Dear Sir/Madam

THE CRIMINAL PROCEEDINGS ETC. (REFORM) ( SCOTLAND) ACT 2007 (COMMENCEMENT AND SAVINGS) ORDER2007

1. I am writing to draw your attention to certain provisions of this Act which will be commenced (i.e. will come into force) on Monday, 23 April 2007. The Act itself and its explanatory notes may be accessed at http://www.opsi.gov.uk/legislation/scotland/acts2007/20070006.htm. A copy of the Commencement Order is attached (PDF format) with the covering email for this circular - it can also be accessed at: http://www.opsi.gov.uk/legislation/scotland/ssi2007/20070250.htm.

Provisions coming into force

2. By virtue of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (Commencement and Savings) Order 2007, the following provisions of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 will all come into force on 23 April 2007:

(a) section 35 (evidence on commission);

(b) section 36 (victim notification scheme);

(c) section 44(2) (particular statutory offences - wildlife crime);

(d) section 56 (recognition of EU financial penalties);

(e) sections 67(5) and (6) (appointment of JPs);

(f) section 69 (training and appraisal of JPs);

(g) sections 78 and 79 (Crown Office and Procurator Fiscal Service Inspectorate); and

(h) section 80 (modification of enactments), for the purposes of bringing into force paragraphs 6, 16(1), 18(2), 18(3) and 19 of the schedule to the Act.

A short explanation of the key issues arising from these changes is provided on the following 3 pages. If you are interested in a particular provision the notes which follow should be read in conjunction with the provisions of the Act and its detailed explanatory notes.

Key Issues - Provisions being commenced on 23 April

Section 35 (Evidence on Commission)

3. Section 35 of the Act amends procedures in relation to the taking of evidence on commission. The amendments affect both proceedings in which the evidence of a vulnerable witness is taken on commission as a special measure under section 271I of the Criminal Procedure (Scotland) Act 1995 Act ("the 1995 Act") and proceedings where evidence is taken on commission under section 272.

4. The key effects of the amendments can be summarised as follows:

(a) a requirement is introduced that the commissioner be a judge or a sheriff in all cases, enabling the admissibility of questions posed to be determined immediately; and

(b) the following protections of the 1995 Act are applied to commission proceedings in sexual offence cases in the same way as they apply where a witness gives evidence at trial:

(i) prohibition on an accused charged with certain sexual offences conducting his or her own defence; and

(ii) restrictions on the admissibility of evidence, or questioning designed to elicit evidence, as to the character or behaviour of the complainer.

5. In addition, section 271I is amended to allow vulnerable witnesses (in all types of case) to give evidence via a live TV link where the court so directs in authorising the commission.

6. Section 35 will apply, from 23 April, to all commissions which take place in terms of 272 of the 1995 Act. Section 271I is not yet in force in relation to sexual offence cases; it is expected that it will be commenced for this purpose in early summer 2007. The provisions of section 35 will then immediately apply to all proceedings in which evidence is taken on commission as a special measure under that section. For present purposes, the only provisions of section 35 which will apply to section 271I commissions from 23 April are the requirement that the commissioner be a judge or a sheriff and the possibility of use of a live TV link.

Section 36 (Victim Notification Scheme)

7. Section 36 rectifies an anomaly in the Criminal Justice (Scotland) Act 2003 whereby carers of eligible children under the age of 14 could not apply to join the Victim Notification Scheme (VNS) on the child's behalf in cases where the victim was dead. The amendment means that in cases where the victim has died, the right to apply to receive information on the offender's release and to make representations to the Parole Board can be exercised on a child's behalf by his or her carer. In addition, the amendment ensures that it is the current carers, who may or may not have been the carers at the time of the offence, who can apply to the VNS and represent the child's interests.

Section 44(2) (Particular Statutory Offences - Wildlife Crime)

8. This is a minor and technical amendment to the Wildlife and Countryside Act 1981, commencement of which will ensure that a maximum custodial sentence of 6 months is available on summary conviction for certain wildlife offences related to the transposition of the EU Habitats Directive. This will ensure a consistent approach to maximum sentences under the Directive. Paragraphs 250-251 of the Act's Explanatory Notes provide further detail on this change.

Section 56 (Recognition of EU Financial Penalties)

9. Section 56 of the Act gives Scottish Ministers the power to make provision (by way of an order, subject to the affirmative Parliamentary procedure) implementing the EU Council Framework Decision on the application of the principle of mutual recognition to financial penalties. Commencement of this section has no effect on the substantive law relating to fines and fines enforcement, as it is an enabling power, allowing further provision to be made by Order. It is anticipated that an Order will be made under this section in the next Parliamentary session.

