Special provision where appellant is Lord Advocate.

HC Deb 16 December 1992 vol 216 cc496-9

242A. Where the Lord Advocate is the appellant, sections 241 and 242 of this Act shall apply in respect of the convicted person, if in custody, as they apply to an appellant or applicant in custody.". () In section 243 (provision as to warders attending court), for the words "the last foregoing section" there shall be substituted the words "section 242 of this Act". () In section 252 (powers of High Court), after the words "228(1)" there shall be inserted the words "or 228A () In section 258 (sentence in absence), after the word "appellant" there shall be inserted the words "(or, where the 'Lord Advocate is the appellant, the convicted person)". () In section 261 (notice of determination of appeal), after the word "applicant" there shall be inserted the words "(or, where the Lord Advocate is the appellant, to the convicted person)". () In section 264 (disqualification, forfeiture, etc), in each of subsections (1) and (2)—

1. (a) for the word "two" there shall be substituted the word "four"; and
2. (b) after the words "228(1)(b)" there shall be inserted the words "or 228A".

() In section 265 (fines and caution), after subsection (4) there shall be inserted the following subsection— (4A) A convicted person who has been sentenced to the payment of a fine and has duly paid it shall, if an appeal against sentence by the Lord Advocate results in the sentence being quashed and no fine, or a lesser fine than that paid, being imposed, be entitled, subject to any order of the High Court, to the return of the sum paid or as the case may be to the return of the amount by which that sum exceeds the amount of the lesser fine.". () In section 268 (reckoning of time spent in custody pending appeal)—

1. (a) in subsection (1)—
1. (i) for the words "an appellant" there shall be substituted the words "a convicted person";
2. (ii) after the word "appeal" there shall be inserted the words ?, or as the case may be of any appeal by the Lord Advocate against the sentence passed on conviction,"; and
3. (iii) for the word "this", where it occurs qualifying the word "sentence", there shall be substituted the word "that";
2. (b) for subsection (2) there shall be substituted the following subsection—

(2) The time (including any period consequent on the recall of bail) during which a convicted person is in custody pending the determination of his appeal, or as the case may be of any appeal by the Lord Advocate against the sentence passed on conviction, shall subject to any direction which the High Court may give to the contrary be reckoned as part of any term of imprisonment under that sentence."; and (c) in subsection (3), after the word "appellant' there shall be inserted the words "(or, where the appellant is the Lord Advocate, of a convicted person)". () In section 269 (extract convictions)—

1. (a) for the word "two" there shall be substituted the word "four"; and
2. (b) after the words "228(1)(b)" there shall be inserted the words "or 228A".

() In section 270 (custody of trial documents, etc.)—

1. (a) in subsection (2)—
1. (i) for the words from the beginning to "proceedings" there shall be substituted the words "Until any period allowed under or by virtue of this Part of this Act for lodging intimation of intention to appeal (or any longer period allowed by virtue thereof for lodging a note of appeal) has elapsed, all documents and other productions produced at the trial of a convicted person shall be kept";
2. (ii) after the words "228(1)(b)" there shall be inserted the words "or 228A"; and
3. (iii) the words "of two weeks or any extension thereof authorised by the High Court" shall cease to have effect;
2. (b) in subsection (3)—
1. (i) after the words "228(1)(b)" there shall be inserted the words "or 228A"; and
2. (ii) for the words "to his" there shall be substituted the words ", as the case may be, to the convicted person's"; and
3. (c) in subsection (4)—
1. (i) after the words "228(1)(b)" there shall be inserted the words "or 228A"; and
2. (ii) for the words "such period of two weeks or extension thereof as aforesaid" there shall be substituted the words "the period mentioned in subsection (2) above".

() In section 273(1)(register of appeals), after the words "228(1)(b)" there shall be inserted the words "or 228A".'.

No. 18, in page 41, line 48, at end insert— ?() In section 277(2)(list of provisions non-compliance with which may be waived), in the first column, under the entry relating to section 242, there shall be inserted the entry "242A".'.

No. 19, in page 42, line 14, at end insert— ?() In section 442(1)(b)(ii) (prosecutor's appeal against sentence on point of law), for the words "in such proceedings" there shall be substituted the words "on such conviction". () In section 442B (method of appeal against sentence alone)—

1. (a) after the words "Where a" there shall be inserted the word "convicted";
2. (b) after the word "Act", where it first occurs, there shall be inserted the words ", or the prosecutor desires so to appeal by virtue of section 442(1)(c) thereof,"; and
3. (c) for the proviso there shall be substituted the words "; but nothing in this section shall prejudice any right to proceed by bill of suspension, or as the case may be advocation, against an alleged fundamental irregularity relating to the imposition of the sentence.".

