Court has apart from those subsections.

Procedure where appellant in custody

194ZI

• (1) Section 177 (procedure where appellant in custody) applies in the case where a party making an appeal (other than an excepted appeal) under section 194ZB(1) is in custody as it applies in the case where an appellant making an application under section 176 is in custody.

• (2) In subsection (1), “excepted appeal” means an appeal against a decision of the Sheriff Appeal Court in—

• (a) an appeal under section 32, or

• (b) an appeal under section 177(3).

Abandonment of appeal

194ZJ

An appellant in an appeal under section 194ZB(1) may at any time abandon the appeal by minute to that effect—

• (a) signed by the appellant or the appellant's solicitor,

• (b) lodged with the Clerk of Justiciary, and

• (c) intimated to the respondent or the respondent's solicitor.

Finality of proceedings

194ZK

• (1) Every interlocutor and sentence (including disposal or order) pronounced by the High Court in disposing of an appeal relating to summary proceedings is final and conclusive and not subject to review by any court whatsoever.

• (2) Subsection (1) is subject to—

• (a) Part XA and section 288AA, and

• (b) paragraph 13(a) of Schedule 6 to the Scotland Act 1998.

• (3) It is incompetent to stay or suspend any execution or diligence issuing from the High Court under this Part, except for the purposes of an appeal under—

• (a) section 288AA, or

• (b) paragraph 13(a) of Schedule 6 to the Scotland Act 1998.

Computation of time

194ZL

If any period of time specified in this Part expires on a Saturday, Sunday or court holiday prescribed for the relevant court, the period is extended to expire on the next day which is not a Saturday, Sunday or such a court holiday.

Part XA — Scottish Criminal Cases Review Commission

The Scottish Criminal Cases Review Commission

Scottish Criminal Cases Review Commission.

194A

• (1) There shall be established a body corporate to be known as the Scottish Criminal Cases Review Commission (in this Act referred to as “the Commission”).

• (2) The Commission shall not be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Commission’s property shall not be regarded as property of, or held on behalf of, the Crown.

• (3) The Commission shall consist of not fewer than three members.

• (4) The members of the Commission shall be appointed by Her Majesty on the recommendation of the Secretary of State.

• (5) At least one third of the members of the Commission shall be persons who are legally qualified; and for this purpose a person is legally qualified if he is an advocate or solicitor of at least ten years’ standing.

• (6) At least two thirds of the members of the Commission shall be persons who appear to the Secretary of State to have knowledge or experience of any aspect of the criminal justice system; and for the purposes of this subsection the criminal justice system includes, in particular, the investigation of offences and the treatment of offenders.

• (7) Schedule 9A to this Act, which makes further provision as to the Commission, shall have effect.

References to High Court

References by the Commission

194B

• (1) The Commission on the consideration of any conviction of a person or of the sentence (other than sentence of death) passed on a person who has been convicted on indictment or complaint may, if they think fit, at any time, and whether or not an appeal against such conviction or sentence has previously been heard and determined by the High Court or the Sheriff Appeal Court, refer the whole case to the High Court and ... the case shall be heard and determined, subject to any directions the High Court may make, as if it were an appeal under Part VIII or, as the case may be, Part X of this Act.

• (2) The power of the Commission under this section to refer to the High Court the case of a person convicted shall be exercisable whether or not that person has petitioned for the exercise of Her Majesty’s prerogative of mercy.

• (3) This section shall apply in relation to a finding under section 55(2) and an order under section 57(2) of this Act as it applies, respectively, in relation to a conviction and a sentence.

• (3A) For the purposes of an appeal under Part X of this Act in a case referred to the High Court under subsection (1)—

• (a) the High Court may exercise in the case all the powers and jurisdiction that the Sheriff Appeal Court would, had the case been an appeal to that Court, have had in relation to the case by virtue of section 118 of the Courts Reform (Scotland) Act 2014, and

• (b) accordingly, Part X of this Act has effect in relation to the case subject to the following modifications—

• (i) references to the Sheriff Appeal Court are to be read as references to the High Court,

• (ii) references to an Appeal Sheriff are to be read as references to a judge of the High Court,

• (iii) references to the Clerk of the Sheriff Appeal Court are to be read as reference to the Clerk of Justiciary.

• (4) For the purposes of this section “person” includes a person who is deceased.

Grounds for reference.

194C

• (1) The grounds upon which the Commission may refer a case to the High Court are that they believe—

• (a) that a miscarriage of justice may have occurred; and

• (b) that it is in the interests of justice that a reference should be made.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Further provision as to references.

194D

• (1) A reference of a conviction, sentence or finding may be made under section 194B of this Act whether or not an application has been made by or on behalf of the person to whom it relates.

