(1) A previous conviction may be proved against any person in any criminal proceedings by the production of such evidence of the conviction as is mentioned in this subsection and subsections (2) to (6) below and by showing that his fingerprints and those of the person convicted are the fingerprints of the same person.
(2) A certificate purporting to be signed by or on behalf of the chief constable of the Police Service of Scotland or the Commissioner of Police of the Metropolis, containing particulars relating to a conviction extracted from the criminal records kept by the person by whom, or on whose behalf, the certificate is signed, and certifying that the copies of the fingerprints contained in the certificate are copies of the fingerprints appearing from the said records to have been taken in pursuance of rules for the time being in force under sections 12 and 39 of the Prisons (Scotland) Act 1989, or regulations for the time being in force under section 16 of the Prison Act 1952, from the person convicted on the occasion of the conviction or on the occasion of his last conviction, shall be sufficient evidence of the conviction or, as the case may be, of his last conviction and of all preceding convictions and that the copies of the fingerprints produced on the certificate are copies of the fingerprints of the person convicted.
(3) Where a person has been apprehended and detained in the custody of the police in connection with any criminal proceedings, a certificate purporting to be signed by the chief constable concerned or a person authorised on his behalf, certifying that the fingerprints produced thereon were taken from him while he was so detained, shall be sufficient evidence in those proceedings that the fingerprints produced on the certificate are the fingerprints of that person.
(4) A certificate purporting to be signed by or on behalf of the governor of a prison ... in which any person has been detained in connection with any criminal proceedings, certifying that the fingerprints produced thereon were taken from him while he was so detained, shall be sufficient evidence in those proceedings that the fingerprints produced on the certificate are the fingerprints of that person.
(5) A certificate purporting to be signed by or on behalf of the chief constable of the Police Service of Scotland, and certifying that the fingerprints, copies of which are certified as mentioned in subsection (2) above by ... or on behalf of the chief constable of the Police Service of Scotland or the Commissioner of Police of the Metropolis to be copies of the fingerprints of a person previously convicted and the fingerprints certified by or on behalf of a chief constable or a governor as mentioned in subsection (3) or (4) above, or otherwise shown, to be the fingerprints of the person against whom the previous conviction is sought to be proved, are the fingerprints of the same person, shall be sufficient evidence of the matter so certified.
(6) An extract conviction of any crime committed in any part of the United Kingdom bearing to have been issued by an officer whose duties include the issue of extract convictions shall be received in evidence without being sworn to by witnesses.
(7) It shall be competent to prove a previous conviction or any fact relevant to the admissibility of the conviction by witnesses, although the name of any such witness is not included in the list served on the accused; and the accused shall be entitled to examine witnesses with regard to such conviction or fact.
(8) An official of any prison in which the accused has been detained on such conviction shall be a competent and sufficient witness to prove its application to the accused, although he may not have been present in court at the trial to which such conviction relates.
(9) The method of proving a previous conviction authorised by this section shall be in addition to any other method of proving the conviction.
(10) In this section “fingerprint” includes any record of the skin of a person’s finger created by a device approved by the Secretary of State under section 18(7B) of this Act.
286 Previous convictions: proof in support of substantive charge.
(1) Without prejudice to section 285(6) to (9) or, as the case may be, section 166 of this Act, where proof of a previous conviction including a conviction by a court in a member State of the European Union is competent in support of a substantive charge, any such conviction or an extract of it shall, if—
(a) it purports to relate to the accused and to be signed by the clerk of court having custody of the record containing the conviction; and
(b) a copy of it has been served on the accused not less than 14 days before the relevant diet,
be sufficient evidence of the application of the conviction to the accused unless, within seven days of the date of service of the copy on him, he serves notice on the prosecutor that he denies that it applies to him.
(1A) In subsection (1)(b) above, “the relevant diet” means—
(a) in the case of proceedings in the High Court, the preliminary hearing;
(b) in any other case, the trial diet.
(2) A copy of a conviction or extract conviction served under subsection (1) above shall be served on the accused in such manner as may be prescribed by Act of Adjournal, and a written execution purporting to be signed by the person who served the copy together with, where appropriate, the relevant post office receipt shall be sufficient evidence of service of the copy.
(3) The reference in subsection (1)(a) above to “the clerk of court having custody of the record containing the conviction” includes, in relation to a previous conviction by a court in a member State of the European Union, a reference to any officer of that court or of that State having such custody.
286A Proof of previous conviction by court in other member State
(1) A previous conviction by a court in a member State of the European Union may be proved against any person in any criminal proceedings by the production of evidence of the conviction and by showing that his fingerprints and those of the person convicted are the fingerprints of the same person.
(2) A certificate—
(a) bearing—
(i) to have been sealed with the official seal of a Minister of the State in question; and
(ii) to contain particulars relating to a conviction extracted from the criminal records of that State; and
(b) including copies of fingerprints and certifying that those copies—
(i) are of fingerprints appearing from those records to have been taken from the person convicted on the occasion of the conviction, or on the occasion of his last conviction; and
(ii) would be admissible in evidence in criminal proceedings in that State as a record of the skin of that person’s fingers,
shall be sufficient evidence of the conviction or, as the case may be, of the person’s last conviction and of all preceding convictions and that the copies of the fingerprints included in the certificate are copies of the fingerprints of the person convicted.
(3) A conviction bearing to have been—
(a) extracted from the criminal records of the State in question; and
(b) issued by an officer of that State whose duties include the issuing of such extracts,
shall be received in evidence without being sworn to by witnesses.
(4) Subsection (9) of section 285 of this Act applies in relation to this section as it does in relation to that section.
287 Demission from office of Lord Advocate and Solicitor General for Scotland.
(1) All indictments which have been raised at the instance of Her Majesty's Advocate shall remain effective notwithstanding the holder of the office of Lord Advocate subsequently having died or demitted office and may be taken up and proceeded with by his successor or the Solicitor General.
(2) During any period when the office of Lord Advocate is vacant it shall be lawful to indict accused persons at the instance of Her Majesty's Advocate or the Solicitor General . . . .
(2A) Any such indictments in proceedings at the instance of the Solicitor General may be signed by the Solicitor General.
(2B) All indictments which have been raised at the instance of the Solicitor General shall remain effective notwithstanding the holder of the office of Solicitor General subsequently having died or demitted office and may be taken up and proceeded with by his successor or the Lord Advocate.
