191 Appeal by suspension or advocation on ground of miscarriage of justice.
(1) Notwithstanding section 184(2) of this Act, a party to a summary prosecution may, where an appeal under section 175 of this Act would be incompetent or would in the circumstances be inappropriate, appeal to the Sheriff Appeal Court, by bill of suspension against a conviction or, as the case may be, by advocation against an acquittal on the ground of an alleged miscarriage of justice in the proceedings.
(2) Where the alleged miscarriage of justice is referred to in an application under section 176(1) of this Act, for a stated case as regards the proceedings (or in a duly made amendment or addition to that application), an appeal under subsection (1) above shall not proceed without the leave of the Sheriff Appeal Court until the appeal to which the application relates has been finally disposed of or abandoned.
(3) Sections 182(5)(a) to (e), 183(1)(d) and (4) and 185 of this Act shall apply to appeals under this section as they apply to appeals such as are mentioned in section 176(1) of this Act.
(4) This section is without prejudice to any rule of law relating to bills of suspension or advocation in so far as such rule of law is not inconsistent with this section.
191A Time limit for lodging bills of advocation and bills of suspension
(1) This section applies where a party wishes—
(a) to appeal to the Sheriff Appeal Court under section 191(1) of this Act by bill of suspension against a conviction or by advocation against an acquittal, or
(b) to appeal to the Sheriff Appeal Court against, or to bring under review of the Sheriff Appeal Court, any other decision in a summary prosecution by bill of suspension or by advocation.
(2) The party must lodge the bill of suspension or bill of advocation within 3 weeks of the date of the conviction, acquittal or, as the case may be, other decision to which the bill relates.
(3) The Sheriff Appeal Court may, on the application of the party, extend the time limit in subsection (2).
(4) An application under subsection (3) must—
(a) state—
(i) the reasons why the applicant failed to comply with the time limit in subsection (2), and
(ii) the proposed grounds of appeal or review, and
(b) be intimated in writing by the applicant to the other party to the prosecution.
(5) If the other party so requests within 7 days of receipt of intimation of the application under subsection (4)(b), the other party must be given an opportunity to make representations before the application is determined.
(6) Any representations may be made in writing or, if the other party so requests, orally at a hearing; and if a hearing is fixed, the applicant must also be given an opportunity to be heard.
191B Bill of advocation not competent in respect of certain decisions
It is not competent to bring under review of the Sheriff Appeal Court by way of bill of advocation a decision of the court of first instance that relates to such objection or denial as is mentioned in section 144(4).
(1) Where an appellant has been granted bail, whether his appeal is under this Part of this Act or otherwise, he shall appear personally in court at the diet appointed for the hearing of the appeal.
(2) Where an appellant who has been granted bail does not appear at such a diet, the Sheriff Appeal Court shall either—
(a) dispose of the appeal as if it had been abandoned (in which case subsection (5) of section 177 of this Act shall apply accordingly); or
(b) on cause shown permit the appeal to be heard in his absence.
(3) No conviction, sentence, judgement, order of court or other proceeding whatsoever in or for the purposes of summary proceedings under this Act—
(a) shall be quashed for want of form; or
(b) where the accused had legal assistance in his defence, shall be suspended or set aside in respect of any objections to—
(i) the relevancy of the complaint, or to the want of specification therein; or
(ii) the competency or admission or rejection of evidence at the trial in the inferior court,
unless such objections were timeously stated.
(4) The provisions regulating appeals shall, subject to the provisions of this Part of this Act, be without prejudice to any other mode of appeal competent.
(5) Any officer of law may serve any bill of suspension or other writ relating to an appeal.
193 Suspension of disqualification, forfeiture etc.
(1) Where upon conviction of any person—
(a) any disqualification, forfeiture or disability attaches to him by reason of such conviction; or
(b) any property, matters or things which are the subject of the prosecution or connected therewith are to be or may be ordered to be destroyed or forfeited,
if the court before which he was convicted thinks fit, the disqualification, forfeiture or disability or, as the case may be, destruction or forfeiture or order for destruction or forfeiture shall be suspended pending the determination of any appeal against conviction or sentence (or disposal or order).
