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In force since 2026-11-02, as the publisher states.
Copy read on 2026-11-08. The page it was read from
Contains public sector information licensed under the Open Government Licence v3.0. Source: legislation.gov.uk, The National Archives.
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No clerks fees, court fees or other fees or expenses shall be exigible from or awarded against an accused in respect of a decision on bail under section 22A above, an application for bail or of the appeal of such a decision or application to the High Court.
Propose a change(1) A petition for warrant to arrest and commit a person suspected of or charged with crime may be in the forms— (a) set out in Schedule 2 to this Act; or (b) prescribed by Act of Adjournal, or as nearly as may be in such form; and Schedule 3 to this Act shall apply to any such petition as it applies to the indictment. (2) If on the application of the procurator fiscal, a sheriff is satisfied that there is reasonable ground for suspecting that an offence has been or is being committed by a body corporate, the sheriff shall have the like power to grant warrant for the citation of witnesses and the production of documents and articles as he would have if a petition charging an individual with the commission of the offence were presented to him.
Propose a change(1) Where the prosecutor believes— (a) that, because of exceptional circumstances (and without an order under subsection (3) below), it is likely that there would be an unusually high number of accused persons appearing from custody for the first calling of cases on petition in the sheriff courts in the sheriffdom; and (b) that it would not be practicable for those courts to deal with all the cases involved, the prosecutor may apply to the sheriff principal for the order referred to in subsection (2) below. (2) For the purposes of subsection (1) above, the order is for authority for petition proceedings against some or all of the accused persons to be— (a) taken at a sheriff court in another sheriffdom; and (b) maintained— (i) there; or (ii) at any of the sheriff courts referred to in subsection (1) above as may at the first calling of the case be appointed for further proceedings. (3) On an application under subsection (1) above, the sheriff principal may make the order sought with the consent of the sheriff principal of the other sheriffdom. (4) An order under subsection (3) above may be made by reference to a particular period or particular circumstances. (5) This section does not confer jurisdiction for any subsequent proceedings on indictment.
Propose a change(1) The accused’s solicitor shall be entitled to be present at the examination. (2) The sheriff may delay the examination for a period not exceeding 48 hours from and after the time of the accused’s arrest, in order to allow time for the attendance of the solicitor. (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4A) An accused charged with an offence listed in subsection (4AA)(b) shall, as soon as he is brought before the sheriff for examination on the charge, be told— (a) that his case at, or for the purposes of, any relevant hearing ... in the course of the proceedings 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. (4AA) For the purposes of subsection (4A)— (a) “relevant hearing” is to be construed in accordance with section 288C(1A) or (as the case may be) 288DC(4), (b) the list is— (i) an offence to which section 288C applies (certain sexual offending), (ii) an offence to which section 288DC applies (domestic abuse cases). (4B) A failure to comply with subsection (4A) above does not affect the validity or lawfulness of the examination or of any other element of the proceedings against the accused. (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (6) Where the accused is brought before the sheriff for further examination the sheriff may delay that examination for a period not exceeding 24 hours in order to allow time for the attendance of the accused’s solicitor. (6A) In proceedings before the sheriff in examination or further examination, the accused is not to be given an opportunity to make a declaration in respect of any charge. (7) Any proceedings before the sheriff in examination or further examination shall be conducted in chambers and outwith the presence of any co-accused. (8) This section applies to procedure on petition, without prejudice to the accused being tried summarily by the sheriff for any offence in respect of which he has been committed until liberated in due course of law.
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Propose a change(1) An accused against whom there are charges in more than one sheriff court district may be brought before the sheriff of any one such district at the instance of the procurator fiscal of such district for examination on all or any of the charges. (2) Where an accused is brought for examination as mentioned in subsection (1) above, he may be dealt with in every respect as if all of the charges had arisen in the district where he is examined. (3) This section is without prejudice to the power of the Lord Advocate under section 10 of this Act to determine the court before which the accused shall be tried on such charges.
Propose a change(1) Every petition shall be signed and no accused shall be committed until liberated in due course of law for any crime or offence without a warrant in writing expressing the particular charge in respect of which he is committed. (2) Any such warrant for imprisonment which either proceeds on an unsigned petition or does not express the particular charge shall be null and void. (3) The accused shall immediately be given a true copy of the warrant for imprisonment signed by the constable or person executing the warrant before imprisonment or by the prison officer receiving the warrant.
Propose a changeA child under the age of 12 years cannot commit an offence.