• (2) In considering whether to make a reference the Commission shall have regard to—

• (a) any application or representations made to the Commission by or on behalf of the person to whom it relates;

• (b) any other representations made to the Commission in relation to it: and

• (c) any other matters which appear to the Commission to be relevant.

• (3) In considering whether to make a reference the Commission may at any time refer to the High Court for the Court’s opinion any point on which they desire the Court’s assistance; and on a reference under this subsection the High Court shall consider the point referred and furnish the Commission with their opinion on the point.

• (4) Where the Commission make a reference to the High Court under section 194B of this Act they shall—

• (a) give to the Court a statement of their reasons for making the reference; and

• (b) send a copy of the statement to every person who appears to them to be likely to be a party to any proceedings on the appeal arising from the reference.

• (4A) The grounds for an appeal arising from a reference to the High Court under section 194B of this Act must relate to one or more of the reasons for making the reference contained in the Commission's statement of reasons.

• (4B) Despite subsection (4A), the High Court may, if it considers it is in the interests of justice to do so, grant leave for the appellant to found the appeal on additional grounds.

• (4C) An application by the appellant for leave under subsection (4B) must be made and intimated to the Crown Agent within 21 days after the date on which a copy of the Commission's statement of reasons is sent under subsection (4)(b).

• (4D) The High Court may, on cause shown, extend the period of 21 days mentioned in subsection (4C).

• (4E) The Clerk of Justiciary must intimate to the persons mentioned in subsection (4F)—

• (a) a decision under subsection (4B), and

• (b) in the case of a refusal to grant leave for the appeal to be founded on additional grounds, the reasons for the decision.

• (4F) Those persons are—

• (a) the appellant or the appellant's solicitor, and

• (b) the Crown Agent.

• (5) In every case in which—

• (a) an application has been made to the Commission by or on behalf of any person for the reference by them of any conviction, sentence or finding; but

• (b) the Commission decide not to make a reference of the conviction, sentence or finding,

they shall give a statement of the reasons for their decision to the person who made the application.

High Court's power to reject a reference made by the Commission

194DA

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Extension of Commission’s remit to summary cases.

194E

• (1) The Secretary of State may by order provide for this Part of this Act to apply in relation to convictions, sentences and findings made in summary proceedings as they apply in relation to convictions, sentences and findings made in solemn proceedings, and may for that purpose make in such an order such amendments to the provisions of this Part as appear to him to be necessary or expedient.

• (2) An order under this section shall be made by statutory instrument, and shall not have effect unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

Further powers.

194F

The Commission may take any steps which they consider appropriate for assisting them in the exercise of any of their functions and may, in particular—

• (a) themselves undertake inquiries and obtain statements, opinions or reports; or

• (b) request the Lord Advocate or any other person to undertake such inquiries or obtain such statements, opinions and reports.

Supplementary provision.

194G

• (1) The Secretary of State may by order make such incidental, consequential, transitional or supplementary provisions as may appear to him to be necessary or expedient for the purpose of bringing this Part of this Act into operation, and, without prejudice to the generality of the foregoing, of dealing with any cases being considered by him under section 124 of this Act at the time when this Part comes into force, and an order under this section may make different provision in relation to different cases or classes of case.

• (2) An order under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

Powers of investigation of Commission

Power to request precognition on oath.

194H

• (1) Where it appears to the Commission that a person may have information which they require for the purposes of carrying out their functions, and the person refuses to make any statement to them, they may apply to the sheriff under this section.

• (2) On an application made by the Commission under this section, the sheriff may, if he is satisfied that it is reasonable in the circumstances, grant warrant to cite the person concerned to appear before the sheriff in chambers at such time or place as shall be specified in the citation, for precognition on oath by a member of the Commission or a person appointed by them to act in that regard.

• (3) Any person who, having been duly cited to attend for precognition under subsection (2) above and having been given at least 48 hours notice, fails without reasonable excuse to attend shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale or to imprisonment for a period not exceeding 21 days; and the court may issue a warrant for the apprehension of the person concerned ordering him to be brought before a sheriff for precognition on oath.

• (4) Any person who, having been duly cited to attend for precognition under subsection (2) above, attends but—

• (a) refuses to give information within his knowledge or to produce evidence in his possession; or

• (b) prevaricates in his evidence,

shall be guilty of an offence and shall be liable to be summarily subjected to a fine not exceeding level 3 on the standard scale or to imprisonment for a period not exceeding 21 days.

Power to obtain documents etc.

194I

• (1) Where the Commission believe that a person or a public body has possession or control of a document or other material which may assist them in the exercise of any of their functions, they may apply to the High Court for an order requiring that person or body—

• (a) to produce the document or other material to the Commission or to give the Commission access to it; and

• (b) to allow the Commission to take away the document or other material or to make and take away a copy of it in such form as they think appropriate,

and such an order may direct that the document or other material must not be destroyed, damaged or altered before the direction is withdrawn by the Court.