(2) Subsection (1) above does not apply in respect of any disqualification, forfeiture or, as the case may be, destruction or forfeiture or order for destruction or forfeiture under or by virtue of any enactment which contains express provision for the suspension of such disqualification, forfeiture or, as the case may be, destruction or forfeiture or order for destruction or forfeiture pending the determination of any appeal against conviction or sentence (or disposal or order).
(3) Where, upon conviction, a fine has been imposed upon a person or a compensation order has been made against him under section 249 of this Act—
(a) the fine or compensation order shall not be enforced against him and he shall not be liable to make any payment in respect of the fine or compensation order; and
(b) any money paid under the compensation order shall not be paid by the clerk of court to the entitled person under subsection (9) of that section,
pending the determination of any appeal against conviction or sentence (or disposal or order).
193A Suspension of certain sentences pending determination of appeal.
(1) Where a convicted person or the prosecutor appeals to the Sheriff Appeal Court under section 175 of this Act ..., the court may on the application of the appellant direct that the whole, or any remaining part, of a relevant sentence shall be suspended until the appeal, if it is proceeded with, is determined.
(2) Where the court has directed the suspension of the whole or any remaining part of a person’s relevant sentence, the person shall, unless the Sheriff Appeal Court otherwise directs, appear personally in court on the day or days fixed for the hearing of the appeal.
(3) Where a person fails to appear personally in court as mentioned in subsection (2) above, the court may—
(a) if he is the appellant—
(i) decline to consider the appeal; and
(ii) dismiss it summarily; or
(b) whether or not he is the appellant—
(i) consider and determine the appeal; or
(ii) make such other order as the court thinks fit.
(4) In this section “relevant sentence” means any one or more of the following—
(aa) a community payback order;
(d) a restriction of liberty order.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) If any period of time specified in any provision of this Part of this Act relating to appeals expires on a Saturday, Sunday or court holiday prescribed for the relevant court, the period shall be extended to expire on the next day which is not a Saturday, Sunday or such court holiday.
(2) The sheriff principal of the sheriffdom in which the judgment was pronounced may, on cause shown, extend any period specified in sections 178(1) and 179(4) and (7) of this Act for such period as he considers reasonable.
(3) For the purposes of sections 176(1)(a) and 178(1) of this Act, summary proceedings shall be deemed to be finally determined on the day on which sentence is passed in open court; except that, where in relation to an appeal—
(a) under section 175(2)(a) or (3)(a); or
(b) in so far as it is against conviction, under section 175(2)(d),
of this Act sentence is deferred under section 202 of this Act, they shall be deemed finally determined on the day on which sentence is first so deferred in open court.
(1) An appeal on a point of law may be taken to the High Court against any decision of the Sheriff Appeal Court in criminal proceedings, but only with the permission of the High Court.
(2) An appeal under subsection (1) may be taken by any party to the appeal in the Sheriff Appeal Court.
(3) The High Court may give permission for an appeal under subsection (1) only if the Court considers that—
(a) the appeal would raise an important point of principle or practice, or
(b) there is some other compelling reason for the Court to hear the appeal.
(4) An application for permission for an appeal under subsection (1) must be made before the end of the period of 14 days beginning with the day on which the decision of the Sheriff Appeal Court that would be the subject of the appeal was made.
(5) The High Court may extend the period of 14 days mentioned in subsection (4) if satisfied that doing so is justified by exceptional circumstances.
(1) An appeal under section 194ZB(1) is to be made by way of note of appeal.
(2) A note of appeal must specify the point of law on which the appeal is being made.
(3) For the purposes of considering and deciding an appeal under section 194ZB(1)—
(a) three of the judges of the High Court are to constitute a quorum of the Court,
(b) decisions are to be taken by a majority vote of the members of the Court sitting (including the presiding judge),
(c) each judge sitting may pronounce a separate opinion.
194ZD Application for permission for appeal: determination by single judge
(1) An application to the High Court for permission for an appeal under section 194ZB(1) is to be determined by a single judge of the High Court.