(2C) Subsection (2D) applies during any period when the offices of Lord Advocate and Solicitor General are both vacant.
(2D) It is lawful to indict accused persons at the instance of Her Majesty's Advocate.
(3) The advocates depute shall not demit office when a Lord Advocate dies or demits office but shall continue in office until their successors receive commissions.
(4) The advocates depute and procurators fiscal shall have power, notwithstanding any vacancy in the office of Lord Advocate or Solicitor General, to take up and proceed with any indictment which—
(a) by virtue of subsection (1) or (2B) above, remains effective; or
(b) by virtue of subsection (2) above, is raised at the instance of the Solicitor General.
(c) by virtue of subsection (2D) above, is raised at the instance of Her Majesty's Advocate
(5) For the purposes of this Act, where, but for this subsection, demission of office by one Law Officer would result in the offices of both being vacant, he or, where both demit office on the same day, the person demitting the office of Lord Advocate shall be deemed to continue in office until the warrant of appointment of the person succeeding to the office of Lord Advocate is granted.
(6) The Lord Advocate shall enter upon the duties of his office immediately upon the grant of his warrant of appointment; . . ..
288 Intimation of proceedings in High Court to Lord Advocate.
(1) In any proceeding in the High Court (other than a proceeding to which the Lord Advocate or a procurator fiscal is a party) it shall be competent for the court to order intimation of such proceeding to the Lord Advocate.
(2) On intimation being made to the Lord Advocate under subsection (1) above, the Lord Advocate shall be entitled to appear and be heard in such proceeding.
288ZA Right of Advocate General to take part in proceedings
(1) The Advocate General for Scotland may take part as a party in criminal proceedings so far as they relate to a compatibility issue.
(2) In this section “compatibility issue” means a question, arising in criminal proceedings, as to—
(a) whether a public authority has acted (or proposes to act)—
(i) in a way which is made unlawful by section 6(1) of the Human Rights Act 1998, or
(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is incompatible with any of the Convention rights ...).
(3) In subsection (2)—
(a) “public authority” has the same meaning as in section 6 of the Human Rights Act 1998;
(b) references to acting include failing to act;
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
288ZB References of compatibility issues to the High Court or Supreme Court
(1) Where a compatibility issue has arisen in criminal proceedings before a court, other than a court consisting of two or more judges of the High Court, the court may, instead of determining it, refer the issue to the High Court.
(2) The Lord Advocate or the Advocate General for Scotland, if a party to criminal proceedings before a court, other than a court consisting of two or more judges of the High Court, may require the court to refer to the High Court any compatibility issue which has arisen in the proceedings.
(3) The High Court may, instead of determining a compatibility issue referred to it under subsection (2), refer it to the Supreme Court.
(4) Where a compatibility issue has arisen in criminal proceedings before a court consisting of two or more judges of the High Court, otherwise than on a reference, the court may, instead of determining it, refer it to the Supreme Court.
(5) The Lord Advocate or the Advocate General for Scotland, if a party to criminal proceedings before a court consisting of two or more judges of the High Court, may require the court to refer to the Supreme Court any compatibility issue which has arisen in the proceedings otherwise than on a reference.
(6) On a reference to the Supreme Court under this section—
(a) the powers of the Supreme Court are exercisable only for the purpose of determining the compatibility issue;
(b) for that purpose the Court may make any change in the formulation of that issue that it thinks necessary in the interests of justice.
(7) When it has determined a compatibility issue on a reference under this section, the Supreme Court must remit the proceedings to the High Court.
(8) An issue referred to the High Court or the Supreme Court under this section is referred to it for determination.
(9) In this section “compatibility issue” has the meaning given by section 288ZA.
288A Rights of appeal for Advocate General: compatibility issues and devolution issues.
(1) This section applies where—
(a) a person is acquitted or convicted of a charge (whether on indictment or in summary proceedings), and
(b) the Advocate General for Scotland was a party to the proceedings ....
(2) Where the Advocate General for Scotland was a party in pursuance of paragraph 6 of Schedule 6 to the Scotland Act 1998 (devolution issues), the Advocate General may refer to the High Court for their opinion any devolution issue which has arisen in the proceedings.
(2A) Where the Advocate General for Scotland was a party in pursuance of section 288ZA, the Advocate General may refer to the High Court for their opinion any compatibility issue (within the meaning of that section) which has arisen in the proceedings.
(2B) If a reference is made under subsection (2) or (2A) the Clerk of Justiciary shall send to the person acquitted or convicted and to any solicitor who acted for that person at the trial a copy of the reference and intimation of the date fixed by the Court for a hearing.
(3) The person may, not later than seven days before the date so fixed, intimate in writing to the Clerk of Justiciary and to the Advocate General for Scotland either—
(a) that he elects to appear personally at the hearing, or
(b) that he elects to be represented by counsel at the hearing,
but, except by leave of the Court on cause shown, and without prejudice to his right to attend, he shall not appear or be represented at the hearing other than by and in conformity with an election under this subsection.
(4) Where there is no intimation under subsection (3)(b), the High Court shall appoint counsel to act at the hearing as amicus curiae.
(5) The costs of representation elected under subsection (3)(b) or of an appointment under subsection (4) shall, after being taxed by the Auditor of the Court of Session, be paid by the Advocate General for Scotland out of money provided by Parliament.
(6) The opinion on the point referred under subsection (2) or (2A) shall not affect the acquittal or (as the case may be) conviction in the trial.
288AA Appeals to the Supreme Court: compatibility issues
(1) For the purpose of determining any compatibility issue an appeal lies to the Supreme Court against a determination in criminal proceedings by a court of two or more judges of the High Court.
(2) On an appeal under this section—
(a) the powers of the Supreme Court are exercisable only for the purpose of determining the compatibility issue;
(b) for that purpose the Court may make any change in the formulation of that issue that it thinks necessary in the interests of justice.
(3) When it has determined the compatibility issue the Supreme Court must remit the proceedings to the High Court.
(4) In this section “compatibility issue” has the same meaning as in section 288ZA.
(5) An appeal under this section against a determination lies only with the permission of the High Court or, failing that permission, with the permission of the Supreme Court.
(6) Subsection (5) does not apply if it is an appeal by the Lord Advocate or the Advocate General for Scotland against a determination by the High Court of a compatibility issue referred to it under section 288ZB(2).