• (2) The duty to comply with an order under this section is not affected by any obligation of secrecy or other limitation on disclosure (including any such obligation or limitation imposed by or by virtue of any enactment) which would otherwise prevent the production of the document or other material to the Commission or the giving of access to it to the Commission.

• (3) The documents and other material covered by this section include, in particular, any document or other material obtained or created during any investigation or proceedings relating to—

• (a) the case in relation to which the Commission’s function is being or may be exercised; or

• (b) any other case which may be in any way connected with that case (whether or not any function of the Commission could be exercised in relation to that other case).

• (4) In this section—

• “Minister” means a Minister of the Crown as defined by section 8 of the Ministers of the Crown Act 1975;

• ...

• “public body” means the Police Service of Scotland; any government department, local authority or other body constituted for the purposes of the public service, local government or the administration of justice; orany other body whose members are appointed by Her Majesty, any Minister , the Scottish Ministers or any government department or whose revenues consist wholly or mainly of money provided by Parliament.

Power to request assistance in obtaining information abroad

194IA

• (1) Where it appears to the Commission that there may be information which they require for the purposes of carrying out their functions, and the information is outside the United Kingdom, they may apply to the High Court to request assistance.

• (2) On an application made by the Commission under subsection (1), the High Court may request assistance if satisfied that it is reasonable in the circumstances.

• (3) In this section, “request assistance” means request assistance in obtaining outside the United Kingdom any information specified in the request for use by the Commission for the purposes of carrying out their functions.

• (4) Section 8 of the Crime (International Co-operation) Act 2003 (c.32) (sending requests for assistance) applies to requests for assistance under this section as it applies to requests for assistance under section 7 of that Act.

• (5) Subsections (2), (3) and (6) of section 9 of that Act (use of evidence obtained) apply to information obtained pursuant to a request for assistance under this section as they apply under subsection (1) of that section to evidence obtained pursuant to a request for assistance under section 7 of that Act.

Disclosure of information

Offence of disclosure.

194J

• (1) A person who is or has been a member or employee of the Commission shall not disclose any information obtained by the Commission in the exercise of any of their functions unless the disclosure of the information is excepted from this section by section 194K or 194M of this Act.

• (2) A member of the Commission shall not authorise the disclosure by an employee of the Commission of any information obtained by the Commission in the exercise of any of their functions unless the authorisation of the disclosure of the information is excepted from this section by section 194K or 194M of this Act.

• (3) A person who contravenes this section is guilty of an offence and liable on summary conviction to a fine of an amount not exceeding level 5 on the standard scale.

Exceptions from obligations of non-disclosure.

194K

• (1) The disclosure of information, or the authorisation of the disclosure of information, is excepted from section 194J of this Act by this section if the information is disclosed, or is authorised to be disclosed—

• (a) for the purposes of any criminal, disciplinary or civil proceedings;

• (b) in order to assist in dealing with an application made to the Secretary of State for compensation for a miscarriage of justice;

• (c) by a person who is a member or an employee of the Commission to another person who is a member or an employee of the Commission;

• (d) in any statement or report required by this Act;

• (e) in or in connection with the exercise of any function under this Act; or

• (f) in any circumstances in which the disclosure of information is permitted by an order made by the Secretary of State.

• (2) The disclosure of information is also excepted from section 194J of this Act by this section if the information is disclosed by an employee of the Commission who is authorised to disclose the information by a member of the Commission.

• (3) The disclosure of information, or the authorisation of the disclosure of information, is also excepted from section 194J of this Act by this section if the information is disclosed, or is authorised to be disclosed, for the purposes of—

• (a) the investigation of an offence; or

• (b) deciding whether to prosecute a person for an offence,

unless the disclosure is or would be prevented by an obligation or other limitation on disclosure (including any such obligation or limitation imposed by, under or by virtue of any enactment) arising otherwise than under that section.

• (4) Where the disclosure of information is excepted from section 194J of this Act by subsection (1) or (2) above, the disclosure of the information is not prevented by any obligation of secrecy or other limitation on disclosure (including any such obligation or limitation imposed by, under or by virtue of any enactment) arising otherwise than under that section.

• (5) The power to make an order under subsection (1)(f) above is exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Consent to disclosure.

194L

• (1) Where a person or body is required by an order under section 194I of this Act to produce or allow access to a document or other material to the Commission and notifies them that any information contained in the document or other material to which the order relates is not to be disclosed by the Commission without his or its prior consent, the Commission shall not disclose the information without such consent.