(2) If the judge gives permission for the appeal, the judge may make comments in writing in relation to the appeal.
(3) If the judge refuses permission for the appeal—
(a) the judge must give reasons in writing for the refusal, and
(b) where the appellant is on bail and the sentence imposed on the appellant on conviction is one of imprisonment, the judge must grant a warrant to apprehend and imprison the appellant.
(4) A warrant under subsection (3)(b) does not take effect until the expiry of the period of 14 days mentioned in section 194ZE(1) (or, where that period is extended under section 194ZE(2) before the period being extended expires, until the expiry of the period as so extended) without an application for permission having been lodged by the appellant under section 194ZE(1).
194ZE Further application for permission where single judge refuses permission
(1) Where the judge refuses permission for the appeal under section 194ZD, the appellant may, within the period of 14 days beginning with the day on which intimation of the decision is given under section 194ZF(2), apply again to the High Court for permission for the appeal.
(2) The High Court may extend the period of 14 days mentioned in subsection (1), or that period as extended under this subsection, whether or not the period to be extended has expired.
(3) The High Court may extend a period under subsection (2) only if satisfied that doing so is justified by exceptional circumstances.
(4) Three of the judges of the High Court are to constitute a quorum for the purposes of considering an application under subsection (1).
(5) If the High Court gives permission for the appeal, the Court may make comments in writing in relation to the appeal.
(6) If the High Court refuses permission for the appeal—
(a) the Court must give reasons in writing for the refusal, and
(b) where the appellant is on bail and the sentence imposed on the appellant on conviction is one of imprisonment, the Court must grant a warrant to apprehend and imprison the appellant.
194ZF Applications for permission: further provision
(1) An application for permission for an appeal under section 194ZB(1) is to be considered and determined (whether under section 194ZD or 194ZE)—
(a) in chambers without the parties being present,
(b) by reference to section 194ZB(3), and
(c) on the basis of consideration of—
(i) the note of appeal under section 194ZC(1), and
(ii) such other document or information (if any) as may be specified by act of adjournal.
(2) The Clerk of Justiciary must, as soon as possible, intimate to the appellant or the appellant's solicitor and to the Crown Agent—
(a) a decision under section 194ZD or 194ZE determining the application for permission for an appeal, and
(b) in the case of a refusal of permission for the appeal, the reasons for the decision.
(1) Comments in writing made under section 194ZD(2) or 194ZE(5) may specify the arguable grounds of appeal (whether or not they were stated in the note of appeal) on the basis of which permission for the appeal was given.
(2) Where the arguable grounds of appeal are specified under subsection (1), the appellant may not, except with the permission of the High Court on cause shown, found any aspect of the appeal on a ground of appeal stated in the application for permission but not specified under subsection (1).
(3) An application by the appellant for permission under subsection (2) must—
(a) be made before the end of the period of 14 days beginning with the date of intimation under section 194ZF(2), and
(b) be intimated by the appellant to the Crown Agent before the end of that period.
(4) The High Court may extend the period of 14 days mentioned in subsection (3) if satisfied that doing so is justified by exceptional circumstances.
(5) The appellant may not, except with the permission of the High Court on cause shown, found any aspect of the appeal on a matter not stated in the note of appeal (or in a duly made amendment or addition to the note of appeal).
(6) Subsection (5) does not apply in relation to a matter specified as an arguable ground of appeal under subsection (1).
(1) In disposing of an appeal under section 194ZB(1), the High Court may—
(a) remit the case back to the Sheriff Appeal Court with its opinion and any direction as to further procedure in, or disposal of, the case, or
(b) exercise any power that the Sheriff Appeal Court could have exercised in relation to disposal of the appeal proceedings before that Court.
(2) So far as necessary for the purposes or in consequence of the exercise of a power by the High Court by virtue of subsection (1)(b)—
(a) references in Part X to the Sheriff Appeal Court are to be read as including references to the High Court, and
(b) references in Part X to a verdict of or sentence passed by the inferior court are to be read as incuding references to a verdict of or sentence passed by the Sheriff Appeal Court in disposing of the appeal before it.