(7) An application to the High Court for permission under subsection (5) must be made—
(a) within 28 days of the date of the determination against which the appeal lies, or
(b) within such longer period as the High Court considers equitable having regard to all the circumstances.
(8) An application to the Supreme Court for permission under subsection (5) must be made—
(a) within 28 days of the date on which the High Court refused permission under that subsection, or
(b) within such longer period as the Supreme Court considers equitable having regard to all the circumstances.
288AB References of UNCRC compatibility issues to the High Court or Supreme Court
(1) In this section and section 288AC, “UNCRC compatibility issue” means a question, arising in criminal proceedings as to—
(a) whether words in an enactment to which section 29 or 30 of the UNCRC Incorporation Act applies give rise to an incompatibility with the UNCRC requirements,
(b) whether a public authority has acted (or proposed to act) in a way which is made unlawful by section 6(1) of the UNCRC Incorporation Act.
(2) In subsection (1)—
“public authority” has the same meaning as in section 6(5) of the UNCRC Incorporation Act,
“the UNCRC requirements” has the meaning given in section 1(2) of that Act,
“UNCRC Incorporation Act” means the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024.
(3) Where a UNCRC compatibility issue has arisen in criminal proceedings before a court, other than a court consisting of 2 or more judges of the High Court, the court may, instead of determining it, refer the issue to the High Court.
(4) The Lord Advocate, if a party to criminal proceedings before a court, other than a court consisting of 2 or more judges of the High Court, may require the court to refer to the High Court any UNCRC compatibility issue which has arisen in the proceedings.
(5) The High Court may, instead of determining a UNCRC compatibility issue referred to it under subsection (4), refer it to the Supreme Court.
(6) Where a UNCRC compatibility issue has arisen in criminal proceedings before a court consisting of 2 or more judges of the High Court, otherwise than on a reference, the court may, instead of determining it, refer it to the Supreme Court.
(7) The Lord Advocate, if a party to criminal proceedings before a court consisting of 2 or more judges of the High Court, may require the court to refer to the Supreme Court any UNCRC compatibility issue which has arisen in the proceedings otherwise than on a reference.
(8) On a reference to the Supreme Court under this section—
(a) the powers of the Supreme Court are exercisable only for the purpose of determining the UNCRC compatibility issue,
(b) for that purpose the Court may make any change in the formulation of that issue that it thinks necessary in the interests of justice.
(9) When it has determined a compatibility issue on a reference under this section, the Supreme Court must remit the proceedings to the High Court.
(10) An issue referred to the High Court or the Supreme Court under this section is referred to it for determination.
288AC Appeals to the Supreme Court: UNCRC compatibility issues
(1) For the purpose of determining any UNCRC compatibility issue an appeal lies to the Supreme Court against a determination in criminal proceedings by a court of 2 or more judges of the High Court.
(2) On an appeal under this section—
(a) the powers of the Supreme Court are exercisable only for the purpose of determining the UNCRC compatibility issue,
(b) for that purpose the Court may make any change in the formulation of that issue that it thinks necessary in the interests of justice.
(3) When it has determined the UNCRC compatibility issue, the Supreme Court must remit the proceedings to the High Court.
(4) An appeal under this section against a determination lies only—
(a) with the permission of the High Court, or
(b) if the High Court has refused permission, with the permission of the Supreme Court.
(5) Subsection (4) does not apply if it is an appeal by the Lord Advocate against a determination by the High Court of a UNCRC compatibility issue referred to it under section 288AB(4).
(6) An application to the High Court for permission under subsection (4)(a) must be made—
(a) within 28 days of the date of the determination against which the appeal lies, or
(b) within such longer period as the High Court considers equitable having regard to all the circumstances.
(7) An application to the Supreme Court for permission under subsection (4)(b) must be made—
(a) within 28 days of the date on which the High Court refused permission under subsection (4)(b), or
(b) within such longer period as the Supreme Court considers equitable having regard to all the circumstances.
(1) This section applies where the Supreme Court determines an appeal under section 288AA or 288AC of this Act or paragraph 13(a) of Schedule 6 to the Scotland Act 1998 against a determination ... by the High Court in the ordinary course of proceedings.
(2) The determination of the appeal shall not affect any earlier acquittal or earlier quashing of any conviction in the proceedings.
(3) Subject to subsection (2) above, the High Court shall have the same powers in relation to the proceedings when remitted to it by the Supreme Court as it would have if it were considering the proceedings otherwise than as a trial court.
288BZA UNCRC compatibility issue in relation to decision to prosecute child: restriction on judicial remedies
(1) This section applies where—
(a) by virtue of section 7(1)(b) of the UNCRC Incorporation Act, a UNCRC compatibility issue has arisen—
(i) in criminal proceedings brought against a person who is a child, or who was a child at the time the proceedings were brought,
(ii) otherwise than in connection with an appeal against conviction or an appeal against both conviction and sentence,
(b) in determining the UNCRC compatibility issue, a court finds that the prosecutor, by bringing criminal proceedings against the person, has acted in a way which is made unlawful by section 6(1) of the UNCRC Incorporation Act, and
(c) by reason only of the finding mentioned in paragraph (b), a court is considering—
(i) deserting the proceedings pro loco et tempore or simpliciter, or
(ii) dismissing the indictment or (as the case may be) the complaint or any part of it.
(2) Despite section 8(1) of the UNCRC Incorporation Act, a court—
(a) may not—
(i) desert the proceedings pro loco et tempore or simpliciter, except on the motion of the prosecutor, or
(ii) dismiss the indictment or (as the case may be) the complaint or any part of it, but
(b) must instead—
(i) give the prosecutor an opportunity to reconsider the bringing of criminal proceedings against the person in a way which is compatible with the UNCRC requirements,
(ii) adjourn or continue the proceedings to another diet to allow such reconsideration, and
(iii) following any such reconsideration, decide whether the bringing of criminal proceedings against the person is compatible with the UNCRC requirements.
(3) But a court is not required to act in accordance with subsection (2) if—
(a) it considers that there is no reasonable prospect of the bringing of criminal proceedings against the person being reconsidered in a way which is compatible with the UNCRC requirements,
(b) it considers that there are exceptional circumstances which justify not doing so, or
(c) it decides under subsection (2)(b)(iii) that the bringing of criminal proceedings against the person is incompatible with the UNCRC requirements.
