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The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020

Sections30
2020 No. 339

Exiting The European Union

Criminal Law

Criminal Procedure

Electronic Communications

Licences And Licensing

The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020

Made27th October 2020
Laid before the Scottish Parliament29th October 2020
Coming into force in accordance with regulation 1

The Scottish Ministers make the following Regulations in exercise of the powers conferred by paragraphs 1(1) and (3) and 11G(1) of schedule 2 and paragraph 21(b) of schedule 7 of the European Union (Withdrawal) Act 20181 and all other powers enabling them to do so.

In accordance with paragraph 4 of schedule 2 of that Act, they have consulted with the Secretary of State.

PART 1 Preliminary

I21 Citation and commencement

1 These Regulations may be cited as the Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020.
2 Regulation 20 comes into force immediately before IP completion day.
3 All other regulations come into force on IP completion day.

PART 2 Council Framework Decision 2005/214/JHA on the application of the principle of mutual recognition of financial penalties

I182 Interpretation

In this Part, “the 1995 Act” means the Criminal Procedure (Scotland) Act 19952.

I13 Amendment of the 1995 Act

1 The 1995 Act is amended as follows.
2 In section 211(6)3 (fines) for “Except where the provisions of section 223R(2) apply, all” substitute “All”.
3 Omit sections 223A to 223FA and 223H to 223T4.
4 In section 226B5 (enforcement orders)—
a omit subsection (6A), and
b in subsection (7), for “,(6) or (6A)” substitute “or (6)”.
5 Omit section 226HA6.
6 In section 226I7 (enforcement of fines etc.: interpretation)—
a in subsection (1)—
i for “Subject to subsection (1A), in” substitute “In”,
ii for “226HA” substitute “226H”,
iii omit the definitions of “central authority for Scotland”, “certificate”, “competent authority for Scotland”, “decision”, “financial penalty” and “Framework Decision on financial penalties”,
iv in the definition of “enforcement order” for “(6A)” substitute “(6)”,
v in the definition of “relevant court” omit paragraph (d); and
b omit subsection (1A).
7 Omit schedules 11 and 128.

I64 Amendment of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007

1 The Criminal Proceedings etc. (Reform) (Scotland) Act 20079 is amended as follows.
2 Omit section 5610.
3 In section 81(3)(a)11 (orders), omit “56,”.

I75 Consequential revocations

The following are revoked—
a paragraph 19 of the schedule of the Civil Jurisdiction and Judgments Regulations 200712,
b the Mutual Recognition of Criminal Financial Penalties in the European Union (Scotland) Order 200913,
c the Mutual Recognition of Criminal Financial Penalties in the European Union (Scotland) (No. 1) Order 201414,
d the Mutual Recognition of Criminal Financial Penalties in the European Union (Scotland) (No. 2) Order 201415, and
e paragraph 6 of schedule 4 of the Civil Jurisdiction and Judgments (Amendment) Regulations 201416.

I36 Transitional and saving provision: decisions requiring payment of financial penalties received before IP completion day

1 The following provisions of the 1995 Act continue to apply to relevant decisions requiring payment of financial penalties as if the provisions had not been repealed or amended by regulation 317—
a sections 223A to 223E,
b sections 223F and 223FA,
c sections 223H to 223T,
d section 226B(6A) and (7),
e section 226I(1) and (1A),
f schedule 11,
g schedule 12.
2 In paragraph (1) “relevant decisions requiring payment of financial penalties” are decisions which, together with a certificate, have been received before IP completion day by—
a the central authority, or the competent authority, of a member State under section 223B(3) of the 1995 Act (requests to other member States: procedure on issue of certificate), or by any other authority of the member State with no jurisdiction to enforce a penalty but which transmits the decision and certificate to the competent authority, or
b the central authority for Scotland under section 223F(1)(a) of the 1995 Act (recognition of financial penalties: requests from other member States), or by any other authority in Scotland with no jurisdiction to enforce a penalty but which transmits the decision and certificate to the competent authority, where the financial penalty to which the certificate relates meets the requirements of section 223F(1)(b) of the 1995 Act.
3 For the purposes of this regulation—
a “central authority”, “central authority for Scotland” and “certificate” have the same meaning as in section 223T of the 1995 Act (interpretation of sections 223A to 223S),
b “competent authority” in relation to a member State means an authority designated by the State as a competent authority for the purposes of Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties18 as amended by Council Framework Decision 2009/299/JHA19,
c the provisions of the 1995 Act referred to in paragraph (1) are to be read as if the term “member State” included the United Kingdom.