(3) Subsections (1)(b) and (2) do not affect any power in relation to the consideration or disposal of appeals that the High Court has apart from those subsections.
(1) Section 177 (procedure where appellant in custody) applies in the case where a party making an appeal (other than an excepted appeal) under section 194ZB(1) is in custody as it applies in the case where an appellant making an application under section 176 is in custody.
(2) In subsection (1), “excepted appeal” means an appeal against a decision of the Sheriff Appeal Court in—
(a) an appeal under section 32, or
(b) an appeal under section 177(3).
An appellant in an appeal under section 194ZB(1) may at any time abandon the appeal by minute to that effect—
(a) signed by the appellant or the appellant's solicitor,
(b) lodged with the Clerk of Justiciary, and
(c) intimated to the respondent or the respondent's solicitor.
(1) Every interlocutor and sentence (including disposal or order) pronounced by the High Court in disposing of an appeal relating to summary proceedings is final and conclusive and not subject to review by any court whatsoever.
(2) Subsection (1) is subject to—
(a) Part XA and section 288AA, and
(b) paragraph 13(a) of Schedule 6 to the Scotland Act 1998.
(3) It is incompetent to stay or suspend any execution or diligence issuing from the High Court under this Part, except for the purposes of an appeal under—
(a) section 288AA, or
(b) paragraph 13(a) of Schedule 6 to the Scotland Act 1998.
If any period of time specified in this Part expires on a Saturday, Sunday or court holiday prescribed for the relevant court, the period is extended to expire on the next day which is not a Saturday, Sunday or such a court holiday.
(1) There shall be established a body corporate to be known as the Scottish Criminal Cases Review Commission (in this Act referred to as “the Commission”).
(2) The Commission shall not be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Commission’s property shall not be regarded as property of, or held on behalf of, the Crown.
(3) The Commission shall consist of not fewer than three members.
(4) The members of the Commission shall be appointed by Her Majesty on the recommendation of the Secretary of State.
(5) At least one third of the members of the Commission shall be persons who are legally qualified; and for this purpose a person is legally qualified if he is an advocate or solicitor of at least ten years’ standing.
(6) At least two thirds of the members of the Commission shall be persons who appear to the Secretary of State to have knowledge or experience of any aspect of the criminal justice system; and for the purposes of this subsection the criminal justice system includes, in particular, the investigation of offences and the treatment of offenders.
(7) Schedule 9A to this Act, which makes further provision as to the Commission, shall have effect.
(1) The Commission on the consideration of any conviction of a person or of the sentence (other than sentence of death) passed on a person who has been convicted on indictment or complaint may, if they think fit, at any time, and whether or not an appeal against such conviction or sentence has previously been heard and determined by the High Court or the Sheriff Appeal Court, refer the whole case to the High Court and ... the case shall be heard and determined, subject to any directions the High Court may make, as if it were an appeal under Part VIII or, as the case may be, Part X of this Act.
(2) The power of the Commission under this section to refer to the High Court the case of a person convicted shall be exercisable whether or not that person has petitioned for the exercise of Her Majesty’s prerogative of mercy.
(3) This section shall apply in relation to a finding under section 55(2) and an order under section 57(2) of this Act as it applies, respectively, in relation to a conviction and a sentence.
(3A) For the purposes of an appeal under Part X of this Act in a case referred to the High Court under subsection (1)—
(a) the High Court may exercise in the case all the powers and jurisdiction that the Sheriff Appeal Court would, had the case been an appeal to that Court, have had in relation to the case by virtue of section 118 of the Courts Reform (Scotland) Act 2014, and
(b) accordingly, Part X of this Act has effect in relation to the case subject to the following modifications—
(i) references to the Sheriff Appeal Court are to be read as references to the High Court,
(ii) references to an Appeal Sheriff are to be read as references to a judge of the High Court,
(iii) references to the Clerk of the Sheriff Appeal Court are to be read as reference to the Clerk of Justiciary.
(4) For the purposes of this section “person” includes a person who is deceased.