(4) Subsection (5) applies where—
(a) the court adjourns or continues the proceedings in accordance with subsection (2)(b)(ii), or
(b) by virtue of subsection (3), the court decides to desert the proceedings pro loco et tempore.
(5) Before adjourning or continuing the proceedings or (as the case may be) deserting the proceedings pro loco et tempore, the court must give the prosecutor an opportunity—
(a) in solemn proceedings, to make an application under section 65(3) or (5) for an extension of any of the following periods which apply in respect of the proceedings—
(i) the periods of 11 months and 12 months mentioned in section 65(1), including those periods as extended under section 65(3), on appeal under section 65(8) or under section 74(4)(c),
(ii) the periods of 80 days, 110 days and 140 days mentioned in section 65(4), including those periods as extended under section 65(5) or on appeal under section 65(8),
(b) in summary proceedings in respect of which the period of 40 days mentioned in section 147(1) applies, to make an application under section 147(2) for an extension of that period, including that period as extended under section 147(2) or on appeal under section 147(3).
(6) For the purposes of subsection (1)(a)(i), the proceedings are taken to be brought—
(a) in solemn proceedings, on the date on which the indictment is served,
(b) in summary proceedings—
(i) in a case where a warrant to apprehend or cite the accused is granted, on the date on which the warrant is granted, or
(ii) in any other case, on the date on which the complaint is served.
(7) In this section—
“prosecutor” does not include a private prosecutor,
“the UNCRC requirements” has the meaning given in section 1(2) of the UNCRC Incorporation Act,
“UNCRC compatibility issue” means a question of the kind mentioned in section 288AB(1)(b),
“UNCRC Incorporation Act” means the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024.
(1) An indictment or a complaint may include a docket which specifies any act or omission that is connected with a sexual offence charged in the indictment or complaint.
(2) Here, an act or omission is connected with such an offence charged if it—
(a) is specifiable by way of reference to a sexual offence, and
(b) relates to—
(i) the same event as the offence charged, or
(ii) a series of events of which that offence is also part.
(3) The docket is to be in the form of a note apart from the offence charged.
(4) It does not matter whether the act or omission, if it were instead charged as an offence, could not competently be dealt with by the court (including as particularly constituted) in which the indictment or complaint is proceeding.
(5) Where under subsection (1) a docket is included in an indictment or a complaint, it is to be presumed that—
(a) the accused person has been given fair notice of the prosecutor's intention to lead evidence of the act or omission specified in the docket, and
(b) evidence of the act or omission is admissible as relevant.
(6) The references in this section to a sexual offence are to—
(a) an offence under the Sexual Offences (Scotland) Act 2009,
(b) any other offence involving a significant sexual element.
(1) An indictment or a complaint may include a charge that is framed as mentioned in subsection (2) or (3) (or both).
(2) That is, framed so as to comprise (in a combined form) the specification of more than one sexual offence.
(3) That is, framed so as to—
(a) specify, in addition to a sexual offence, any other act or omission, and
(b) do so in any manner except by way of reference to a statutory offence.
(4) Where a charge in an indictment or a complaint is framed as mentioned in subsection (2) or (3) (or both), the charge is to be regarded as being a single yet cumulative charge.
(5) The references in this section to a sexual offence are to an offence under the Sexual Offences (Scotland) Act 2009.
(1) Subsection (2) applies as respects a qualifying offence charged in an indictment or a complaint.
(2) Any specification in the charge that the offence is with intent to rape (however construed) may be given by referring to the statutory offence of rape.
(3) In this section—
(a) the reference to a qualifying offence is to an offence of assault or abduction (and includes attempt, conspiracy or incitement to commit such an offence),
(b) the reference to the statutory offence of rape is (as the case may be) to—
(i) the offence of rape under section 1 of the Sexual Offences (Scotland) Act 2009, or
(ii) the offence of rape of a young child under section 18 of that Act.
288C Prohibition of personal conduct of defence in cases of certain sexual offences
(1) An accused charged with a sexual offence to which this section applies is prohibited from conducting his case in person at, or for the purposes of, any relevant hearing in the course of proceedings (other than proceedings in a JP court) in respect of the offence.
(1A) In subsection (1), “relevant hearing” means a hearing at, or for the purposes of, which a witness is to give evidence.
(2) This section applies to the following sexual offences—
(a) rape (whether at common law or under section 1(1) of the Sexual Offences (Scotland) Act 2009 (asp 9));
(b) sodomy;
(c) clandestine injury to women;
(d) abduction of a woman or girl with intent to rape;
(da) abduction with intent to commit the statutory offence of rape;
(e) assault with intent to rape;
(ea) assault with intent to commit the statutory offence of rape;
(f) indecent assault;
(g) indecent behaviour (including any lewd, indecent or libidinous practice or behaviour);
(h) an offence under section 311 (non-consensual sexual acts) or 313 (persons providing care services: sexual offences) of the Mental Health (Care and Treatment)(Scotland) Act 2003;
(i) an offence under any of the following provisions of the Criminal Law (Consolidation)(Scotland) Act 1995 (c.39)—
(i) sections 1 to 3 (incest and related offences);
(ii) section 5 (unlawful sexual intercourse with girl under 13 or 16);
(iii) section 6 (indecent behaviour toward girl between 12 and 16);
(iv) section 7(2) and (3)(procuring by threats etc. );
(v) section 8 (abduction and unlawful detention);
(vi) section 10 (seduction, prostitution, etc. of girl under 16);
(vii) section 13(5)(b) or (c)(homosexual offences);
(j) an offence under any of the following provisions of the Sexual Offences (Scotland) Act 2009 (asp 9)—
(i) section 2 (sexual assault by penetration),
(ii) section 3 (sexual assault),
(iii) section 4 (sexual coercion),
(iv) section 5 (coercing a person into being present during a sexual activity),
(v) section 6 (coercing a person into looking at a sexual image),
(vi) section 7(1) (communicating indecently),
(vii) section 7(2) (causing a person to see or hear an indecent communication),
(viii) section 8 (sexual exposure),
(ix) section 9 (voyeurism),
(x) section 18 (rape of a young child),
(xi) section 19 (sexual assault on a young child by penetration),
(xii) section 20 (sexual assault on a young child),
(xiii) section 21 (causing a young child to participate in a sexual activity),
(xiv) section 22 (causing a young child to be present during a sexual activity),
(xv) section 23 (causing a young child to look at a sexual image),
(xvi) section 24(1) (communicating indecently with a young child),
(xvii) section 24(2) (causing a young child to see or hear an indecent communication),
(xviii) section 25 (sexual exposure to a young child),
(xix) section 26 (voyeurism towards a young child),
(xx) section 28 (having intercourse with an older child),
(xxi) section 29 (engaging in penetrative sexual activity with or towards an older child),
(xxii) section 30 (engaging in sexual activity with or towards an older child),
(xxiii) section 31 (causing an older child to participate in a sexual activity),
(xxiv) section 32 (causing an older child to be present during a sexual activity),
(xxv) section 33 (causing an older child to look at a sexual image),
(xxvi) section 34(1) (communicating indecently with an older child),
(xxvii) section 34(2) (causing an older child to see or hear an indecent communication),
(xxviii) section 35 (sexual exposure to an older child),
(xxix) section 36 (voyeurism towards an older child),
(xxx) section 37(1) (engaging while an older child in sexual conduct with or towards another older child),
(xxxi) section 37(4) (engaging while an older child in consensual sexual conduct with another older child),
(xxxii) section 42 (sexual abuse of trust) but only if the condition set out in section 43(6) of that Act is fulfilled,
(xxxiii) section 46 (sexual abuse of trust of a mentally disordered person);
(k) attempting to commit any of the offences set out in paragraphs (a) to (j).
