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Contents
A: Daily Business
B: Business Programme
C: Committee Agendas
D: Oral questions
E: Written questions
F: Motions and Amendments
G: Bills
H: New Documents
K: Progress of Parliamentary business

Business Bulletin No. 40/2004

Thursday 4 March 2004

Section G: Bills: Notices and Amendments

  

New amendments to Bills lodged on 3 March 2004

Criminal Procedure (Amendment) (Scotland) Bill - Stage 2

Section 1

Hugh Henry

4 In section 1, page 3, line 9, at end insert-

<(ba) ascertain whether there is any objection to the admissibility of any evidence which any party wishes to raise despite not having given the notice referred to in paragraph (b)(i) above, and-

(i) if so, decide whether to grant leave under section 79(1) of this Act for the objection to be raised; and

(ii) if leave is granted, dispose of the objection unless it considers it inappropriate to do so at the preliminary hearing;>

Hugh Henry

5 In section 1, page 3, line 11, after <by> insert <the prosecutor or>

Hugh Henry

6 In section 1, page 3, line 36, after <notice> insert <, objection>

Hugh Henry

7 In section 1, page 3, line 36, after <(6)(b)> insert <or (ba)>

Hugh Henry

8 In section 1, page 3, line 37, after <may> insert <-

(a)>

Hugh Henry

9 In section 1, page 3, line 39, after <notice> insert <, objection>

Hugh Henry

10 In section 1, page 3, line 39, at end insert <, or

(b) appoint the issue, application, notice, objection or other matter to be disposed of at the trial diet.>

Hugh Henry

11 In section 1, page 4, line 19, leave out <diet> and insert <preliminary hearing>

Hugh Henry

12 In section 1, page 5, line 21, leave out from beginning to end of line 7 on page 6

Hugh Henry

13 In section 1, page 6, line 9, leave out <order the Clerk of Justiciary to>

Hugh Henry

14 In section 1, page 6, line 11, leave out third <of> and insert <to>

Hugh Henry

15 In section 1, page 6, line 19, after <by> insert <the prosecutor or>

Hugh Henry

16 In section 1, page 6, line 21, leave out from <by> to <order> in line 22

Hugh Henry

17 In section 1, page 6, line 25, at end insert-

<( ) The fact that a preliminary hearing in any case has been dispensed with under subsection (8) above shall not affect the calculation in that case of any time limit for the giving of any notice or the doing of any other thing under this Act, being a time limit fixed by reference to the preliminary hearing.

( ) Accordingly, any such time limit shall have effect in any such case as if it were fixed by reference to the date on which the preliminary hearing would have been held if it had not been dispensed with.>

Hugh Henry

18 In section 1, page 6, leave out lines 26 and 27

Hugh Henry

19 In section 1, page 6, line 28, at end insert-

<( ) The prosecutor shall not raise a fresh libel in any case in which the court has deserted a preliminary hearing simpliciter unless the court's decision has been reversed on appeal.>

Hugh Henry

20 In section 1, page 7, line 6, at end insert-

<( ) Where notice is given to the accused under subsection (3)(b) above, then for the purposes of section 65(4) of this Act-

(a) the giving of the notice shall be taken to be service of an indictment in respect of the sheriff court; and

(b) the previous service of the indictment in respect of the High Court shall be disregarded.>

Hugh Henry

21 In section 1, page 7, leave out lines 15 and 16 and insert-

<(1A) The court may, on cause shown, allow a preliminary hearing to proceed notwithstanding the absence of the accused.

