Acts of the Scottish Parliament

PART 9 - BRIBERY AND CORRUPTION

Sections 68 and 69 - Bribery and corruption: foreign officers etc.; Bribery and corruption committed outwith the UK

362. Sections 68 and 69 amend the law on corruption. These provide that it is an offence for UK nationals, Scottish partnerships or bodies incorporated in any part of the UK:

• to bribe or corrupt a foreign officer or a foreign public body; and

• where conduct of a UK national, Scottish partnership or body incorporated in any part of the UK takes place outwith the UK and would, if done in Scotland, constitute an offence of corruption and bribery.

363. Section 1 of the Public Bodies Corrupt Practices Act 1889 states:

"(1)     Every person who shall by himself or by or in conjunction with any other person, corruptly solicit or receive, or agree to receive, for himself, or for any other person, any gift, loan, fee, reward, or advantage whatsoever as an inducement to, or reward for, or otherwise on account of any member, officer, or servant of a public body as in this Act defined, doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which such public body as aforesaid is concerned, shall be guilty of a misdemeanour.

(2)     Every person who shall by himself or by or in conjunction with any other person corruptly give, promise, or offer any gift, loan, fee, reward, or advantage whatsoever to any person, whether for the benefit of that person or of another person, as an inducement to or reward for or otherwise on account of any person or of another person, as an inducement to or reward for or otherwise on account of any member, officer, or servant of any public body as in this Act defined, doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which such public body as aforesaid is concerned, shall be guilty of a misdemeanour.".

364. The 1889 Act provides definitions for a number of key terms used in the Act including:

     "public body" means any council of a county or of a city or town, a council of a municipal borough, also any board, commissioners, select vestry, or other body which has power to act under and for the purposes of any Act relating to local government, or the public health, or to poor law or otherwise to administer money raised by rates in pursuance of any public general Act but does not include any public body as above defined existing elsewhere than in the United Kingdom";

     "public office" means any office or employment of a person as a member, officer, or servant of such public body";

     "person" includes a body of persons, corporate or unincorporated;

     "advantage" includes any office or dignity, and any forbearance to demand any money or money's worth or valuable thing, and includes any aid, vote, consent, or influence, or pretended aid, vote, consent, or influence, and also includes any promise or procurement of or any gift, loan, fee, reward, or advantage, as before defined".

365. The Prevention of Corruption Act 1906 extended the law of corruption into the private sector. Section 1 of the 1906 Act creates an offence of corrupt transactions with agents. It states:

"(1)     If any agent corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gift or consideration as an inducement or reward for doing or forbearing to do, or for having after the passing of this Act done or forborne to do, any act in relation to his principal's affairs or business, or for showing to forbearing to show favour or disfavour to any person in relation to his principal's affairs or business; or

     If any person corruptly gives or agrees to give or offers any gift or consideration to any agent as an inducement or reward for doing or forbearing to do, or for having after the passing of this Act done or forborne to do, any act in relation to his principal's affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal's affairs or business; or

     If any person knowingly gives to any agent, or if any agent knowingly uses with intent to deceive his principal, any receipt, account, or other document in respect of which the principal is interested, and which contains any statement which is false or erroneous or defective in any material particular, and which to his knowledge is intended to mislead the principal;

     he shall be guilty of a misdemeanour, and shall be liable—

(a)     on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum, or to both; and

(b)     on conviction on indictment, to imprisonment for a term not exceeding 7 years or to a fine, or to both.

366. Sections 1(2) and (3) define "consideration" as including "valuable consideration of any kind"; "agent" as including "any person employed by or acting for another person" and as a "person serving under the Crown or under any corporation or any municipal, borough, county, or district council, or any board of guardians"; and "principal" as including "an employer". The other sections deal with the level of prosecution of the offences.

367. Section 2 of the Prevention of Corruption Act 1916 concerns the presumption of corruption in certain cases. It states:

"Where in any proceedings against a person for an offence under the Prevention of Corruption Act, 1906, or the Public Bodies Corrupt Practices Act, 1889, it is proved that any money, gift, or other consideration has been paid or given to or received by a person in the employment of His Majesty or any Government Department or a public body by or from a person, or agent of a person, holding or seeking to obtain a contract from His Majesty or any Government Department or public body, the money, gift, or consideration shall be deemed to have been paid or given and received corruptly as such inducement or reward as is mentioned in such Act unless the contrary is proved.".

368. Section 4(2) and (3) defines "public body" as it was designated in the 1889 Act and includes "local and public authorities of all descriptions"; the expressions "agent" and "consideration" are defines by reference to the definition for those terms in the 1906 Act.

