The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018

(57D) (1) In a case where a person is arrested under an extradition arrest power (within the meaning of section 174(2) of the Extradition Act 2003), this Part applies subject to the following further modifications. (2) The following do not apply— (a) sections 3 and 4, (b) sections 25 to 30, (c) section 50. (3) In section 5— (a) subsection (1)(b) is to be read as if the words “in accordance with section 4” were omitted, (b) subsection (2)(a) is to be read as if the words “other than to give the information specified in section 34(4)” were omitted, and (c) subsection (3) is to be read as if the words “of Articles 3 and 4” were omitted. (4) Section 6 is to be read as if— (a) in subsection (1)(c) the words “in accordance with section 4” were omitted, (b) subsection (1)(d) were omitted, (c) subsection (2)(a) were omitted, (d) subsection (2)(c) were omitted, and (e) subsections (3) to (8) were omitted. (6) Section 23 is to be read as if— (a) subsection (1)(b) were omitted, (b) subsection (2)(d) were omitted. (7) Section 24 is to be read as if subsection (1)(b) were omitted. (8) Section 48 is to be read as if— (a) for subsection (2) there were substituted— (2) This subsection applies to a person who is in police custody having been arrested under an extradition arrest power (within the meaning of section 174(2) of the Extradition Act 2003). (b) for subsection (3) there were substituted— (3) In subsection (1), “the relevant offence” means the offence that would have been committed were the act constituting the relevant offence (within the meaning of section 164(3) of the Extradition Act 2003) done in Scotland.

Signed

David Mundell — Secretary of State — Scotland Office — 16th January 2018

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

The Order makes provision in consequence of the Criminal Justice (Scotland) Act 2016 (“the 2016 Act”).

Article 10 enables the Lord Advocate, when acting under section 57 of the 2016 Act, to specify bodies and deal with matters in the Code of Practice on investigative functions which would otherwise be outwith the legislative competence of the Scottish Parliament in terms of section 29(2)(b) or (c) of the Scotland Act 1998.

Articles 11 and 12 provide in relation to the code of practice about search of a person not in police custody under section 73 of the 2016 Act which applies to persons exercising the functions of a constable. Article 12 requires other officials and officers to have regard to the code when exercising a corresponding function.

Articles 13, 15 to 23 and 24(2) make modifications consequential on provision in the 2016 Act or other provision in the Order. Article 24(3) expands the procedural requirements in relation to regulations made under section 70 of the 2016 Act to reflect the application to constables in non-territorial police forces.

Article 14 makes provision to tidy up the statute book as a consequence of the combined effects on the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) of Schedule 1 to the Order and provisions of the Policing and Crime Act 2017 which are not yet in force.

Schedule 1 modifies the 1994 Act. Section 136 of the 1994 Act allows an arrest to be effected in England and Wales or Northern Ireland under a Scottish warrant. Section 137 allows a constable of the Police Service of Scotland to arrest someone who is in England and Wales or Northern Ireland without a warrant in connection with a Scottish crime in certain circumstances. Section 140 allows a constable of a police force in England and Wales or Northern Ireland to arrest a person in Scotland in certain circumstances. In each of these situations, Schedule 1 amends the relevant section to ensure that the laws applicable to an arrest effected in Scotland by a constable of the Police Service of Scotland will apply. Paragraph 4 inserts section 137ZA into the 1994 Act, which adjusts the operation of the 2016 Act rules as they apply to arrests effected outside Scotland. The rest of the Schedule removes from the 1994 Act references to provisions of the Criminal Procedure (Scotland) Act 1995 which are repealed by the 2016 Act.

Schedule 2 makes provision to apply Parts 1 and 2 of the 2016 Act where the Ministry of Defence Police, the British Transport Police Force and the Civil Nuclear Constabulary exercise police powers in Scotland.

Schedule 3 makes provision about the application of the 2016 Act in relation to immigration officers, designated customs officials and officers of Revenue and Customs; and modifies Part 3 of the Criminal Law Consolidation (Scotland) Act 1995 (“the 1995 Act”), which applies to such officers and officials. Part 5 deals with the application of the 2016 Act to National Crime Agency officers.