(1B) Where-

(a) the accused fails to appear at a preliminary hearing;

(b) the court allows the hearing to proceed in his absence under subsection (1A) above; and

(c) no plea is entered on behalf of the accused at the hearing,

the accused shall be treated for the purposes of proceedings at the preliminary hearing as having pled not guilty.>

Section 2

Hugh Henry

22 In section 2, page 8, line 5, leave out <Crown Agent> and insert <Court>

Section 3

Hugh Henry

23 In section 3, page 9, line 2, leave out from first <fix> to end of line 4 and insert <appoint or not to appoint it as a floating diet for the purposes of section 83A(1) of this Act;".>

Section 5

Hugh Henry

24 In section 5, page 9, line 38, leave out <in the High Court> and insert <on indictment>

Hugh Henry

25 In section 5, page 10, line 1, leave out <Crown Agent> and insert <prosecutor>

Hugh Henry

26 In section 5, page 10, line 2, at end insert-

<(1A) A solicitor is to be taken to have complied with the duty under subsection (1) to notify the prosecutor of his engagement if, before service of the indictment, he-

(a) notified in writing the procurator fiscal for the district in which the charge against the accused was then being investigated that he was then engaged by the accused for the purposes of his defence; and

(b) had not notified that procurator fiscal in writing that he had been dismissed by the accused or had withdrawn from acting.>

Hugh Henry

27 In section 5, page 10, line 3, after <solicitor> insert<as is referred to in subsection (1) above>

Hugh Henry

28 In section 5, page 10, line 6, leave out <Crown Agent> and insert <prosecutor>

Hugh Henry

29 In section 5, page 10, line 7, at end insert-

<( ) The prosecutor shall, for the purposes of subsections (1) and (2), be taken to be notified or informed of any fact in accordance with those subsections if-

(a) in proceedings in the High Court, the Crown Agent; or

(b) in proceedings on indictment in the sheriff court, the procurator fiscal for the district in which the trial diet is to be held,

is so notified or, as the case may be, informed of the fact.>

Hugh Henry

30 In section 5, page 10, line 8, leave out <so informed> and insert <informed in accordance with subsection (2) above of the dismissal or withdrawal of the accused's solicitor>

Hugh Henry

31 In section 5, page 10, line 18, at beginning insert <in the case of proceedings in the High Court,>

Hugh Henry

32 In section 5, page 10, line 18, at end insert <or, if a preliminary hearing was dispensed with under section 72B(8) of this Act, at the time it was so dispensed with;>

Hugh Henry

33 In section 5, page 10, leave out lines 19 and 20

Hugh Henry

34 In section 5, page 10, line 20, at end insert-

<( ) in the case of solemn proceedings in the sheriff court, at the time of a first diet;>

Hugh Henry

35 In section 5, page 10, leave out lines 28 to 31

Hugh Henry

36 Move section 5 to after section 10

Section 6

Hugh Henry

37 Leave out section 6

Section 7

Hugh Henry

38 Leave out section 7

Section 8

Hugh Henry

39 In section 8, page 12, line 35, at end insert-

<( ) Where, in any case which is to be tried in the High Court, the trial diet does not commence on the day appointed for the holding of the diet, the indictment shall fall.>

Hugh Henry

40 In section 8, page 12, line 36, leave out from beginning to <applies,> in line 37 and insert <However, where, in appointing a day for the holding of the trial diet, the Court has indicated that the diet is to be a floating diet, the diet>

Hugh Henry

41 In section 8, page 13, leave out lines 6 to 10

Section 10

Hugh Henry

42 In section 10, page 15, line 25, at end insert-

<( ) In subsection (4), in paragraph (b)-

(a) at the beginning insert "if the accused, at the time of citation, is not in custody,", and

(b) for "accused's dwelling-house or place of business" substitute "relevant premises".

( ) After subsection (4) insert-

"(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.".

( ) After subsection (6B) insert-

"(6C) An accused shall be taken to be served with-

(a) the indictment and lists of witnesses and productions; and

(b) the notice referred to in subsection (6) above,

if they are served on the solicitor specified in subsection (6D) below at that solicitor's place of business.

(6D) The solicitor referred to in subsection (6C) above is any solicitor who-

(a) has notified in writing the procurator fiscal for the district in which the charge against the accused was being investigated that he is engaged by the accused for the purposes of his defence; and

(b) has not informed that procurator fiscal that he has been dismissed by, or has withdrawn from acting for, the accused.