369. Section 68(1) ensures that both the common law offence of bribery, and existing corruption legislation, extend to persons holding public office outside the UK, that is, foreign officers or a foreign public body. Section 68(2) provides that amendments made by section 108(2) to (4) of the Anti-terrorism, Crime and Security Act 2001 to the Prevention of Corruption Act 1906, the Public Bodies Corrupt Practices Act 1889 and the Prevention of Corruption Act 1916 are to have effect in Scotland.

370. Section 108(2) of the 2001 Act extends section 1 of the 1906 Act (corrupt transactions with agents) to include transactions in which the principal's affairs and business, and the agent's functions have no connection with the UK and are carried on outside the UK. Section 1 of the 1906 states that an "agent" includes any person employed by or acting for another, and that "principal" includes an employer.

371. Section 108(3) of the 2001 Act amends section 7 of the 1889 Act (interpretation relating to corruption in office) by extending the definition of "public body" to include any body which exists outside the UK.

372. Section 108(4) of the 2001 Act amends section 4(2) of the 1916 Act (which defines public bodies to include local and public bodies of all descriptions) by extending it to cover authorities that exist outside the UK.

373. Section 69 of the Act gives Scottish courts the extra-territorial jurisdiction over bribery and corruption offences committed abroad by UK nationals , Scottish partnerships and bodies incorporated under UK law. It enables common law offences and those offences specified in subsection (3), when committed by UK nationals, Scottish partnerships and bodies incorporated under UK law, to be prosecuted in Scotland, wherever those offences take place.

374. Subsection (2)(b) makes express provision that Scottish partnerships may be prosecuted in the Scottish Courts in respect of bribery and corruption offences committed outwith the United Kingdom. In particular the subsection makes provision that where it can be proved that the act occurred with the consent or connivance of, or can be attributed to, a partner or partners, that partner or partners as well as the partnership may be prosecuted.

375. Subsection (2) applies section 11(3) of the 1995 Act to cases to which section 55 of the Act applies. Section 11(3) of the 1995 Act makes provision for certain offences committed outside Scotland to be tried in any sheriff court district in Scotland in which the person is apprehended or in custody or in such sheriff court district as the Lord Advocate may determine.

376. Subsection (3) details the statutory offences to which this section applies (i.e. section 1 of the Public Bodies Corrupt Practices Act 1889 and the first two offences under section 1 of the Prevention of Corruption Act 1906).

377. Subsection (4) provides a definition of a "national of the United Kingdom" for the purposes of subsection (1) and refers to the British Nationality Act 1981 for a number of definitions. The 1981 Act defines a British Citizen as someone born or adopted, descended from or registered or naturalised in the UK; a British dependent Territories citizen as someone born, adopted, descended from or registered or naturalised in a dependent territory of the UK; a British National (Overseas) or a British Overseas citizen as a person who was a citizen of the UK or Colonies before the 1981 Act and does not become a British citizen or a British Dependent Territories citizen on the commencement of the 1981 Act; a British subject as a person who was a citizen of the UK and Colonies under the British Nationality Act 1948, other any other enactment and certain other categories; a British protected person as one of a class of persons defined by Order connected with a territory that is a protectorate or protected state or trust territory under the 1948 Act, and who is not a citizen of a commonwealth country which includes that territory.

PART 10 - CRIMINAL RECORDS

Section 70 - Registration for criminal record purposes

378. Section 70 amends Part V of the Police Act 1997 ("the 1997 Act").

379. Part V of the 1997 Act (sections 112 to 127) provides for the issue by the Secretary of State (now the Scottish Ministers) of certificates showing criminal conviction and criminal record information.

380. There are three types of certificates:

• a criminal conviction certificate (section 112);

• a criminal record certificate (sections 113 and 114); and

• an enhanced criminal record certificate (sections 115 and 116).

381. The criminal conviction certificate shows unspent convictions (in terms of the Rehabilitation of Offenders Act 1974) or states that there are no such convictions. Both criminal record certificates and enhanced criminal record certificates show any unspent and spent convictions (in terms of the Rehabilitation of Offenders Act 1974) and any cautions. Enhanced criminal record certificates show in addition any information which a chief constable considers relevant to the position for which the individual is being considered and which can be included in the certificate without harming the interests of the prevention or detection of crime. The conviction information disclosed in the certificates relates to information contained in records held in the Scottish Criminal Record Office (SCRO) and in records obtained by SCRO from the Police National Computer.

382. Applications for criminal record certificates under section 113 of the Act and enhanced criminal record certificates under section 115 must be countersigned by a person listed in the register maintained under section 120 of the Act ("a registered person").