(3) This section applies also to an offence in respect of which a court having jurisdiction to try that offence has made an order under subsection (4) below.
(4) Where, in the case of any offence, other than one set out in subsection (2) above, that court is satisfied that there appears to be such a substantial sexual element in the alleged commission of the offence that it ought to be treated, for the purposes of this section, in the same way as an offence set out in that subsection, the court shall, either on the application of the prosecutor or ex proprio motu, make an order under this subsection.
(5) The making of such an order does not affect the validity of anything which—
(a) was done in relation to the alleged offence to which the order relates; and
(b) was done before the order was made.
(6) The Scottish Ministers may by order made by statutory instrument vary the sexual offences to which this section applies by virtue of subsection (2) above by modifying that subsection.
(7) No such statutory instrument shall be made, however, unless a draft of it has been laid before and approved by resolution of the Scottish Parliament.
(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9) In subsection (2)—
(a) the references to “rape” in paragraphs (d) and (e) are to the offence of rape at common law; and
(b) the references to “the statutory offence of rape” in paragraphs (da) and (ea) are (as the case may be) to?
(i) the offence of rape under section 1 of the Sexual Offences (Scotland) Act 2009, or
(ii) the offence of rape of a young child under section 18 of that Act.
288D Appointment of solicitor by court in such cases
(1) This section applies in the case of proceedings (other than proceedings in a JP court) in respect of a sexual offence to which section 288C above applies.
(2) Where the court ascertains that—
(a) the accused has not engaged a solicitor for the purposes of
(i) the conduct of his case at, or for the purposes of, any relevant hearing (within the meaning of section 288C(1A)) in the proceedings; or
(iii) the conduct of his case at any commissioner proceedings; or
(b) having engaged a solicitor for those purposes, the accused has dismissed him; or
(c) the accused’s solicitor has withdrawn,
then, where the court is not satisfied that the accused intends to engage a solicitor or, as the case may be, another solicitor for those purposes, it shall, at its own hand, appoint a solicitor for those purposes.
(3)
A solicitor so appointed is not susceptible to dismissal by the accused or obliged to comply with any instruction by the accused to dismiss counsel.
(4) Subject to subsection (3) above, it is the duty of a solicitor so appointed—
(a) to ascertain and act upon the instructions of the accused; and
(b) where the accused gives no instructions or inadequate or perverse instructions, to act in the best interests of the accused.
(5) In all other respects, a solicitor so appointed has, and may be made subject to, the same obligations and has, and may be given, the same authority as if engaged by the accused; and any employment of and instructions given to counsel by the solicitor shall proceed and be treated accordingly.
(6) Where the court is satisfied that a solicitor so appointed is no longer able to act upon the instructions, or in the best interests, of the accused, the court may relieve that solicitor of his appointment and appoint another solicitor for the purposes referred to in subsection (2)(a) above.
(6A) Where, in relation to commissioner proceedings, the commissioner is satisfied that a solicitor so appointed is no longer able to act upon the instructions, or in the best interests, of the accused, the commissioner is (for the purpose of the application of subsection (6) above) to refer the case to the court.
(7) The references in subsections (3) to ((6A)) above to “a solicitor so appointed” include references to a solicitor appointed under subsection (6) above.
(8) In this section “counsel” includes a solicitor who has right of audience in the High Court of Justiciary under section 25A (rights of audience in various courts including the High Court of Justiciary) of the Solicitors (Scotland) Act 1980 (c.46).
(9) In this section, “commissioner proceedings” means proceedings before a commissioner appointed under section 271I(1) or by virtue of section 272(1)(b) of this Act.
288DA Jury direction relating to lack of communication about offence
(1) Subsection (2) applies where, in a trial on indictment for a sexual offence—
(a) evidence is given which suggests that the person against whom the offence is alleged to have been committed—
(i) did not tell, or delayed in telling, anyone, or a particular person, about the offence, or
(ii) did not report, or delayed in reporting, the offence to any investigating agency, or a particular investigating agency, or
(b) a question is asked, or a statement is made, with a view to eliciting, or drawing attention to, evidence of that nature.
(2) In charging the jury, the judge must advise that—
(a) there can be good reasons why a person against whom a sexual offence is committed may not tell others about it or report it to an investigating agency, or may delay in doing either of those things, and
(b) this does not, therefore, necessarily indicate that an allegation is false.
(3) Subsection (2) does not apply if the judge considers that, in the circumstances of the case, no reasonable jury could consider the evidence, question or statement by reason of which subsection (2) would otherwise apply to be material to the question of whether the alleged offence is proved.
(4) For the purposes of this section—
“investigating agency” means—
a police force maintained for the area where the offence is alleged to have been committed,
any other person who has functions (to any extent) of investigating crime in the area where the offence is alleged to have been committed,
“sexual offence” has the same meaning as in section 210A, except that it does not include—
an offence under section 170 of the Customs and Excise Management Act 1979, or
an offence under section 52A of the Civic Government (Scotland) Act 1982.
