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Justice 1 Committee, 22 Dec 2004

22 Dec 2004 · S2 · Justice 1 Committee

Item of business

Subordinate Legislation

Criminal Procedure (Amendment) (Scotland) Act 2004 (Incidental, Supplemental and Consequential Provisions) Order 2005 (draft)

Henry, Hugh Lab Paisley South Watch on SPTV

Sections 26(1) and 26(2) of the Criminal Procedure (Amendment) Scotland Act 2004 give Scottish ministers an order-making power to make incidental, supplemental and consequential provisions for the purposes of, or in consequence of, that act. That includes power to modify any enactment, including the 2004 act itself. The instrument exercises that power in order to make minor technical amendments to the 2004 act and to the Criminal Procedure (Scotland) Act 1995, largely to provide clarification as to the effect of the provisions of the 2004 act. Article 3(2) of the order inserts a reference to the accused having been cited to appear at a trial diet in the sheriff court into new section 81 of the 1995 act, as inserted by section 9 of the 2004 act, which relates to the procedure where a trial diet does not proceed. That is to clarify the effect of that section in relation to solemn proceedings in the sheriff court and is necessary because the current reference to the trial diet having been appointed is not appropriate in relation to proceedings in the sheriff court, where the accused is cited to a trial diet. Article 3(3) amends section 92(2F) of the 1995 act, as inserted by section 10 of the 2004 act. Section 92(2F) provides for the exceptions to the requirement on the court to appoint a solicitor to act for an accused where the trial proceeds in his absence. A reference to section 288F was omitted from section 92(2F), and article 3(3) corrects that. That ensures that the court is not obliged to appoint a solicitor to act for the accused under section 92 where an order has been made under section 288F. That is necessary because, where section 288F applies, the court will already have appointed a solicitor to act for the accused under section 288D. Section 25(2A) of the 1995 act, which was inserted by section 18(2) of the 2004 act, provides that the intimation of an application by the accused to change the address specified in a bail order must be made to the Crown Agent. Article 3(4) clarifies that as a matter of practice that requirement will be satisfied if intimation of the application is sent to the local procurator fiscal.Article 3(5) corrects a reference in paragraph 50(b) of the schedule to the 2004 act to "the relevant time", which should have been to "the required time".Article 4(2) corrects a consequential error in the numbering in the 1995 act, which was the result of the insertion of new sections 24A to 24E into the 1995 act by section 17 of the 2004 act. The Extradition Act 2003 had inserted a section 24A into the 1995 act while the Criminal Procedure Amendment (Scotland) Bill was passing through its parliamentary stages. Article 4(2) renumbers the section that the 2003 act inserted as section 24F.Preliminary hearings in the High Court, which were introduced by section 1 of the 2004 act, are intended to dispose of all preliminary matters that can be dealt with before the trial diet. In particular, section 72(6)(b)(ii) of the 1995 act, which was inserted by the 2004 act, provides that "any child witness notice … or vulnerable witness application … appointed to be disposed of at the preliminary hearing"should be disposed of unless the court considers it inappropriate that that should be done. For the avoidance of doubt, article 4(3) inserts new section 71(2XA) into the 1995 act, to ensure that it is clear that the sheriff at the first diet in the sheriff court must also deal with any such notice or application appointed to be disposed of at that diet.I move,That the Justice 1 Committee recommends that the draft Criminal Procedure (Amendment) (Scotland) Act 2004 (Incidental, Supplemental and Consequential Provisions) Order 2005 be approved.