383. Subsection (2) inserts a new section 120A into the 1997 Act. The new section gives the Scottish Ministers power to refuse to include a person in the register maintained under section 120 of the Act, if they consider that the registration of that person is likely to make it possible for an unsuitable person to have access to criminal record information. The Scottish Ministers are also given power to remove a person from the register if they believe that the registration of that person has resulted in such information becoming known to an unsuitable person (subsection (2) of the new section).

384. Subsection (3) of the new section sets out the factors which the Scottish Ministers should have regard to when considering whether a person is suitable to have access to the information. These are:

• information relating to that person which concerns a conviction within the meaning of the Rehabilitation of Offenders Act 1974, including a spent conviction or a caution;

• whether that person is included in any list kept under section 81 of the Care Standards Act 2000 - that is, any list held by the Secretary of State for Health of individuals who are considered unsuitable to work with vulnerable adults;

• any information provided by the chief constable of a police force in Scotland in response to a requirement by the Scottish Ministers to provide information for the purposes of the new discretion;

• any information provided by the chief constable of a police force in England, Wales or Northern Ireland in response to a request by the Scottish Ministers to provide information for the purposes of the new discretion;

• any decision of the Scottish Ministers to refuse or withdraw registration or to refuse (because a breach of the Code of Practice on the use of information provided to registered persons) to issue a certificate; and

• any decision to refuse or withdraw registration under the provisions of Part V as it applies in another part of the UK.

385. Subsection (4) of the new section requires a chief constable of a police force in Scotland to comply with requests for information in relation to the new section. Subsection (5) of the new section provides for fees to be prescribed for the supply of information by chief constables

386. Section 70(3) amends section 115 of the 1997 Act by inserting into section 115(5) of that Act a provision which will add to the range of purposes in relation to which an enhanced criminal record certificate may be obtained. The addition is a purpose relating to an assessment, investigation or review by an adoption agency or local authority as to the suitability of a person, whether or not the person in respect of whom the certificate is sought, to adopt a child.

387. Section 70(3) further amends section 115 of the 1997 Act by inserting 5 new subsections which will add to the range individuals in respect of whom an enhanced criminal record certificate may be obtained. The range of such persons is extended to include: -

• individuals included or seeking inclusion in certain lists prepared for the purposes of Part I and Part II of the National Health Service (Scotland) Act 1978;

• Her Majesty's Inspectors and other persons appointed or seeking appointment for purposes of carrying out inspections of educational provision;

• individuals appointed or seeking appointment under section 39(2) of the Children (Scotland) Act 1995 as a member of a children's panel or a Children's Panel Advisory committee, or joint advisory committee, or sub-committees thereof;

• the Principal Reporter and officers to assist the Principal Reporter;

• prosecutors and officers to assist a prosecutor or to assist in the work of the Crown Office;

• persons (curators ad litem, reporting officers and "safeguarders") included or seeking to be included in a panel established by virtue of section 101(1) of the Children (Scotland) Act 1995.

388. Section 70(4) amends section 119(1) of the 1997 Act so as to extend the duty to supply information to cover the supply of information for purposes of considering a person's suitability to be registered or to continue to be registered under section 120 of the 1997 Act.

389. Section 70(5) inserts a new section 119A into the 1997 Act. This requires any person who holds in Scotland records of criminal convictions to make the records available to the Scottish Ministers in relation to their powers to cancel the inclusion of any person on the register. Ministers may also request information from the list of persons considered unsuitable to work with vulnerable adults. "Person" for this purpose does not include a public body or holder of public office, unless the person is a Scottish public authority.

390. Section 70(6) amends section 120 of the Police Act 1997 to provide that the duty to register is qualified by the new provisions conferring on the Scottish Ministers the discretion to refuse to include a person on the register. The section also provides that the Scottish Ministers may make regulations about the maintenance of the register in relation to the nomination of a person to countersign applications, a refusal or cancellation of a nomination, and the period after which a person refused registration or removed from the register may reapply.

391. Section 70(7) amends section 122 of the Police Act 1997. Section 122 makes provision for the Scottish Ministers to publish a code of practice, in connection with the use of information by registered persons under the 1997 Act. Section 70(7)(a) amends section 122 to permit the code of practice to be extended to cover, not only the use of information provided to registered persons, but also the discharge of any function of a registered person under the 1997 Act. Subsection (7)(b) amends section 122 of the 1997 Act to permit the Scottish Ministers to remove a registered person from the register, as a result of his or her failure to comply with the code of practice or for countersigning an application at the request of a body that has failed to comply with the code.

392. Section 70(8) inserts a new section 124A into the Police Act 1997 to provide that, where the Scottish Ministers have refused a person registration or where the person has been removed from the register because he or she has not complied with the code of practice, the person should be notified in writing of the action and the reason for it. A copy of the notice should also be sent to the Secretary of State. (that is, the Home Secretary).