288DB Jury direction relating to absence of physical resistance or physical force
(1) Subsection (2) applies where, in a trial on indictment for a sexual offence—
(a) evidence is given which suggests that the sexual activity took place without physical resistance on the part of the person against whom the offence is alleged to have been committed, or
(b) a question is asked, or a statement is made, with a view to eliciting, or drawing attention to, evidence of that nature.
(2) In charging the jury, the judge must advise that—
(a) there can be good reasons why a person against whom a sexual offence is committed might not physically resist the sexual activity, and
(b) an absence of physical resistance does not, therefore, necessarily indicate that an allegation is false.
(3) Subsection (2) does not apply if the judge considers that, in the circumstances of the case, no reasonable jury could consider the evidence, question or statement by reason of which subsection (2) would otherwise apply to be material to the question of whether the alleged offence is proved.
(4) Subsection (5) applies where, in a trial on indictment for a sexual offence—
(a) evidence is given which suggests that the sexual activity took place without the accused using physical force to overcome the will of the person against whom the offence is alleged to have been committed, or
(b) a question is asked, or a statement is made, with a view to eliciting, or drawing attention to, evidence of that nature.
(5) In charging the jury, the judge must advise that—
(a) there can be good reasons why a person may, in committing a sexual offence, not need to use physical force to overcome the will of the person against whom the offence is committed, and
(b) an absence of physical force does not, therefore, necessarily indicate that an allegation is false.
(6) Subsection (5) does not apply if the judge considers that, in the circumstances of the case, no reasonable jury could consider the evidence, question or statement by reason of which subsection (5) would otherwise apply to be material to the question of whether the alleged offence is proved.
(7) For the purposes of this section—
“sexual activity” means the sexual activity which is the subject of the alleged sexual offence,
“sexual offence” means—
rape (whether at common law or under section 1(1) of the Sexual Offences (Scotland) Act 2009),
indecent assault,
sodomy,
clandestine injury to women,
an offence under section 2 of the Sexual Offences (Scotland) Act 2009 (sexual assault by penetration),
an offence under section 3 of that Act (sexual assault),
an offence under section 4 of that Act (sexual coercion).
288DC Prohibition of personal conduct of defence in domestic abuse cases
(1) This section applies to—
(a) an offence under section 1(1) of the Domestic Abuse (Scotland) Act 2018,
(b) an offence that is aggravated as described in section 1(1)(a) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.
(2) An accused in proceedings for an offence to which this section applies is prohibited from conducting the accused's case in person at, or for the purposes of, any relevant hearing in the course of the proceedings.
(3) Section 288D applies in the case of proceedings in respect of an offence to which this section applies as it does in the case of proceedings in respect of an offence to which section 288C applies (and a reference in section 288D to a relevant hearing is to be read accordingly).
(4) In subsection (2), “relevant hearing” means a hearing at, or for the purposes of, which a witness is to give evidence.
288E Prohibition of personal conduct of defence in certain cases involving child witnesses under the age of 12
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) This section applies to any proceedings (other than proceedings in the JP court)—
(a) in respect of any offence specified in subsection (3) below, and
(b) in which a child witness who is under the age of 12 on the date of commencement of the proceedings is to give evidence at or for the purposes of any hearing in the course of the proceedings.
(2A) The accused is prohibited from conducting his case in person at, or for the purposes of, any hearing at, or for the purposes of, which the child witness is to give evidence.
(3) The offences referred to in subsection (2)(a) above are—
(a) murder,
(b) culpable homicide,
(c) any offence which—
(i) involves an assault on, or injury or threat of injury to, any person (including any offence involving neglect or ill-treatment of, or other cruelty to, a child), but
(ii) is not an offence to which section 288C or 288DC of this Act applies,
(d) abduction, and
(e) plagium.
(4) Section 288D of this Act applies in the case of proceedings to which this section applies as it applies in the case of proceedings in respect of a sexual offence to which section 288C of this Act applies and as if references to a relevant hearing were references to a hearing referred to in subsection (2A) above.
(5) In proceedings to which this section applies, the prosecutor shall, at the same time as intimating to the accused under section 271A(13) of this Act a vulnerable witness notice in respect of the trial, serve on the accused a notice under subsection (6).
(6) A notice under this subsection shall contain intimation to the accused—
(a) that his case at, or for the purposes of, any hearing in the course of the proceedings at, or for the purposes of, which the child witness is to give evidence may be conducted only by a lawyer,
(b) that it is therefore in his interests, if he has not already done so, to get the professional assistance of a solicitor, and
(c) that if he does not engage a solicitor for the purposes of the conduct of his case at or for the purposes of the hearing, the court will do so.
(7) A failure to comply with subsection (5) or (6) above does not affect the validity or lawfulness of any vulnerable witness notice or any other element of the proceedings against the accused.
(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9) For the purposes of subsection (2)(b) above, proceedings shall be taken to have commenced when the indictment or, as the case may be, the complaint is served on the accused.
288F Power to prohibit personal conduct of defence in other cases involving vulnerable witnesses
(1) This section applies in the case of proceedings in respect of any offence, other than proceedings—
(a) in the JP court,
(b) in respect of a sexual offence to which section 288C of this Act applies, or
(ba) in respect of an offence to which section 288DC of this Act applies,
(c) to which section 288E of this Act applies,
where a vulnerable witness is to give evidence at, or for the purposes of, any hearing in the course of the proceedings.
(2) If satisfied that it is in the interests of the vulnerable witness to do so, the court may—
(a) on the application of the prosecutor, or
(b) of its own motion,
make an order prohibiting the accused from conducting his case in person at any hearing at, or for the purposes of, which the vulnerable witness is to give evidence.
(3) However, the court shall not make an order under subsection (2) above if it considers that—
(a) the order would give rise to a significant risk of prejudice to the fairness of the hearing or otherwise to the interests of justice, and
(b) that risk significantly outweighs any risk of prejudice to the interests of the vulnerable witness if the order is not made.
(4) The court may make an order under subsection (2) above in relation to a hearing after, as well as before, the hearing has commenced.
(4A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) Section 288D of this Act applies in the case of proceedings in respect of which an order is made under this section as it applies in the case of proceedings in respect of a sexual offence to which section 288C of this Act applies and as if references to a relevant hearing were references to any hearing in respect of which an order is made under this section.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
288G Application of vulnerable witnesses provisions to proceedings in the district court
(1) The Scottish Ministers may by order made by statutory instrument provide for any of sections—
(a) 271 to 271M,
(b) 288E, and
(c) 288F,
of this Act to apply, subject to such modifications (if any) as may be specified in the order, to proceedings in the district court.
