JD Circular No: JD/1/2008: The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (Commencement No. 3 and Savings) Order 2008

Listen

The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (Commencement No. 3 and Savings) Order 2008

Criminal Justice Directorate
Criminal Procedure Division

T: 0131-244 2222
F: 0131-244 2623
E: summaryjusticereview@scotland.gsi.gov.uk

Justice Department
Criminal Procedure Division
Circular No: JD/1/2008
Distribution by email as per list at Annex A

25 February 2008

Dear Sir/Madam

THE CRIMINAL PROCEEDINGS ETC. (REFORM) (SCOTLAND) ACT 2007 (COMMENCEMENT NO. 3 AND SAVINGS) ORDER 2008.

1. I am writing to draw your attention to certain provisions of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 ("the Act"), which will come into force on Monday, 10 March 2008. 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/ssi2008/pdf/ssi_20080042_en.pdf.

2. Provisions of the Act coming into force on 10 March 2008:

(a) Criminal proceedings ( sections 7, 11, 12, 16, 17, 22, 23, 28, and 31)
(b) Sentencing ( section 49)
(c) Direct Measures (sections 50, and 52-54)
(d) Enforcement of fines (section 55)
(e) Unification in Lothian and Borders (sections 59, 61, 62, 63)
(f) Lay Justice (sections 68(4) and (5), 74, 75 and 77(2), (3) and (5))
(g) Schedule (and section 80 for the purpose of commencing paragraphs 2, 4, 7, 8, 9(1)-(6), 10, 11, 20, 22, 25(a), (c) and (d), 26, 27, 30(a), 31, 32 and 33(1) and (2) of the Schedule)

3. A brief indication of the key issues is provided on the following pages. Where new sections have been inserted into the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"), this has been indicated.

4. In conjunction with commencement of these provisions, the Act of Adjournal (Criminal Procedure Rules Amendment) (Criminal Proceedings etc. (Reform) (Scotland) Act 2007) 2008 will also come into force on 10 March 2008. This is available at
http://www.scotcourts.gov.uk/library/rules/rules.asp.

5. FURTHER ORDERS BEING MADE IN RELATION TO THE ACT

(a) The following Orders are expected to come into effect from 10 March 2008:

(i) The Criminal Procedure (Scotland) Act 1995 Compensation Offer (Maximum Amount) Order 2008 (No. 7). That Order is subject to negative procedure in the Scottish Parliament and is expected to come into force on 10 March 2008. Section 302A of the 1995 Act, as introduced by section 50 of the 2007 Act, permits a procurator fiscal to send a compensation offer to an alleged offender in respect of certain offences. The Order prescribes that the maximum amount of a compensation offer is £5,000.

The Order can be accessed at:
http://www.opsi.gov.uk/legislation/scotland/ssi2008/pdf/ssi_20080007_en.pdf.

The executive note to this Order can be accessed at:
http://www.opsi.gov.uk/legislation/scotland/ssi2008/en/ssien_20080007_en.pdf.

(ii) The Criminal Procedure (Scotland) Act 1995 Fixed Penalty Order 2008 has been laid in draft and is subject to affirmative parliamentary procedure. It is also expected to come into force on 10 March 2008. The Order revokes the Criminal Justice (Scotland) Act 1987 Fixed Penalty Order 1996 ( SSI 1996/617) and prescribes the new scale of fiscal fixed penalty offers at £50, £75, £100, £150, £200, £250 and £300, under section 302(7) of the 1995 Act as amended by section 50 of the 2007 Act.

A draft version of the Order can be accessed at:
http://www.opsi.gov.uk/legislation/scotland/ssi2008/draft/pdf/sdsi_9780110802176_en.pdf.

The executive note to this Order can be accessed at:
http://www.opsi.gov.uk/legislation/scotland/ssi2008/draft/en/sdsien_9780110802176_en.pdf.

(iii) The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (Supplemental Provisions) Order 2008 has been laid in draft and is subject to affirmative parliamentary procedure, and is also expected to come into force on 10 March 2008. The Order will amend section 102A of the 1995 Act to clarify interpretation of that section. It will also amend section 7 of the 2007 Act to ensure its effective operation upon entry into force.