Sections 67(5) and (6) (Appointment of JPs)

10. The commencement of sections 67(5) and (6) allows the Justices of the Peace (Scotland) Order 2007 to come into force on 23 April. The Order, which has already been made (using anticipatory powers) and considered by Parliament, creates, amongst other things, a statutory basis for the establishment of new recruitment committees in each sheriffdom. Its coming into force therefore allows work to begin on establishing those committees from April 2007 onwards. It should be noted that although the establishment of the new recruitment committees can begin as soon as the Order comes into force, until the rest of section 67 of the Act is commenced (probably in December 2007) it will not be possible to appoint new JPs under the Act. Before then, any appointments of new JPs can only be made under the relevant provisions of the District Courts (Scotland) Act 1975. Those provisions will be repealed at the same time as the rest of section 67 is commenced.

Section 69 (Training and Appraisal of JPs)

11. Section 69 contains order-making powers in relation to the training and appraisal of JPs. The commencement of this section is therefore necessary to allow the Justices of the Peace (Scotland) Order 2007 to come into force on 23 April, since that order provides for the training and appraisal of JPs, as well as (as has been noted in the paragraph above) their appointment. In particular, it provides for the establishment of Justices' Training Committees and Justices' Appraisal Committees in each sheriffdom. Its coming into force therefore allows work to start on appointing those committees from April onwards. The Lord President has approved the provisions of the Justices of the Peace (Scotland) Order 2007, as is required under section 69(4) of the Act.

Sections 78 and 79 (Crown Office and Procurator Fiscal Service Inspectorate)

12. Section 78 of the Act creates the office of Her Majesty's Chief Inspector of Prosecution in Scotland and section 79 gives the Inspector the duty to secure the inspection of the Crown Office and Procurator Fiscal Service. It further provides for the Inspector to report to the Lord Advocate on any matter referred by the Lord Advocate to the Inspector. Further provision is made regarding the supply of information to the Inspector and the submission of an Annual Report by the Inspector to the Lord Advocate who will lay it before the Scottish Parliament. The Inspector in exercising his functions is to act independently of any other person. These provisions put the Inspectorate on a statutory basis. It has been operational since December 2003 on a non statutory basis. The first Chief Inspector was appointed in August 2004.

Schedule, paragraph 6 (Compensation for miscarriages of justice)

13. Paragraph 6 amends section 133 of the Criminal Justice Act 1988, which provides for compensation when a conviction is reversed or a person is pardoned following a miscarriage of justice. The amendment ensures that convictions reversed following a reference to the High Court by the Scottish Criminal Cases Review Commission under section 194B of the Criminal Procedure (Scotland) Act 1995 are included, and has retrospective effect to 1 April 1999. Paragraph 6 contains a saving provision for references made by the Secretary of State under previous powers.

Schedule, paragraphs 16(1), 18(2), 18(3) (Minor changes to certain appeal timescales)

14. These paragraphs modify the time limits where an appellant wishes to apply to the High Court of Justiciary for leave to rely on grounds of appeal which were deemed to be unarguable by the sifting judge(s). The amendments provide that the application must be made within 14 days from the date of intimation by the Clerk of Justiciary of the decision of the sifting judge(s). The time limit for notifying the Crown Agent of the application is also adjusted so that intimation requires to be made within 14 days of the application. The High Court may on cause shown extend these time limits. The Order makes it clear that the changes will apply to cases where intimation is made on or after 23 April 2007.

Schedule, paragraph 19 (Extended Sentences)

15. Paragraph 19 adds the sexual offences created by sections 1 and 9 to 12 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 to the list of offences contained in section 210A of the Criminal Procedure (Scotland) Act 1995 which make an offender eligible for consideration for an extended sentence. The savings provision in article 4(1) of the Commencement Order provides that an extended sentence shall not be imposed for these offences where they were committed before 23 April 2007.

Commencement of other provisions in the Act

16. The scale and complexity of other provisions in the Act is considerable, and preparatory work is under way with a view to their commencement at an appropriate point. Interested parties will be kept in close touch with developments.

Should you have any queries in relation to any of the above, please feel free to make contact through the details provided on page 1 of this circular.

Yours faithfully

Noel Rehfisch

Scottish Executive Justice Department

Summary Justice Reform Team

Annex A - Distribution List

Lord Justice General

Lord Justice Clerk

Sheriffs Principal

Sheriffs Association

Dean of the Faculty of Advocates

The Principal Clerk of Session & Justiciary

Director of Judicial Studies

Crown Agent

Law Society of Scotland

Chief Executive, Scottish Courts Service

Sheriff Clerks

District Courts Association

District Court Clerks

Scottish Criminal Cases Review Commission

Directors of Social Work

Chief Officers, Community Justice Authorities

Citizens Advice Scotland

Area Procurators Fiscal

Sue Moody - COPFS Victim and Equality Unit

David McKenna - Victim Support Scotland

Louise Johnson - Victims' Forum

Sharron di Ciacca - Scottish Prison Service