(1) This section applies—
(a) where, in the case of a person who, when the treatment 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; or
(b) in the case of a person—
(i) who, when the treatment 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 52M of this Act to the hospital so specified.
(1A) For the purpose of subsection (1)(a) 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 7 days following that day.
(2) A treatment order shall cease to have effect on the occurrence of any of the following events—
(a) in a case where—
(i) the person subject to the treatment order has been charged with an offence; and
(ii) a relevant disposal had not been made in the proceedings in respect of such offence when the order was made,
the making of a relevant disposal in such proceedings;
(b) in a case where the person subject to the treatment 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.
52S Power of court on treatment order ceasing to have effect
(1) Where, otherwise than by virtue of section 52Q(2) or 52R(2) of this Act, a treatment 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.
52T Prevention of delay in trials: assessment orders and treatment orders
(1) Subsections (4) to (9) of section 65 of this Act shall apply in the case of a person committed for an offence until liberated in due course of law who is detained in hospital by virtue of an assessment order or a treatment order as those subsections apply in the case of an accused who is—
(a) committed for an offence until liberated in due course of law; and
(b) detained by virtue of that committal.
(2) Section 147 of this Act shall apply in the case of a person charged with an offence in summary proceedings who is detained in hospital by virtue of an assessment order or a treatment order as it applies in the case of an accused who is detained in respect of that offence.
(3) Any period during which, under—
(a) section 221 (as read with sections 222 and 223) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13); or
(b) section 224 (as read with sections 225 and 226) of that Act,
a patient’s detention is not authorised shall be taken into account for the purposes of the calculation of any of the periods mentioned in subsection (4) below.
(4) Those periods are—
(a) any period referred to in subsection (4) of section 65 of this Act as applied by subsection (1) above;
(b) those ... periods as extended under subsection (5) or, on appeal, under subsection (8) of that section as so applied;
(c) the period referred to in subsection (1) of section 147 of this Act (prevention of delay in trials in summary proceedings) as applied by subsection (2) above; and
(d) that period as extended under subsection (2) of that section or, on appeal, under subsection (3) of that section as so applied.
52U Effect of assessment order and treatment order on pre-existing mental health order
(1) This section applies where—
(a) a patient is subject to a relevant order; and
(b) an assessment order or a treatment order is made in respect of the patient.
(2) The relevant order shall cease to authorise the measures specified in it for the period during which the patient is subject to the assessment order or, as the case may be, treatment order.
(4) In this section, a “relevant order” means—
(a) an interim compulsory treatment order made under section 65(2) of the 2003 Act; and
(b) a compulsory treatment order made under section 64(4)(a) of that Act.
(1) This section applies where a person (referred to in this section and in sections 53A to 53D of this Act as an “offender”)—
(a) is convicted in the High Court or the sheriff court of an offence punishable by imprisonment (other than an offence the sentence for which is fixed by law); or
(b) is remitted to the High Court by the sheriff under any enactment for sentence for such an offence.
(2) If the court is satisfied—
(a) on the written or oral evidence of two medical practitioners—
(i) that the offender has a mental disorder; and
(ii) 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 (7) below, make an order (in this Act referred to as an “interim compulsion order”) authorising the measures mentioned in subsection (8) below and specifying any matters to be included in the report under section 53B(1) of this Act.
(3) The matters referred to in subsection (2)(a)(ii) above are—
(a) that there are reasonable grounds for believing—
(i) that the conditions mentioned in subsection (5) below are likely to be met in respect of the offender; and
(ii) that the offender’s mental disorder is such that it would be appropriate to make one of the disposals mentioned in subsection (6) below in relation to the offender;
(b) that the hospital to be specified in the order is suitable for the purpose of assessing whether the conditions mentioned in subsection (5) below are met in respect of the offender;
(c) that, were an interim compulsion order made, the offender 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; and
(d) that it would not be reasonably practicable for the assessment mentioned in paragraph (b) above to be made 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 of which the offender is convicted); and
(b) any alternative means of dealing with the offender.
(5) The conditions referred to in paragraphs (a)(i) and (b) of subsection (3) above are—
(a) 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 offender;
(b) that if the offender were not provided with such medical treatment there would be a significant risk—
(i) to the health, safety or welfare of the offender; or
(ii) to the safety of any other person; and
(c) that the making of an interim compulsion order in respect of the offender is necessary.
(6) The disposals are—
(a) both a compulsion order that authorises detention in hospital by virtue of section 57A(8)(a) of this Act and a restriction order; or
(b) a hospital direction.
(7) An interim compulsion order may authorise detention in a state hospital only if, on the written or oral evidence of the two medical practitioners mentioned in subsection (2)(a) above, it appears to the court—
(a) that the offender requires to be detained in hospital under conditions of special security; and
(b) that such conditions of special security can be provided only in a state hospital.
(8) The measures are—
(a) in the case of an offender who, when the interim compulsion 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 offender 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 a period not exceeding the relevant period given by subsection (8A) below, of the offender in the specified hospital; and
(c) during the relevant period given by subsection (8A) below, the giving to the offender, in accordance with Part 16 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13), of medical treatment.
(8A) For the purpose of subsection (8)(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 12 weeks following that day.
(9) An interim compulsion order may include such directions as the court thinks fit for the removal of the offender to, and the detention of the offender in, a place of safety pending the offender’s admission to the specified hospital.
(10) The court may make an interim compulsion order in the absence of the offender only if—
(a) the offender 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 offender to be brought before it.
(11) The court shall, as soon as reasonably practicable after making an interim compulsion order, give notice of the making of the order to—
(a) the person subject to the order;
(b) any solicitor acting for that person;
(c) the Scottish Ministers; and
(d) the Mental Welfare Commission.
(12) Where a court makes an interim compulsion order in relation to an offender, the court—
(a) shall not, at the same time—
(i) make an order under section 200 of this Act;
(ii) impose a fine;
(iii) pass sentence of imprisonment;
(iv) make a compulsion order;
(v) make a guardianship order;
(vi) impose a community payback order;
(vii) make a drug treatment and testing order; or
(viii) make a restriction of liberty order,
in relation of the offender;
(b) may make any other order which it has power to make apart from this section.
(13) In this section—
“medical treatment” has the same meaning as in section 52D of this Act;
“sentence of imprisonment” includes any sentence or order for detention; and
“specified” means specified in the interim compulsion order.
(1) If, before the end of the day following the 7 days beginning with the day on which the interim compulsion order is made, it appears to the court, or, as the case may be, the Scottish Ministers, that, by reason of emergency or other special circumstances, it is not reasonably practicable for the offender to be admitted to the hospital specified in the order, the court, or, as the case may be, the Scottish Ministers, may direct that the offender be admitted to the hospital specified in the direction.
(2) Where—
(a) 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 offender; and
(b) the Scottish Ministers make such a direction, they shall, as soon as reasonably practicable after making the direction, inform—
(i) the court; and
(ii) the person having custody of the offender.
(3) Where a direction is made under subsection (1) above, the interim compulsion order shall have effect as if the hospital specified in the direction were the hospital specified in the order.
(4) In this section, “court” means the court which made the interim compulsion order.
53B Review and extension of interim compulsion order
(1) The responsible medical officer shall, before the expiry of the period specified by the court under section 53(8)(b) of this Act, submit a report in writing to the court—
(a) as to the matters mentioned in subsection (2) below; and
(b) as to any matters specified by the court under section 53(2) of this Act.
(2) The matters are—
(a) whether the conditions mentioned in section 53(5) of this Act are met in respect of the offender;
(b) the type (or types) of mental disorder that the offender has; and
(c) whether it is necessary to extend the interim compulsion order to allow further time for the assessment mentioned in section 53(3)(b) of this Act.
(3) The responsible medical officer shall, at the same time as such officer submits the report to the court, send a copy of such report to—
(a) the offender; and
(b) any solicitor acting for the offender.
(4) The court may, on receiving the report submitted under subsection (1) above,
(a) if satisfied that the extension of the order is necessary, extend the order for such period not exceeding the relevant period given by subsection (4A) below as the court may specify, and
(b) if it seems appropriate to do so, direct that the offender be admitted to the hospital specified in the direction.
(4A) For the purpose of subsection (4) above, the relevant period is the period—
(a) beginning with the day on which the order would cease to have effect if it were not extended,
(b) expiring at the end of the 12 weeks following that day.
(5) The court may extend an interim compulsion order under subsection (4) above for a period only if, by doing so, the total period for which the offender will be subject to the order does not exceed the period—
(a) beginning with the day on which the order was first made,
(b) expiring at the end of the 12 months following that day.