393. The new section provides the person with a right to request in writing a review of the decision and to be notified of the results of the review. A copy is also to be sent to the Secretary of State. Regulations may be made by negative procedure to deal with procedural matters related to the notification process

394. Section 70(8) also inserts a new section 124B, which provides for the Scottish Ministers to maintain a list of all persons in respect of whom a criminal record certificate or an enhanced criminal record certificate has been issued under sections 113 to 116 of the Act. The Scottish Ministers are given power to make regulations about the maintenance of this list. The section also empowers Ministers to notify the person who countersigned the application for the certificate or certain other persons of new convictions or relevant matters of which Ministers become aware after issuing a certificate. It also requires the Scottish Ministers in making regulations under section 124A to allow the listed person an opportunity to make representations regarding notification under subsection (3), and the Scottish Ministers should have regard to any such representations before making notification. The regulations may also require the person who would receive the notification (except a Minister of the Crown) to provide such information as they have which may be relevant to the exercise of the discretion to notify.

PART 11 - LOCAL AUTHORITY FUNCTIONS

Section 71 and 72 - Advice, guidance and assistance to persons arrested or on whom sentence deferred; Grants to local authorities discharging certain functions jointly

395. Sections 71 and 72 amend the Social Work (Scotland) Act 1968.

396. Section 71 (2) inserts new paragraph (ac) into section 27 (1) of the 1968 Act which requires local authorities to provide advice, guidance and assistance to prisoners during their period of imprisonment who will be subject to supervision following release. Responsibility for the provision of this service will fall on the local authority that the offender resided in prior to imprisonment or the local authority that the offender will reside in following release.

397. Section 71 (3) inserts new subsection (1A) and (1B) into section 27 of the 1968 Act. New subsection (1A) enables local authorities to provide advice, guidance and assistance to prisoners during their period of imprisonment who would not be subject to supervision on release and who request such services. Responsibility for the provision of this service will fall to the local authority area that the offender resided in prior to imprisonment or the local authority area that the offender will reside in following release.

398. New subsection (1B) makes clear that where more than one local authority is required by virtue of section 27(1)(ac) of the 1968 Act to provide such services the local authorities may agree amongst themselves that only one shall provide the services.

399. Section 71(4) inserts a new section 27ZA into the Social Work (Scotland) Act 1968. Section 27ZA(1) provides that it shall be a local authority function, if so directed by the Scottish Ministers, to provide services to persons who have been arrested and detained in police custody or those on whom sentence has been deferred, under section 202(1) of the 1995 Act (during the period of deferment) and whilst those persons are in that local authority's area. The Scottish Ministers may direct the extent to which such services are to be provided. In providing services to individuals under this section local authorities are required to have particular regard to those suffering from problems relating to dependency on drugs, alcohol or some other substance.

400. Subsection (2) of new section 27ZA provides for the local authority to be able to continue to provide a service to those released from police custody within their area for a period of up to 12 months from the date of release.

401. Section 71(5) amends section 27A of the Social Work (Scotland) Act 1968 to allow the Scottish Ministers to make grants to local authorities in respect of the functions exercised by the authority under new section 27ZA.

402. Section 72 inserts a new subsection (1A) into section 27A of the Social Work (Scotland) Act 1968 to provide that where local authorities have formed themselves into a grouping and are discharging functions mentioned in section 27(1) or new 27(ZA), the Scottish Ministers may make grants to a nominated local authority from this grouping.

PART 12 - MISCELLANEOUS AND GENERAL

Miscellaneous

Section 73 - Public defence

403. Section 73 amends the Legal Aid (Scotland) Act 1986 to allow a feasibility study into solicitors employed by the Scottish Legal Aid Board providing representation in criminal cases to continue after 1 October 2003.

404. Section 28A of the Legal Aid (Scotland) Act 1986 was inserted by the section 50 of the Crime and Punishment Act 1997 and amended by section 9(7) of the Convention Rights (Compliance) (Scotland) Act 2001. It provides for the Scottish Legal Aid Board directly to employ solicitors to provide representation in criminal cases.

405. Section 28A(2) provides for a maximum of 6 solicitors (full time or equivalent) to be employed by the Scottish Legal Aid Board at any time. This is repealed to allow the Board to employ additional solicitors in any new pilot location. Section 28A also provides that any solicitor employed by the Board on a casual or temporary basis shall require to be a solicitor registered on the Criminal Legal Assistance Register. This is also being repealed as section 25A(3) requires any solicitor providing criminal legal assistance to be so registered.