(2) An order under subsection (1) may—
(a) make such incidental, supplemental, consequential, transitional, transitory or saving provision as the Scottish Ministers think necessary or expedient,
(b) make different provision for different district courts or descriptions of district court or different proceedings or types of proceedings,
(c) modify any enactment.
(3) An order under this section shall not be made unless a draft of the statutory instrument containing the order has been laid before, and approved by resolution of, the Scottish Parliament.
(1) Where the court so determines at any time before or at a specified hearing, a detained person is to participate in the hearing by means of a live television link.
(2) The court—
(a) must give the parties in the case an opportunity to make representations before making a determination under subsection (1),
(b) may make such a determination only if it considers that to do so is not contrary to the interests of justice.
(3) The court may require a detained person to participate by means of a live television link in any proceedings at a specified hearing or otherwise in the case for the sole purpose of considering whether to make a determination under subsection (1) with respect to a specified hearing.
(4) Where a detained person participates in any specified hearing or other proceedings by means of a live television link—
(a) a place of detention is, for the purposes of the hearing or other proceedings, deemed to be part of the court-room, and
(b) accordingly, the hearing is or other proceedings are deemed to take place in the presence of the detained person.
(5) In this section—
“court-room” includes chambers,
“live television link” means live television link between a place of detention and the court-room in which any specified hearing is or other proceedings are to be held or (as the case may be) any specified hearing is or other proceedings are being held.
(1) No evidence as to a charge on any complaint or indictment may be led or presented at a specified hearing in respect of which there is a determination under section 288H(1).
(2) The court—
(a) may, at any time before or at a specified hearing, revoke a determination under section 288H(1),
(b) must do so in relation to a detained person if it considers that it is in the interests of justice for the detained person to appear in person.
(3) The court may postpone a specified hearing to a later day if, on the day on which a specified hearing takes place or is due to take place—
(a) the court decides not to make a determination under section 288H(1) with respect to the hearing, or
(b) the court revokes such a determination under subsection (2).
(1) Except where a postponement under section 288I(3) is while section 21(2) of the Criminal Justice (Scotland) Act 2016 applies to a detained person, the following do not count towards any time limit arising in the person's case if the postponement in the case is to the next day on which the court is sitting—
(a) that next day,
(b) any intervening Saturday, Sunday or court holiday.
(2) Even while section 21(2) of the Criminal Justice (Scotland) Act 2016 applies to a detained person, that section does not prevent a postponement under section 288I(3) in the person's case.
(3) In section 288I and this section, “postpone” includes adjourn.
(1) The Lord Justice General may by directions specify types of hearing at the High Court, Sheriff Appeal Court, sheriff court and JP court in which a detained person may participate in accordance with section 288H(1).
(2) Directions under subsection (1) may specify types of hearing by reference to—
(a) the venues at which they take place,
(b) particular places of detention,
(c) categories of cases or proceedings to which they relate.
(3) Directions under subsection (1) may—
(a) vary or revoke earlier such directions,
(b) make different provision for different purposes.
(4) The validity of any proceedings is not affected by the participation of a detained person by means of a live television link in a hearing that is not a specified hearing.
(5) In this section, “hearing” includes any diet or hearing in criminal proceedings which may be held in the presence of an accused, a convicted person or an appellant in the proceedings.
For the purpose of sections 288H to 288K—
“detained person” means person who is—
an accused, a convicted person or an appellant in the case to which a specified hearing relates, and
imprisoned or otherwise lawfully detained (whether or not in connection with an offence) at any place in Scotland,
“place of detention” means place in which a detained person is imprisoned or detained,
“specified hearing” means hearing of a type specified in directions having effect for the time being under section 288K.
The procedure and rules of evidence in proceedings for treason and misprision of treason shall be the same as in proceedings according to the law of Scotland for murder.
290 Accused’s right to request identification parade.
(1) Subject to subsection (2) below, the sheriff may, on an application by an accused at any time after the accused has been charged with an offence, order that, in relation to the alleged offence, the prosecutor shall hold an identification parade in which the accused shall be one of those constituting the parade.
(2) The sheriff shall make an order in accordance with subsection (1) above only after giving the prosecutor an opportunity to be heard and only if—
(a) an identification parade, such as is mentioned in subsection (1) above, has not been held at the instance of the prosecutor;
(b) after a request by the accused, the prosecutor has refused to hold, or has unreasonably delayed holding, such an identification parade; and
(c) the sheriff considers the application under subsection (1) above to be reasonable.
(1) The sheriff may, on the application of an accused, grant warrant to cite any person (other than a co-accused), who is alleged to be a witness in relation to any offence of which the accused has been charged, to appear before the sheriff in chambers at such time or place as shall be specified in the citation, for precognition on oath by the accused or his solicitor in relation to that offence, if the court is satisfied that it is reasonable to require such precognition on oath in the circumstances.
(2) Any person who, having been duly cited to attend for precognition under subsection (1) above and having been given at least 48 hours notice, fails without reasonable excuse to attend shall be guilty of an offence and shall be 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.
(3) Any person who, having been duly cited to attend for precognition under subsection (1) 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 forthwith to a fine not exceeding level 3 on the standard scale or to imprisonment for a period not exceeding 21 days.
(4) This section does not, however, extend to the citation of the complainer for precognition by the accused in person.
(5) In subsection (4) above, “complainer” has the same meaning as in section 274 of this Act.
(6) A warrant is not to be granted under this section for the citation for precognition by the accused in person of any child under the age of 12 on the relevant date where the offence in relation to which the child is alleged to be a witness is one specified in section 288E(3) of this Act.
(7) In subsection (6) above, “the relevant date” means—
(a) where an indictment or complaint in respect of the offence has been served on the accused at the time of the application, the date on which the indictment or complaint was so served, or
(b) where an indictment or complaint in respect of the offence has not been so served, the date on which the application under subsection (1) above is made.
(1) Subject to subsection (6) below, the offences mentioned (and broadly described) in Schedule 10 to this Act shall be triable only summarily.