(iv) A draft version of the Order can be accessed at
http://www.opsi.gov.uk/legislation/scotland/ssi2008/draft/pdf/sdsi_9780110802190_en.pdf.

The executive note to this Order can be accessed at:
http://www.opsi.gov.uk/legislation/scotland/ssi2008/draft/en/sdsien_9780110802190_en.pdf.

(v) The Justice of the Peace Courts (Sheriffdom of Lothian and Borders) etc. Order 2008 (No. 31) is subject to negative parliamentary procedure and is expected to enter into force on 10 March 2008. The order provides for justice of the peace courts in the sheriffdom of Lothian and Borders, making specific provision in relation to:

  • the establishment of JP courts in Lothian and Borders;
  • the disestablishment of district courts in Lothian and Borders;
  • the transfer of staff from the local authorities to the Scottish Administration;
  • the transfer of property from the local authority to the Scottish Ministers;
  • certain fixed penalties and compensation offers; and
  • the repeal of certain sections of the District Courts (Scotland) Act 1975, mainly for the purposes of unification in Lothian and Borders.

The Order can be accessed at
http://www.opsi.gov.uk/legislation/scotland/ssi2008/pdf/ssi_20080031_en.pdf.

The executive note to this Order can be accessed at:
http://www.opsi.gov.uk/legislation/scotland/ssi2008/en/ssien_20080031_en.pdf.

(b) Please note that the links to the two affirmative Orders above are to their draft versions. The final Orders will appear on the OPSI website in due course.

(c) The following Orders are soon to be laid before Parliament:

(i) The Justice of the Peace Courts (Sheriffdom of Grampian, Highland and Islands) Order 2008 will be subject to negative parliamentary procedure. The order will provide for the establishment of justice of the peace courts in the sheriffdom of Grampian, Highland and Islands in order that cases may be arranged there from around late March, to take place after unification in that area on 2 June 2008. A further Order making provision for the transfer of staff and property in that sheriffdom will be required to have effect from 2 June 2008.

(ii) The Enforcement of Fines (Diligence) (Scotland) Regulations 2008; and the Enforcement of Fines (Seizure and Disposal of Vehicles) (Scotland) Regulations 2008. Both these sets of regulations will be subject to negative parliamentary procedure, and it is intended they will have effect from 1 April 2008. Fines Enforcement Officers themselves will be established on 10 March by virtue of the commencement of section 55 of the 2007 Act.

(d) An update will be provided by email when the above orders have been made.

PROVISIONS BEING COMMENCED ON 10 MARCH

The following sections of the Act are brought into effect on 10 March 2008. Where they are commenced for a particular purpose, that purpose is specified in the Order. Savings provisions are made in relation to sections 7, 12, 50(1), 52, 53 and 54. For details of these provisions please refer to the Order itself.

6. Criminal Proceedings

(a) Section 7 (Liberation on undertaking), except section 7(2)(c), which came into force on 10 December 2007, and except section 7(2)(g).

(b) Section 11 (Pre-trial time limits)

(c) Section 12 (Disclosure of convictions), inserting into the 1995 Act new section 166A (Post-offence convictions). Section 12 was partially commenced on 10 December 2007.

(d) Section 16 (Obstructive witnesses), inserting into the 1995 Act new sections:

(i) 156 (Apprehension of witnesses)
(ii) 156A (Orders in respect of witnesses apprehended under section 156)
(iii) 156B (Breach of bail under section 156A(1)(b))
(iv) 156C (Review of orders under section 156A(1)(a) or (b))
(v) 156D (Appeals in respect of orders under section 156A(1))

(e) Section 17 (Prosecution of companies etc.)

(f) Section 22 (Transfer of proceedings), inserting into the 1995 Act new sections:

(i) 137C (Custody cases: initiating proceedings outwith sheriffdom)
(ii) 137D (Transfer of JP court proceedings to the sheriff court)

(g) Section 23 (Time bar for transferred and related cases), inserting into the 1995 Act new section 136A (Time limits for transferred and related cases).