Part 6 of Schedule 3 makes provision in connection with the transfer of a person between different types of custody and provides for cooperation between officers.

Schedule 4 makes provision about the application of the 2016 Act in relation to persons in police custody in Scotland by virtue of sections 313 to 318 of the Armed Forces Act 2006 (“the 2006 Act”). Section 315 of the 2006 Act makes provision with respect to a person who surrenders to a civilian police officer as being a deserter or absent without leave. Sections 313 to 318 of the 2006 Act provide for arrest and detention of persons subject to service law by civilian police officers in certain limited circumstances and set out the procedures which apply following such arrest or surrender, including procedures for transfer of a person into service custody.

Schedule 5 modifies the Criminal Procedure (Scotland) Act 1995 (“the Criminal Procedure Act”) and the 2016 Act as they apply in relation to a person arrested in connection with extradition proceedings.

Paragraph 1 modifies provisions of the Criminal Procedure Act which regulate the taking of relevant physical data (as defined in section 7A of that Act, and including fingerprints) and other more intimate samples from a person who has been arrested and is in police custody, and the retention and destruction of those data and samples, and any information derived from them.

Paragraph 2 modifies the application of the 2016 Act in the case of a person arrested under an extradition arrest power. Sections 3, 4 and 25 to 30 of the 2016 Act are expressly dis-applied as these provisions relate to the procedure to be followed when a person is arrested in connection with a domestic criminal investigation.

Section 5 of the 2016 Act obliges police to provide a person in police custody with certain information. Schedule 5 modifies this obligation to information relevant in the case of a person arrested under an extradition arrest power, including information which must be provided in the case of a person arrested in connection with a European arrest warrant in order comply with the Directive 2012/13/EU of the European Parliament and of the Council of 22nd May 2012 on the right to information in criminal proceedings.

Section 6 of the 2016 Act is modified to limit the obligation to record information to information relevant in the case of a person arrested under an extradition power. Section 48 of the 2016 Act is modified to clarify that the effect of that provision applies in the case of a person arrested under an extradition arrest power.

A full regulatory impact assessment for this Order has not been produced as no impact on the private or voluntary sectors is foreseen.

Footnotes

[^f00001]: 1998 c.46.

[^f00002]: 1995 c.46; paragraph 27(a) of Schedule 2 to the 2016 Act provides for the repeal of section 14 of the 1995 Act. Paragraph 27(a) is to come into force on a day appointed by the Scottish Ministers in an order under section 117(2) of the 2016 Act.

[^f00003]: 2016 asp 1.

[^f00004]: 1994 c.33. Part 10 of the 1994 Act is amended by the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (c.40), Schedule 4, paragraph 93(6); the Youth Justice and Criminal Evidence Act 1999 (c.23), Schedule 4, paragraph 23; the Powers of Criminal Courts (Sentencing) Act 2000 (c.6), Schedule 9, paragraph 161; the Terrorism Act 2000 (c.11), Schedule 15, paragraph 9; the Anti-terrorism, Crime and Security Act 2001 (c.24), Schedule 7, paragraphs 17 to 19; the Proceeds of Crime Act 2002 (c.29), Schedule 11, paragraph 24; the Serious Organised Crime and Police Act 2005 (c.15), Schedule 7, paragraph 47; the Finance Act 2007 (c.11), section 87(6); the Police and Criminal Evidence (Amendment) (Northern Ireland) Order 2007 (S.I. 2007/288), Schedule 1, paragraph 28; the Criminal Justice and Immigration Act 2008 (c.4), Schedule 4, paragraph 42; the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011 (S.I. 2011/1739), Schedule 2; the Policing and Crime Act 2017 (c.3), Part 4, Chapter 8.

[^f00005]: 2006 c.52.

[^f00006]: 1995 c.46.

[^f00007]: 1986 c.47. Section 8A was inserted by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (asp 15), section 2(3); it has been amended by S.I. 2011/1739; by the Scottish Civil Justice Council and Criminal Legal Assistance (Scotland) Act 2013 (asp 3), sections 17 and 23(4); and by the Crime and Courts Act 2013 (c.22), Schedule 21, Part 3, paragraph 50.

[^f00008]: For example, article 5(2).

[^f00009]: 2017 c.3.