(6E) It is the duty of a solicitor who has, before service of an indictment, notified a procurator fiscal that he is engaged by the accused for the purposes of his defence to inform that procurator fiscal in writing forthwith if he is dismissed by, or withdraws from acting for, the accused.".>

After section 10

Hugh Henry

43 After section 10 insert-

<Procedure where trial diet does not proceed

For section 81 (procedure where trial diet does not proceed) substitute-

"81 Procedure where trial diet does not proceed

(1) The prosecutor shall not raise a fresh libel in a case in which the court has deserted the trial simpliciter unless the court's decision has been reversed on appeal.

(2) Where a trial diet in any proceedings on indictment is deserted pro loco et tempore the court may appoint a further trial diet for a later date and the accused shall appear and answer the indictment at that diet.

(3) In appointing a further trial diet under subsection (2) above, the court-

(a) shall have regard to the state of preparation of the prosecutor and the accused with respect to their cases and, in particular, to the likelihood of the case being ready to proceed to trial on the date to be appointed for the trial diet; and

(b) may, if it appears to the court that there are any preliminary pleas, preliminary issues or other matters which require to be, or could with advantage be, disposed of or ascertained before the trial diet, appoint a diet to be held before the trial diet for the purpose of disposing of or, as the case may be, ascertaining them.

(4) Subsection (5) below applies where, at a trial diet in any proceedings on indictment-

(a) the diet has been deserted pro loco et tempore for any reason and no further trial diet has been appointed under subsection (2) above; or

(b) the indictment is for any reason not brought to trial and the diet has not been continued, adjourned or postponed.

(5) Where this subsection applies, the prosecutor may, at any time within the period of two months after the relevant date, give notice to the accused on another copy of the indictment to appear and answer the indictment-

(a) where the trial diet referred to in subsection (4) above was in the High Court-

(i) at a further preliminary hearing in that Court not less than seven clear days after service of the notice; or

(ii) where the charge is one that can lawfully be tried in the sheriff court, at a first diet not less than 15 clear days after service of the notice and not less than 10 clear days before the trial diet and at a trial diet not less than 29 clear days after service of the notice; or

(b) where the trial diet referred to in subsection (4) was in the sheriff court-

(i) at a further trial diet in that court not less than seven clear days after service of the notice; or

(ii) at a preliminary hearing in the High Court not less than 21 clear days after service of the notice.

(6) Where notice is given to the accused under paragraph (a)(ii) or (b)(ii) of subsection (5) above, then for the purposes of section 65(4) of this Act-

(a) the giving of the notice shall be taken to be service of an indictment in respect of-

(i) in the case of a notice under paragraph (a)(ii) of subsection (5) above, the sheriff court; or

(ii) in the case of a notice under paragraph (b)(ii) of that subsection, the High Court; and

(b) the previous service of the indictment in respect of-

(i) in the case of a notice under paragraph (a)(ii) of subsection (5), the High Court; or

(ii) in the case of a notice under paragraph (b)(ii) of that subsection, the sheriff court,

shall be disregarded.

(7) A notice under subsection (5) above shall be in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form.

(8) In subsection (5) above, "the relevant date" means-

(a) where paragraph (a) of subsection (4) applies, the date on which the trial diet was deserted as mentioned in that paragraph; or

(b) where paragraph (b) of that subsection applies, the date of the trial diet referred to in that subsection.".>

Section 11

Hugh Henry

44 In section 11, page 17, line 3, at end insert-

<( ) In section 70 (proceedings against bodies corporate) of the 1995 Act-

(a) in subsection (5), for the words from "shall" to "hear" substitute "may-

(a) on the motion of the prosecutor; and

(b) if satisfied as to the matters specified in subsection (5A) below,

proceed with the trial",

(b) after that subsection insert-

"(5A) The matters referred to in subsection (5)(b) above are-

(a) that the body corporate was cited in accordance with section 66 of this Act as read with subsection (2) above; and

(b) that it is in the interests of justice to proceed as mentioned in subsection (5) above.