(6) The court may, under subsection (4) above, extend an interim compulsion order or make a direction specifying a hospital in the absence of the offender only if—
(a) the offender 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 offender to be brought before it.
(7) Subsections (1) to (9) of this section shall apply for the purposes of an interim compulsion order extended under subsection (4) above as they apply for the purposes of an interim compulsion order, references in those subsections to the period specified by the court under section 53(8)(b) of this Act being construed as references to the period specified by the court under subsection (4) above.
(7A) Where a direction is made under subsection (4) above, the interim compulsion order has effect as if the hospital specified in the direction were the hospital specified in the order.
(8) Where a report is submitted under subsection (1) above, the court may, before the expiry of the period specified by the court under section 53(8)(b) of this Act—
(a) revoke the interim compulsion order and make one of the disposals mentioned in section 53(6) of this Act; or
(b) revoke the interim compulsion order and deal with the offender in any way (other than by making an interim compulsion order) in which the court could have dealt with the offender if no such order had been made.
(9) In this section—
“court” means the court which made the interim compulsion order; and
“responsible medical officer” means the responsible medical officer appointed in respect of the offender under section 230 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13).
(1) An interim compulsion order shall cease to have effect if the court—
(a) makes a compulsion order in relation to the offender;
(b) makes a hospital direction in relation to the offender; or
(c) deals with the offender in some other way, including the imposing of a sentence of imprisonment on the offender.
(2) In this section, “court” means the court which made the interim compulsion order.
53D Power of court on interim compulsion order ceasing to have effect
(1) Where, otherwise than by virtue of section 53B(8) or 53C of this Act, an interim compulsion order ceases to have effect the court may deal with the offender who was subject to the order in any way (other than the making of a new interim compulsion order) in which it could have dealt with the offender if no such order had been made.
(2) In this section, “court” means the court which made the interim compulsion order.
(1) Where the prosecutor accepts a plea (by the person charged with the commission of an offence) of the special defence set out in section 51A of this Act, the court must declare that the person is acquitted by reason of the special defence.
(2) Subsection (3) below applies where—
(a) the prosecutor does not accept such a plea, and
(b) evidence tending to establish the special defence set out in section 51A of this Act is brought before the court.
(3) Where this subsection applies the court is to—
(a) in proceedings on indictment, direct the jury to find whether the special defence has been established and, if they find that it has, to declare whether the person is acquitted on that ground,
(b) in summary proceedings, state whether the special defence has been established and, if it states that it has, declare whether the person is acquitted on that ground.
(1) A person is unfit for trial if it is established on the balance of probabilities that the person is incapable, by reason of a mental or physical condition, of participating effectively in a trial.
(2) In determining whether a person is unfit for trial the court is to have regard to—
(a) the ability of the person to—
(i) understand the nature of the charge,
(ii) understand the requirement to tender a plea to the charge and the effect of such a plea,
(iii) understand the purpose of, and follow the course of, the trial,
(iv) understand the evidence that may be given against the person,
(v) instruct and otherwise communicate with the person's legal representative, and
(b) any other factor which the court considers relevant.
(3) The court is not to find that a person is unfit for trial by reason only of the person being unable to recall whether the event which forms the basis of the charge occurred in the manner described in the charge.
(4) In this section “the court” means—
(a) as regards a person charged on indictment, the High Court or the sheriff court,
(b) as regards a person charged summarily, the sheriff court.
(1) Where the court is satisfied... that a person charged with the commission of an offence is unfit for trial so that his trial cannot proceed or, if it has commenced, cannot continue, the court shall, subject to subsection (2) below—
(a) make a finding to that effect and state the reasons for that finding;
(b) discharge the trial diet or, in proceedings on indictment where the finding is made at or before the first diet (in the case of proceedings in the sheriff court) or the preliminary hearing (in the case of proceedings in the High Court), that diet or, as the case may be, hearing and order that a diet (in this Act referred to as an “an examination of facts”) be held under section 55 of this Act; and
(c) remand the person in custody or on bail or, where the court is satisfied—
(i) on the written or oral evidence of two medical practitioners, that the conditions mentioned in subsection (2A) below are met in respect of the person ; and
(ii) that a hospital is available for his admission and suitable for his detention,
make an order (in this section referred to as a temporary compulsion order) authorising the measures mentioned in subsection (2B) below in respect of the person until the conclusion of the examination of facts.
(2) Subsection (1) above is without prejudice to the power of the court, on an application by the prosecutor, to desert the dietpro loco et tempore.
(2A) The conditions referred to in subsection (1)(c)(i) above are—
(a) that the person 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—
(a) to the health, safety or welfare of the person; or
(b) to the safety of any other person.
(2B) The measures referred to in subsection (1)(c) above are—
(a) in the case of a person who, when the temporary compulsion 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.
(3) The court may, before making a finding under subsection (1) above as to whether a person is unfit for trial , adjourn the case in order that investigation of his mental or physical condition may be carried out.
(4) The court which made a temporary compulsion order may, at any time while the order is in force, review the order on the ground that there has been a change of circumstances since the order was made and, on such review—
(a) where the court considers that such an order is no longer required in relation to a person, it shall revoke the order and may remand him in custody or on bail;
(b) in any other case, the court may—
(i) confirm or vary the order; or
(ii) revoke the order and make such other order, under subsection (1)(c) above or any other provision of this Act, as the court considers appropriate.
(5) Where it appears to a court that it is not practicable or appropriate for the accused to be brought before it for the purpose of determining whether he is unfit for trial so that his trial cannot proceed, then, if no objection to such a course is taken by or on behalf of the accused, the court may order that the case be proceeded with in his absence.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) In this section
“medical treatment” has the same meaning as in section 52D of this Act;
“specified” means specified in the temporary compulsion order; and,
“the court” means—
as regards a person charged on indictment, the High Court or the sheriff court;
as regards a person charged summarily, the sheriff court.
(1) At an examination of facts ordered under section 54(1)(b) of this Act the court shall, on the basis of the evidence (if any) already given in the trial and such evidence, or further evidence, as may be led by either party, determine whether it is satisfied—
(a) beyond reasonable doubt, as respects any charge on the indictment or, as the case may be, the complaint in respect of which the accused was being or was to be tried, that he did the act or made the omission constituting the offence; and
(b) on the balance of probabilities, that there are no grounds for acquitting him.
(2) Where the court is satisfied as mentioned in subsection (1) above, it shall make a finding to that effect.
(3) Where the court is not so satisfied it shall, subject to subsection (4) below, acquit the person of the charge.
(4) Where, as respects a person acquitted under subsection (3) above, the court is satisfied as to the matter mentioned in subsection (1)(a) above but it appears to the court that the person was not, because of section 51A of this Act, criminally responsible for the conduct constituting the offence, the court shall state whether the acquittal is by reason of the special defence set out in that section .
(5) Where it appears to the court that it is not practical or appropriate for the accused to attend an examination of facts the court may, if no objection is taken by or on behalf of the accused, order that the examination of facts shall proceed in his absence.
(6) Subject to the provisions of this section, section 56 of this Act and any Act of Adjournal the rules of evidence and procedure and the powers of the court shall, in respect of an examination of facts, be as nearly as possible those applicable in respect of a trial.
(7) For the purposes of the application to an examination of facts of the rules and powers mentioned in subsection (6) above, an examination of facts—
(a) commences when the indictment or, as the case may be, complaint is called; and
(b) concludes when the court—
(i) acquits the person under subsection (3) above;
(ii) makes an order under subsection (2) of section 57 of this Act; or
(iii) decides, under paragraph (e) of that subsection, not to make an order.
56 Examination of facts: supplementary provisions.
(1) An examination of facts ordered under section 54(1)(b) of this Act may, where the order is made at the trial diet or, in proceedings on indictment, at the first diet (in the case of proceedings in the sheriff court) or the preliminary hearing (in the case of proceedings in the High Court) , be held immediately following the making of the order and, where it is so held, the citation of the accused and any witness to the trial diet , first diet or, as the case may be, preliminary hearing shall be a valid citation to the examination of facts.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) Where an accused person is not legally represented at an examination of facts the court shall appoint counsel or a solicitor to represent his interests.
(4) The court may, on the motion of the prosecutor and after hearing the accused, order that the examination of facts shall proceed in relation to a particular charge, or particular charges, in the indictment or, as the case may be, complaint in priority to other such charges.
(5) The court may, on the motion of the prosecutor and after hearing the accused, at any time desert the examination of facts pro loco et tempore as respects either the whole indictment or, as the case may be, complaint or any charge therein.