PART 3 Council Framework Decision 2009/829/JHA on the application between member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention

I197 Interpretation

In this Part, “the 2014 Regulations” means the Mutual Recognition of Supervision Measures in the European Union (Scotland) Regulations 201420.

I88 Revocation of the 2014 Regulations

The 2014 Regulations are revoked.

I99 Transitional and saving provision: decisions on supervision measures received before IP completion day

1 The 2014 Regulations continue to apply, as if they had not been revoked by regulation 8, to relevant decisions on supervision measures21.
2 In paragraph (1) “relevant decisions on supervision measures” are decisions received before IP completion day by—
a the central authority or competent authority in the executing State under paragraph 2(3) of schedule 1 of the 2014 Regulations (request to executing State for recognition of a bail order) or any other authority in the executing State with no competence to recognise a decision on supervision measures but which forwards the decision to the competent authority,
b the Scottish central authority under paragraph 2(1) (receipt of a request to forward a decision on supervision measures) or paragraph 3(1) (receipt of a request for recognition of a decision on supervision measures) of schedule 2 of the 2014 Regulations or any other authority in Scotland with no competence to recognise a decision on supervision measures but which forwards the decision to the competent authority.
3 For the purposes of this regulation—
a “central authority” and “competent authority” have the same meaning as in regulation 2(1) of the 2014 Regulations,
b “the executing State” means the member State of the central authority or competent authority to which the request is made,
c “Scottish central authority” has the same meaning as in paragraph 1(1) of schedule 2 of the 2014 Regulations,
d the 2014 Regulations are to be read as if the term “member State” included the United Kingdom.

PART 4 Council Framework Decision 2008/675/JHA on taking account of convictions in the member States of the European Union in the course of new criminal proceedings

I1010 Amendment of the Civic Government (Scotland) Act 1982

For section 58(4A) of the Civic Government (Scotland) Act 198222 (convicted thief in possession) substitute—
.

I1111 Amendment of the Prisoners and Criminal Proceedings (Scotland) Act 1993

In section 27(1) of the Prisoners and Criminal Proceedings (Scotland) Act 199323 (interpretation of Part 1), for the definition of “previous conviction” substitute—
.

I1212 Amendment of the Criminal Law (Consolidation) (Scotland) Act 1995

In section 9(2A)(aa) of the Criminal Law (Consolidation) (Scotland) Act 199524 (permitting girl to use premises for intercourse) after “16” insert “and the court considers it appropriate for the conviction to have that effect”.