(5B) Subsections (2B) to (2F) and (4) of section 92 of this Act shall apply where the court exercises the power under subsection (5) of this section as they apply where the court exercises the power under subsection (2A) of that section but as if references in them to the accused were references to the body corporate."

( ) In section 22 (automatic availability of criminal legal aid) of the Legal Aid (Scotland) Act 1986 (c.47), in subsection (1)(dd), after "person)" insert "or section 92(2), (2B)(b) or (2E) of that Act (appointment of solicitor for accused where the trial is to proceed in his absence)".

( ) In section 31 of that Act, in subsection (1A) (exceptions to provision entitling a person receiving legal aid or advice and assistance to select a solicitor and counsel), in paragraph (f), for "section" substitute "sections 92(2), (2B)(b), (2D) and (2E) and".>

Section 13

Hugh Henry

45 In section 13, page 23, line 10, leave out from <if> to end of line 12

Hugh Henry

46 In section 13, page 23, line 24, after <issue> insert <(other than an objection to the admissibility of any evidence)>

Hugh Henry

47 In section 13, page 23, line 26, after <may> insert <-

(a)>

Hugh Henry

48 In section 13, page 23, line 27, after <issue> insert <, or

(b) appoint the plea or issue to be disposed of at the trial diet.>

Hugh Henry

49 In section 13, page 23, line 27, at end insert-

<( ) After section 87 of the 1995 Act insert-

"87A Disposal of preliminary matters at trial diet

Where-

(a) any preliminary plea or issue; or

(b) in a case to be tried in the High Court, any application, notice or other matter referred to in section 72(6)(b)(ii) or (iii) of this Act,

is to be disposed of at the trial diet, it shall be so disposed of before the jury is sworn, unless, where it is a preliminary issue consisting of an objection to the admissibility of any evidence, the court at the trial diet considers it is not capable of being disposed of before then.">

After section 13

Hugh Henry

50 After section 13 insert-

<Objections to admissibility of evidence raised without due notice

(1) In section 71 (first diet) of the 1995 Act-

(a) after subsection (2) there is inserted-

"(2YA)At a first diet, the court shall also ascertain whether there is any objection to the admissibility of any evidence which any party wishes to raise despite not having given the notice referred to in subsection (2) above, and-

(a) if so, decide whether to grant leave under section 79(1) of this Act for the objection to be raised; and

(b) if leave is granted, dispose of the objection unless it considers it inappropriate to do so at the first diet.

(2ZA)Where the court, having granted leave for the objection to be raised, decides not to dispose of it at the first diet, the court may-

(a) appoint a further diet to be held before the trial diet for the purpose of disposing of the objection; or

(b) appoint the objection to be disposed of at the trial diet.",

(b) in subsection (3), for the words "or (2)" substitute ", (2) or (2YA)".

(2) After section 79 of the 1995 Act (as inserted by section 13 of this Act) insert-

"79A Objections to admissibility of evidence raised after first diet or preliminary hearing

(1) This section applies where a party seeks to raise an objection to the admissibility of any evidence after-

(a) in proceedings in the High Court, the preliminary hearing; or

(b) in proceedings on indictment in the sheriff court, the first diet.

(2) The court shall not, under section 79(1) of this Act, grant leave for the objection to be raised if the party seeking to raise it has not given written notice of his intention to do so to the other parties.

(3) However, the court may, where the party seeks to raise the objection after the commencement of the trial, dispense with the requirement under subsection (2) above for written notice to be given.

(4) Where the party seeks to raise the objection after the commencement of the trial, the court shall not, under section 79(1) of this Act, grant leave for the objection to be raised unless it considers that it could not reasonably have been raised before that time.

(5) Where the party seeks to raise the objection before the commencement of the trial and the court, under section 79(1), grants leave for it to be raised, the court shall-

(a) if it considers it appropriate to do so, appoint a diet to be held before the commencement of the trial for the purpose of disposing of the objection; or

(b) dispose of the objection at the trial diet.