(6) Where, and to the extent that, an examination of facts has, under subsection (5) above, been deserted pro loco et tempore—
(a) in the case of proceedings on indictment, the Lord Advocate may, at any time, raise and insist in a new indictment; or
(b) in the case of summary proceedings, the prosecutor may at any time raise a fresh libel,
notwithstanding any time limit which would otherwise apply in respect of prosecution of the alleged offence.
(7) If, in a case where a court has made a finding under subsection (2) of section 55 of this Act, a person is subsequently charged, whether on indictment or on a complaint, with an offence arising out of the same act or omission as is referred to in subsection (1) of that section, any order made under section 57(2) of this Act shall, with effect from the commencement of the later proceedings, cease to have effect.
(8) For the purposes of subsection (7) above, the later proceedings are commenced when the indictment or, as the case may be, the complaint is served.
57 Disposal of case where accused found not criminally responsible or unfit for trial.
(1) This section applies where—
(a) a person is acquitted by reason of the special defence set out in section 51A of this Act; or
(b) following an examination of facts under section 55, a court makes a finding under subsection (2) of that section.
(2) Subject to subsection (3) below, where this section applies the court may, as it thinks fit—
(a) subject to subsection (4) below, make a compulsion order (whether or not authorising the detention of the person in a hospital);
(b) subject to subsection (4A) below, make a restriction order in respect of the person (that is, in addition to a compulsion order authorising the detention of the person in a hospital);
(bb) subject to subsections (3A) and (4B) below, make an interim compulsion order in respect of the person;
(c) subject to subsections (4C) and (6) below, make a guardianship order in respect of the person;
(d) subject to subsection (5) below, make a supervision and treatment order (within the meaning of paragraph 1(1) of Schedule 4 to this Act in respect of the person); or
(e) make no order.
(3) Where the court is satisfied, having regard to a report submitted in respect of the person following an interim compulsion order, that, on a balance of probabilities, the risk his being at liberty presents to the safety of the public at large is high, it shall make orders under both paragraphs (a) and (b) of subsection (2) above in respect of that person.
(3A) The court may make an interim compulsion order under paragraph (bb) of subsection (2) above in respect of a person only where it has not previously made such an order in respect of the person under that paragraph.
(4) For the purposes of subsection (2)(a) above—
(a) subsections (2) to (16) of section 57A of this Act shall apply as they apply for the purposes of subsection (1) of that section, subject to the following modifications—
(i) references to the offender shall be construed as references to the person to whom this section applies; and
(ii) in subsection (4)(b)(i), the reference to the offence of which the offender was convicted shall be construed as a reference to the offence with which the person to whom this section applies was charged;
(b) section 57B of this Act shall have effect subject to the modification that references to the offender shall be construed as references to the person to whom this section applies;
(c) section 57C of this Act shall have effect subject to the following modifications—
(i) references to the offender shall be construed as references to the person to whom this section applies; and
(ii) references to section 57A of this Act shall be construed as references to subsection (2)(a) above; and
(d) section 57D of this Act shall have effect subject to the modification that references to the offender shall be construed as references to the person to whom this section applies.
(4A) For the purposes of subsection (2)(b) above, section 59 of this Act shall have effect.
(4B) For the purposes of subsection (2)(bb) above—
(a) subsections (2) to (13) of section 53 of this Act shall apply as they apply for the purposes of subsection (1) of that section, subject to the following modifications—
(i) references to the offender shall be construed as references to the person to whom this section applies;
(ii) in subsection (3)(a)(ii), the reference to one of the disposals mentioned in subsection (6) of that section shall be construed as a reference to the disposal mentioned in subsection (6)(a) of that section;
(iii) in subsection (4)(a), the reference to the offence of which the offender is convicted shall be construed as a reference to the offence with which the person to whom this section applies is charged; and
(iv) subsection (6)(b) shall not apply;
(b) section 53A of this Act shall have effect subject to the modification that references to the offender shall be construed as references to the person to whom this section applies;
(c) section 53B of this Act shall have effect subject to the following modifications—
(i) references to the offender shall be construed as references to the person to whom this section applies; and
(ii) for paragraphs (a) and (b) of subsection (8) there shall be substituted
, revoke the interim compulsion order and—
(a) make an order in respect of the person under paragraph (a), (b), (c) or (d) of subsection (2) of section 57 of this Act; or
(b) decide, under paragraph (e) of that subsection, to make no order in respect of the person.
;
(d) section 53C of this Act shall have effect subject to the following modifications—
(i) references to the offender shall be construed as references to the person to whom this section applies; and
(ii) for paragraphs (a) to (c) of subsection (1) there shall be substituted—
(a) makes an order in respect of the person under paragraph (a), (b), (c) or (d) of subsection (2) of section 57 of this Act; or
(b) decides, under paragraph (e) of that subsection, to make no order in respect of the person.
; and
(e) section 53D of this Act shall have effect subject to the modification that the reference to the offender shall be construed as a reference to the person to whom this section applies.
(4C) For the purposes of subsection (2)(c) above, subsections (1A), (6) to (8) and (11) of section 58 of this Act shall apply, subject to the modifications that the reference to a person convicted and any references to the offender shall be construed as references to the person to whom this section applies.
(5) Schedule 4 to this Act shall have effect as regards supervision and treatment orders.
(6) Section 58A of this Act shall have effect as regards guardianship orders made under subsection (2)(c) of this section.
(1) This section applies where a person (in this section and in sections 57B to 57D of this Act, referred to as the “offender”)—
(a) is convicted in the High Court or the sheriff court of an offence punishable by imprisonment (other than an offence the sentence for which is fixed by law); or
(b) is remitted to the High Court by the sheriff under any enactment for sentence for such an offence.
(2) If the court is satisfied—
(a) on the written or oral evidence of two medical practitioners, that the conditions mentioned in subsection (3) below are met in respect of the offender; 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 order (in this Act referred to as a “compulsion order”) authorising, subject to subsection (7) below, for the relevant period given by subsection (2A) below such of the measures mentioned in subsection (8) below as may be specified in the order.
(2A) For the purpose of subsection (2) 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 6 months following that day.
(3) The conditions referred to in subsection (2)(a) above are—
(a) that the offender 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 offender;
(c) that if the offender were not provided with such medical treatment there would be a significant risk—
(i) to the health, safety or welfare of the offender; or
(ii) to the safety of any other person; and
(d) that the making of a compulsion order in respect of the offender is necessary.
(4) The matters referred to in subsection (2)(b) above are—
(a) the mental health officer’s report, prepared in accordance with section 57C of this Act, in respect of the offender;
(b) all the circumstances, including—
(i) the nature of the offence of which the offender was convicted; and
(ii) the antecedents of the offender; and
(c) any alternative means of dealing with the offender.
(5) The court may, subject to subsection (6) below, make a compulsion order authorising the detention of the offender in a hospital by virtue of subsection (8)(a) below only if satisfied, on the written or oral evidence of the two medical practitioners mentioned in subsection (2)(a) above, that—
(a) the medical treatment mentioned in subsection (3)(b) above can be provided only if the offender is detained in hospital;
(b) the offender could be admitted to the hospital to be specified in the order before the end of the day following the 7 days beginning with the day on which the order is made; and
(c) the hospital to be so specified is suitable for the purpose of giving the medical treatment to the offender.
(6) A compulsion order may authorise detention in a state hospital only if, on the written or oral evidence of the two medical practitioners mentioned in subsection (2)(a) above, it appears to the court—
(a) that the offender requires to be detained in hospital under conditions of special security; and
(b) that such conditions of special security can be provided only in a state hospital.
(7) Where the court—
(a) makes a compulsion order in respect of an offender; and
(b) also makes a restriction order in respect of the offender,
the compulsion order shall authorise the measures specified in it without limitation of time.
(8) The measures mentioned in subsection (2) above are—
(a) the detention of the offender in the specified hospital;
(b) the giving to the offender, in accordance with Part 16 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13), of medical treatment;
(c) the imposition of a requirement on the offender to attend—
(i) on specified or directed dates; or
(ii) at specified or directed intervals,
specified or directed places with a view to receiving medical treatment;
(d) the imposition of a requirement on the offender to attend—
(i) on specified or directed dates; or
(ii) at specified or directed intervals,
specified or directed places with a view to receiving community care services, relevant services or any treatment, care or service;
(e) subject to subsection (9) below, the imposition of a requirement on the offender to reside at a specified place;
(f) the imposition of a requirement on the offender to allow—
(i) the mental health officer;
(ii) the offender’s responsible medical officer; or
(iii) any person responsible for providing medical treatment, community care services, relevant services or any treatment, care or service to the offender who is authorised for the purposes of this paragraph by the offender’s responsible medical officer,
to visit the offender in the place where the offender resides;
(g) the imposition of a requirement on the offender to obtain the approval of the mental health officer to any change of address; and
(h) the imposition of a requirement on the offender to inform the mental health officer of any change of address before the change takes effect.