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Propose a change(1) A child aged 12 years or more but under 16 years may not be prosecuted for any offence except on the instructions of the Lord Advocate, or at the instance of the Lord Advocate; and no court other than the High Court and the sheriff court shall have jurisdiction over such a child for an offence. (2) Where a child is charged with any offence, his parent or guardian may in any case, and shall, if he can be found and resides within a reasonable distance, be required to attend at the court before which the case is heard or determined during all the stages of the proceedings, unless the court is satisfied that it would be unreasonable to require his attendance. (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4) For the purpose of enforcing the attendance of a parent or guardian and enabling him to take part in the proceedings and enabling orders to be made against him, rules may be made under section 305 of this Act, for applying, with the necessary adaptations and modifications, such of the provisions of this Act relating to summary proceedings as appear appropriate for the purpose. (5) The parent or guardian whose attendance is required under this section is— (a) the parent who has parental responsibilities or parental rights (within the meaning of sections 1(3) and 2(4) respectively of the Children (Scotland) Act 1995) in relation to the child; or (b) the guardian having actual possession and control of him. (6) The attendance of the parent of a child shall not be required under this section in any case where the child was before the institution of the proceedings removed from the care or charge of his parent by an order of a court. (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (8) Where a local authority receive notification under section 24 of the Criminal Justice (Scotland) Act 2016 they shall make such investigations and submit to the court a report which shall contain such information as to the home surroundings of the child as appear to them will assist the court in the disposal of his case, and the report shall contain information, which the appropriate education authority shall have a duty to supply, as to the school record, health and character of the child. (9) Any child ... being conveyed to or from any criminal court, or waiting before or after attendance in such court, shall be prevented from associating with an adult (not being a relative) who is charged with any offence other than an offence with which the child is jointly charged. (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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Propose a change(1) Where a child appears before the sheriff in summary proceedings and pleads guilty to, or is found guilty of, an offence to which this section applies, the sheriff may order that he be detained in a residential establishment for such period not exceeding one year as may be specified in the order in such place (in any part of the United Kingdom) as the appropriate local authority may, from time to time, consider appropriate. (2) This section applies to any offence (other than, if the child is under the age of 16 years, an offence under section 9(1) of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8) or that section as applied by section 234AA(11) of this Act) in respect of which it is competent to impose imprisonment on a person of the age of 21 years or more. (3) Where a child in respect of whom an order is made under this section is detained by the appropriate local authority, that authority shall have the same powers and duties in respect of the child as they would have if he were subject to a compulsory supervision order. (4) Where a child in respect of whom an order is made under this section is also subject to a compulsory supervision order or interim compulsory supervision order, subject to subsection (6) below, the compulsory supervision order or interim compulsory supervision order shall be of no effect during any period for which he is required to be detained under the order. (5) The Secretary of State may, by regulations ..., make such provision as he considers necessary as regards the detention in secure accommodation of children in respect of whom orders have been made under this section. (5A) Regulations under subsection (5) may, in particular, make provision about the circumstances in which such children may remain in secure accommodation despite attaining the age of 18 years (provided that no person may remain in such accommodation after attaining the age of 19 years). (5B) Regulations under subsection (5) are subject to the affirmative procedure. (6) Where a child is detained in a residential establishment in pursuance of an order under— (a) subsection (1) above, he shall be released from such detention not later than the date by which the period mentioned in subsection (6A) has (following commencement of the detention) elapsed but, without prejudice to subsection (7) below, until the entire period specified in the order has so elapsed may be required by the local authority to submit to supervision in accordance with such conditions as they consider appropriate; (b) subsection (1) above or (8) below, the local authority may at any time review his case and may, in consequence of such review and after having regard to the best interests of the child and the need to protect members of the public, release the child— (i) for such period and on such conditions as the local authority consider appropriate; or (ii) unconditionally. (6A) The period referred to in subsection (6)(a) is— (a) where subsection (6B) applies, one-half of the period specified in the order, (b) in any other case, three-tenths of the period specified in the order. (6B) This subsection applies where the offence to which the order relates is— (a) an offence listed in paragraphs 36 to 60 of schedule 3 of the Sexual Offences Act 2003, or (b) a domestic abuse offence. (7) Where a child released under paragraph (a) or (b)(ii) of subsection (6) above is subject to a compulsory supervision order or interim compulsory supervision order, the effect of that order shall commence or, as the case may be, resume upon such release. (8) If, while released under paragraph (a) or (b) of subsection (6) above (and before the date on which the entire period mentioned in the said paragraph (a) has, following the commencement of the detention, elapsed), a child commits an offence to which this section applies and (whether before or after that date) pleads guilty to or is found guilty of it a court may, instead of or in addition to making any other order in respect of that plea or finding, order that he be returned to the residential establishment from which the child was released and that his detention in that establishment or any other such establishment chosen by the appropriate local authority shall continue for the whole or any part of the period which— (a) begins with the date of the order for his return; and (b) is equal in length to the period between the date on which the new offence was committed and the date on which that entire period elapses. (9) An order under subsection (8) above for return to a residential establishment chosen by the appropriate local authority— (a) shall be taken to be an order for detention in a residential establishment for the purpose of this Act and any appeal; and (b) shall, as the court making that order may direct, either be for a period of detention in a residential establishment before and to be followed by, or to be concurrent with, any period of such detention to be imposed in respect of the new offence (being in either case disregarded in determining the appropriate length of the period so imposed). (10) Where a local authority consider it appropriate that a child in respect of whom an order has been made under subsection (1) or (8) above should be detained in a place in any part of the United Kingdom outside Scotland, the order shall be a like authority as in Scotland to the person in charge of the place to restrict the child’s liberty to such an extent as that person may consider appropriate having regard to the terms of the order. (11) In this section— “the appropriate local authority” means— where the child usually resides in Scotland, the local authority for the area in which he usually resides; in any other case, the local authority for the area in which the offence was committed; ... “domestic abuse offence” means— an offence that is aggravated as described in section 1(1)(a) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, or an offence under section 1(1) of the Domestic Abuse (Scotland) Act 2018, “residential establishment” and “secure accommodation” have the meanings given by section 202(1) of the Children’s Hearings (Scotland) Act 2011.
Propose a change(1) A child, or a relevant person in relation to the child, may appeal to the sheriff against a decision by a local authority to detain the child in secure accommodation in pursuance of an order made under section 44 of this Act. (2) An appeal under subsection (1) may be made jointly by— (a) the child and one or more relevant persons in relation to the child; or (b) two or more relevant persons in relation to the child. (3) An appeal must not be held in open court. (4) The sheriff may determine an appeal by— (a) confirming the decision to detain the child in secure accommodation; or (b) quashing that decision and directing the local authority to move the child to be detained in residential accommodation which is not secure accommodation. (5) The Scottish Ministers may by regulations make further provision about appeals under subsection (1). (6) Regulations under subsection (5) may in particular— (a) specify the period within which an appeal may be made; (b) make provision about the hearing of evidence during an appeal; (c) provide for appeals to the Sheriff Appeal Court and Court of Session against the determination of an appeal. (7) Regulations under subsection (5) are subject to the affirmative procedure. (8) In this section— “relevant person”, in relation to a child, means any person who is a relevant person in relation to the child for the purposes of the Children's Hearings (Scotland) Act 2011 (including anyone deemed to be a relevant person in relation to the child by virtue of section 81(3), 160(4)(b) or 164(6) of that Act); “secure accommodation” has the same meaning as in section 44 of this Act.