(6) In appointing a diet under subsection (5)(a) above, the court may postpone the trial diet for such period as appears to it to be appropriate and may, if it thinks fit, direct that such period (or some part of it) shall not count towards any time limit applying in respect of the case.

(7) The accused shall appear at any diet appointed under subsection (5)(a) above.

(8) For the purposes of this section, the trial shall be taken to commence when the jury is sworn.".>

Hugh Henry

51 After section 13 insert-

<Alteration of diets

After section 75 of the 1995 Act insert-

"Adjournment and alteration of diets

75A Adjournment and alteration of diets

(1) This section applies where any diet has been fixed in any proceedings on indictment.

(2) The court may, if it considers it appropriate to do so, adjourn the diet.

(3) However-

(a) in the case of a trial diet, the court may adjourn the diet under subsection (2) above only if the indictment is not brought to trial at the diet;

(b) if the court adjourns any diet under that subsection by reason only that, following enquiries for the purpose of ascertaining whether the accused has engaged a solicitor for the purposes of the conduct of his defence at or for the purposes of a preliminary hearing or at a trial, it appears to the court that he has not done so, the adjournment shall be for a period of not more than 48 hours.

(4) A trial diet in the High Court may be adjourned under subsection (2) above to a diet to be held at a sitting of the Court in another place.

(5) The court may, on the application of any party to the proceedings made at any time before commencement of any diet-

(a) discharge the diet; and

(b) fix a new diet for a date earlier or later than that for which the discharged diet was fixed.

(6) Before determining an application under subsection (5) above, the court shall give the parties an opportunity to be heard.

(7) However, where all the parties join in an application under that subsection, the court may determine the application without hearing the parties and, accordingly, may dispense with any hearing previously appointed for the purpose of subsection (6) above.

(8) Where there is a hearing for the purpose of subsection (6) above, the accused shall attend it unless the court permits the hearing to proceed notwithstanding the absence of the accused.

(9) In appointing a new trial diet under subsection (5)(b) above, the court-

(a) shall have regard to the state of preparation of the prosecutor and the accused with respect to their cases and, in particular, to the likelihood of the case being ready to proceed to trial on the date to be appointed for the trial diet; and

(b) may, if it appears to the court that there are any preliminary pleas, preliminary issues or other matters which require to be, or could with advantage be, disposed of or ascertained before the trial, appoint a diet to be held before the trial diet for the purpose of disposing of or, as the case may be, ascertaining them.

(10) A date for a new diet may be fixed under subsection (5)(b) above notwithstanding that the holding of the diet on that date would result in any provision of this Act as to the minimum or maximum period within which the diet is to be held or to commence not being complied with.

(11) In subsections (5) to (9) above, "the court" means-

(a) in the case of proceedings in the High Court, a single judge of that Court; and

(b) in the case of proceedings in the sheriff court, that court.

(12) For the purposes of subsection (5) above-

(a) a diet other than a trial diet shall be taken to commence when it is called; and

(b) a trial diet shall be taken to commence when the jury is sworn.".>

Section 16

Hugh Henry

52 In section 16, page 26, line 31, after <by> insert <the prosecutor or>

Schedule

Hugh Henry

53 In the schedule, page 30, line 39, at end insert-

<( ) after subsection (4) insert-

"(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)(c); 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 (8) 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.",>

Hugh Henry

54 In the schedule, page 31, line 24, at end insert-

<Section 71A is repealed.>

Hugh Henry

55 In the schedule, page 32, line 6, leave out paragraph 17 and insert-

<17 Section 80 (alteration and postponement of trial diet) is repealed.>

Hugh Henry

56 In the schedule, page 32, line 16, leave out paragraph 18

Long Title

Hugh Henry

57 In the long title, page 1, line 2, leave out from <and> to <dismissal> in line 4

Hugh Henry

58 In the long title, page 1, line 4, leave out <alteration and>

Hugh Henry

59 In the long title, page 1, line 9, leave out from <remove> to second <for> and insert <make further provision as to>

Hugh Henry

60 In the long title, page 1, line 10, after <jurors,> insert <to require any solicitor engaged by the accused to notify the court and the prosecutor of his engagement, withdrawal and dismissal,>