• (2) Such consent may not be withheld unless—

• (a) (apart from section 194I of this Act) the person would have been prevented by any obligation of secrecy or other limitation on disclosure from disclosing the information without such consent; and

• (b) it is reasonable for the person to withhold his consent to disclosure of the information by the Commission.

• (3) An obligation of secrecy or other limitation on disclosure which applies to a person only where disclosure is not authorised by another person shall not be taken for the purposes of subsection (2)(a) above to prevent the disclosure by the person of information to the Commission unless—

• (a) reasonable steps have been taken to obtain the authorisation of the other person; or

• (b) such authorisation could not reasonably be expected to be obtained.

Special circumstances for disclosure

Further exception to section 194J

194M

• (1) The disclosure of information, or the authorisation of disclosure of information, is excepted from section 194J by this section if—

• (a) the conditions specified in subsection (2) are met, and

• (b) the Commission have determined that it is appropriate in the whole circumstances for the information to be disclosed.

• (2) The conditions are that—

• (a) the information relates to a case that has been referred to the High Court under section 194B(1),

• (b) the reference concerns—

• (i) a conviction, or

• (ii) a finding under section 55(2), and

• (c) the case has fallen, or has been abandoned, under the provisions or other rules applying by virtue of section 194B(1).

Effect of the exception

194N

• (1) Where the disclosure of information is excepted from section 194J by section 194M, the disclosure of the information is not prevented by any obligation of confidentiality or other limitation on disclosure arising otherwise than under section 194J.

• (2) For the purpose of subsection (1), such an obligation or limitation does not include one imposed—

• (a) by, under or by virtue of any enactment, or

• (b) by any interdict or other court order applying in connection with this section.

Notification and representations etc.

194O

• (1) When considering for the purpose of section 194M(1) the question of whether it is appropriate for the information to be disclosed, the Commission have the following duties.

• (2) The Commission must—

• (a) so far as practicable, take reasonable measures to—

• (i) notify each of the affected persons of the possibility that the information may be disclosed, and

• (ii) seek the views of each of them on the question, and

• (b) to such extent (and in such manner) as they think fit, consult the other interested persons.

• (3) The Commission must—

• (a) allow the prescribed period for each of the affected and other interested persons involved to take steps (including legal action) in their own favour in relation to the question, and

• (b) have regard to any material representations made to them on the question by any of those affected and other interested persons within the prescribed period.

• (4) The Commission must have regard to any other factors that they believe to be significant in relation to the question.

• (5) In subsections (2) and (3)—

• (a) the references to the affected persons are to the persons—

• (i) to whom the information directly relates, or

• (ii) from whom the information was obtained, whether directly or indirectly,

• (b) the references to the other interested persons are to (so far as not among the affected persons)—

• (i) the Lord Advocate, and

• (ii) such additional persons (if any) as appear to the Commission to have a substantial interest in the question.

• (6) In subsection (3), the references to the prescribed period in relation to a particular person are to—

• (a) the period of 6 weeks, or

• (b) such longer period as the Commission may set,

starting with the date on which the notification was sent to, or (as the case may be) consultation was initiated with respect to, the person.

• (7) Subsections (3) and (6) are inapplicable in relation to a particular person if the Commission cannot reasonably ascertain the person's whereabouts.

Consent if UK interest

194P

• (1) Unless subsection (3) is complied with, section 194M(1) is of no effect in relation to any information falling within subsection (2).

• (2) Information falls within this subsection if it—

• (a) is held by the Commission, and

• (b) at any time, has been supplied by the UK Government under arrangements of any kind.

• (3) This subsection is complied with if, at any time, the UK Government has in connection with section 194M(1) given its consent to disclosure of the information.

• (4) In this section, “the UK Government” means a Minister of the Crown or a department of the Government of the United Kingdom.

Consent if foreign interest

194Q

• (1) Unless subsection (3) is complied with, section 194M(1) is of no effect in relation to any information falling within subsection (2).

• (2) Information falls within this subsection if it—

• (a) is held by the Commission, and

• (b) at any time, has been supplied by a designated foreign authority under arrangements of any kind.

• (3) This subsection is complied with if the designated foreign authority has in connection with section 194M(1) given its consent to disclosure of the information, by virtue of—

• (a) the arrangements concerned, or

• (b) subsection (4).

• (4) Where not previously given by virtue of those arrangements, it is for the Commission to seek the designated foreign authority's consent to disclosure of the information.

• (5) Subsection (1) does not apply if the information also falls within section 194P(2).

Designated foreign authority

194R

• (1) The references in section 194Q to a designated foreign authority are to a current or previous authority of a prosecutorial, judicial or other character which is or was located within a country or territory outwith the United Kingdom.

• (2) But, if in connection with subsection (4) of that section—

• (a) the Commission cannot reasonably identify or find the particular authority in question, or

• (b) they are unsuccessful in their reasonable attempts to communicate with it,

the references in subsections (3) and (4) of that section to the designated foreign authority are to be read as if they were to the relevant foreign government.