Propose a change(1) Where a child has been charged with an offence the court may order his parent or guardian to give security for his co-operation in securing the child’s good behaviour. (2) Subject to subsection (3) below, an order under this section shall not be made unless the parent or guardian has been given the opportunity of being heard. (3) Where a parent or guardian has been required to attend and fails to do so, the court may make an order under this section. (4) Any sum ordered to be paid by a parent or guardian on the forfeiture of any security given under this section may be recovered from him by civil diligence or imprisonment in like manner as if the order had been made on the conviction of the parent or guardian of the offence with which the child was charged. (5) In this section “parent” means either of the child’s parents, if that parent has parental responsibilities or parental rights (within the meaning of sections 1(3) and 2(4) respectively of the Children (Scotland) Act 1995) in relation to him.
Propose a change(1) Where a person charged with an offence , whose age is not specified in the indictment or complaint in relation to that offence,is brought before a court other than for the purpose of giving evidence, and it appears to the court that he is a child, the court shall make due enquiry as to the age of that person, and for that purpose shall take such evidence as may be forthcoming at the hearing of the case, and the age presumed or declared by the court to be the age of that person shall, for the purposes of this Act or the Children and Young Persons (Scotland) Act 1937, be deemed to be the true age of that person. (2) The court in making any inquiry in pursuance of subsection (1) above shall have regard to the definition of child for the purposes of this Act. (3) Without prejudice to section 255A of this Act,Where in an indictment or complaint for— (a) an offence under the Children and Young Persons (Scotland) 1937; (b) any of the offences mentioned in paragraphs 3 and 4 of Schedule 1 to this Act; or (c) an offence under section 1, 10(1) to (3) or 12 of the Criminal Law (Consolidation) (Scotland) Act 1995, it is alleged that the person by or in respect of whom the offence was committed was a child or was under or had attained any specified age, and he appears to the court to have been at the date of the commission of the alleged offence a child, or to have been under or to have attained the specified age, as the case may be, he shall for the purposes of this Act or the Children and Young Persons (Scotland) Act 1937 or Part I of the Criminal Law (Consolidation) (Scotland) Act 1995 be presumed at that date to have been a child or to have been under or to have attained that age, as the case may be, unless the contrary is proved. (4) Where, in an indictment or complaint for an offence under the Children and Young Persons (Scotland) Act 1937 or any of the offences mentioned in Schedule 1 to this Act, it is alleged that the person in respect of whom the offence was committed was a child or was a young person, it shall not be a defence to prove that the person alleged to have been a child was a young person or the person alleged to have been a young person was a child in any case where the acts constituting the alleged offence would equally have been an offence if committed in respect of a young person or child respectively. (5) An order or judgement of the court shall not be invalidated by any subsequent proof that— (a) the age of a person mentioned in subsection (1) above has not been correctly stated to the court; or (b) the court was not informed that at the material time the person was subject to a compulsory supervision order or interim compulsory supervision order or that his case had been referred to a children’s hearing by virtue of regulations made under section 190 of the Children’s Hearings (Scotland) Act 2011 (asp 1). (6) Where it appears to the court that a person mentioned in subsection (1) above has attained the age of 17 years, he shall for the purposes of this Act or the Children and Young Persons (Scotland) Act 1937 be deemed not to be a child. (7) In subsection (3) above, references to a child (other than a child charged with an offence) shall be construed as references to a child under the age of 17 years; but except as aforesaid references in this section to a child shall be construed as references to a child within the meaning of section 307 of this Act.
Propose a change(1) Subject to subsection (3) below, no newspaper report of any proceedings in a court shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any person under the age of 18 years concerned in the proceedings, either— (a) as being a person against or in respect of whom the proceedings are taken; or (b) as being a witness in the proceedings. (2) Subject to subsection (3) below, no picture which is, or includes, a picture of a person under the age of 18 years concerned in proceedings as mentioned in subsection (1) above shall be published in any newspaper in a context relevant to the proceedings. (3) The requirements of subsections (1) and (2) above shall be applied in any case mentioned in any of the following paragraphs to the extent specified in that paragraph— (a) where a person under the age of 18 years is concerned in the proceedings as a witness only and no one against whom the proceedings are taken is under the age of 18 years, the requirements shall not apply unless the court so directs; (b) where, at any stage of the proceedings, the court, if it is satisfied that it is in the public interest so to do, directs that the requirements (including the requirements as applied by a direction under paragraph (a) above) shall be dispensed with to such extent as the court may specify; and (c) where the Secretary of State, after completion of the proceedings, if satisfied as mentioned in paragraph (b) above, by order dispenses with the requirements to such extent as may be specified in the order. (4) This section shall, with the necessary modifications, apply in relation to sound and television programmes included in a programme service (within the meaning of the Broadcasting Act 1990) as it applies in relation to newspapers. (5) A person who publishes matter in contravention of this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 of the standard scale. (6) In this section, references to a court shall not include a court in England, Wales or Northern Ireland.