I413 Amendment of the Criminal Procedure (Scotland) Act 1995

1 The Criminal Procedure (Scotland) Act 199525 is amended as follows.
2 In section 23C(2)(d)(i)26 (grounds relevant as to question of bail) for “the European Union” substitute “Scotland”.
3 In section 23D(5)(b)27 (restriction on bail in certain solemn cases)—
a at the beginning insert “if the court considers appropriate”, and
b omit “other than the United Kingdom”.
4 In section 27 (breach of bail conditions: offences) for subsection (3A)28 substitute—
.
5 In section 6929 (notice of previous convictions) after subsection (7) insert—
.
6 In section 10130 (previous convictions: solemn proceedings) after subsection (11) insert—
.
7 In section 101A(5)31 (post-offence convictions etc.) for “in any other” substitute “, where the court considers appropriate, in any”.
8 In section 16632 (previous convictions: summary proceedings) after subsection (11) insert—
.
9 In section 166A(5)33 (post-offence convictions etc.) for “in any other” substitute “, where the court considers appropriate, in any”.
10 In section 202(2)34 (deferred sentence) for “in another” substitute “, where the court which deferred sentence considers appropriate, by a court in any”.
11 In section 204 (restrictions on passing sentence of imprisonment or detention)—
a in subsections (1) and (2)35 for “in another” substitute “or, where the court passing sentence considers appropriate, by a court in any”, and
b in subsection (4A)36 omit “other than the United Kingdom”.
12 In section 205B37 (minimum sentence for third conviction of certain offences relating to drug trafficking)—
a in subsection (1A)(b) for “other than the United Kingdom” substitute “which the court passing sentence considers appropriate to take into account”,
b after subsection (5) insert—
.
13 In section 210C(1)38 (risk assessment report) after “convicted person” insert “, including a conviction by a court in any part of the United Kingdom or in any member State of the European Union,”.
14 In section 271S(2)(e)39 (relevant considerations) after “of the witness” insert “, including any convictions by a court in any part of the United Kingdom or in any member State of the European Union,”.
15 In section 275A40(disclosure of accused’s previous convictions where court allows questioning or evidence under section 275)—
a in subsection (2) for “Any” substitute “Subject to subsection (2A) any”,
b after subsection (2) insert—
,
c in subsection (3) for “such a conviction” substitute “a conviction referred to in subsection (2)”, and
d for subsection (10)(aa)41 substitute—
.
16 In section 28642 (previous convictions: proof in support of substantive charge)—
a in subsection (1) after “previous conviction” insert “including a conviction by a court in a member State of the European Union”,
b in subsection (3) for “another” substitute “a”.
17 In section 286A(1)43 (proof of previous conviction by court in other member State) for “another” substitute “a”.
18 In section 307(5)(a)44 (interpretation) omit “or in any other member State of the European Union”.

I1314 Amendment of the Sexual Offences (Scotland) Act 2009

Section 39 of the Sexual Offences (Scotland) Act 200945 (defences in relation to offences against older children) is amended as follows—
a in subsection (2)(a)(ia) and (b)(ia)46 after “of 16” insert “and the court before which the charge is brought considers it is appropriate for that conviction to have that effect”, and
b in subsection (5)(aa)47 omit “other than the United Kingdom”.

I1415 Amendment of the Criminal Justice and Licensing (Scotland) Act 2010

1 The Criminal Justice and Licensing (Scotland) Act 201048 is amended as follows.
2 In section 71 (convictions by courts in other EU member States) omit subsections (2), (3) and (4).
3 In section 201 (orders and regulations) omit subsection (4)(b).
4 In paragraph 12 of schedule 4 in the definition of “previous conviction”—
a after “or” insert “,where the court considers it to be appropriate,”, and
b omit “other”.

I516 Transitional and saving provision: proceedings commenced before IP completion day

1 This Part does not apply in relation to criminal proceedings commenced before IP completion day or appellate proceedings arising out of such criminal proceedings49.
2 For the purposes of paragraph (1), criminal proceedings are commenced—
a in summary proceedings, on the date of the first calling of the case, and
b in solemn proceedings, on the earliest of—
i the date of the grant of a warrant to arrest and commit,
ii the date of the intimation of a petition,
iii the date of the service of an indictment.

PART 5 Directive 2012/13/EU on the right to information in criminal proceedings

I1517 Amendment of the Criminal Justice (Scotland) Act 2016

In section 5(3) of the Criminal Justice (Scotland) Act 201650 (information to be given at police station) for “requirements of” substitute “requirements placed on member States by”.

PART 6 Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings

I1618 Amendment of the Right to Interpretation and Translation in Criminal Proceedings (Scotland) Regulations 2014

1 The Right to Interpretation and Translation in Criminal Proceedings (Scotland) Regulations 201451 are amended as follows.
2 In regulations 3(3)(b), 4(2)(b), 8(2)(b) and 9(2)(b) after “in accordance with” insert “the requirements placed on member States by”.

PART 7 Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce in the Internal Market (Directive on electronic commerce)

Extreme Pornography

F119 Amendment of the Extreme Pornography (Electronic Commerce Directive) (Scotland) Regulations 2011

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 8 Licenses and Licensing

I1720 Amendment of the Licensing (Amendment) (EU Exit) (Scotland) Regulations 2019

1 The Licensing (Amendment) (EU Exit) (Scotland) Regulations 201952 are amended as follows.
2 In regulation 7 (saving provision), for “exit day” substitute “IP completion day”.