(9) The court may make a compulsion order imposing, by virtue of subsection (8)(e) above, a requirement on an offender to reside at a specified place which is a place used for the purpose of providing a care home service only if the court is satisfied that the person providing the care home service is willing to receive the offender.
(10) The Scottish Ministers may, by regulations made by statutory instrument, make provision for measures prescribed by the regulations to be treated as included among the measures mentioned in subsection (8) above.
(11) The power conferred by subsection (10) above may be exercised so as to make different provision for different cases or descriptions of case or for different purposes.
(12) No regulations shall be made under subsection (10) above unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, the Scottish Parliament.
(13) The court shall be satisfied as to the condition mentioned in subsection (3)(a) above only if the description of the offender’s mental disorder by each of the medical practitioners mentioned in subsection (2)(a) above specifies, by reference to the appropriate paragraph (or paragraphs) of the definition of “mental disorder” in section 328(1) of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13), at least one type of mental disorder that the offender has that is also specified by the other.
(14) A compulsion order—
(a) shall specify—
(i) by reference to the appropriate paragraph (or paragraphs) of the definition of “mental disorder” in section 328(1) of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13), the type (or types) of mental disorder that each of the medical practitioners mentioned in subsection (2)(a) above specifies that the offender has that is also specified by the other; and
(ii) if the order does not, by virtue of subsection (8)(a) above, authorise the detention of the offender in hospital, the name of the hospital the managers of which are to have responsibility for appointing the offender’s responsible medical officer; and
(b) may include—
(i) in a case where a compulsion order authorises the detention of the offender in a specified hospital by virtue of subsection (8)(a) above; or
(ii) in a case where a compulsion order imposes a requirement on the offender to reside at a specified place by virtue of subsection (8)(e) above,
such directions as the court thinks fit for the removal of the offender to, and the detention of the offender in, a place of safety pending the offender’s admission to the specified hospital or, as the case may be, place.
(15) Where the court makes a compulsion order in relation to an offender, the court—
(a) shall not—
(i) make an order under section 200 of this Act;
(ii) make an interim compulsion order;
(iii) make a guardianship order;
(iv) pass a sentence of imprisonment;
(v) impose a fine;
(vi) impose a community payback order;
(vii) make a drug treatment and testing order; or
(viii) make a restriction of liberty order,
in relation to the offender;
(b) may make any other order that the court has power to make apart from this section.
(16) In this section—
“care home service” has the meaning given by paragraph 2 of schedule 12 to the Public Services Reform (Scotland) Act 2010 ;
“community care services” has the meaning given by section 12A(8) of the Social Work (Scotland) Act 1968 (c. 49);
“medical treatment” has the same meaning as in section 52D of this Act;
“relevant services” has the meaning given by section 20(2) of the Children (Scotland) Act 1995 (c. 36);
“responsible medical officer”, in relation to an offender, means the responsible medical officer appointed in respect of the offender under section 230 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13);
“restriction order” means an order under section 59 of this Act;
“sentence of imprisonment” includes any sentence or order for detention; and
“specified” means specified in the compulsion order.
57B Compulsion order authorising detention in hospital or requiring residence at place: ancillary provision
(1) Where a compulsion order—
(a) authorises the detention of an offender in a specified hospital; or
(b) imposes a requirement on an offender to reside at a specified place,
this section authorises the removal, before the end of the day following the 7 days beginning with the day on which the order is made, of the offender to the specified hospital or place, by any of the persons mentioned in subsection (2) below.
(2) Those persons are—
(a) a constable;
(b) 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; and
(c) a specified person.
(3) In this section, “specified” means specified in the compulsion order.
(1) This section applies where the court is considering making a compulsion order in relation to an offender under section 57A of this Act.
(2) If directed to do so by the court, the mental health officer shall—
(a) subject to subsection (3) below, interview the offender; and
(b) prepare a report in relation to the offender in accordance with subsection (4) below.
(3) If it is impracticable for the mental health officer to comply with the requirement in subsection (2)(a) above, the mental health officer need not do so.
(4) The report shall state—
(a) the name and address of the offender;
(b) if known by the mental health officer, the name and address of the offender’s primary carer;
(c) in so far as relevant for the purposes of section 57A of this Act, details of the personal circumstances of the offender; and
(d) any other information that the mental health officer considers relevant for the purposes of that section.
(5) In this section—
“carer”, and “primary”, in relation to a carer, have the meanings given by section 329(1) of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13);
“mental health officer” means a person appointed (or deemed to be appointed) under section 32(1) of that Act; and
“named person” has the meaning given by section 329(1) of that Act.
(1) If, before the end of the day following the 7 days beginning with the day on which a compulsion order authorising detention of the offender in a hospital is made, it appears to the court, or, as the case may be, the Scottish Ministers, that, by reason of emergency or other special circumstances, it is not reasonably practicable for the offender to be admitted to the hospital specified in the order, the court, or, as the case may be, the Scottish Ministers, may direct that the offender be admitted to the hospital specified in the direction.
(2) Where—
(a) the court makes a direction under subsection (1) above, it shall inform the person having custody of the offender; and
(b) the Scottish Ministers make such a direction, they shall inform—
(i) the court; and
(ii) the person having custody of the offender.
(3) Where a direction is made under subsection (1) above, the compulsion order shall have effect as if the hospital specified in the direction were the hospital specified in the order.
(4) In this section, “court” means the court which made the compulsion order.
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1A) Where a person is convicted in the High Court or the sheriff court of an offence, other than an offence the sentence for which is fixed by law, punishable by that court with imprisonment, and the court is satisfied—
(a) on the evidence of two medical practitioners (complying with section 61 of this Act and with any requirements imposed under section 57(3) of the Adults with Incapacity (Scotland) Act 2000 (asp 4)) that the grounds set out in section 58(1)(a) of that Act apply in relation to the offender;
(b) that no other means provided by or under this Act would be sufficient to enable the offender’s interests in his personal welfare to be safeguarded or promoted,
the court may, subject to subsection (2) below, by order place the offender’s personal welfare under the guardianship of such local authority or of such other person approved by a local authority as may be specified in the order.
(2) Where the case is remitted by the sheriff to the High Court for sentence under any enactment, the power to make an order under subsection . . . (1A) above shall be exercisable by that court.
(3) Where in the case of a person charged summarily in the sheriff court with an act or omission constituting an offence the court would have power, on convicting him, to make an order under subsection . . . (1A) above, then, if it is satisfied that the person did the act or made the omission charged, the court may, if it thinks fit, make such an order without convicting him.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) An order placing a person under the guardianship of a local authority or of any other person (in this Act referred to as “a guardianship order”) shall not be made under this section unless the court is satisfied—
(a) on the report of a mental health officer (complying with any requirements imposed by section 57(3) of the Adults with Incapacity (Scotland) Act 2000 (asp 4)) giving his opinion as to the general appropriateness of the order sought, based on an interview and assessment of the person carried out not more than 30 days before it makes the order, that it is necessary in the interests of the personal welfare of the person that he should be placed under guardianship;
(b) that any person nominated to be appointed a guardian is suitable to be so appointed;
(c) that the authority or person is willing to receive that person into guardianship; and
(d) that there is no other guardianship order, under this Act or the Adults with Incapacity (Scotland) Act 2000 (asp 4), in force relating to the person's personal welfare which makes the same provision as the guardianship order which the court proposes to make under this section .
(7) A . . . guardianship order made under this section shall specify (by reference to the appropriate paragraph (or paragraphs) of the definition of “mental disorder” in section 328(1) of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13)) the type (or types) of mental disorder that the person has ; and no such order shall be made unless the descriptions of the person’s mental disorder by each of the medical practitioners, whose evidence is taken into account under subsection (1A)(a) above, specifies at least one type of mental disorder that is also specified by the other.
(8) Where an order is made under this section, the court shall not pass sentence of imprisonment or impose a fine or impose a community payback order or make a drug treatment and testing order in respect of the offence, but may make any other order which the court has power to make apart from this section; and for the purposes of this subsection “sentence of imprisonment” includes any sentence or order for detention.
(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(11) Section 58A of this Act shall have effect as regards guardianship orders made under . . . this section.
58A Application of Adults with Incapacity (Scotland) Act 2000
(1) Subject to the provisions of this section, the provisions of Parts 1, 5, 6 and 7 of the Adults with Incapacity (Scotland) Act 2000 (asp 4) (“the 2000 Act”) apply—
(a) to a guardian appointed by an order of the court under section 57(2)(c), 58(1) or 58(1A) of this Act (in this section referred to as a “guardianship order”) whether appointed before or after the coming into force of these provisions, as they apply to a guardian with powers relating to the personal welfare of an adult appointed under section 58 of that Act;
(b) to a person authorised under an intervention order under section 60B of this Act as they apply to a person so authorised under section 53 of that Act.