• (3) In the application of subsection (2), paragraph (a) of subsection (3) of that section is to be ignored.

• (4) In subsection (2)—

• (a) the references to the Commission include their acting with the Lord Advocate's help,

• (b) the reference to the relevant foreign government—

• (i) is to the government of the other country or territory,

• (ii) in the event of doubt as to the status or operation of a governmental system in the other country or territory, is to be regarded as being to the body described in subsection (5).

• (5) That is, the principal body in it (for the time being (if any)) that is recognised by the Government of the United Kingdom as having responsibility for exercising governmental control centrally.

Disapplication of sections 194O to 194R

194S

• (1) Sections 194O to 194R cease to have effect if subsection (2) prevails.

• (2) This subsection prevails where, on their preliminary examination of the question to which section 194O(1) relates, the Commission determine for the purpose of section 194M(1) that it is manifestly inappropriate for the information to be disclosed.

• (3) But—

• (a) if there is a material change in any significant factor on which the determination depended, it is open to the Commission to re-examine the question (and this is to be regarded as another preliminary examination of the question),

• (b) where they choose to re-examine the question, the effect of sections 194O to 194R is restored unless subsection (2) again prevails.

Final disclosure-related matters

194T

• (1) If the Commission decide in pursuance of section 194M(1) to disclose the information—

• (a) subsection (2) applies initially, and

• (b) subsection (3) applies subsequently.

• (2) Before disclosing the information, the Commission must—

• (a) so far as practicable, take reasonable measures to notify of the decision—

• (i) each of the affected persons, and

• (ii) to the same extent as they were consulted under section 194O(2)(b), the other interested persons, and

• (b) allow the prescribed period for each of the affected and other interested persons involved to take steps (including legal action) in their own favour in relation to the decision.

• (3) In disclosing the information, the Commission must—

• (a) explain the context in which the information is being disclosed by them (including by describing the background to the case), and

• (b) where (for any reason) other information relating to the case remains undisclosed by them, explicitly state that fact,

and do so along with the material by which the disclosure is made.

• (4) In subsection (2), the references to the affected and other interested persons are to be construed in accordance with section 194O(5).

• (5) In subsection (2)(b), the reference to the prescribed period in relation to a particular person is to—

• (a) the period of 6 weeks, or

• (b) such longer period as the Commission may set,

starting with the date on which the notification was sent to the person.

• (6) Subsections (2)(b) and (5) are inapplicable in relation to a particular person if the Commission cannot reasonably ascertain the person's whereabouts.

• (7) In subsection (3)(b), the reference to other information is to any other information obtained by the Commission in the exercise of their functions.

PART XI — Sentencing

General

Remit to High Court for sentence.

195

• (1) Where at any diet in proceedings on indictment in the sheriff court, sentence falls to be imposed but the sheriff holds that any competent sentence which he can impose is inadequate or it appears to him that the criteria mentioned in section 210E of this Act (that is to say, the risk criteria) may be met so that , in either case, the question of sentence is appropriate for the High Court, he shall—

• (a) endorse upon the record copy of the indictment a certificate of the plea or the verdict, as the case may be;

• (b) by interlocutor written on the record copy remit the convicted person to the High Court for sentence; and

• (c) append to the interlocutor a note of his reasons for the remit,

and a remit under this section shall be sufficient warrant to bring the accused before the High Court for sentence and shall remain in force until the person is sentenced.

• (2) Where under any enactment an offence is punishable on conviction on indictment by imprisonment for a term exceeding five years but the enactment either expressly or impliedly restricts the power of the sheriff to impose a sentence of imprisonment for a term exceeding five years, it shall be competent for the sheriff to remit the accused to the High Court for sentence under subsection (1) above; and it shall be competent for the High Court to pass any sentence which it could have passed if the person had been convicted before it.

• (3) When the Clerk of Justiciary receives the record copy of the indictment he shall send a copy of the note of reasons to the convicted person or his solicitor and to the Crown Agent.

• (4) Subject to subsection (3) above, the note of reasons shall be available only to the High Court and the parties.

Sentence following guilty plea.

196

• (1) In determining what sentence to pass on, or what other disposal or order to make in relation to, an offender who has pled guilty to an offence, a court shall take into account—

• (a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and

• (b) the circumstances in which that indication was given.

• (1A) In passing sentence on an offender referred to in subsection (1) above, the court shall—

• (a) state whether, having taken account of the matters mentioned in paragraphs (a) and (b) of that subsection, the sentence imposed in respect of the offence is different from that which the court would otherwise have imposed; and

• (b) if it is not, state reasons why it is not.