(1) The grounds upon which the Commission may refer a case to the High Court are that they believe—
(a) that a miscarriage of justice may have occurred; and
(b) that it is in the interests of justice that a reference should be made.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) A reference of a conviction, sentence or finding may be made under section 194B of this Act whether or not an application has been made by or on behalf of the person to whom it relates.
(2) In considering whether to make a reference the Commission shall have regard to—
(a) any application or representations made to the Commission by or on behalf of the person to whom it relates;
(b) any other representations made to the Commission in relation to it: and
(c) any other matters which appear to the Commission to be relevant.
(3) In considering whether to make a reference the Commission may at any time refer to the High Court for the Court’s opinion any point on which they desire the Court’s assistance; and on a reference under this subsection the High Court shall consider the point referred and furnish the Commission with their opinion on the point.
(4) Where the Commission make a reference to the High Court under section 194B of this Act they shall—
(a) give to the Court a statement of their reasons for making the reference; and
(b) send a copy of the statement to every person who appears to them to be likely to be a party to any proceedings on the appeal arising from the reference.
(4A) The grounds for an appeal arising from a reference to the High Court under section 194B of this Act must relate to one or more of the reasons for making the reference contained in the Commission's statement of reasons.
(4B) Despite subsection (4A), the High Court may, if it considers it is in the interests of justice to do so, grant leave for the appellant to found the appeal on additional grounds.
(4C) An application by the appellant for leave under subsection (4B) must be made and intimated to the Crown Agent within 21 days after the date on which a copy of the Commission's statement of reasons is sent under subsection (4)(b).
(4D) The High Court may, on cause shown, extend the period of 21 days mentioned in subsection (4C).
(4E) The Clerk of Justiciary must intimate to the persons mentioned in subsection (4F)—
(a) a decision under subsection (4B), and
(b) in the case of a refusal to grant leave for the appeal to be founded on additional grounds, the reasons for the decision.
(4F) Those persons are—
(a) the appellant or the appellant's solicitor, and
(b) the Crown Agent.
(5) In every case in which—
(a) an application has been made to the Commission by or on behalf of any person for the reference by them of any conviction, sentence or finding; but
(b) the Commission decide not to make a reference of the conviction, sentence or finding,
they shall give a statement of the reasons for their decision to the person who made the application.
194E Extension of Commission’s remit to summary cases.
(1) The Secretary of State may by order provide for this Part of this Act to apply in relation to convictions, sentences and findings made in summary proceedings as they apply in relation to convictions, sentences and findings made in solemn proceedings, and may for that purpose make in such an order such amendments to the provisions of this Part as appear to him to be necessary or expedient.
(2) An order under this section shall be made by statutory instrument, and shall not have effect unless a draft of it has been laid before and approved by a resolution of each House of Parliament.
The Commission may take any steps which they consider appropriate for assisting them in the exercise of any of their functions and may, in particular—
(a) themselves undertake inquiries and obtain statements, opinions or reports; or
(b) request the Lord Advocate or any other person to undertake such inquiries or obtain such statements, opinions and reports.
(1) The Secretary of State may by order make such incidental, consequential, transitional or supplementary provisions as may appear to him to be necessary or expedient for the purpose of bringing this Part of this Act into operation, and, without prejudice to the generality of the foregoing, of dealing with any cases being considered by him under section 124 of this Act at the time when this Part comes into force, and an order under this section may make different provision in relation to different cases or classes of case.
(2) An order under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(1) Where it appears to the Commission that a person may have information which they require for the purposes of carrying out their functions, and the person refuses to make any statement to them, they may apply to the sheriff under this section.
(2) On an application made by the Commission under this section, the sheriff may, if he is satisfied that it is reasonable in the circumstances, grant warrant to cite the person concerned to appear before the sheriff in chambers at such time or place as shall be specified in the citation, for precognition on oath by a member of the Commission or a person appointed by them to act in that regard.
(3) Any person who, having been duly cited to attend for precognition under subsection (2) above and having been given at least 48 hours notice, fails without reasonable excuse to attend shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale or to imprisonment for a period not exceeding 21 days; and the court may issue a warrant for the apprehension of the person concerned ordering him to be brought before a sheriff for precognition on oath.