406. Section 28A(3) authorises the Board to make such preparations for the feasibility study detailed in subsection (1) as will enable it to begin the study as soon as regulations made under subsection (1) come into force. As the study began in 1999, this provision is now unnecessary.

407. Section 28A(10) requires the Scottish Ministers to lay before the Scottish Parliament within 3 years of the date in which regulations were made under subsection (1) a report on the results of the feasibility study. Such a report was laid in September 2001, so this provision is now spent. Section 73(b) of the Act inserts a new subsection (9A) to provide that a further report on the continuing progress of the study shall be laid before the Scottish Parliament by the end of 2008.

408. Section 28A(11) provides that section 28A and the provisions of the Act referred to in subsection (12) shall cease to have effect 5 years after the date on which regulations made under section 28A(1) first came into force (i.e. 1 October 2003). This subsection, along with subsections (12), (13) and (14), which make provisions consequential to subsection (11), are repealed by this section.

409. Section 28A(15) has the effect of ensuring that nothing in section 28A shall prevent the commencement of sections 26 to 28 of the Legal Aid (Scotland) Act 1986. These sections have now been commenced, so this subsection is also repealed.

Section 74 - Offences aggravated by religious prejudice

410. Section 74 makes provision to deal with offences that are aggravated by religious prejudice. At present, at common law the courts can take account of aggravations when sentencing. This provision requires them to do so and sets out the procedure that is to be followed by the Crown. For the provisions in the Bill to apply, the aggravation will require to be libelled in the indictment or specified in a complaint by the Crown and proved. "Religious prejudice" includes sectarian prejudice.

411. An offence is aggravated by religious prejudice not just on the basis of actual religious belief but on the accused's perception of the religious, social, or cultural affiliation of the individual or group targeted by the offender. The section requires a court to consider whether any element of religious prejudice is involved in an offence and if it finds that the offence has been aggravated by religious prejudice to take that factor into account when sentencing. The court is also required to state the extent of and reasons for any difference in the sentence from that which would have been given had the offence not been aggravated by religious prejudice. In line with the position in relation to common law aggravations, evidence from a single source is sufficient to prove the aggravation, i.e. corroboration is not required.

Section 75 - Reintroduction of ranks of deputy chief constable and chief superintendent

412. Section 75 amends the Police (Scotland) Act 1967 ("the 1967 Act") to provide for the reintroduction of the ranks of deputy chief constable and chief superintendent.

413. Subsection (2) inserts a revised section 5 and a new section 5A into the 1967 Act. The revised section 5 provides that:

• each police force is to have a deputy chief constable;

• the ranks which may be held in a police force should include that of assistant chief constable, as formerly; but there will no longer be a requirement for every force to have at least one assistant chief constable;

• the appointments and promotion procedures set out in section 26 of the 1967 Act are to be followed for deputy as for assistant chief constables;

414. The revised section 5A provides that:

• the deputy chief constable may exercise or perform all of the powers and duties of the chief constable of that force where the chief constable is absent, incapacitated or suspended, there is a vacancy in that post, or at any other time with the consent of the chief constable;

• a person holding the rank of assistant chief constable may be designated by the police authority to exercise or perform all of the powers and duties of the chief constable of that force where both the chief constable and the deputy chief constable are absent, incapacitated or suspended, or there is a vacancy in both of those posts;

• only one person may be designated by the police authority to act as described above at any one time;

• the exercise of the powers set out in subsections (1)(a) or (b) or (2) of section 5A for a continuous period of more than three months will require the consent of the Scottish Ministers;

• the above is without prejudice to any other enactments which provide for the exercise by any other person of any powers of a chief constable.

415. All of these provisions formerly applied to the assistant chief constable designated as deputy to the chief constable. They will now apply to the deputy chief constable.

416. Subsection (3) amends section 7 of the 1967 Act to add deputy chief constable and chief superintendent to the list of ranks which may be held in a police force.

417. Subsection (4) amends section 26(2A)(b) of the 1967 Act so that the section applies to officers above the rank of chief superintendent (i.e. the same ranks as were formerly described as "above superintendent").

Section 76 - Police custody and security officers

418. Section 76 amends the Police (Scotland) Act 1967 ("the 1967 Act") to give statutory powers to certain civilian support staff who are to be employed by police authorities. The section also provides for police authorities to contract out the employment of such staff.

419. Subsection (2)(a) amends section 9(1) of the 1967 Act to provide that as well as employing civilian staff directly a police authority may appoint civilian staff on a contracted out basis.