Propose a change(1) A court by or before which a person is convicted of having committed an offence to which this section applies may refer— (a) a child in respect of whom an offence mentioned in paragraph (a) or (b) of subsection (2) below has been committed; or (b) any child who is, or who is likely to become, a member of the same household as the person who has committed an offence mentioned in paragraph (b) or (c) of that subsection or the person in respect of whom the offence so mentioned was committed, to the Principal Reporter, and certify that the offence shall be a ground established for the purposes of the Children’s Hearings (Scotland) Act 2011 (asp 1). (2) This section applies to an offence— (a) under section 21 of the Children and Young Persons (Scotland) Act 1937; (b) mentioned in Schedule 1 to this Act; or (c) in respect of a person aged 17 years or over which constitutes the crime of incest.
Propose a change(1) Where a child who is not subject to a compulsory supervision order or interim compulsory supervision order pleads guilty to, or is found guilty of, an offence the court— (a) instead of making an order on that plea or finding, may remit the case to the Principal Reporter to arrange for the disposal of the case by a children’s hearing; or (b) on that plea or finding may request the Principal Reporter to arrange a children’s hearing for the purposes of obtaining their advice as to the treatment of the child. (2) Where a court has acted in pursuance of paragraph (b) of subsection (1) above, the court, after consideration of the advice received from the children’s hearing may, as it thinks proper, itself dispose of the case or remit the case as mentioned in paragraph (a) of that subsection. (3) Where a child who is subject to a compulsory supervision order or interim compulsory supervision order pleads guilty to, or is found guilty of, an offence the court dealing with the case if it is— (a) the High Court, may; and (b) the sheriff JP court , shall, request the Principal Reporter to arrange a children’s hearing for the purpose of obtaining their advice as to the treatment of the child, and on consideration of that advice may, as it thinks proper, itself dispose of the case or remit the case as mentioned in subsection (1)(a) above except that where section 51A of the Firearms Act 1968 or section 29 of the Violent Crime Reduction Act 2006 applies it shall itself dispose of the case . (4) Subject to any appeal against any decision to remit made under subsection (1)(a) above or (7)(b) below, where a court has remitted a case to the Principal Reporter under this section, the jurisdiction of the court in respect of the child shall cease, and his case shall stand referred to a children’s hearing. (5) Nothing in this section shall apply to a case in respect of an offence the sentence for which is fixed by law. (6) Where a person who is— (a) not subject to a compulsory supervision order or interim compulsory supervision order ; (b) over the age of 16; and (c) not within six months of attaining the age of 18, is charged summarily with an offence and pleads guilty to, or has been found guilty of, the offence the court may request the Principal Reporter to arrange a children’s hearing for the purpose of obtaining their advice as to the treatment of the person. (7) On consideration of any advice obtained under subsection (6) above, the court may, as it thinks proper— (a) itself dispose of the case; or (b) where the hearing have so advised, remit the case to the Principal Reporter for the disposal of the case by a children’s hearing.
Propose a change(1) No child under 14 years of age (other than an infant in arms) shall be permitted to be present in court during any proceedings against any other person charged with an offence unless his presence is required as a witness or otherwise for the purposes of justice or the court consents to his presence. (2) Any child present in court when, under subsection (1) above, he is not to be permitted to be so shall be ordered to be removed. (3) Where, in any proceedings in relation to an offence against, or any conduct contrary to, decency or morality, a person who, in the opinion of the court, is a child is called as a witness, the court may direct that all or any persons, not being— (a) members or officers of the court; (b) parties to the case before the court, their counsel or solicitors or persons otherwise directly concerned in the case; (c) bona fide representatives of news gathering or reporting organisations present for the purpose of the preparation of contemporaneous reports of the proceedings; or (d) such other persons as the court may specially authorise to be present, shall be excluded from the court during the taking of the evidence of that witness. (4) The powers conferred on a court by subsection (3) above shall be in addition and without prejudice to any other powers of the court to hear proceedingsin camera. (5) Where in any proceedings relating to any of the offences mentioned in Schedule 1 to this Act, the court is satisfied that the attendance before the court of any person under the age of 17 years in respect of whom the offence is alleged to have been committed is not essential to the just hearing of the case, the case may be proceeded with and determined in the absence of that person. (6) Every court in dealing with a child who is brought before it as an offender shall have regard to the welfare of the child and shall in a proper case take steps for removing him from undesirable surroundings. (7) In complying with subsection (6) the court must, in particular, consider what steps might be taken to facilitate the participation of the child in the proceedings while safeguarding the child’s welfare and, where reasonably practicable, take those steps.
Propose a change(1) Where a court remands or commits for trial or for sentence a person under 21 years of age who is charged with or convicted of an offence and is not released on bail or ordained to appear, then, except as otherwise expressly provided by this section, the following provisions shall have effect— (a) . . . if he is under 18 years of age . . . , the court shall commit him to the local authority which it considers appropriate to be detained— (i) where the court so requires, in secure accommodation (as defined in section 202(1) of the Children’s Hearings (Scotland) Act 2011 (asp 1)) ; and (ii) in any other case, in a suitable place of safety chosen by the authority; (aa) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) if he is a person who has attained the age of 18 years, the court may commit the person to a young offenders institution, (bb) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2) Where any person is committed to a local authority . . . under any provision of this Act, that authority . . . shall be specified in the warrant, and he shall be detained by the authority . . . for the period for which he is committed or until he is liberated in due course of law. (2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4A) The local authority which may be appropriate in relation to a power to commit a person under paragraph (a) of subsection (1) . . . may, without prejudice to the generality of those powers, be— (a) the local authority for the area in which the court is situated; (b) if the person is usually resident in Scotland, the local authority for the area in which he is usually resident; (c) if the person is subject to a compulsory supervision order or interim compulsory supervision order, the implementation authority (as defined in section 202(1) of the Children’s Hearings (Scotland) Act 2011 (asp 1). (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (6) The Scottish Ministers may by regulations make provision about the detention in secure accommodation of children who have been committed to a local authority under subsection (1)(a). (7) Regulations under subsection (6) may, in particular, make provision about the circumstances in which such children may remain in secure accommodation despite attaining the age of 18 years (provided that no person may remain in such accommodation after attaining the age of 19 years). (8) Regulations under subsection (6) are subject to the affirmative procedure.