(2) In making a guardianship order the court shall have regard to any regulations made by the Scottish Ministers under section 64(11) of the 2000 Act and—
(a) shall confer powers, which it shall specify in the order, relating only to the personal welfare of the person;
(b) may appoint a joint guardian;
(c) may appoint a substitute guardian;
(d) may make such consequential or ancillary order, provision or direction as it considers appropriate.
(3) Without prejudice to the generality of subsection (2), or to any other powers conferred by this Act, the court may—
(a) make any order granted by it subject to such conditions and restrictions as appear to it to be appropriate;
(b) order that any reports relating to the person who will be the subject of the order be lodged with the court or that the person be assessed or interviewed and that a report of such assessment or interview be lodged;
(c) make such further inquiry or call for such further information as appears to it to be appropriate;
(d) make such interim order as appears to it to be appropriate pending the disposal of the proceedings.
(4) Where the court makes a guardianship order it shall forthwith send a copy of the interlocutor containing the order to the Public Guardian who shall—
(a) enter prescribed particulars of the appointment in the register maintained by him under section 6(2)(b)(iv) of the 2000 Act;
(b) unless he considers that the notification would be likely to pose a serious risk to the person’s health notify the person of the appointment of the guardian; and
(c) notify the local authority and the Mental Welfare Commission of the terms of the interlocutor.
(5) A guardianship order shall continue in force for a period of 3 years or such other period (including an indefinite period) as, on cause shown, the court may determine.
(6) Where any proceedings for the appointment of a guardian under section 57(2)(c) or 58(1) of this Act have been commenced and not determined before the date of coming into force of section 84 of, and paragraph 26 of schedule 5 to, the Adults with Incapacity (Scotland) Act 2000 (asp 4) they shall be determined in accordance with this Act as it was immediately in force before that date.
(1) Where a compulsion order authorising the detention of a person in a hospital by virtue of paragraph (a) of section 57A(8) of this Act is made in respect of a person, and it appears to the court—
(a) having regard to the nature of the offence with which he is charged;
(b) the antecedents of the person; and
(c) the risk that as a result of his mental disorder he would commit offences if set at large,
that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the person shall be subject to the special restrictions set out in Part 10 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13) , without limit of time.
(2) An order under this section (in this Act referred to as “a restriction order”) shall not be made in the case of any person unless the approved medical practitioner , whose evidence is taken into account by the court under section 57A(2)(a) of this Act, has given evidence orally before the court.
(2A) The court may, in the case of a person in respect of whom it did not, before making the compulsion order, make an interim compulsion order, make a restriction order in respect of the person only if satisfied that, in all the circumstances, it was not appropriate to make an interim compulsion order in respect of the person.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) This section applies where a person, not being a child, (in this section and in sections 59B and 59C of this Act referred to as the “offender”) is convicted on indictment in—
(a) the High Court; or
(b) the sheriff court,
of an offence punishable by imprisonment.
(2) If the court is satisfied—
(a) on the written or oral evidence of two medical practitioners—
(i) that the conditions mentioned in subsection (3) below are met in respect of the offender; and
(ii) as to the matters mentioned in subsection (4) below; and
(b) that, having regard to the matters mentioned in subsection (5) below, it is appropriate,
the court may, in addition to any sentence of imprisonment which it has the power or the duty to impose, make, subject to subsection (6) below, a direction (in this Act referred to as a “hospital direction”) authorising the measures mentioned in subsection (7) below.
(3) The conditions referred to in subsection (2)(a)(i) above are—
(a) that the offender 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 offender;
(c) that if the offender were not provided with such medical treatment there would be a significant risk—
(i) to the health, safety or welfare of the offender; or
(ii) to the safety of any other person; and
(d) that the making of a hospital direction in respect of the offender is necessary.
(4) The matters referred to in subsection (2)(a)(ii) above are—
(a) that the hospital proposed by the two medical practitioners mentioned in subsection (2)(a) above is suitable for the purpose of giving the medical treatment mentioned in paragraph (b) of subsection (3) above to the offender; and
(b) that, were a hospital direction made, the offender could be admitted to such hospital before the end of the day following the 7 days beginning with the day on which the direction is made.
(5) The matters referred to in subsection (2)(b) above are—
(a) the mental health officer’s report, prepared in accordance with section 59B of this Act, in respect of the offender;
(b) all the circumstances, including—
(i) the nature of the offence of which the offender was convicted; and
(ii) the antecedents of the offender; and
(c) any alternative means of dealing with the offender.
(6) A hospital direction may authorise detention in a state hospital only if, on the written or oral evidence of the two medical practitioners mentioned in subsection (2)(a) above, it appears to the court—
(a) that the offender requires to be detained in a state hospital under conditions of special security; and
(b) that such conditions of special security can be provided only in a state hospital.
(7) The measures mentioned in subsection (2) above are—
(a) in the case of an offender who, when the hospital direction 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 direction is made, of the offender 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 offender in the specified hospital; and
(c) the giving to the offender, in accordance with Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), of medical treatment.
(8) The court shall be satisfied as to the condition mentioned in subsection (3)(a) above only if the description of the offender’s mental disorder by each of the medical practitioners mentioned in subsection (2)(a) above specifies, by reference to the appropriate paragraph (or paragraphs) of the definition of “mental disorder” in section 328(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), at least one type of mental disorder that the offender has that is also specified by the other.
(9) A hospital direction—
(a) shall specify, by reference to the appropriate paragraph (or paragraphs) of the definition of “mental disorder” in section 328(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), the type (or types) of mental disorder that each of the medical practitioners mentioned in subsection (2)(a) above specifies that is also specified by the other; and
(b) may include such directions as the court thinks fit for the removal of the offender to, and the detention of the offender in, a place of safety pending the offender’s admission to the specified hospital.
(10) In this section—
“medical treatment” has the same meaning as in section 52D of this Act; and
“specified” means specified in the hospital direction.
59B Hospital direction: mental health officer’s report
(1) This section applies where the court is considering making a hospital direction in relation to an offender under section 59A of this Act.
(2) If directed to do so by the court, the mental health officer shall—
(a) subject to subsection (3) below, interview the offender; and
(b) prepare a report in relation to the offender in accordance with subsection (4) below.
(3) If it is impracticable for the mental health officer to comply with the requirement in subsection (2)(a) above, the mental health officer need not do so.
(4) The report shall state—
(a) the name and address of the offender;
(b) if known by the mental health officer, the name and address of the offender’s primary carer;
(c) in so far as relevant for the purposes of section 59A of this Act, details of the personal circumstances of the offender; and
(d) any other information that the mental health officer considers relevant for the purposes of that section.
(5) In this section, “carer”, “primary”, in relation to a carer, and “mental health officer” have the same meanings as in section 57C of this Act.
(1) If, before the end of the day following the 7 days beginning with the day on which a hospital direction is made, it appears to the court, or, as the case may be, the Scottish Ministers, that, by reason of emergency or other special circumstances, it is not reasonably practicable for the offender to be admitted to the hospital specified in the hospital direction, the court, or, as the case may be, the Scottish Ministers, may direct that the offender be admitted to such other hospital as is specified.
(2) Where—
(a) the court makes a direction under subsection (1) above, it shall inform the person having custody of the offender; and
(b) the Scottish Ministers make such a direction, they shall inform—
(i) the court; and
(ii) the person having custody of the offender.
(3) Where a direction is made under subsection (1) above, the hospital direction shall have effect as if the hospital specified in the hospital direction were the hospital specified by the court, or, as the case may be, the Scottish Ministers, under subsection (1) above.
(4) In this section, “court” means the court which made the hospital direction.
Where a compulsion order, interim compulsion order (but not a extension thereof), guardianship order , a restriction order or a hospital direction has been made by a court in respect of a person charged or brought before it, he may without prejudice to any other form of appeal under any rule of law (or, where an interim compulsion order has been made, to any right of appeal against any other order or sentence which may be imposed), appeal against that order or, as the case may be, direction in the same manner as against sentence.
60A Appeal by prosecutor against hospital orders etc.
(1) This section applies where the court, in respect of a person charged or brought before it, has made—
(a) a compulsion order;
(b) a restriction order;
(c) a guardianship order;
(d) a decision under section 57(2)(e) of this Act to make no order; or
(e) a hospital direction.