420. Subsection (2)(b) inserts a new subsection (1A) in section 9 of the 1967 Act to provide that such staff as are employed or appointed and who hold a certificate that they are authorised to perform certain functions are to be known as "police custody and security officers". It also inserts a new subsection (1B) which provides that the powers of the police custody and security officers are to be as set out in section 9(1C) and their duties as are mentioned in section 9(1E). Subsection (1B) excludes police custody and security officers provided under a contract by virtue of subsection (1)(b) of section 9 of the 1967 Act from exercising the powers and duties in the premises of any court or in land connected with such premises. This means that only non-court elements of PCSO functions can be contracted out. PCSO functions in and around court premises are to be carried out by employees of the police authority.

421. Subsection (3) inserts a new section 9A into the 1967 Act to provide for the certification of police custody and security officers. It gives chief constables power to issue a certificate as detailed in section 9(1A) (inserted by subsection (2)(b)). Such a certificate can only be given if the chief constable is satisfied that the person is a suitable person for the job and has received sufficient training to enable them to perform their functions. The chief constable can revoke the certificate if these conditions are not satisfied, and suspend the certificate pending consideration of whether it should be revoked.

422. Subsection (3) also inserts a new section 9B into the 1967 Act to make it an offence for a person to make a statement which they know to be false, or to recklessly make a statement that is false, for the purpose of obtaining a certificate.

423. Subsection (4) amends section 39 of the 1967 Act to provide that police custody and security officers are treated in the same way as constables in relation to wrongful acts or omissions carried out by them as set out in this section, although this is subject to any agreement made as part of the contract for that persons services where the employment of that person has been contracted out by the police authority.

424. Subsections (5) to (8) make amendments to sections 41, 43, 44 and 45 of the 1967 Act respectively to ensure that police custody and security officers are dealt with in the same way as constables in relation to various matters arising from or connected with their employment. These are:

• assaults on constables etc.;

• impersonation etc.;

• offences by constables;

• warrant to search for police accoutrements and clothing.

425. Subsection (10) amends section 102(5) of the Criminal Justice and Public Order Act 1994 to provide for police custody and security officers carrying out functions in compliance with warrants and orders, in place of persons on whom the obligation to perform the function was originally placed by the warrant or order.

426. Subsection (11) amends section 307(1) of the 1995 Act to amend the definition of an "officer of the law" to include police custody and security officers.

Section 77, schedule 3 and that part of schedule 5 relating to the Wildlife and Countryside Act 1981: Wildlife Offences

427. Section 77 introduces schedule 3. Schedule 3 makes changes to the existing provisions of the Wildlife and Countryside Act 1981 ("the 1981 Act"). These changes provide for the upgrading of the penalties for wildlife offences under Part I of that Act; for the introduction of a general power of arrest in the case of such wildlife offences; for a standardisation of the period within which such offences may be prosecuted; and for related changes to the 1981 Act. Schedule 5 provides for the repeal of elements within the 1981 Act in the light of the substantive changes effected by schedule 3.

428. Schedule 3 Paragraph 2 substitutes text in sections 6(8) and 7(3) of the 1981 Act. This substitution has the effect of standardising, at five years, the length of the prohibition which applies to certain activities (dealing in dead birds and keeping or possessing certain species of bird) following conviction for a range of relevant offences. These include offences (under any enactment) which involve the ill-treatment of birds or other animals, as well as specified offences under the 1981 Act.

429. Paragraph 3 amends section 7(4) of the 1981 Act to reflect the fact that the prohibition provided for in section 7(3) has been standardised at five years.

430. Paragraph 4 provides, in sub-paragraph (a), for a general power of arrest in relation to offences under Part I of the 1981 Act, by repealing part of the existing text of section 19(1)(c) of that Act. In sub-paragraph (b), the current provisions of Section 19(3) of the 1981 Act, relating to search warrants, are extended to enable search warrants to be issued for any offence under Part I of that Act.

431. Paragraph 5 extends the provisions of the 1981 Act regulating the prosecution of wildlife offences. As a result of the changes made in this paragraph, proceedings may be brought, in relation to all offences under Part I of the 1981 Act, within six months of sufficient evidence coming to the knowledge of the prosecutor.

432. Paragraph 6 provides for increased penalties in wildlife crime cases. It also regularises the tariff of maximum penalties for the majority of wildlife offences. These changes are achieved, via sub-paragraphs (a) and (b), by replacing the existing subsections (1), (2) and (3) in section 21 of the 1981 Act with a single, new subsection. The changes apply to all Part I offences, with the exception of those under section 14 of the 1981 Act, which are tackled separately in sub-paragraph (c). The change in sub-paragraph (d) follows from sub-paragraph (b) and removes a redundant reference to the repealed subsections (2) and (3).