• (1B) Subsection (1C) applies where—

• (a) the court is making an order for lifelong restriction to which section 205ZB applies in respect of an offender or imposing on an offender—

• (i) a serious terrorism sentence of imprisonment under section 205ZA(2),

• (ii) a serious terrorism sentence of detention under section 205ZA(6),

• (iii) a sentence of imprisonment for life to which section 205ZB applies, or

• (iv) a sentence of detention for life to which section 205ZB applies, and

• (b) the offender has pled guilty to the offence for which the offender is being sentenced.

• (1C) The court may, after taking into account the matters mentioned in paragraphs (a) and (b) of subsection (1), impose as the appropriate custodial term or, as the case may be, specify as the punishment part, a term of any length which is not less than 80 per cent of the term which would otherwise be required.

• (2) Where the court is passing sentence on an offender under section 205B(2) of this Act and that offender has pled guilty to the offence for which he is being so sentenced, the court may, after taking into account the matters mentioned in paragraphs (a) and (b) of subsection (1) above, pass a sentence of less than seven years imprisonment or, as the case may be, detention but any such sentence shall not be of a term of imprisonment or period of detention of less than five years, two hundred and nineteen days.

Sentencing guidelines.

197

Without prejudice to any rule of law, a court in passing sentence shall have regard to any relevant opinion pronounced under section 118(7) or section 189(7) of this Act.

Form of sentence.

198

• (1) In any case the sentence to be pronounced shall be announced by the judge in open court and shall be entered in the record in the form prescribed by Act of Adjournal.

• (2) In recording a sentence of imprisonment, it shall be sufficient to minute the term of imprisonment to which the court sentenced the accused, without specifying the prison in which the sentence is to be carried out; and an entry of sentence, signed by the clerk of court, shall be full warrant and authority for any subsequent execution of the sentence and for the clerk to issue extracts for the purposes of execution or otherwise.

• (3) In extracting a sentence of imprisonment, the extract may be in the form set out in an Act of Adjournal or as nearly as may be in such form.

Power to mitigate penalties.

199

• (1) Subject to subsection (3) below, where a person is convicted of the contravention of an enactment and the penalty which may be imposed involves—

• (a) imprisonment;

• (b) the imposition of a fine;

• (c) the finding of caution for good behaviour or otherwise whether or not imposed in addition to imprisonment or a fine,

subsection (2) below shall apply.

• (2) Where this subsection applies, the court, in addition to any other power conferred by statute, shall have power—

• (a) to reduce the period of imprisonment;

• (b) to substitute for imprisonment a fine (either with or without the finding of caution for good behaviour);

• (c) to substitute for imprisonment or a fine the finding of caution;

• (d) to reduce the amount of the fine;

• (e) to dispense with the finding of caution.

• (3) Subsection (2) above shall not apply—

• (a) in relation to an enactment which carries into effect a treaty, convention, or agreement with a foreign state which stipulates for a fine of a minimum amount; or

• (b) to proceedings taken under any Act relating to any of Her Majesty’s regular or auxiliary forces. ; or

• (c) to any proceedings in which the court on conviction is under a duty to impose a sentence under section 205A(2) or 205B(2) of this Act.

• (4) Where, in summary proceedings, a fine is imposed in substitution for imprisonment, the fine—

• (a) in the case of an offence which is triable either summarily or on indictment, shall not exceed the prescribed sum; and

• (b) in the case of an offence triable only summarily, shall not exceed level 4 on the standard scale.

• (5) Where the finding of caution is imposed under this section—

• (a) in respect of an offence which is triable only summarily, the amount shall not exceed level 4 on the standard scale and the period shall not exceed that which the court may impose under this Act; and

• (b) in any other case, the amount shall not exceed the prescribed sum and the period shall not exceed 12 months.

Pre-sentencing procedure

Remand for inquiry into physical or mental condition.

200

• (1) Without prejudice to any powers exercisable by a court under section 201 of this Act, where—

• (a) the court finds that an accused has committed an offence punishable with imprisonment; and

• (b) it appears to the court that before the method of dealing with him is determined an inquiry ought to be made into his physical or mental condition,

subsection (2) below shall apply.

• (2) Where this subsection applies the court shall—

• (a) for the purpose of inquiry solely into his physical condition, remand him in custody or on bail;

• (b) for the purpose of inquiry into his mental condition (whether or not in addition to his physical condition), remand him in custody or on bail or, where the court is satisfied—

• (i) on the written or oral evidence of a medical practitioner, that the person appears to be suffering from a mental disorder; and

• (ii) that the accused could be admitted to a hospital that is suitable for his detention,

make an order committing him to that hospital,

for such period or periods, no single period exceeding three weeks, as the court thinks necessary to enable a medical examination and report to be made.