()In section 452A (disposal of stated case appeal)—

1. (a) in subsection (1), after the word "subject" there shall be inserted the words "to subsection (2) below and"; and
2. (b) for subsection (2) there shall be substituted the following subsection—

(2) The High Court shall, in an appeal—

1. (a) against both conviction and sentence, subject to section 453D(l) of this Act, dispose of the appeal against sentence; or
2. (b) by the prosecutor, against sentence, dispose of the appeal,

by exercise of the power mentioned in section 453C(1) of this Act.". In section 453B (appeals against sentence only)—

1. (a) in each of subsections (1), (7) and (8), after the words "442(1)(a)(ii)" there shall be inserted the words ", or by virtue of section 442(1)(c),";
2. (b) for subsection (2) there shall be substituted the following subsection—

(2) The note of appeal shall, where the appeal is—

1. (a) under section 442(1)(a)(ii) be lodged, within one week of the passing of the sentence, with the clerk of the court from which the appeal is to be taken; or
2. (b) by virtue of section 442(1)(c) be so lodged within four weeks of such passing.";
3. (c) in subsection (6), for the word "(2)" there shall be substituted the words "(2)(a)"; and
4. (d) in subsection (8), at the end, there shall be added the words "except that, for the purposes of such application to any appeal by virtue of section 442(1)(c), references in subsections (1) to (3) of section 446 to the appellant shall be construed as references to the convicted person and subsection (4) and (5) of section 446 shall be disregarded".

() In section 453C(3) (powers of High Court at time of disposal of appeal)—

1. (a) after the words "442(1)(a)(ii)" there shall be inserted the words ", or by virtue of section 442(1)(c),"; and
2. (b) for the word "appellant", in each place where it occurs, there shall be substituted the words "convicted person".'.—[Lord James Douglas-Hamilton.]

Lord James Douglas-Hamilton

I beg to move amendment No. 20, in page 44, line 5, at end insert— ?() In section 14(l) (legalised police cells), after the word "under" there shall be inserted the words "section 39 of".'.

Madam Deputy Speaker

With this it will be convenient to take Government amendments Nos. 21, 22, 23, 25 and 26.

Lord James Douglas-Hamilton

During earlier consideration of the Bill, I made it clear that the Government intend a wholesale revision and replacement of the Prison (Scotland) Rules 1952 and of standing orders made under those rules. These amendments may be regarded as evidence that work is in progress to achieve that intention. In the course of that work, it has been noted that some of the provisions in the Prisons (Scotland) Act 1989 leave one in doubt about the nature and standing of the rules to which they refer.

Amendments Nos. 20, 21 and 22 will make it clear that all rules made under the Act are to be made under section 39 of the Act which will ensure that the new rules that are being prepared will be comprehensive and will be made under a single enabling provision.

Amendment No. 23 will simplify and clarify the terms of section 42 of the Act which, as amended, will require all rules and orders made under the Act to be made by statutory instruments subject to annulment in pursuance of a resolution of either House. The other amendments are consequential.

Amendment agreed to.

Amendment made: No. 21, in page 44, line 6, leave out sub-paragraph (3) and insert— '(3) In section 19 (provisions of 1989 Act applying to remand centres and young offenders institutions)—

1. (a) in subsection (3), for the words "the rules" there shall be substituted the words "rules under section 39 of this Act"; and
2. (b) in subsection (4), in sub-paragraph (iii) of the proviso—

1. (i) for the words "paragraphs (i) and (ii)" there shall be substituted the words "paragraph (i)"; and
2. (ii) for the words "of the Secretary of State" there shall be substituted the words "under section 39 of this Act".'.

No. 22, in page 44, line 13, at end insert— ?() In section 39(1) (rules for the management of prisons and other institutions)—

1. (a) the word "and", where it occurs for the third time, shall cease to have effect; and
2. (b) at the end there shall be added the words "and for any other matter as respects which it is provided in this Act that rules may be made under this section".'.

No. 23, in page 44, line 27, leave out from beginning to ?rules' in line 32 and insert ', for the words from "regulations" to the end there shall be substituted the words "an order made under section 37(1) or".'.—[Lord James Douglas-Hamilton.]