OpenLegislation

The Criminal Justice (Scotland) Act 2016 (Consequential and Supplementary Modifications) Regulations 2017

Draft. This instrument was laid in draft and may differ from the one made. Look for the made version under its title.

Draft 2017, ISBN 9780111037164

Original text. legislation.gov.uk does not revise statutory instruments, so later amendments are not shown here. Changes made to it are listed under each provision when known.

Draft Regulations laid before the Scottish Parliament under section 115(2)(a) of the Criminal Justice (Scotland) Act 2016 for approval by resolution of the Scottish Parliament.

Criminal Procedure

Made 2017

Coming into force 25th January 2018

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 115(1) of the Criminal Justice (Scotland) Act 2016f1 and all other powers enabling them to do so.

In accordance with section 115(2)(a) of that Act, a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament.

Annotations to the whole text

Footnotes

f1

2016 asp 1 (“the 2016 Act”).

Contents

  1. 1Citation and commencement
  2. 2Consequential and supplementary modifications of enactments
  3. Signature
  4. Schedule: CONSEQUENTIAL AND SUPPLEMENTARY MODIFICATIONS
  5. Part 1: Primary Legislation
  6. Salmon Fisheries (Scotland) Act 1868
  7. 1Paragraph 1
  8. Official Secrets Act 1911
  9. 2Paragraph 2
  10. Public Order Act 1936
  11. 3Paragraph 3
  12. Children and Young Persons (Scotland) Act 1937
  13. 4Paragraph 4
  14. Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951
  15. 5Paragraph 5
  16. Sea Fisheries (Shellfish) Act 1967
  17. 6Paragraph 6
  18. Immigration Act 1971
  19. 7Paragraph 7
  20. Misuse of Drugs Act 1971
  21. 8Paragraph 8
  22. Inshore Fishing (Scotland) Act 1984
  23. 9Paragraph 9
  24. Public Order Act 1986
  25. 10Paragraph 10
  26. Road Traffic Act 1988
  27. 11Paragraph 11
  28. Criminal Procedure (Scotland) Act 1995
  29. 12Paragraph 12
  30. Terrorism Act 2000
  31. 13Paragraph 13
  32. Extradition Act 2003
  33. 14Paragraph 14
  34. Part 2: Secondary Legislation
  35. Children’s Hearings (Scotland) Act 2011 (Rules of Procedure in Children’s Hearings) Rules 2013
  36. 15Paragraph 15
  37. Secure Accommodation (Scotland) Regulations 2013
  38. 16Paragraph 16
  39. Right to Information (Suspects and Accused Persons) (Scotland) Regulations 2014
  40. 17Paragraph 17
  41. Right to Interpretation and Translation in Criminal Proceedings (Scotland) Regulations 2014
  42. 18Paragraph 18
  43. Explanatory note

1Citation and commencement

These Regulations may be cited as the Criminal Justice (Scotland) Act 2016 (Consequential and Supplementary Modifications) Regulations 2017 and come into force on 25th January 2018.

2Consequential and supplementary modifications of enactments

(1)

The schedule contains modifications of enactments consequential on and supplementary to the Criminal Justice (Scotland) Act 2016 (“the 2016 Act”).

(2)

Paragraphs 1, 7, 12(2) and 13 to 18 of the schedule do not apply in respect of any matter arising from an arrest or detention of a person by a constable where—

(a)

the arrest or detention takes place before the appointed day; and

(b)

the person remains in police custody following that arrest or detention at the beginning of the appointed day.

(3)

In this regulation—

  • “constable” means—

    1. (a)

      a constable within the meaning given by section 62 of the 2016 Act; and

    2. (b)

      a member of the staff of the Police Investigations and Review Commissioner designated under paragraph 7B of schedule 4 of the Police, Public Order and Criminal Justice (Scotland) Act 2006f1—

      1. (i)

        to take charge of any investigation on behalf of the Commissioner; or

      2. (ii)

        to assist a member of the Commissioner’s staff designated to take charge of such an investigation;

  • “detention” means detention under section 14 of the Criminal Procedure (Scotland) Act 1995f2, and “detained” is to be construed accordingly;

  • “the appointed day” means 25th January 2018.

(4)

For the purposes of this regulation, a person is in police custody from the time when the person is arrested or detained by a constable until any one of the events mentioned in paragraph (5) occurs.

(5)

The events are—

(a)

the person is released from custody;

(b)

the person is brought before a court in accordance with any enactment or rule of law or the terms of any warrant;

(c)

the Principal Reporter makes a direction under section 65(2)(b) of the Children’s Hearings (Scotland) Act 2011f3 that the person continue to be kept in a place of safety.

Signature

Name

A member of the Scottish Government

St Andrew’s House,

Edinburgh

Date

1

In section 29 of the Salmon Fisheries (Scotland) Act 1868f1 (apprehension of offenders), the words from “or to deliver” to “magistrate” are omitted.