Hugh Henry

61 In the long title, page 1, line 12, after <issues> insert <and to make new provision as to the adjournment and alteration of diets;>

Hugh Henry

62 In the long title, page 1, line 16, after <proceedings;> insert <to make new provision as to the procedure where the trial diet in sheriff court solemn proceedings does not proceed;>

Vulnerable Witnesses (Scotland) Bill - Stage 3

The following amendments have been lodged as manuscript amendments. The Presiding Officer has decided, under Rule 9.10.6, not to agree to these amendments being moved at Stage 3.

Section 1

Patrick Harvie

69 In section 1, page 13, line 35, at end insert-

<271MA Intermediaries

(1) Where the special measure to be used is an intermediary, the examination of the witness (however and wherever conducted) shall be conducted through an interpreter or other person approved by the court for the purposes of this section ("the intermediary").

(2) The function of the intermediary will be to communicate to the witness questions put to the witness and to explain such questions so far as necessary to enable them to be understood by the witness.>

After section 17

Patrick Harvie

70 After section 17, insert-

<Intermediaries

(1) Where the special measure to be used is an intermediary, the examination of the witness (however and wherever conducted) shall be conducted through an interpreter or other person approved by the court for the purposes of this section ("the intermediary").

(2) The function of the intermediary will be to communicate to the witness questions put to the witness and to explain such questions so far as necessary to enable them to be understood by the witness.

(3) Provision may be made by act of sederunt regulating, so far as not regulated by this section, the use in any proceedings of an intermediary.>

 

Proposals for Members' Bills

Names marked with an asterisk (*) are new names of support. Proposals that have attracted 11 supporters have those supporters' names shown in bold. The member who lodged such a proposal has the right to introduce a Member's Bill to give effect to that proposal under Rule 9.14 of the Standing Orders.

Chris Ballance: Proposed Green Transport (Scotland) Bill-Proposal for a Bill to require Ministers to provide transport targets and plans aimed at stabilising road traffic at 2001 levels and which reduce climate change emissions and promote socially and environmentally sustainable transport alternatives. (lodged 12 February 2004)

Supported by: Mr Mark Ruskell, Robin Harper, Shiona Baird, Mark Ballard, Eleanor Scott, Patrick Harvie, Frances Curran, Rob Gibson, Ms Rosemary Byrne, Colin Fox, Carolyn Leckie, Tommy Sheridan

Rob Gibson: Proposed Heritable Property Succession (Scotland) Bill-Proposal for a Bill to amend the current law of succession to heritable property. (lodged 12 February 2004)

Supported by: Linda Fabiani, Michael Matheson, Mr Stewart Maxwell, Ms Sandra White, Stewart Stevenson, Christine Grahame, Campbell Martin, Eleanor Scott, Chris Ballance, Robin Harper, Mr Mark Ruskell

Frances Curran: Proposed School Meals and Snacks (Scotland) Bill-Proposal for a Bill to make provision for nutritional meals and free water in schools under the management of local authorities; to prescribe circumstances in which education authorities must provide free nutritional school meals and milk; to confer powers on the Scottish Ministers to regulate the sale and advertisement of consumable goods on school premises; to make provision for the monitoring of nutritional standards in schools; and to make provision for a complaints procedure for pupils and parents in relation to nutritional standards and the regulation of the sale and advertisement of consumable goods on school premises. (lodged 12 February 2004)

Supported by: Carolyn Leckie, Rosie Kane, Tommy Sheridan, Colin Fox, Ms Rosemary Byrne, Elaine Smith, Chris Ballance, John Swinburne, Mark Ballard, Mr Mark Ruskell, Robin Harper, Dennis Canavan, Dr Jean Turner, Margo MacDonald

 

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