Propose a change(1) A person is not criminally responsible for conduct constituting an offence, and is to be acquitted of the offence, if the person was at the time of the conduct unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct. (2) But a person does not lack criminal responsibility for such conduct if the mental disorder in question consists only of a personality disorder which is characterised solely or principally by abnormally aggressive or seriously irresponsible conduct. (3) The defence set out in subsection (1) is a special defence. (4) The special defence may be stated only by the person charged with the offence and it is for that person to establish it on the balance of probabilities. (5) In this section, “conduct” includes acts and omissions.
Propose a change(1) A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide on grounds of diminished responsibility if the person's ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind. (2) For the avoidance of doubt, the reference in subsection (1) to abnormality of mind includes mental disorder. (3) The fact that a person was under the influence of alcohol, drugs or any other substance at the time of the conduct in question does not of itself— (a) constitute abnormality of mind for the purposes of subsection (1), or (b) prevent such abnormality from being established for those purposes. (4) It is for the person charged with murder to establish, on the balance of probabilities, that the condition set out in subsection (1) is satisfied. (5) In this section, “conduct” includes acts and omissions.
Propose a change(1) Where it appears to the prosecutor in any court before which a person is charged with an offence that the person may be suffering from mental disorder, it shall be the duty of the prosecutor to bring before the court such evidence as may be available of the mental condition of that person. (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Propose a changeWhere— (a) a person has been charged in a JP court with an offence punishable by imprisonment; and (b) it appears to the court that the person has a mental disorder, the JP court shall remit the person to the sheriff in the manner provided by section 7(9) and (10) of this Act.
Propose a change(1) Where— (a) a person has been charged with an offence; (b) a relevant disposal has not been made in the proceedings in respect of the offence; and (c) it appears to the prosecutor that the person has a mental disorder, the prosecutor may apply to the court for an order under section 52D(2) of this Act (in this Act referred to as an “assessment order”) in respect of that person. (2) Where the prosecutor applies for an assessment order under subsection (1) above, the prosecutor shall, as soon as reasonably practicable after making the application, inform the persons mentioned in subsection (3) below of the making of the application. (3) Those persons are— (a) the person in respect of whom the application is made; (b) any solicitor acting for the person; and (c) in a case where the person is remanded in custody, the Scottish Ministers. (4) In this section— “court” means any court, other than a JP court, competent to deal with the case; and “relevant disposal” means— the liberation in due course of law of the person charged; the desertion of summary proceedings pro loco et tempore or simpliciter; the desertion of solemn proceedings simpliciter; the acquittal of the person charged; or the conviction of the person charged.
Propose a change(1) Where— (a) a person has been charged with an offence; (b) the person has not been sentenced; (c) the person is remanded in custody; and (d) it appears to the Scottish Ministers that the person has a mental disorder, the Scottish Ministers may apply to the court for an assessment order in respect of that person. (2) Where the Scottish Ministers apply for an order under subsection (1) above, they shall, as soon as reasonably practicable after making the application, inform the persons mentioned in subsection (3) below of the making of the application. (3) Those persons are— (a) the person in respect of whom the application is made; (b) any solicitor acting for the person; and (c) in a case where a relevant disposal has not been made in the proceedings in respect of the offence with which the person is charged, the prosecutor. (4) In this section, “court” and “relevant disposal” have the same meanings as in section 52B of this Act.
Propose a change(1) This section applies where an application for an assessment order is made under section 52B(1) or 52C(1) of this Act. (2) If the court is satisfied— (a) on the written or oral evidence of a medical practitioner, as to the matters mentioned in subsection (3) below; and (b) that, having regard to the matters mentioned in subsection (4) below, it is appropriate, it may, subject to subsection (5) below, make an assessment order authorising the measures mentioned in subsection (6) below and specifying any matters to be included in the report under section 52G(1) of this Act. (3) The matters referred to in subsection (2)(a) above are— (a) that there are reasonable grounds for believing— (i) that the person in respect of whom the application is made has a mental disorder; (ii) that it is necessary to detain the person in hospital to assess whether the conditions mentioned in subsection (7) below are met in respect of the person; and (iii) that if the assessment order were not made there would be a significant risk to the health, safety or welfare of the person or a significant risk to the safety of any other person; (b) that the hospital proposed by the medical practitioner is suitable for the purpose of assessing whether the conditions mentioned in subsection (7) below are met in respect of the person; (c) that, if an assessment order were made, the person could be admitted to such hospital before the expiry of the period of 7 days beginning with the day on which the order is made; and (d) that it would not be reasonably practicable to carry out the assessment mentioned in paragraph (b) above unless an order were made. (4) The matters referred to in subsection (2)(b) above are— (a) all the circumstances (including the nature of the offence with which the person in respect of whom the application is made is charged or, as the case may be, of which the person was convicted); and (b) any alternative means of dealing with the person. (5) The court may make an assessment order only if the person in respect of whom the application is made has not been sentenced. (6) The measures are— (a) in the case of a person who, when the assessment order is made, has not been admitted to the specified hospital, the removal, before the end of the day following the 7 days beginning with the day on which the order is made, of the person to the specified hospital by— (i) a constable; (ii) a person employed in, or contracted to provide services in or to, the specified hospital who is authorised by the managers of that hospital to remove persons to hospital for the purposes of this section; or (iii) a specified person; (b) the detention, for the relevant period given by subsection (6A) below, of the person in the specified hospital; and (c) during the relevant period given by subsection (6A) below, the giving to the person, in accordance with Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), of medical treatment. (6A) For the purpose of subsection (6)(b) and (c) above, the relevant period is the period— (a) beginning with the day on which the order is made, (b) expiring at the end of the 28 days following that day. (7) The conditions referred to in paragraphs (a)(ii) and (b) of subsection (3) above are— (a) that the person in respect of whom the application is made has a mental disorder; (b) that medical treatment which would be likely to— (i) prevent the mental disorder worsening; or (ii) alleviate any of the symptoms, or effects, of the disorder, is available for the person; and (c) that if the person were not provided with such medical treatment there would be a significant risk— (i) to the health, safety or welfare of the person; or (ii) to the safety of any other person. (8) The court may make an assessment order in the absence of the person in respect of whom the application is made only if— (a) the person is represented by counsel or a solicitor; (b) that counsel or solicitor is given an opportunity of being heard; and (c) the court is satisfied that it is— (i) impracticable; or (ii) inappropriate, for the person to be brought before it. (9) An assessment order may include such directions as the court thinks fit for the removal of the person subject to the order to, and detention of the person in, a place of safety pending the person’s admission to the specified hospital. (10) The court shall, as soon as reasonably practicable after making an assessment order, give notice of the making of the order to— (a) the person subject to the order; (b) any solicitor acting for the person; (c) in a case where— (i) the person has been charged with an offence; and (ii) a relevant disposal has not been made in the proceedings in respect of the offence, the prosecutor; (d) in a case where the person, immediately before the order was made, was remanded in custody, the Scottish Ministers; and (e) the Mental Welfare Commission. (11) In this section— “court” has the same meaning as in section 52B of this Act; “medical treatment” has the meaning given by section 329(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13); “relevant disposal” has the same meaning as in section 52B of this Act; and “specified” means specified in the assessment order.