• (3) Where the court is of the opinion that a person ought to continue to be committed to hospital for the purpose of inquiry into his mental condition following the expiry of the period specified in an order for committal to hospital under paragraph (b) of subsection (2) above, the court may—

• (a) if the condition in sub-paragraph (i) of that paragraph continues to be satisfied and he could be admitted to a hospital that is suitable for his continued detention, renew the order for such further period not exceeding three weeks as the court thinks necessary to enable a medical examination and report to be made; and

• (b) in any other case, remand the person in custody or on bail in accordance with subsection (2) above.

• (4) An order under subsection (3)(a) above may, unless objection is made by or on behalf of the person to whom it relates, be made in his absence.

• (5) Where, before the expiry of the period specified in an order for committal to hospital under subsection (2)(b) above, the court considers, on an application made to it, that committal to hospital is no longer required in relation to the person, the court shall revoke the order and may make such other order, under subsection (2)(a) above or any other provision of this Part of this Act, as the court considers appropriate.

• (6) Where an accused is remanded on bail under this section, it shall be a condition of the order granting bail that he shall—

• (a) undergo a medical examination by a duly qualified registered medical practitioner or, where the inquiry is into his mental condition, and the order granting bail so specifies, two such practitioners; and

• (b) for the purpose of such examination, attend at an institution or place, or on any such practitioner specified in the order granting bail and, where the inquiry is into his mental condition, comply with any directions which may be given to him for the said purpose by any person so specified or by a person of any class so specified,

and, if arrangements have been made for his reception, it may be a condition of the order granting bail that the person shall, for the purpose of the examination, reside in an institution or place specified as aforesaid, not being an institution or place to which he could have been remanded in custody, until the expiry of such period as may be so specified or until he is discharged therefrom, whichever first occurs.

• (7) On exercising the powers conferred by this section to remand in custody or on bail the court shall—

• (a) where the person is remanded in custody, send to the institution or place in which he is detained; and

• (b) where the person is released on bail, send to the institution or place at which or the person by whom he is to be examined,

a statement of the reasons for which it appears to the court that an inquiry ought to be made into his physical or mental condition, and of any information before the court about his physical or mental condition.

• (8) On making an order of committal to hospital under subsection (2)(b) above the court shall send to the hospital specified in the order a statement of the reasons for which the court is of the opinion that an inquiry ought to be made into the mental condition of the person to whom it relates, and of any information before the court about his mental condition.

• (9) A person remanded under this section may , before the expiry of the period of 24 hours beginning with his remand, appeal to the appropriate Appeal Court by note of appeal against the refusal of bail or against the conditions imposed and a person committed to hospital under this section may , at any time during the period when the order for his committal, or, as the case may be, renewal of such order, is in force, appeal to the appropriate Appeal Court by note of appeal against the order of committal . . . . . . , and the appropriate Appeal Court, either in court or in chambers, may after hearing parties—

• (a) review the order and grant bail on such conditions as it thinks fit; or

• (b) confirm the order; or

• (c) in the case of an appeal against an order of committal to hospital, revoke the order and remand the person in custody.

• (9A) A note of appeal under subsection (9) above is to be—

• (a) lodged with the clerk of the court from which the appeal is to be taken; and

• (b) sent without delay by that clerk (where not the clerk of the appropriate Appeal Court) to the clerk of the appropriate Appeal Court.

• (10) The court may, on cause shown, vary an order for committal to hospital under subsection (2)(b) above by substituting another hospital for the hospital specified in the order.

• (11) Subsection (2)(b) above shall apply to the variation of an order under subsection (10) above as it applies to the making of an order for committal to hospital.

• (12) In this section—

• “appropriate Appeal Court” means—in the case of an appeal under subsection (9) against a decision of the High Court, that Court;in the case of an appeal under subsection (9) against a decision of a sheriff (whether in solemn or summary proceedings) or a JP court, the Sheriff Appeal Court; and

• “the clerk of the appropriate Appeal Court” means—in a case where the High Court is the appropriate Appeal Court, the Clerk of Justiciary;in a case where the Sheriff Appeal Court is the appropriate Appeal Court, the Clerk of that Court.

Power of court to adjourn case before sentence.

201

• (1) Where an accused has been convicted or the court has found that he committed the offence and before he has been sentenced or otherwise dealt with, subject to subsection (3) below, the court may adjourn the case for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with his case.

• (2) Where the court adjourns a case solely for the purpose mentioned in subsection (1) above, it shall remand the accused in custody or on bail or ordain him to appear at the adjourned diet.

• (3) Subject to section 21(9) of the Criminal Justice (Scotland) Act 2003 (asp 7), a court shall not adjourn the hearing of a case as mentioned in subsection (1) above for any single period exceeding four weeks or, on cause shown, eight weeks.