433. The change effected by sub-paragraph (a) allows for custodial sentences of up to 6 months to be imposed following summary conviction for the listed Part I offences. The maximum fine is also standardised at Level 5 on the standard scale. As a consequence, all offences tried summarily will in future be subject to the same maxima and there will no longer be provision for special penalties in connection with bird-related offences.

434. Sub-paragraph (c) deals separately with the particular case of offences under section 14 of the 1981 Act. Section 14 prohibits the release of non-native species and a number of particularly damaging plants and animals which are listed in schedule 9 to the 1981 Act. Where a section 14 offence is tried summarily, the maximum penalty will be the same as for other Part I offences - a 6 month custodial sentence, a fine up to the statutory maximum, or both. In more serious cases, where a section 14 offence is tried on indictment, the courts currently have the option to impose an unlimited fine. That option is retained but the option of a custodial sentence of up to 2 years is also provided.

Schedule 5

435. Schedule 5 repeals all references in the 1981 Act to the imposition of a special penalty in connection with bird-related offences. The concept of a special penalty for certain offences is redundant, as a consequence of the standardisation of maximum penalties effected by paragraph 6 of schedule 3.

Section 78 - Disqualification from jury service

436. Section 78 amends Schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 to disqualify for a specified period offenders subject to certain community disposals from serving on juries. These disposals are probation orders, drug treatment and testing orders (DTTOs), community service orders (CSOs) and restriction of liberty orders (RLOs).

437. Both probation orders and DTTOs may be imposed by the court where it is of the opinion it is expedient to do so. Both CSOs and RLOs are imposed by the court as a direct alternative to a custodial sentence.

438. The section also provides for disqualification from jury service in Scotland of those persons who receive equivalent English and Northern Irish community orders and DTTOs. Persons who are convicted and receive a community disposal in England and Wales or in Northern Ireland are disqualified from jury service in these jurisdictions. If these persons move to Scotland, this section provides that they will also be disqualified from jury service in Scotland.

439. Section 1(1)(d) of, and Part II of Schedule 1 to the 1980 Act list individuals who are disqualified from jury service.

440. Subsection (1) inserts a new paragraph into Schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 to add to the list of those disqualified from jury service. It provides that persons who have been convicted of an offence and as a result were given one or more specified community disposals will be disqualified from serving on a jury. So that a disqualification in respect of probation orders would be effective, it also disapplies section 247 of the 1995 in relation to such orders.

441. Subsection (1) applies except where the persons who have received a relevant order are rehabilitated persons for the purposes of the Rehabilitation of Offenders Act 1974. The 1974 Act provides for a rehabilitative period after which the conviction imposed is treated as spent. Section 5 of the 1974 Act specifies the rehabilitation periods in respect of specific disposals.

442. Subsection (2) provides, that subject to subsection (3), the provisions in subsection (1) will apply even if the community disposal was made before that subsection is brought into force. Consequently any person who is subject to a relevant order (and is not yet rehabilitated in accordance with the 1975 Act) will be disqualified from serving on a jury from the date on which the provision is brought into force. Subsection (3) provides that a person who has been cited for jury service or was serving on a jury and who would otherwise be disqualified from jury service on the coming into force of that subsection would not be excused or disqualified from jury service. The effect of the two subsections is that subsection (2) retrospectively disqualifies individuals who are subject to the provisions in subsection (1) from serving on a jury, unless (under subsection (3)) the individual has already been cited to appear as a juror.

Section 79 - Separation of jury after retiral

443. Section 79 amends section 99 of the Criminal Procedure (Scotland) Act 1995 to provide judges with the power to allow jurors to go home overnight even after they have retired to consider their verdict.

444. Section 99(4) of the 1995 Act provides that the judge may give appropriate instructions as regards the making of arrangements for overnight accommodation for the jury and for their continued seclusion if such accommodation is provided. This section is traditionally read as making the seclusion of the jury mandatory.

445. Section 79 inserts a new subsection (7) to provide the court with the power to allow the jury to separate after it has retired to consider its verdict, if this is considered appropriate.

Section 80 - Television link from court to prison or other place of detention

446. Section 80 provides for certain court proceedings, not including a hearing at which evidence is to be heard on the charge, to take place by live television link between a prison and the High Court and Sheriff Court.

447. The accused will use this link to watch the proceedings and communicate with the court and with those representing him or her as if present in court in person.

448. The court retains discretion to halt this arrangement before or during the diet and to postpone or adjourn the proceedings to the next court day, not being a Saturday, Sunday or court holiday in order that the accused be brought physically before the court. Where a postponement or adjournment occurs, any delay will not count towards any time limit in respect of the case.