Propose a change(1) Where— (a) a person has been charged with an offence; (b) the person has not been sentenced; and (c) it appears to the court that the person has a mental disorder, the court may, subject to subsections (2) and (3) below, make an assessment order in respect of that person. (2) The court may make an assessment order under subsection (1) above only if it would make one under subsections (2) to (11) of section 52D of this Act; and those subsections shall apply for the purposes of subsection (1) above as they apply for the purposes of subsection (1) of that section, references in those subsections to the person in respect of whom the application is made being construed as references to the person in respect of whom it is proposed to make an assessment order. (3) An assessment order made under subsection (1) above shall, for the purposes of this Act and the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), be treated as if made under section 52D(2) of this Act. (4) In this section, “court” has the same meaning as in section 52B of this Act.
Propose a change(1) If, before the end of the day following the 7 days beginning with the day on which an assessment order is made— (a) in the case of a person who, immediately before the order was made, was remanded in custody, it appears to the Scottish Ministers; or (b) in any other case, it appears to the court, that, by reason of emergency or other special circumstances, it is not reasonably practicable for the person to be admitted to the hospital specified in the order, the Scottish Ministers, or, as the case may be, the court, may direct that the person be admitted to the hospital specified in the direction. (2) Where the court makes a direction under subsection (1) above, it shall, as soon as reasonably practicable after making the direction, inform the person having custody of the person subject to the assessment order of the making of the direction. (3) Where the Scottish Ministers make a direction under subsection (1) above, they shall, as soon as reasonably practicable after making the direction, inform— (a) the court; (b) the person having custody of the person subject to the assessment order; and (c) in a case where— (i) the person has been charged with an offence; and (ii) a relevant disposal has not been made in the proceedings in respect of the offence, the prosecutor, of the making of the direction. (4) Where a direction is made under subsection (1) above, the assessment order shall have effect as if the hospital specified in the direction were the hospital specified in the order. (5) In this section— “court” means the court which made the assessment order; and “relevant disposal” has the same meaning as in section 52B of this Act.
Propose a change(1) The responsible medical officer shall, before the end of the day following the 28 days beginning with the day on which the assessment order is made, submit a report in writing to the court— (a) as to whether the conditions mentioned in section 52D(7) of this Act are met in respect of the person subject to the order; and (b) as to any matters specified by the court under section 52D(2) of this Act. (2) The responsible medical officer shall, at the same time as such officer submits the report to the court, send a copy of such report— (a) to the person in respect of whom the report is made; (b) to any solicitor acting for the person; (c) in a case where— (i) the person has been charged with an offence; and (ii) a relevant disposal has not been made in the proceedings in respect of the offence, to the prosecutor; and (d) to the Scottish Ministers. (3) Subject to subsection (4) below, the court shall, on receiving a report submitted under subsection (1) above, revoke the assessment order and— (a) subject to subsections (7) and (8) below, make a treatment order; or (b) commit the person to prison or such other institution to which the person might have been committed had the assessment order not been made or otherwise deal with the person as the court considers appropriate. (4) If, on receiving a report submitted under subsection (1) above, the court is satisfied that further time is necessary to assess whether the conditions mentioned in section 52D(7) of this Act are met in respect of the person subject to the assessment order, it may, on one occasion only, make an order extending the assessment order for a period not exceeding the relevant period given by subsection (4A) below. (4A) For the purpose of subsection (4) above, the relevant period is the period— (a) beginning with the day on which the order would otherwise cease to authorise the detention of the person in hospital, (b) expiring at the end of the 14 days following that day. (5) The court may, under subsection (4) above, extend an assessment order in the absence of the person subject to the order only if— (a) the person is represented by counsel or a solicitor; (b) that counsel or solicitor is given an opportunity of being heard; and (c) the court is satisfied that it is— (i) impracticable; or (ii) inappropriate, for the person to be brought before it. (6) Where the court makes an order under subsection (4) above, it shall, as soon as reasonably practicable after making the order, give notice of the making of the order to— (a) the persons mentioned in paragraphs (a) and (b) of subsection (2) above; (b) in a case where— (i) the person has been charged with an offence; and (ii) a relevant disposal has not been made in the proceedings in respect of the offence, the prosecutor; (c) the Scottish Ministers; and (d) the person’s responsible medical officer. (7) The court shall make a treatment order under subsection (3)(a) above only if it would make one under subsections (2) to (10) of section 52M of this Act; and those subsections shall apply for the purposes of subsection (3)(a) above as they apply for the purposes of that section, references in those subsections to the person in respect of whom the application is made being construed as references to the person in respect of whom it is proposed to make a treatment order. (8) A treatment order made under subsection (3)(a) above shall, for the purposes of this Act and the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), be treated as if made under section 52M(2) of this Act. (9) The responsible medical officer shall, where that officer is satisfied that there has been a change of circumstances since the assessment order was made which justifies the variation of the order, submit a report to the court in writing. (10) Where a report is submitted under subsection (9) above, the court shall— (a) if satisfied that the person need not be subject to an assessment order, revoke the order and take any action mentioned in subsection (3)(b) above; or (b) if not so satisfied— (i) confirm the order; (ii) vary the order; or (iii) revoke the order and take any action mentioned in subsection (3)(b) above. (11) Sections 52D, 52F, 52H and 52J of this Act and subsections (1) to (3) above apply to the variation of an order under subsection (10)(b)(ii) above as they apply to an assessment order. (12) In this section— “court” means the court which made the assessment order; “relevant disposal” has the same meaning as in section 52B of this Act; and “responsible medical officer” means the person’s responsible medical officer appointed under section 230 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).