Footnotes

  1. I1
    Reg. 3 in force at 31.12.2020 (in force on IP completion day in accordance with 2020 c. 1, s. 39(1)), see reg. 1(3)
  2. I2
    Reg. 1 in force at 31.12.2020 (in force on IP completion day in accordance with 2020 c. 1, s. 39(1)), see reg. 1(3)
  3. I3
    Reg. 6 in force at 31.12.2020 (in force on IP completion day in accordance with 2020 c. 1, s. 39(1)), see reg. 1(3)
  4. I4
    Reg. 13 in force at 31.12.2020 (in force on IP completion day in accordance with 2020 c. 1, s. 39(1)), see reg. 1(3)
  5. I5
    Reg. 16 in force at 31.12.2020 (in force on IP completion day in accordance with 2020 c. 1, s. 39(1)), see reg. 1(3)
  6. I6
    Reg. 4 in force at 31.12.2020 (in force on IP completion day in accordance with 2020 c. 1, s. 39(1)), see reg. 1(3)
  7. I7
    Reg. 5 in force at 31.12.2020 (in force on IP completion day in accordance with 2020 c. 1, s. 39(1)), see reg. 1(3)
  8. I8
    Reg. 8 in force at 31.12.2020 (in force on IP completion day in accordance with 2020 c. 1, s. 39(1)), see reg. 1(3)
  9. I9
    Reg. 9 in force at 31.12.2020 (in force on IP completion day in accordance with 2020 c. 1, s. 39(1)), see reg. 1(3)
  10. I10
    Reg. 10 in force at 31.12.2020 (in force on IP completion day in accordance with 2020 c. 1, s. 39(1)), see reg. 1(3)
  11. I11
    Reg. 11 in force at 31.12.2020 (in force on IP completion day in accordance with 2020 c. 1, s. 39(1)), see reg. 1(3)
  12. I12
    Reg. 12 in force at 31.12.2020 (in force on IP completion day in accordance with 2020 c. 1, s. 39(1)), see reg. 1(3)
  13. I13
    Reg. 14 in force at 31.12.2020 (in force on IP completion day in accordance with 2020 c. 1, s. 39(1)), see reg. 1(3)
  14. I14
    Reg. 15 in force at 31.12.2020 (in force on IP completion day in accordance with 2020 c. 1, s. 39(1)), see reg. 1(3)
  15. I15
    Reg. 17 in force at 31.12.2020 (in force on IP completion day in accordance with 2020 c. 1, s. 39(1)), see reg. 1(3)
  16. I16
    Reg. 18 in force at 31.12.2020 (in force on IP completion day in accordance with 2020 c. 1, s. 39(1)), see reg. 1(3)
  17. I17
    Reg. 20 in force at 31.12.2020 (in force immediately before IP completion day in accordance with 2020 c. 1, s. 39(1)), see reg. 1(2)
  18. I18
    Reg. 2 in force at 31.12.2020 (in force on IP completion day in accordance with 2020 c. 1, s. 39(1)), see reg. 1(3)
  19. I19
    Reg. 7 in force at 31.12.2020 (in force on IP completion day in accordance with 2020 c. 1, s. 39(1)), see reg. 1(3)
  20. F1
    Reg. 19 omitted (7.5.2026) by virtue of The Electronic Commerce (Amendment and Consequential Provision) Regulations 2026 (S.I. 2026/407), regs. 1(2), 8(2)
  21. 1
    2018 c.16. Paragraph 11G of schedule 2 was added by the European Union (Withdrawal Agreement) Act 2020 c.1, section 19.
  22. 2
    1995 c.46.
  23. 3
    Section 211(6) was amended by the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), schedule 1, paragraph 20(1)(b) and S.S.I. 2009/342.
  24. 4
    Sections 223A, 223B, 223C, 223D, 223E, 223F, 223G, 223H, 223I, 223K, 223L, 223M, 223N, 223O, 223P, 223Q, 223R, 223S and 223T were inserted by S.S.I. 2009/342; section 223FA was inserted by S.S.I. 2014/322. Sections 223E, 223H and 223I were amended by S.S.I 2014/322; section 223G was repealed by S.S.I. 2014/322. Section 223H and 223T were amended by S.S.I. 2014/336.
  25. 5
    Section 226B was added by the Criminal Proceedings etc. (Reform) (Scotland) Act 2007, section 55 and amended by S.S.I. 2009/342.
  26. 6