(h) Section 28 (Proceedings against bodies corporate)

(i) Section 31 (Petition proceedings outwith sheriffdom), inserting into the 1995 Act new section 34A (Petition proceedings outwith sheriffdom).

7. Sentencing

(a) Section 49 (Compensation orders)

8. Direct Measures

(a) Section 50 (Fixed penalty and compensation offers), inserting into the 1995 Act new sections:

(i) 302A (Compensation offer by procurator fiscal)
(ii) 302B (Combined fixed penalty and compensation offer)
(iii) 302C (Recall of fixed penalty or compensation offer)

(b) Section 52 (Setting aside of offers and orders), inserting into the 1995 Act new section 303ZB (Setting aside of offers and orders).

(c) Section 53 (Disclosure of previous offers)

(d) Section 54 (Time bar where offer made), inserting into the 1995 Act new section 136B (Time limits where fixed penalty offer etc. made)

9. Enforcement of fines

(a) Section 55 (Fines enforcement officers and their functions), inserting into the 1995 Act new sections:

(i) 226A (Fines enforcement officers)
(ii) 226B (Enforcement orders)
(iii) 226C (Variation for further time to pay)
(iv) 226D (Seizure of vehicles)
(v) 226E (Deduction from benefits)
(vi) 226F (Powers of diligence)
(vii) 226G (Reference of case to court)
(viii) 226H (Review of actions of FEO)
(ix) 226I (Enforcement of fines etc.: interpretation)

10. Unification in Lothian and Borders

(a) Section 59 (Establishing JP Courts). This section was partially commenced on 10 December 2007.

(b) Section 61 (Administration of JP Courts)

(c) Section 62 (Area and territorial jurisdiction of JP courts). Section 62 was partially commenced on 10 December 2007.

(d) Section 63 (Constitution and powers etc. of JP courts), except section 63(2).

11. Lay Justice

(a) Subsections 68 (4) and (5) (Conditions of office). This section was partially commenced on 10 December 2007.

(b) Section 74 (Appointment of stipendiary magistrates)

(c) Section 75 (Stipendiary magistrates: further provision)

(d) Subsections 77(2), (3) and (5) (Records and validity of appointment etc.). Section 77 was partially commenced on 10 December 2007.

12. Paragraphs 2, 4, 7, 8, 9(1)-(6), 10, 11, 20, 22, 25(a), (c) and (d), 26, 27, 30(a), 31 and 32 of the Schedule to the Act.

These provisions make consequential and other minor amendments to the following enactments:

  • The Public Records (Scotland) Act 1937
  • The Education (Scotland) Act 1980
  • The Road Traffic Offenders Act 1988
  • The Environmental Protection Act 1990
  • The Criminal Procedure (Scotland) Act 1995
  • The Bail, Judicial Appointments etc. (Scotland) Act 2000
  • The Criminal Justice (Scotland) Act 2003
  • The Dog Fouling (Scotland) Act 2003
  • The Antisocial Behaviour etc. (Scotland) Act 2004

13. Subparagraphs 33(1) and (2) of the Schedule to the Act.

Provisions regarding interpretation of statutory references to district courts.

FURTHER COMMENCEMENT ORDERS

14. A number of the Act's provisions relate to court unification, and as such will be commenced on a sheriffdom-by-sheriffdom basis, at each stage of unification. A fourth commencement order will therefore be required to bring these provisions into effect on 2 June 2008, for unification in the sheriffdom of Grampian, Highland and Islands upon that date.

Enquiries

15. Should you have any queries in relation to any of the above, please contact the summary justice reform branch through the details provided at the top of this circular. Further information in relation the Act and its implementation is also available on the Scottish Government's Summary Justice Reform website, available at
http://www.scotland.gov.uk/Topics/Justice/criminal/criminalprocedure/19008.

Yours faithfully

G Bonnar

Gerard Bonnar
Head of Summary Justice Reform Branch
Scottish Government Criminal Procedure Division