(2) Where this section applies, the prosecutor may appeal against any such order, decision or direction as is mentioned in subsection (1) above—
(a) if it appears to him that the order, decision or direction was inappropriate; or
(b) on a point of law,
and an appeal under this section shall be treated in the same manner as an appeal against sentence under section 108 of this Act.
The court may instead of making a compulsion order . . . or a guardianship order under section 57(2)(c) or 58(1A) of this Act, make an intervention order(as defined in section 53(1) of the Adults with Incapacity (Scotland) Act 2000 (asp 4) where it considers that it would be appropriate to do so.
60C Acquitted persons: detention for medical examination
(1) Subject to subsection (7) below, this section applies where a person charged with an offence is acquitted.
(2) If the court by or before which the person is acquitted is satisfied—
(a) on the written or oral evidence of two medical practitioners that the conditions mentioned in subsection (3) below are met in respect of the person; and
(b) that it is not practicable to secure the immediate examination of the person by a medical practitioner,
the court may, immediately after the person is acquitted, make an order authorising the measures mentioned in subsection (4) below for the purpose of enabling arrangements to be made for a medical practitioner to carry out a medical examination of the person.
(3) The conditions referred to in subsection (2)(a) above are—
(a) that the person 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.
(4) The measures referred to in subsection (2) above are—
(a) the removal of the person to a place of safety by—
(i) a constable; or
(ii) a person specified by the court; and
(b) the detention, subject to subsection (6) below, of the person in that place of safety for a period of 6 hours beginning with the time at which the order under subsection (2) above is made.
(5) If the person absconds—
(a) while being removed to a place of safety under subsection (4) above; or
(b) from the place of safety,
a constable or the person specified by the court under paragraph (a) of that subsection may, at any time during the period mentioned in paragraph (b) of that subsection, take the person into custody and remove the person to a place of safety.
(6) An order under this section ceases to authorise detention of a person if, following the medical examination of the person, a medical practitioner grants—
(a) an emergency detention certificate under section 36 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13); or
(b) a short-term detention certificate under section 44 of that Act.
(7) This section does not apply in a case where the person is acquitted by reason of the special defence set out in section 51A of this Act.
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) In this section, “medical treatment” has the same meaning as in section 52D of this Act.
(1) This section applies where a person has been removed to a place of safety under section 60C of this Act.
(2) The court shall, before the expiry of the period of 14 days beginning with the day on which the order under section 60C(2) of this Act is made, ensure that the Mental Welfare Commission is given notice of the matters mentioned in subsection (3) below.
(3) Those matters are—
(a) the name and address of the person removed to the place of safety;
(b) the date on and time at which the person was so removed;
(c) the address of the place of safety;
(d) if the person is removed to a police station, the reason why the person was removed there; and
(e) any other matter that the Scottish Ministers may, by regulations made by statutory instrument, prescribe.
(4) The power conferred by subsection (3)(e) above may be exercised so as to make different provision for different cases or descriptions of case or for different purposes.
(5) A statutory instrument containing regulations under subsection (3)(e) above shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.
(1) Of the medical practitioners whose evidence is taken into account in making a finding ... under any of the relevant provisions, at least one shall be an approved medical practitioner .
(1A) Of the medical practitioners whose evidence is taken into account under section 52M(2)(a), 53(2)(a) , 54(1)(c), 57A(2)(a) or 59A(3)(a) and (b) of this Act, at least one shall be employed at the hospital which is to be specified in the order or, as the case may be, direction.
(2) Written or oral evidence given for the purposes of section 52D(2)(a) orany of the relevant provisions shall include a statement as to whether the person giving the evidence is related to the accused and of any pecuniary interest which that person may have in the admission of the accused to hospital or his reception into guardianship.
(3) For the purposes of making a finding under section 52D(2)(a) ... of this Act or of any of the relevant provisions a report in writing purporting to be signed by a medical practitioner may, subject to the provisions of this section, be received in evidence without proof of the signature or qualifications of the practitioner; but the court may, in any case, require that the practitioner by whom such a report was signed be called to give oral evidence.
(4) Where any such report as aforesaid is tendered in evidence, otherwise than by or on behalf of the accused, then—
(a) if the accused is represented by counsel or solicitor, a copy of the report shall be given to his counsel or solicitor;
(b) if the accused is not so represented, the substance of the report shall be disclosed to the accused or, where he is a child under 16 years of age, to his parent or guardian if present in court;
(c) in any case, the accused may require that the practitioner by whom the report was signed be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by or on behalf of the accused,
and where the court is of the opinion that further time is necessary in the interests of the accused for consideration of that report, or the substance of any such report, it shall adjourn the case.
(5) For the purpose of calling evidence to rebut the evidence contained in any such report as aforesaid, arrangements may be made by or on behalf of an accused person detained in a hospital or, as respects a report for the purposes of section 54(1)(c) of this Act , remanded in custody for his examination by any medical practitioner, and any such examination may be made in private.
(6) In this section the “relevant provisions” means sections 52M(2)(a), 53(2)(a), 54(1)(c), 57A(2)(a), 58(1A)(a), 59A(2)(a) and 60C(2)(a) of this Act.
(7) In this section, “approved medical practitioner” has the meaning given by section 22 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13).
(1) Subsection (2) below applies in relation to a person who is subject to—
(a) an assessment order,
(b) a treatment order,
(c) an interim compulsion order, or
(d) a temporary compulsion order (see section 54(1)(c) of this Act).
(2) The person's responsible medical officer may transfer the person from the specified hospital to another hospital.
(3) The responsible medical officer may transfer the person only if satisfied that, for the purpose for which the order in question is made—
(a) the specified hospital is not suitable, and
(b) the other hospital is suitable.
(4) In considering the suitability of each hospital, the responsible medical officer is to have particular regard to the specific requirements and needs in the person's case.
(5) As far before the transfer as practicable, the responsible medical officer must—
(a) inform the person of the reason for the transfer,
(b) notify the managers of the specified hospital, and
(c) obtain the consent of—
(i) the managers of the other hospital, and
(ii) the Scottish Ministers.
(6) As soon after the transfer as practicable, the responsible medical officer must notify—
(a) any solicitor known by the officer to be acting for the person, and
(b) the court which made the order in question.
(7) A person may be transferred under subsection (2) above only once with respect to the order in question.
(8) Where a person is transferred under subsection (2) above, the order in question has effect as if the other hospital were the specified hospital.
(9) In this section—
“managers” has the meaning given by section 329(1) of the Mental Health (Treatment and Care) Scotland) Act 2003,
“responsible medical officer” has the meaning given by section 329(4) of that Act,
“specified hospital” means hospital to which the person is admitted by virtue of the order in question.
(1) A reference in this Part to a hospital may be read as a reference to a hospital unit.
(2) In the operation of section 61A of this Act in relation to a transfer from one hospital unit to another within the same hospital—
(a) subsection (2) of that section applies by virtue of subsection (1) of that section where the order in question specifies the hospital unit in which the person is to be detained,
(b) in subsection (5) of that section—
(i) paragraph (b) is to be ignored,
(ii) in paragraph (c)(i), the reference to the managers of the other hospital is to be read as a reference to the managers of the hospital in which the person is detained.
(3) For the purposes of this section, “hospital unit” means any part of a hospital which is treated as a separate unit.
62 Appeal by accused not criminally responsible or unfit for trial .
(1) A person may appeal to the appropriate Appeal Court against—
(a) a finding made under section 54(1) of this Act that he is unfit for trial so that his trial cannot proceed or continue, or the refusal of the court to make such a finding;
(b) a finding under section 55(2) of this Act; or
(c) an order made under section 57(2) of this Act.
(2) An appeal under subsection (1) above shall be—
(a) in writing; and
(b) lodged—
(i) in the case of an appeal under paragraph (a) of that subsection, not later than seven days after the date of the finding or refusal which is the subject of the appeal;
(ii) in the case of an appeal under paragraph (b), or both paragraphs (b) and (c) of that subsection, not later than 28 days after the conclusion of the examination of facts;
(iii) in the case of an appeal under paragraph (c) of that subsection against an order made on an acquittal, by reason of the special defence set out in section 51A of this Act , not later than 14 days after the date of the acquittal;
(iv) in the case of an appeal under that paragraph against an order made on a finding under section 55(2), not later than 14 days after the conclusion of the examination of facts,
or within such longer period as the appropriate Appeal Court may, on cause shown, allow.
(3) Where the examination of facts was held in connection with proceedings on indictment, subsections (1)(a) and (2)(b)(i) above are without prejudice to section 74(1) of this Act.
(4) Where an appeal is taken under subsection (1) above, the period from the date on which the appeal was lodged until it is withdrawn or disposed of shall not count towards any time limit applying in respect of the case.