(4) Any person who, having been duly cited to attend for precognition under subsection (2) above, attends but—
(a) refuses to give information within his knowledge or to produce evidence in his possession; or
(b) prevaricates in his evidence,
shall be guilty of an offence and shall be liable to be summarily subjected to a fine not exceeding level 3 on the standard scale or to imprisonment for a period not exceeding 21 days.
(1) Where the Commission believe that a person or a public body has possession or control of a document or other material which may assist them in the exercise of any of their functions, they may apply to the High Court for an order requiring that person or body—
(a) to produce the document or other material to the Commission or to give the Commission access to it; and
(b) to allow the Commission to take away the document or other material or to make and take away a copy of it in such form as they think appropriate,
and such an order may direct that the document or other material must not be destroyed, damaged or altered before the direction is withdrawn by the Court.
(2) The duty to comply with an order under this section is not affected by any obligation of secrecy or other limitation on disclosure (including any such obligation or limitation imposed by or by virtue of any enactment) which would otherwise prevent the production of the document or other material to the Commission or the giving of access to it to the Commission.
(3) The documents and other material covered by this section include, in particular, any document or other material obtained or created during any investigation or proceedings relating to—
(a) the case in relation to which the Commission’s function is being or may be exercised; or
(b) any other case which may be in any way connected with that case (whether or not any function of the Commission could be exercised in relation to that other case).
(4) In this section—
“Minister” means a Minister of the Crown as defined by section 8 of the Ministers of the Crown Act 1975;
...
“public body” means
the Police Service of Scotland;
any government department, local authority or other body constituted for the purposes of the public service, local government or the administration of justice; or
any other body whose members are appointed by Her Majesty, any Minister , the Scottish Ministers or any government department or whose revenues consist wholly or mainly of money provided by Parliament.
194IA Power to request assistance in obtaining information abroad
(1) Where it appears to the Commission that there may be information which they require for the purposes of carrying out their functions, and the information is outside the United Kingdom, they may apply to the High Court to request assistance.
(2) On an application made by the Commission under subsection (1), the High Court may request assistance if satisfied that it is reasonable in the circumstances.
(3) In this section, “request assistance” means request assistance in obtaining outside the United Kingdom any information specified in the request for use by the Commission for the purposes of carrying out their functions.
(4) Section 8 of the Crime (International Co-operation) Act 2003 (c.32) (sending requests for assistance) applies to requests for assistance under this section as it applies to requests for assistance under section 7 of that Act.
(5) Subsections (2), (3) and (6) of section 9 of that Act (use of evidence obtained) apply to information obtained pursuant to a request for assistance under this section as they apply under subsection (1) of that section to evidence obtained pursuant to a request for assistance under section 7 of that Act.
(1) A person who is or has been a member or employee of the Commission shall not disclose any information obtained by the Commission in the exercise of any of their functions unless the disclosure of the information is excepted from this section by section 194K or 194M of this Act.
(2) A member of the Commission shall not authorise the disclosure by an employee of the Commission of any information obtained by the Commission in the exercise of any of their functions unless the authorisation of the disclosure of the information is excepted from this section by section 194K or 194M of this Act.
(3) A person who contravenes this section is guilty of an offence and liable on summary conviction to a fine of an amount not exceeding level 5 on the standard scale.
194K Exceptions from obligations of non-disclosure.
(1) The disclosure of information, or the authorisation of the disclosure of information, is excepted from section 194J of this Act by this section if the information is disclosed, or is authorised to be disclosed—
(a) for the purposes of any criminal, disciplinary or civil proceedings;
(b) in order to assist in dealing with an application made to the Secretary of State for compensation for a miscarriage of justice;
(c) by a person who is a member or an employee of the Commission to another person who is a member or an employee of the Commission;
(d) in any statement or report required by this Act;
(e) in or in connection with the exercise of any function under this Act; or
(f) in any circumstances in which the disclosure of information is permitted by an order made by the Secretary of State.
(2) The disclosure of information is also excepted from section 194J of this Act by this section if the information is disclosed by an employee of the Commission who is authorised to disclose the information by a member of the Commission.