Propose a change(1) This section applies where— (a) in the case of a person who, when the assessment order is made, has not been removed to the hospital specified in the order, the relevant period given by subsection (1A) below has not expired; (b) in the case of a person— (i) who, when the assessment order is made, has been admitted to the hospital specified in the order; or (ii) who has been removed under paragraph (a) of subsection (6) of section 52D of this Act to the hospital so specified, the relevant period given by subsection (1A) below has not expired; or (c) in the case of a person in respect of whom the court has made an order under section 52G(4) of this Act extending the assessment order for a period, the period for which the order was extended has not expired. (1A) For the purpose of subsection (1)(a) and (b) above, the relevant period is the period— (a) beginning with the day on which the order is made, (b) expiring— (i) as regards subsection (1)(a) above, at the end of the 7 days following the day mentioned in paragraph (a) of this subsection, (ii) as regards subsection (1)(b) above, at the end of the 28 days following the day mentioned in paragraph (a) of this subsection. (2) An assessment order shall cease to have effect on the occurrence of any of the following events— (a) the making of a treatment order in respect of the person subject to the assessment order; (b) in a case where— (i) the person subject to the assessment order has been charged with an offence; and (ii) a relevant disposal had not been made in the proceedings in respect of that offence when the order was made, the making of a relevant disposal in such proceedings; (c) in a case where the person subject to the assessment order has been convicted of an offence but has not been sentenced— (i) the deferral of sentence by the court under section 202(1) of this Act; (ii) the making of one of the orders mentioned in subsection (3) below or (iii) the imposition of any sentence. (3) The orders are— (a) an interim compulsion order; (b) a compulsion order; (c) a guardianship order; (d) a hospital direction; (e) any order under section 57 of this Act; . . . (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4) In this section, “relevant disposal” has the same meaning as in section 52B of this Act.
Propose a change(1) Where, otherwise than by virtue of section 52G(3) or (10) or 52H(2) of this Act, an assessment order ceases to have effect the court shall commit the person who was subject to the order to prison or such other institution to which the person might have been committed had the order not been made or otherwise deal with the person as the court considers appropriate. (2) In this section, “court” has the same meaning as in section 52B of this Act.
Propose a change(1) Where— (a) a person has been charged with an offence; (b) a relevant disposal has not been made in the proceedings in respect of the offence; and (c) it appears to the prosecutor that the person has a mental disorder, the prosecutor may apply to the court for an order under section 52M of this Act (in this Act referred to as a “treatment order”) in respect of that person. (2) Where the prosecutor applies for a treatment order under subsection (1) above, the prosecutor shall, as soon as reasonably practicable after making the application, inform the persons mentioned in subsection (3) below of the making of the application. (3) Those persons are— (a) the person in respect of whom the application is made; (b) any solicitor acting for the person; and (c) in a case where the person is remanded in custody, the Scottish Ministers. (4) In this section, “court” and “relevant disposal” have the same meanings as in section 52B of this Act.
Propose a change(1) Where— (a) a person has been charged with an offence; (b) the person has not been sentenced; (c) the person is remanded in custody; and (d) it appears to the Scottish Ministers that the person has a mental disorder, the Scottish Ministers may apply to the court for a treatment order in respect of that person. (2) Where the Scottish Ministers apply for an order under subsection (1) above, they shall, as soon as reasonably practicable after making the application, inform the persons mentioned in subsection (3) below of the making of the application. (3) Those persons are— (a) the person in respect of whom the application is made; (b) any solicitor acting for the person; and (c) in a case where a relevant disposal has not been made in the proceedings in respect of the offence with which the person is charged, the prosecutor. (4) In this section, “court” and “relevant disposal” have the same meanings as in section 52B of this Act.