[^f00010]: 1995 c.39.

[^f00011]: 1981 c.61.

[^f00012]: 1985 c.15.

[^f00013]: 1996 c.41.

[^f00014]: 1997 c.20.

[^f00015]: 2002 c.8.

[^f00016]: 2007 c.30.

[^f00017]: Section 23P was inserted by the Finance Act 2007, Schedule 23, paragraph 3.

[^f00018]: Sections 24A and 24B were inserted by S.I. 2011/1739, Schedule 1, paragraph 6; section 25A was inserted by S.I. 2011/1739, Schedule 1, paragraph 4.

[^f00019]: Section 26B was inserted by the Finance Act 2007, Schedule 23, paragraph 7.

[^f00020]: 1998 c.37.

[^f00021]: 2000 c.11.

[^f00022]: 2007 c.11.

[^f00023]: New subsections (2A) to (2D) are to be inserted into section 87 (from a date to be appointed) by the Policing and Crime Act 2017, Schedule 17, paragraph 9.

[^f00024]: 2007 c.30. Section 2(1A) is inserted by the Borders, Citizenship and Immigration Act 2009 (c.11), section 52(1); it is amended by the Counter-Terrorism and Security Act 2015 (c.6), section 10(8).

[^f00025]: S.I. 2011/1739.

[^f00026]: 2013 c.22.

[^f00027]: 2016 c.19.

[^f00028]: A new subsection (4A) is to be inserted into section 136 (on a date to be appointed) by the Policing and Crime Act 2017 (c.3), Schedule 17, paragraph 7.

[^f00029]: A new subsection (7A) is to be inserted into section 137 (on a date to be appointed) by the Policing and Crime Act 2017, Schedule 17, paragraph 8.

[^f00030]: Section 138(1A) and (1B) were inserted and sections 138(2) and (2A) were substituted for section 138(2) by S.I. 2011/1739.

[^f00031]: Section 138(6) to (9) were substituted for section 138(6) by S.I. 2011/1739.

[^f00032]: 1987 c.4. Section 2C is inserted by the Serious Organised Crime and Police Act 2005 (c.15), Schedule 4, paragraphs 48 and 50; it is amended by the Crime and Courts Act 2013 (c.22), Schedule 8, paragraph 31.

[^f00033]: 2003 c.20.

[^f00034]: 2004 c.20.

[^f00035]: 2012 asp 8.

[^f00036]: 2009 c.11.

[^f00037]: 1971 c.77. The amendments to Schedule 2 are not relevant to this Order.

[^f00038]: 1981 c.61.

[^f00039]: 1985 c.15.

[^f00040]: 1996 c.41.

[^f00041]: 1997 c.20.

[^f00042]: 2002 c.8.

[^f00043]: 2007 c.30.

[^f00044]: 2016 asp 1.

[^f00045]: 1995 c.46.

[^f00046]: 2011 asp 1.

[^f00047]: Section 23A was inserted by the Finance Act 2007 (c.11); subsection (2) was amended by the Employment Act 2008 (c.24), section 12(2) and the Criminal Finances Act 2017 (c.22), section 18(2).

[^f00048]: 2016 asp 1.

[^f00049]: 1995 c.39. Section 23A was inserted by the Finance Act 2007 (c.11); subsection (2) was amended by the Employment Act 2008 (c.24), section 12(2) and the Criminal Finances Act 2017 (c.22), section 18(2).

[^f00050]: Section 23E was inserted by the Finance Act 2007 (c.11).

[^f00051]: 1995 c.46.

[^f00052]: 2013 c.22; section 10 was amended by the Policing and Crime Act 2017 (c.3), section 158(3).

[^f00053]: 2009 c.11.

[^f00054]: 2003 c.41.

[^f00055]: Section 18G was inserted by the Protection of Freedoms Act 2012 (c.9), Schedule 1, paragraph 6(3).

[^f00056]: Section 57A to C are inserted into the Criminal Justice (Scotland) Act 2016 by the Criminal Justice (Scotland) Act 2016 (Modification of Part 1 and Ancillary Provision) Regulations 2017 ( type=start slip=2018-02-01 time=1511171910075S.S.I. 2017453type=end slip=2018-02-01 time=1511171910075).