2

Section 6 of the Official Secrets Act 1911f1 (power to arrest) is repealed.

3

In section 7 of the Public Order Act 1936f1 (enforcement), subsection (3) is repealed.

4

In section 21 of the Children and Young Persons (Scotland) Act 1937f1 (punishment of vagrants preventing children from receiving education), subsection (2) is repealed.

5

In section 12(2) of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951f1 (apprehension of offenders), both occurrences of “, constable” are omitted.

6

In section 4D of the Sea Fisheries (Shellfish) Act 1967f1 (sections 4A to 4CA: supplementary), subsections (2A) and (2B) are repealed.

7

In section 28H(13) of the Immigration Act 1971f1 (searching persons in police custody), for paragraph (b) substitute—

“(b)

he is arrested at a police station after attending voluntarily at the station or accompanying a constable to it,”.

8

Section 24 of the Misuse of Drugs Act 1971f1 (power of arrest) is repealed.

9

In section 6A of the Inshore Fishing (Scotland) Act 1984f1 (power to enter land), subsections (6) and (7) are repealed.

10

In each of sections 14B and 14C of the Public Order Act 1986f1 (trespassory assemblies), subsection (4) is repealed.

11

Sections 167 (power of arrest) and 178(3) (taking motor vehicle without authority) of the Road Traffic Act 1988f1 are repealed.

12

(1)

The Criminal Procedure (Scotland) Act 1995 is amended as follows.

(2)

In section 24(3)(b) (bail and bail conditions) for “section 21, 22 or 43 of this Act” substitute “section 25 of the Criminal Justice (Scotland) Act 2016”.

(3)

In section 288K(1)f1 (live television links: specified hearings), after “High Court,” insert “Sheriff Appeal Court,”.

13

In paragraph 18(3)(b) of schedule 8 of the Terrorism Act 2000f1 (treatment of persons detained under section 41 or schedule 7) for “section 15(4) of the Criminal Procedure (Scotland) Act 1995” substitute “section 40 of the Criminal Justice (Scotland) Act 2016”.

14

In section 206C(5) of the Extradition Act 2003f1 (live links: interpretation), paragraph (c) is omitted.

15

In rule 12(3)(b) of the Children’s Hearings (Scotland) Act 2011 (Rules of Procedure in Children’s Hearings) Rules 2013f1 (record keeping by the Reporter of investigation and determination) for “section 43(5) (arrangements where children arrested) of the Criminal Procedure (Scotland) Act 1995” substitute “section 53(2) of the Criminal Justice (Scotland) Act 2016 (duty to inform Principal Reporter if child not being prosecuted)”.

16

In regulation 12(1)(b) of the Secure Accommodation (Scotland) Regulations 2013f1 (children otherwise dealt with under the Criminal Procedure Act) for “section 43 of the Criminal Procedure Act” substitute “section 22 or 53 of the Criminal Justice (Scotland) Act 2016”.

17

In regulation 2 of the Right to Information (Suspects and Accused Persons) (Scotland) Regulations 2014f1 (interpretation) for paragraph (1) substitute—

“(1)

For the purposes of these Regulations, a person is in police custody if the person has been arrested by a constable in connection with an offence, except where arrested under the Extradition Act 2003, and is in custody in a police station or other premises.”.

18

In regulation 2 of the Right to Interpretation and Translation in Criminal Proceedings (Scotland) Regulations 2014f1 (interpretation) for paragraph (2) substitute—

“(2)

For the purposes of these Regulations, a person is in police custody if the person has been arrested by a constable in connection with an offence, except where arrested under the Extradition Act 2003, and is in custody in a police station or other premises.”.

Explanatory note

(This note is not part of the Regulations)

These Regulations make provision consequential on the Criminal Justice (Scotland) Act 2016 (“the 2016 Act”). Paragraph 12(3) of the schedule makes provision supplemental to that Act.

The Regulations modify primary and secondary legislation to remove references to powers of arrest abolished by section 54 of the 2016 Act and to remove references to detention under section 14 of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) (which is repealed by schedule 2 paragraph 27 of the 2016 Act). Other modifications replace references to provisions of the 1995 Act with references to replacement provisions in the 2016 Act.

Paragraph 12(3) of the schedule amends section 288K(1) of the 1995 Act (inserted by section 110(1) of the 2016 Act) to enable the Lord Justice General to specify hearings in the Sheriff Appeal Court (as well as the High Court, sheriff court and JP court) as appropriate for the appearance of an accused by live television link. Reference to the Sheriff Appeal Court was not included in this power as presently framed because the Bill which became the 2016 Act was introduced in the Scottish Parliament before the Bill which became the Courts Reform (Scotland) Act 2014f1 and which created the Sheriff Appeal Court.

Regulation 2(2) to (5) contains transitional provision disapplying some of the consequential modifications in respect of individuals arrested or detained before 25th January 2018 (the date of commencement of relevant provisions of the 2016 Act) and still in police custody at the beginning of that day.