(3) The disclosure of information, or the authorisation of the disclosure of information, is also excepted from section 194J of this Act by this section if the information is disclosed, or is authorised to be disclosed, for the purposes of—
(a) the investigation of an offence; or
(b) deciding whether to prosecute a person for an offence,
unless the disclosure is or would be prevented by an obligation or other limitation on disclosure (including any such obligation or limitation imposed by, under or by virtue of any enactment) arising otherwise than under that section.
(4) Where the disclosure of information is excepted from section 194J of this Act by subsection (1) or (2) above, the disclosure of the information is not prevented by any obligation of secrecy or other limitation on disclosure (including any such obligation or limitation imposed by, under or by virtue of any enactment) arising otherwise than under that section.
(5) The power to make an order under subsection (1)(f) above is exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(1) Where a person or body is required by an order under section 194I of this Act to produce or allow access to a document or other material to the Commission and notifies them that any information contained in the document or other material to which the order relates is not to be disclosed by the Commission without his or its prior consent, the Commission shall not disclose the information without such consent.
(2) Such consent may not be withheld unless—
(a) (apart from section 194I of this Act) the person would have been prevented by any obligation of secrecy or other limitation on disclosure from disclosing the information without such consent; and
(b) it is reasonable for the person to withhold his consent to disclosure of the information by the Commission.
(3) An obligation of secrecy or other limitation on disclosure which applies to a person only where disclosure is not authorised by another person shall not be taken for the purposes of subsection (2)(a) above to prevent the disclosure by the person of information to the Commission unless—
(a) reasonable steps have been taken to obtain the authorisation of the other person; or
(b) such authorisation could not reasonably be expected to be obtained.
(1) The disclosure of information, or the authorisation of disclosure of information, is excepted from section 194J by this section if—
(a) the conditions specified in subsection (2) are met, and
(b) the Commission have determined that it is appropriate in the whole circumstances for the information to be disclosed.
(2) The conditions are that—
(a) the information relates to a case that has been referred to the High Court under section 194B(1),
(b) the reference concerns—
(i) a conviction, or
(ii) a finding under section 55(2), and
(c) the case has fallen, or has been abandoned, under the provisions or other rules applying by virtue of section 194B(1).
(1) Where the disclosure of information is excepted from section 194J by section 194M, the disclosure of the information is not prevented by any obligation of confidentiality or other limitation on disclosure arising otherwise than under section 194J.
(2) For the purpose of subsection (1), such an obligation or limitation does not include one imposed—
(a) by, under or by virtue of any enactment, or
(b) by any interdict or other court order applying in connection with this section.
(1) When considering for the purpose of section 194M(1) the question of whether it is appropriate for the information to be disclosed, the Commission have the following duties.
(2) The Commission must—
(a) so far as practicable, take reasonable measures to—
(i) notify each of the affected persons of the possibility that the information may be disclosed, and
(ii) seek the views of each of them on the question, and
(b) to such extent (and in such manner) as they think fit, consult the other interested persons.
(3) The Commission must—
(a) allow the prescribed period for each of the affected and other interested persons involved to take steps (including legal action) in their own favour in relation to the question, and
(b) have regard to any material representations made to them on the question by any of those affected and other interested persons within the prescribed period.
(4) The Commission must have regard to any other factors that they believe to be significant in relation to the question.
(5) In subsections (2) and (3)—
(a) the references to the affected persons are to the persons—
(i) to whom the information directly relates, or
(ii) from whom the information was obtained, whether directly or indirectly,
(b) the references to the other interested persons are to (so far as not among the affected persons)—
(i) the Lord Advocate, and
(ii) such additional persons (if any) as appear to the Commission to have a substantial interest in the question.
(6) In subsection (3), the references to the prescribed period in relation to a particular person are to—
(a) the period of 6 weeks, or
(b) such longer period as the Commission may set,
starting with the date on which the notification was sent to, or (as the case may be) consultation was initiated with respect to, the person.
(7) Subsections (3) and (6) are inapplicable in relation to a particular person if the Commission cannot reasonably ascertain the person's whereabouts.