(2) An offence created by statute shall be triable only summarily if—
(a) the enactment creating the offence or any other enactment expressly so provides (in whatever words); or
(b) subject to subsections (4) and (5)(a) below, the offence was created by an Act passed on or before 29 July 1977 (the date of passing of the Criminal Law Act 1977) and the penalty or maximum penalty in force immediately before that date, on any conviction of that offence, did not include any of the following—
(i) a fine exceeding £400;
(ii) . . . imprisonment for a period exceeding 3 months;
(iii) a fine exceeding £50 in respect of a specified quantity or number of things, or in respect of a specified period during which a continuing offence is committed.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) An offence created by statute which is triable only on indictment shall continue only to be so triable.
(5) An offence created by statute shall be triable either on indictment or summarily if—
(a) the enactment creating the offence or any other enactment expressly so provides (in whatever words); or
(b) it is an offence to which neither subsection (2) nor subsection (4) above applies.
(6) An offence which may under any enactment (including an enactment in this Act or passed after this Act) be tried only summarily, being an offence which, if it had been triable on indictment, could competently have been libelled as an additional or alternative charge in the indictment, may (the provisions of this or any other enactment notwithstanding) be so libelled, and tried accordingly.
(7) Where an offence is libelled and tried on indictment by virtue of subsection (6) above, the penalty which may be imposed for that offence in that case shall not exceed that which is competent on summary conviction.
293 Statutory offences: art and part and aiding and abetting.
(1) A person may be convicted of, and punished for, a contravention of any enactment, notwithstanding that he was guilty of such contravention as art and part only.
(2) Without prejudice to subsection (1) above or to any express provision in any enactment having the like effect to this subsection, any person who aids, abets, counsels, procures or incites any other person to commit an offence against the provisions of any enactment shall be guilty of an offence and shall be liable on conviction, unless the enactment otherwise requires, to the same punishment as might be imposed on conviction of the first-mentioned offence.
(1) Attempt to commit any indictable crime is itself an indictable crime.
(2) Attempt to commit any offence punishable on complaint shall itself be an offence punishable on complaint.
Without prejudice to section 13 of the Prisons (Scotland) Act 1989 (c. 45)(legal custody of prisoners), any person required or authorised by or under this Act or any other enactment to be taken to any place, or to be detained or kept in custody is, while being so taken or detained or kept, . . . in legal custody.
296 Warrants for search and apprehension to be signed by judge.
Any warrant for search or apprehension granted under this Act shall be signed by the judge granting it, and execution upon any such warrant may proceed either upon the warrant itself or upon an extract of the warrant issued and signed by the clerk of court.
297 Execution of warrants and service of complaints, etc.
(1) Any warrant granted by a justice may, without being backed or endorsed by any other justice, be executed throughout Scotland in the same way as it may be executed within the jurisdiction of the justice who granted it.
(2) Any complaint, warrant, or other proceeding for the purposes of any summary proceedings under this Act may without endorsation be served or executed at any place within Scotland by any officer of law, and such service or execution may be proved either by the oath in court of the officer or by production of his written execution.
(3) A warrant issued in the Isle of Man for the arrest of a person charged with an offence may, after it has been endorsed by a justice in Scotland, be executed there by the person bringing that warrant, by any person to whom the warrant was originally directed or by any officer of law of the sheriff court district where the warrant has been endorsed in like manner as any such warrant issued in Scotland.
(4) In subsection (3) above, “endorsed” means endorsed in the like manner as a process to which section 4 of the Summary Jurisdiction (Process) Act 1881 applies.
(5) The Indictable Offences Act Amendment Act 1868 shall apply in relation to the execution in Scotland of warrants issued in the Channel Islands.
(1) This section applies where a person has been apprehended under a warrant (the “original warrant”) granted under this Act in relation to any proceedings.
(2) If the person absconds, the person may be re-apprehended under the original warrant (and as if that warrant had not been executed to any extent).
(3) If, for any reason, it is not practicable to bring the person before the court as required under a provision of this Act applying in the case, the person is to be brought before the court as soon as practicable after the relevant reason ceases to prevail.
(4) Despite subsection (3) above, if—
(a) the original warrant was granted in solemn proceedings; and
(b) the impracticability arises because the person needs medical treatment or care,
the person may be released.
(5) A person released under subsection (4) above may be re-apprehended under the original warrant (and as if that warrant had not been executed to any extent).
(6) Subsection (3) above does not affect the operation of section 22(1B) of this Act (which relates to liberation on an undertaking of persons apprehended under warrant granted in summary proceedings).
(7) Nothing in this section prevents a court from granting a fresh warrant for the apprehension of the person.
(8) Subject to this section are—
(a) any rule of law as to bringing a person before a court in pursuance of a warrant granted on petition (as referred to in section 34 of this Act);
(b) section 102A(10) of this Act;
(c) section 135(3) (including as applying in relation to sections 22(1B) and 156) of this Act;
(d) section 90A(9) of this Act.
(1) Without prejudice to section 113 of this Act, the High Court may, in relation to—
(a) an appeal under section 106(1), 108 or 108A of this Act;
(b) an appeal by way of bill of suspension or advocation; or
(c) a petition to the nobile officium,
at any time before the appeal is finally determined or, as the case may be, petition finally disposed of, order the judge who presided at the trial, passed sentence or otherwise disposed of the case to provide to the Clerk of Justiciary a report in writing giving the judge’s opinion on the case generally or in relation to any particular matter specified in the order.
(2) The Clerk of Justiciary shall send a copy of a report provided under subsection (1) above to the convicted person or his solicitor, the Crown Agent and, in relation to cases referred under Part XA of this Act, the Commission.
(2A) Without prejudice to section 186(3)(b) of this Act, the Sheriff Appeal Court may, in relation to—
(a) an appeal under section 175(2) to (4) of this Act; or
(b) an appeal by way of bill of suspension or advocation,
at any time before the appeal is finally determined order the judge who presided at the trial, passed sentence or otherwise disposed of the case to provide to the Clerk of the Sheriff Appeal Court a report in writing giving the judge’s opinion in the case generally or in relation to any particular matter specified in the order.
(2B) The Clerk of the Sheriff Appeal Court must send a copy of the report provided under subsection (2A) above to the convicted person or their solicitor, the prosecutor and, in relation to cases referred under Part XA of this Act, the Commission.
(3) Subject to subsections (2) and (2B) above, the report of the judge shall be available only to the High Court or the Sheriff Appeal Court (as the case may be), the parties and, on such conditions as may be prescribed by Act of Adjournal, such other persons or classes of persons as may be so prescribed.