• (4) An accused who is remanded under this section may appeal to the appropriate Appeal Court against the refusal of bail or against the conditions imposed within 24 hours of his remand, by note of appeal . . . , and the appropriate Appeal Court, either in court or in chambers, may . . . —

• (a) review the order appealed against and either grant bail on such conditions as it thinks fit or ordain the accused to appear at the adjourned diet; or

• (b) confirm the order.

• (5) A note of appeal under subsection (4) above is to be—

• (a) lodged with the clerk of the court from which the appeal is to be taken; and

• (b) sent without delay by that clerk (where not the clerk of the appropriate Appeal Court) to the clerk of the appropriate Appeal Court.

• (6) In this section—

• “appropriate Appeal Court” means—in the case of an appeal under subsection (4) against a decision of the High Court, that Court;in the case of an appeal under subsection (4) against a decision of a sheriff (whether in solemn or summary proceedings) or a JP court, the Sheriff Appeal Court; and

• “the clerk of the appropriate Appeal Court” means—in a case where the High Court is the appropriate Appeal Court, the Clerk of Justiciary;in a case where the Sheriff Appeal Court is the appropriate Appeal Court, the Clerk of that Court.

Deferred sentence.

202

• (1) It shall be competent for a court to defer sentence after conviction for a period and on such conditions as the court may determine.

• (2) If it appears to the court which deferred sentence on an accused under subsection (1) above that he has been convicted during the period of deferment, by a court in any part of the United Kingdom or , where the court which deferred sentence considers appropriate, by a court in any member State of the European Union of an offence committed during that period and has been dealt with for that offence, the court which deferred sentence may—

• (a) issue a warrant for the arrest of the accused; or

• (b) instead of issuing such a warrant in the first instance, issue a citation requiring him to appear before it at such time as may be specified in the citation,

and on his appearance or on his being brought before the court it may deal with him in any manner in which it would be competent for it to deal with him on the expiry of the period of deferment.

• (3) Where a court which has deferred sentence on an accused under subsection (1) above convicts him of another offence during the period of deferment, it may deal with him for the original offence in any manner in which it would be competent for it to deal with him on the expiry of the period of deferment, as well as for the offence committed during the said period.

Reports.

203

• (1) Where a person specified in section 27(1)(b)(i) to (vi) of the Social Work (Scotland) Act 1968 commits an offence, the court shall not dispose of the case without obtaining from the local authority in whose area the person resides a report as to—

• (a) the circumstances of the offence; and

• (b) the character of the offender, including his behaviour while under the supervision, or as the case may be subject to the order, so specified in relation to him.

• (1A) However, if there is available to the court a report from a local authority—

• (a) of the kind described in subsection (1)(b) above; and

• (b) which was prepared in relation to the person not more than 3 months before the person was convicted of the offence,

the court need not obtain another report of that kind before disposing of the case unless it considers, following representations made by or on behalf of the person as to the person's circumstances, that it is appropriate to obtain another report.

• (1B) Nothing in subsection (1) or (1A) above requires the court to obtain a report if the court is satisfied, having regard to its likely method of dealing with the case before it for disposal, that the report would not be of any material assistance.

• (2) In subsection (1) above, “the court” does not include a JP court .

• (3) Where, in any case, a report by an officer of a local authority is made to the court with a view to assisting the court in determining the most suitable method of dealing with any person in respect of an offence, a copy of the report shall be given by the clerk of the court to

• (a) the offender,

• (b) the offender's solicitor (if any), and

• (c) the prosecutor.

Reports about organisations

203A

• (1) This section applies where an organisation is convicted of an offence.

• (2) Before dealing with the organisation in respect of the offence, the court may obtain a report into the organisation's financial affairs and structural arrangements.

• (3) The report is to be prepared by a person appointed by the court.

• (4) The person appointed to prepare the report is referred to in this section as the “reporter”.

• (5) The court may issue directions to the reporter about—

• (a) the information to be contained in the report,

• (b) the particular matters to be covered by the report,

• (c) the time by which the report is to be submitted to the court.

• (6) The court may order the organisation to give the reporter and any person acting on the reporter's behalf—

• (a) access at all reasonable times to the organisation's books, documents and other records,

• (b) such information or explanation as the reporter thinks necessary.

• (7) The reporter's costs in preparing the report are to be paid by the clerk of court, but the court may order the organisation to reimburse to the clerk all or a part of those costs.

• (8) An order under subsection (7) may be enforced by civil diligence as if it were a fine.

• (9) On submission of the report to the court, the clerk of court must provide a copy of the report to—

• (a) the organisation,

• (b) the organisation's solicitor (if any), and

• (c) the prosecutor.

• (10) The court must have regard to the report in deciding how to deal with the organisation in respect of the offence.