(1) Unless subsection (3) is complied with, section 194M(1) is of no effect in relation to any information falling within subsection (2).
(2) Information falls within this subsection if it—
(a) is held by the Commission, and
(b) at any time, has been supplied by the UK Government under arrangements of any kind.
(3) This subsection is complied with if, at any time, the UK Government has in connection with section 194M(1) given its consent to disclosure of the information.
(4) In this section, “the UK Government” means a Minister of the Crown or a department of the Government of the United Kingdom.
(1) Unless subsection (3) is complied with, section 194M(1) is of no effect in relation to any information falling within subsection (2).
(2) Information falls within this subsection if it—
(a) is held by the Commission, and
(b) at any time, has been supplied by a designated foreign authority under arrangements of any kind.
(3) This subsection is complied with if the designated foreign authority has in connection with section 194M(1) given its consent to disclosure of the information, by virtue of—
(a) the arrangements concerned, or
(b) subsection (4).
(4) Where not previously given by virtue of those arrangements, it is for the Commission to seek the designated foreign authority's consent to disclosure of the information.
(5) Subsection (1) does not apply if the information also falls within section 194P(2).
(1) The references in section 194Q to a designated foreign authority are to a current or previous authority of a prosecutorial, judicial or other character which is or was located within a country or territory outwith the United Kingdom.
(2) But, if in connection with subsection (4) of that section—
(a) the Commission cannot reasonably identify or find the particular authority in question, or
(b) they are unsuccessful in their reasonable attempts to communicate with it,
the references in subsections (3) and (4) of that section to the designated foreign authority are to be read as if they were to the relevant foreign government.
(3) In the application of subsection (2), paragraph (a) of subsection (3) of that section is to be ignored.
(4) In subsection (2)—
(a) the references to the Commission include their acting with the Lord Advocate's help,
(b) the reference to the relevant foreign government—
(i) is to the government of the other country or territory,
(ii) in the event of doubt as to the status or operation of a governmental system in the other country or territory, is to be regarded as being to the body described in subsection (5).
(5) That is, the principal body in it (for the time being (if any)) that is recognised by the Government of the United Kingdom as having responsibility for exercising governmental control centrally.
(1) Sections 194O to 194R cease to have effect if subsection (2) prevails.
(2) This subsection prevails where, on their preliminary examination of the question to which section 194O(1) relates, the Commission determine for the purpose of section 194M(1) that it is manifestly inappropriate for the information to be disclosed.
(3) But—
(a) if there is a material change in any significant factor on which the determination depended, it is open to the Commission to re-examine the question (and this is to be regarded as another preliminary examination of the question),
(b) where they choose to re-examine the question, the effect of sections 194O to 194R is restored unless subsection (2) again prevails.
(1) If the Commission decide in pursuance of section 194M(1) to disclose the information—
(a) subsection (2) applies initially, and
(b) subsection (3) applies subsequently.
(2) Before disclosing the information, the Commission must—
(a) so far as practicable, take reasonable measures to notify of the decision—
(i) each of the affected persons, and
(ii) to the same extent as they were consulted under section 194O(2)(b), the other interested persons, and
(b) allow the prescribed period for each of the affected and other interested persons involved to take steps (including legal action) in their own favour in relation to the decision.
(3) In disclosing the information, the Commission must—
(a) explain the context in which the information is being disclosed by them (including by describing the background to the case), and
(b) where (for any reason) other information relating to the case remains undisclosed by them, explicitly state that fact,
and do so along with the material by which the disclosure is made.
(4) In subsection (2), the references to the affected and other interested persons are to be construed in accordance with section 194O(5).
(5) In subsection (2)(b), the reference to the prescribed period in relation to a particular person is to—
(a) the period of 6 weeks, or
(b) such longer period as the Commission may set,
starting with the date on which the notification was sent to the person.
(6) Subsections (2)(b) and (5) are inapplicable in relation to a particular person if the Commission cannot reasonably ascertain the person's whereabouts.
(7) In subsection (3)(b), the reference to other information is to any other information obtained by the Commission in the exercise of their functions.