Section 81 - Warrants issued in Northern Ireland for search of premises in Scotland

449. Section 81(1) provides that a search warrant granted by a magistrate or county court judge in Northern Ireland to search premises in Scotland may be endorsed by a sheriff or justice of the peace in Scotland within whose jurisdiction the premises may be found, and such endorsement authorises the search of the premises in Scotland as if the Scottish judge had originally granted the search warrant.

450. Subsection (2) prescribes the manner of endorsement as that specified by section 4(1) of the Summary Jurisdiction (Process) Act 1881. Under section 4, a process may be issued and endorsed by a court of summary jurisdiction by proof of the handwriting of the officer making the endorsement, such proof being by oath or declaration before a sheriff or justice of the peace. A form of endorsement is set out in the Schedule to that Act.

Section 82 - Use of electronic communication or electronic storage in connection with warrants to search

451. Section 82 enables the Scottish Ministers to make a statutory instrument to authorise the use of electronic communications or electronic storage in connection with certain search warrants.

452. Subsection (1) specifies that the warrants referred to are those granted under section 134(1) of the Criminal Procedure (Scotland) Act 1995. These common law warrants are most often used when the prosecutor, in carrying out his or her investigative role, seeks a search warrant before a person has been charged with an offence. However, such warrants can also be applied for after summary proceedings have begun. The subsection is without prejudice to section 8 of the Electronic Communications Act 2000 (the 2000 Act). Section 8 of the 2000 Act (power to modify legislation) is designed to remove restrictions arising from other legislation which prevent the use of electronic communications or storage in place of paper, and to enable the use of electronic communications or storage of electronic data to be regulated where it is already allowed. However, section 8 is restricted to the modification of statutory provisions and cannot be used to modify common law rules.

453. Subsection (2) makes provision so that the Scottish Ministers may, by order, in relation to these search warrants, modify any rule of law or practice and procedure in relation to criminal proceedings (i.e. common law) so as to facilitate the use of electronic communication or electronic storage, instead of other forms of communication or storage.

454. Subsection (3) details the purposes for which the Scottish Ministers may make provision under subsection 2. These are the same as the purposes mentioned in relation to the provisions which may be modified under section 8(1) of the 2000 Act and in any of the paragraphs (a) to (f) of section 8(2). Section 8(2) of the 2000 Act describes the purposes for which modification by order may be made. An example of such a purpose, contained in section 8(2)(a) of the 2000 Act, is "the doing of anything which under such provisions is required to be or may be done or evidenced in writing or otherwise using a document".

455. Subsection (4) places a limitation on Ministers' power to make an order. The order is subject to negative procedure. Before making an order they must consider that authorising the option of electronic communication or storage will not result in arrangements for record keeping that are less satisfactory than those in existence.

456. Subsection (5) applies section 8(4) to (6) and (8) and section 9(5) and (6) of the 2000 Act to orders made under subsection (2). Section 8(4) and (5) of the 2000 Act specify the types of provision about electronic communications or the use of electronic storage that may be made. These relate to certain practical matters e.g. "provision as to the electronic form to be taken" and "provision requiring persons to prepare and keep records in connection with any use of electronic communications or electronic storage". Section 8(5) of the 2000 Act relates to section 8(4)(g) and concerns the practicalities that may need to be proved in legal proceedings, such as the time and date on which things were done. Section 8(6) of the 2000 Act provides that an order cannot require the use of electronic communications or storage. However, when someone has previously chosen the electronic option, the variation or withdrawal of such a choice may be subject to a period of notice specified in the order. Section 8(8) of the 2000 Act applies the provisions of section 8 to subordinate legislation as appropriate. Sections 9(5) and (6) of the 2000 Act make provisions in relation to any conditions and requirements imposed by an order and that different arrangements can be made for different cases.

457. Finally, by virtue of section 59 of the Bill, sheriffs, justices and stipendiary magistrates will be able to sign warrants outside their own jurisdiction provided they are in Scotland. These provisions will apply equally to electronic warrants if provision is made under the order making power in this section. The electronic signature will therefore be able to be applied by the sheriff anywhere in Scotland.

Section 83 - Anti-Social Behaviour Strategies

458. Section 83 inserts a new section 22A into the Crime and Disorder Act 1998, which imposes a statutory duty on local authorities and Chief Constables to prepare, review and publish a strategy for dealing with anti-social behaviour within the authority's area.

459. Section 22A(1) requires each local authority to prepare jointly with the relevant Chief Constable a strategy for dealing with anti-social behaviour within its area and to publish that strategy. Section 22A(2) sets out that the strategy should include specific provision for how the two parties will co-ordinate their functions and the arrangements for exchange of information in relation to anti-social behaviour.

460. Section 22A(3) requires both parties to keep the strategy under review, to revise it as necessary and to publish any revised strategy. Section 22A(4) defines the terms used in this section.