(5) An appellant in an appeal under this section shall be entitled to be present at the hearing of the appeal unless the appropriate Appeal Court determines that his presence is not practicable or appropriate.
(6) In disposing of an appeal under subsection (1) above the appropriate Appeal Court may—
(a) affirm the decision of the court of first instance;
(b) make any other finding or order which that court could have made at the time when it made the finding , order or other disposal which is the subject of the appeal; or
(c) remit the case to that court with such directions in the matter as the appropriate Appeal Court thinks fit.
(7) Section 60 of this Act shall not apply in relation to any order as respects which a person has a right of appeal under subsection (1)(c) above.
(8) In this section, “appropriate Appeal Court” means—
(a) in the case of an appeal under subsection (1) against a finding or refusal, or an order made, in proceedings on indictment, the High Court;
(b) in the case of an appeal under subsection (1) against a finding or refusal, or an order made, in summary proceedings, the Sheriff Appeal Court.
63 Appeal by prosecutor where accused found not criminally responsible or unfit for trial.
(1) The prosecutor may appeal to the appropriate Appeal Court on a point of law against—
(a) a finding under subsection (1) of section 54 of this Act that an accused is unfit for trial so that his trial cannot proceed or continue;
(b) an acquittal by reason of the special defence set out in section 51A of this Act;
(c) an acquittal under section 55(3) of this Act (whether or not by reason of the special defence set out in section 51A of this Act); or
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) An appeal under subsection (1) above shall be—
(a) in writing; and
(b) lodged—
(i) in the case of an appeal under paragraph (a) or (b) of that subsection, not later than seven days after the finding or, as the case may be, the acquittal which is the subject of the appeal;
(ii) in the case of an appeal under paragraph (c) . . .of that subsection, not later than seven days after the conclusion of the examination of facts,
or within such longer period as the appropriate Appeal Court may, on cause shown, allow.
(3) Where the examination of facts was held in connection with proceedings on indictment, subsections (1)(a) and (2)(b)(i) above are without prejudice to section 74(1) of this Act.
(4) A respondent in an appeal under this subsection shall be entitled to be present at the hearing of the appeal unless the appropriate Appeal Court determines that his presence is not practicable or appropriate.
(5) In disposing of an appeal under subsection (1) above the appropriate Appeal Court may—
(a) affirm the decision of the court of first instance;
(b) make any other finding order or disposal which that court could have made at the time when it made the finding or acquittal which is the subject of the appeal; or
(c) remit the case to that court with such directions in the matter as the appropriate Appeal Court thinks fit.
(6) In this section, “the prosecutor” means, in relation to proceedings on indictment, the Lord Advocate.
(7) In this section, “appropriate Appeal Court” means—
(a) in the case of an appeal under subsection (1) against a finding or an acquittal made in proceedings on indictment, the High Court;
(b) in the case of an appeal under subsection (1) against a finding or an acquittal made in summary proceedings, the Sheriff Appeal Court.
(1) All prosecutions for the public interest before the High Court or before the sheriff sitting with a jury shall proceed on indictment at the instance of Her Majesty’s Advocate.
(2) The indictment 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.
(3) Indictments in proceedings before the High Court shall be signed by the Lord Advocate or one of his deputes.
(4) Indictments in proceedings before the sheriff sitting with a jury shall be signed by the procurator fiscal, and the words “By Authority of Her Majesty’s Advocate” shall be prefixed to the signature of the procurator fiscal.
(5) The principal record and service copies of indictments and all notices of citation, lists of witnesses, productions and jurors, and all other official documents required in a prosecution on indictment may be either written or printed or partly written and partly printed.
(6) Schedule 3 to this Act shall have effect as regards indictments under this Act.
(1) Subject to subsections (2) and (3) below, an accused shall not be tried on indictment for any offence unless
(a) where an indictment has been served on the accused in respect of the High Court, a preliminary hearing is commenced within the period of 11 months; and
(aa) where an indictment has been served on the accused in respect of the sheriff court, a first diet is commenced within the period of 11 months;
(b) in any case, the trial is commenced within the period of 12 months,
of the first appearance of the accused on petition in respect of the offence.
(1A) If the preliminary hearing (where subsection (1)(a) above applies) , the first diet (where subsection (1)(aa) above applies) or the trial is not so commenced, the accused
(a) shall be discharged forthwith from any indictment as respects the offence; and
(b) shall not at any time be proceeded against on indictment as respects the offence
(2) Nothing in subsection (1) or (1A) above shall bar the trial of an accused for whose apprehension a warrant has been granted for failure to appear at a diet in the case.
(3) On an application made for the purpose,
(a) where an indictment has been served on the accused in respect of the High Court, a single judge of that court may, on cause shown, extend any period specified in subsection (1) above; or
(b) in any other case, the sheriff may, on cause shown, extend any period specified in that subsection.
(3A) An application under subsection (3) shall not be made at any time when an appeal made with leave under section 74(1) of this Act has not been disposed of by the High Court.
(4) Subject to subsections (5) to (9) below, an accused who is committed for any offence until liberated in due course of law shall not be detained by virtue of that committal for a total period of more than—
(a) 80 days, unless within that period the indictment is served on him, which failing he shall be entitled to be admitted to bail; or
(aa) where an indictment has been served on the accused in respect of the High Court—
(i) 110 days, unless a preliminary hearing in respect of the case is commenced within that period, which failing he shall be entitled to be admitted to bail; or
(ii) 140 days, unless the trial of the case is commenced within that period, which failing he shall be entitled to be admitted to bail;
(b) where an indictment has been served on the accused in respect of the sheriff court, 110 days
(i) 110 days, unless a first diet in respect of the case is commenced within that period, which failing he shall be entitled to be admitted to bail; or
(ii) 140 days, unless the trial of the case is commenced within that period, which failing he shall be entitled to be admitted to bail.
(4A) Where an indictment has been served on the accused in respect of the High Court, subsections (1)(a) and (4)(aa)(i) above shall not apply if the preliminary hearing has been dispensed with under section 72B(1) of this Act.
(5) On an application made for the purpose—
(a) in a case where, at the time the application is made, an indictment has not been served on the accused, a single judge of the High Court; or
(b) in any other case, the court specified in the notice served under section 66(6) of this Act,
may, on cause shown, extend any period mentioned in subsection (4) above.
(5A) Before determining an application under subsection (3) or (5) above, the judge or, as the case may be, the court shall give the parties an opportunity to be heard.
(5B) However, where all the parties join in the application, the judge or, as the case may be, the court may determine the application without hearing the parties and, accordingly, may dispense with any hearing previously appointed for the purpose of considering the application.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) The grant or refusal of any application to extend the periods mentioned in this section may be appealed against by note of appeal presented to the High Court; and that Court may affirm, reverse or amend the determination made on such application.
(8A) Where an accused is, by virtue of subsection (4) above, entitled to be admitted to bail, the accused shall, unless he has been admitted to bail by the Lord Advocate, be brought forthwith before—
(a) in a case where an indictment has not yet been served on the accused, a single judge of the High Court; or
(b) in any other case, the court specified in the notice served under section 66(6) of this Act.
(8B) Where an accused is brought before a judge or court under subsection (8A) above, the judge or, as the case may be, the court shall give the prosecutor an opportunity to make an application under subsection (5) above.
(8C) If the prosecutor does not make such an application or, if such an application is made but is refused, the judge or, as the case may be, the court shall, after giving the prosecutor an opportunity to be heard, admit the accused to bail.
(8D) Where such an application is made but is refused and the prosecutor appeals against the refusal, the accused—
(a) may continue to be detained under the committal warrant for no more than 72 hours from the granting of bail under subsection (8C) above or for such longer period as the High Court may allow; and
(b) on expiry of that period, shall, whether the appeal has been disposed of or not, be released on bail subject to the conditions imposed.
(9) For the purposes of this section,
(a) where the accused is cited in accordance with subsection (4)(b) of section 66 of this Act, the indictment shall be deemed to have been served on the accused;
(b) a preliminary hearing shall be taken to commence when it is called; and
(ba) a first diet shall be taken to commence when it is called;
(c) a trial shall be taken to commence when the oath is administered to the jury.
(10) In calculating any period specified in subsection (1) (including any such period as extended) there shall be left out of account any period during which the accused is in lawful custody, other than while serving a sentence of imprisonment or detention, in any other part of the United Kingdom or in any of the Channel Islands or the Isle of Man ....