Propose a change(1) This section applies where an application for a treatment order is made under section 52K(1) or 52L(1) of this Act. (2) If the court is satisfied— (a) on the written or oral evidence of two medical practitioners, as to the matters mentioned in subsection (3) below; and (b) that, having regard to the matters mentioned in subsection (4) below, it is appropriate, it may, subject to subsection (5) below, make a treatment order authorising the measures mentioned in subsection (6) below. (3) The matters referred to in subsection (2)(a) above are— (a) that the conditions mentioned in subsection (7) of section 52D of this Act are met in relation to the person in respect of whom the application is made; (b) that the hospital proposed by the approved medical practitioner and the medical practitioner is suitable for the purpose of giving medical treatment to the person; and (c) that, if a treatment order were made, such person could be admitted to such hospital before the end of the day following the 7 days beginning with the day on which the order is made. (4) The matters referred to in subsection (2)(b) above are— (a) all the circumstances (including the nature of the offence with which the person in respect of whom the application is made is charged or, as the case may be, of which the person was convicted); and (b) any alternative means of dealing with the person. (5) The court may make a treatment order only if the person in respect of whom the application is made has not been sentenced. (6) The measures are— (a) in the case of a person who, when the treatment order is made, has not been admitted to the specified hospital, the removal, before the end of the day following the 7 days beginning with the day on which the order is made, of the person to the specified hospital by— (i) a constable; (ii) a person employed in, or contracted to provide services in or to, the specified hospital who is authorised by the managers of that hospital to remove persons to hospital for the purposes of this section; or (iii) a specified person; (b) the detention of the person in the specified hospital; and (c) the giving to the person, in accordance with Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), of medical treatment. (7) The court may make a treatment order in the absence of the person in respect of whom the application is made only if— (a) the person is represented by counsel or solicitor; (b) that counsel or solicitor is given an opportunity of being heard; and (c) the court is satisfied that it is— (i) impracticable; or (ii) inappropriate, for the person to be brought before it. (8) A treatment order may include such directions as the court thinks fit for the removal of the person subject to the order to, and detention of the person in, a place of safety pending the person’s admission to the specified hospital. (9) The court shall, as soon as reasonably practicable after making a treatment order, give notice of the making of the order to— (a) the person subject to the order; (b) any solicitor acting for the person; (c) in a case where— (i) the person has been charged with an offence; and (ii) a relevant disposal has not been made in the proceedings in respect of the offence, the prosecutor; (d) in a case where the person, immediately before the order was made— (i) was remanded in custody ; or (ii) was subject to an assessment order and, immediately before that order was made, was remanded in custody, the Scottish Ministers; and (e) the Mental Welfare Commission. (10) In this section— “court” has the same meaning as in section 52B of this Act; “medical treatment” has the same meaning as in section 52D of this Act; and “specified” means specified in the treatment order.
Propose a change(1) Where— (a) a person has been charged with an offence; (b) the person has not been sentenced; and (c) it appears to the court that the person has a mental disorder, the court may, subject to subsections (2) and (3) below, make a treatment order in respect of that person. (2) The court may make a treatment order under subsection (1) above only if it would make one under subsections (2) to (10) of section 52M of this Act; and those subsections shall apply for the purposes of subsection (1) above as they apply for the purposes of subsection (1) of that section, references in those subsections to the person in respect of whom the application is made being construed as references to the person in respect of whom it is proposed to make a treatment order. (3) A treatment order made under subsection (1) above shall, for the purposes of this Act and the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), be treated as if made under section 52M(2) of this Act. (4) In this section, “court” has the same meaning as in section 52B of this Act.
Propose a change(1) If, before the end of the day following the 7 days beginning with the day on which the treatment order is made— (a) in the case of a person to whom subsection (2) below applies, it appears to the Scottish Ministers; or (b) in any other case, it appears to the court, that, by reason of emergency or other special circumstances, it is not reasonably practicable for the person to be admitted to the hospital specified in the order, the Scottish Ministers, or, as the case may be, the court, may direct that the person be admitted to the hospital specified in the direction. (2) This subsection applies to— (a) a person who is remanded in custody immediately before the treatment order is made; or (b) a person— (i) who was subject to an assessment order immediately before the treatment order is made; and (ii) who was remanded in custody immediately before that assessment order was made. (3) Where the court makes a direction under subsection (1) above, it shall, as soon as reasonably practicable after making the direction, inform the person having custody of the person subject to the treatment order of the making of the direction. (4) Where the Scottish Ministers make a direction under subsection (1) above, they shall, as soon as reasonably practicable after making the direction, inform— (a) the court; (b) the person having custody of the person subject to the treatment order; and (c) in a case where— (i) the person has been charged with an offence; and (ii) a relevant disposal has not been made in the proceedings in respect of the offence, the prosecutor, of the making of the direction. (5) Where a direction is made under subsection (1) above, the treatment order shall have effect as if the hospital specified in the direction were the hospital specified in the order. (6) In this section— “court” means the court which made the treatment order; and “relevant disposal” has the same meaning as in section 52B of this Act.
Propose a change(1) The responsible medical officer shall, where that officer is satisfied— (a) that any of the conditions mentioned in section 52D(7) of this Act are no longer met in respect of the person subject to the treatment order; or (b) that there has otherwise been a change of circumstances since the order was made which makes the continued detention of the person in hospital by virtue of the order no longer appropriate, submit a report in writing to the court. (2) Where a report is submitted under subsection (1) above, the court shall— (a) if satisfied that the person need not be subject to the treatment order— (i) revoke the order; and (ii) commit the person to prison or such other institution to which the person might have been committed had the order not been made or otherwise deal with the person as the court considers appropriate; or (b) if not so satisfied— (i) confirm the order; (ii) vary the order; or (iii) revoke the order and take any action mentioned in paragraph (a)(ii) above. (3) Sections 52M, 52P, this section and sections 52R and 52S of this Act apply to the variation of a treatment order under subsection (2)(b)(ii) above as they apply to a treatment order. (4) In this section— “court” means the court which made the treatment order; and “responsible medical officer” means the person’s responsible medical officer appointed under section 230 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).
Propose a change