(1) This Act shall be sufficient warrant for—
(a) the citation of the accused and witnesses to—
(i) any diet of the High Court to be held on any day, and at any place, the Court is sitting;
(ii) any diet of the sheriff court to be held on any day the court is sitting; or
(iii) any adjournment of a diet specified in sub-paragraph (i) or (ii) above; and
(b) the citation of jurors for any trial to be held—
(i) in the High Court; or
(ii) under solemn procedure in the sheriff court.
(2) The execution of the citation against an accused, witness or juror shall be in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form.
(3) A witness may be cited by sending the citation to the witness by ordinary or registered post or by the recorded delivery service and a written execution in the form prescribed by Act of Adjournal or as nearly as may be in such form, purporting to be signed by the person who served such citation together with, where appropriate, the relevant post office receipt shall be sufficient evidence of such citation.
(4) The accused may be cited either—
(a) by being served with a copy of the indictment and of the list of the names and addresses of the witnesses to be adduced by the prosecution and of the list of productions (if any) to be put in evidence by the prosecution; or
(b) if the accused, at the time of citation, is not in custody, by a constable affixing to the door of the relevant premises a notice in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form—
(i) specifying the date on which it was so affixed;
(ii) informing the accused that he may collect a copy of the indictment and of such lists as are mentioned in paragraph (a) above from a police station specified in the notice; and
(iii) calling upon him to appear and answer to the indictment at such diet as shall be so specified.
(4ZA) In subsection (4)(b) above, “the relevant premises” means—
(a) where the accused, at the time of citation, has been admitted to bail, his proper domicile of citation as specified for the purposes of section 25 of this Act; or
(b) in any other case, any premises which the constable reasonably believes to be the accused’s dwelling-house or place of business.
(4A) Where a date is specified by virtue of sub-paragraph (i) of subsection (4)(b) above, that date shall be deemed the date on which the indictment is served; and the copy of the indictment referred to in sub-paragraph (ii) of that subsection shall, for the purposes of subsections (12) and (13) below be deemed the service copy.
(4B) Paragraphs (a) and (b) of subsection (6) below shall apply for the purpose of specifying a diet by virtue of subsection (4)(b)(iii) above as they apply for the purpose of specifying a diet in any notice under subsection (6).
(4C) Where—
(a) the accused is cited in accordance with subsection (4)(b) above; and
(b) the charge in the indictment is of committing an offence listed in subsection (14A)(b),
the accused shall, on collecting the indictment, be given a notice containing intimation of the matters specified in subsection (6A)(a) below.
(5) Except in a case to which section 76 of this Act applies, the prosecutor shall on or before the date of service of the indictment lodge the record copy of the indictment with the clerk of court before which the trial is to take place, together with a copy of the list of witnesses and a copy of the list of productions.
(6) If the accused is cited by being served with a copy of the indictment, then except where such service is under section 76(1) of this Act, a notice shall be served on the accused with the indictment calling upon him to appear and answer to the indictment—
(a) where the case is to be tried in the sheriff court
(i) at a first diet not less than 15 clear days after the service of the indictment and not less than 10 clear days before the trial diet ; and
(ii) at a trial diet not less than 29 clear days after service of the indictment, at a first diet not less than 29 clear days after the service of the indictment,
(b) where the indictment is in respect of the High Court, at a diet not less than 29 clear days after the service of the indictment (such a diet being referred to in this Act as a “preliminary hearing”).
(6A) Where the charge in the indictment is of committing an offence listed in subsection (14A)(b), the notice served under subsection (6) above shall—
(a) contain intimation to the accused—
(i) that his case at, or for the purposes of, any relevant hearing ... in the course of the proceedings (including at any commissioner proceedings) may be conducted only by a lawyer,
(ii) that it is, therefore, in his interests, if he has not already done so, to get the professional assistance of a solicitor; and
(iii) 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 (or at any related commissioner proceedings), the court will do so; . . .
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6AA) A notice affixed under subsection (4)(b) above or served under subsection (6) above shall, where the accused is a body corporate, also contain intimation to the accused—
(a) where the indictment is in respect of the High Court, that, if it does not appear as mentioned in section 70(4) of this Act or by counsel or a solicitor at the preliminary hearing—
(i) the hearing may proceed; and
(ii) a trial diet may be appointed,
in its absence; and
(b) in any case (whether the indictment is in respect of the High Court or the sheriff court), that if it does not appear as mentioned in paragraph (a) above at the trial diet, the trial may proceed in its absence.
(6AB) A notice affixed under subsection (4)(b) or served under subsection (6), where the indictment is in respect of the sheriff court, must contain intimation to the accused that the first diet may proceed and a trial diet may be appointed in the accused's absence.
(6B) A failure to comply with subsection (4C), (6A) or (6AA) , (6AA) or (6AB) above does not affect the validity or lawfulness of any notice affixed under subsection (4)(b) above or served under subsection (6) above or any other element of the proceedings against the accused.
(6C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) Subject to subsection (4)(b) above, service of the indictment, lists of witnesses and productions, and any notice or intimation to the accused, and the citation of witnesses, whether for precognition or trial, may be effected by any officer of law.
(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9) The citation of witnesses may be effected by any officer of law duly authorised; and in any proceedings, the evidence on oath of the officer shall, subject to subsection (10) below, be sufficient evidence of the execution of the citation.
(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(11) No objection to the competency of the officer who served the indictment , or who executed a citation under subsection (4)(b) above, to give evidence in respect of such service or execution shall be upheld on the ground that his name is not included in the list of witnesses served on the accused.
(12) Any deletion or correction made before service on the record or service copy of an indictment shall be sufficiently authenticated by the initials of the person who has signed, or could by law have signed, the indictment.
(13) Any deletion or correction made on a service copy of an indictment, or on any notice of citation, postponement, adjournment or other notice . . . served on an accused shall be sufficiently authenticated by the initials of any procurator fiscal or of the person serving the same.
(14) Any deletion or correction made on any execution of citation or notice or other document so served shall be sufficiently authenticated by the initials of the person serving the same.
(14A) For the purposes of subsections (4C) and (6A)—
(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).
(15) In subsection (6A) above, “commissioner proceedings” means proceedings before a commissioner appointed under section 271I(1) or by virtue of section 272(1)(b) of this Act.
(1) The list of witnesses shall consist of the names of the witnesses together with an address at which they can be contacted for the purposes of precognition.
(2) It shall not be necessary to include in the list of witnesses the names of any witnesses to the declaration of the accused or the names of any witnesses to prove that an extract conviction applies to the accused, but witnesses may be examined in regard to these matters without previous notice.
(3) Any objection in respect of misnomer or misdescription of—
(a) any person named in the indictment; or
(b) any witness in the list of witnesses,
shall be intimated in writing to the court before which the trial is to take place, to the prosecutor and to any other accused, where the case is to be tried in the sheriff court, at or before the first diet and, where the case is to be tried in the High Court, not less than seven clear days before the preliminary hearing; and, except on cause shown, no such objection shall be admitted . . . unless so intimated.
(4) Where such intimation has been given or cause is shown and the court is satisfied that the accused making the objection has not been supplied with sufficient information to enable him to identify the person named in the indictment or to find such witness in sufficient time to precognosce him before the trial, the court may grant such remedy by postponement, adjournment or otherwise as appears to it to be appropriate.
(4A) The prosecutor shall have a duty to cite a witness included in the list only if—
(a) it has been ascertained under—
(i) in the case of proceedings in the High Court, section 72(6)(d); or
(ii) in the case of proceedings in the sheriff court, section 71(1C)(a),
of this Act that the witness is required by the prosecutor or the accused to attend the trial; or
(b) where, in the case of proceedings in the High Court, the preliminary hearing has been dispensed with under subsection (1) of section 72B of this Act, the witness was identified in the application under that subsection as being required by the prosecutor or the accused to attend the trial.
(5) Without prejudice to—
(a) any enactment or rule of law permitting the prosecutor to examine any witness not included in the list of witnesses; or
(b) subsection (6) below,
in any trial it shall be competent with the leave of the court for the prosecutor to examine any witness or to put in evidence any production not included in the lists lodged by him, provided that written notice, containing in the case of a witness his name and address as mentioned in subsection (1) above, has been given to the accused by the relevant time.
(5A) In subsection (5) above, “the relevant time” means—
(a) where the case is to be tried in the High Court—
(i) not less then seven clear days before the preliminary hearing; or
(ii) such later time, before the jury is sworn to try the case, as the court may, on cause shown, allow;
(b) where the case is to be tried in the sheriff court,
not less than two clear days before the day on which the jury is sworn to try the case.
(6) It shall be competent for the prosecutor to examine any witness or put in evidence any production included in any list or notice lodged by the accused, and it shall be competent for an accused to examine any witness or put in evidence any production included in any list or notice lodged by the prosecutor or by a co-accused.