    Section 226HA was added by S.S.I. 2009/342.
  27. 7
    Section 226I was added by the Criminal Proceedings etc. (Reform) (Scotland) Act 2007, section 55 and amended by S.S.I. 2009/342.
  28. 8
    Schedules 11 and 12 were inserted by S.S.I 2009/342. Schedule 12 was amended by S.S.I. 2014/322 and S.S.I. 2014/336.
  29. 9
    2007 asp 6.
  30. 10
    Section 56 was amended by S.I. 2007/1655, paragraph 19 of the schedule and S.I. 2014/2947 schedule 4, paragraph 6.
  31. 11
    Section 81(3)(a) was amended by the Courts Reform (Scotland) Act 2014 (asp 18), section 127(4).
  32. 12
    S.I. 2007/1655.
  33. 13
    S.S.I. 2009/342.
  34. 14
    S.S.I. 2014/322.
  35. 15
    S.S.I. 2014/336.
  36. 16
    S.I. 2014/2947.
  37. 17
    See Article 62(1)(d) of the withdrawal agreement and sections 7A and 7C of the European Union (Withdrawal) Act 2018.
  38. 18
    OJ L 76,22.03.2005, p.16.
  39. 19
    OJ L 81, 27.03.2009, p.24.
  40. 20
    S.S.I. 2014/337, amended by the Courts Reform (Scotland) Act 2014 (asp 18) section 130(4) and S.S.I. 2015/338.
  41. 21
    See Article 62(1)(i) of the withdrawal agreement and sections 7A and 7C of the European Union (Withdrawal) Act 2018.
  42. 22
    1982 c.45; section 58(4A) was added by the Criminal Justice and Licensing (Scotland) Act 2010, (asp 13), schedule 4, paragraph 9.
  43. 23
    1993 c.9; the definition of “previous conviction” was inserted by the Criminal Justice and Licensing (Scotland) Act 2010, schedule 4, paragraph 10.
  44. 24
    1995 c.39; section 9(2A) was added by the Sexual Offences (Scotland) Act 2009 (asp 9), schedule 5, paragraph 1(4) and sub-sub section (aa) was added by the Criminal Justice and Licensing (Scotland) Act 2010, schedule 4, paragraph 11.
  45. 25
    1995 c.46.
  46. 26
    Section 23C(2)(d)(i) was added by the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), section 1 and amended by the Criminal Justice and Licensing (Scotland) Act 2010, schedule 4, paragraph 2.
  47. 27
    Section 23D was added by the Criminal Proceedings etc. (Reform) (Scotland) Act 2007, section 1.
  48. 28
    Section 27(3A) was added by the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), schedule 4, paragraph 3.
  49. 29
    Section 69 was amended by the Criminal Justice (Scotland) Act 2003 (asp 7), schedule 1, paragraph 2, the Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), schedule 1, paragraph 19, the Criminal Proceedings etc. Reform (Scotland) Act 2007 (asp 6), section 53(1) and the Wildlife and Natural Environment (Scotland) Act 2011 (asp 6) section 40(3).
  50. 30
    Section 101 was amended by the Crime and Punishment (Scotland) Act 1997 (c.48), schedule 3, paragraph 1, the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), section 10(1)(a), the Criminal Justice (Scotland) Act 2003, section 57(2) and schedule 1, paragraph 2(3), the Criminal Proceedings etc. (Reform) (Scotland) Act 2007, section 53(2) and the Wildlife and Natural Environment (Scotland) Act 2011, section 40(3).
  51. 31
    Section 101A was added by the Criminal Justice and Licensing (Scotland) Act 2010, section 70(1).
  52. 32
    Section 166 was amended by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002, section 10(2), the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 sections 12(1) and 53(3) and the Wildlife and Natural Environment (Scotland) Act 2011, section 40(3).
  53. 33
    Section 166A was substituted by the Criminal Justice and Licensing (Scotland) Act 2010, section 70(2).
  54. 34
    Section 202(2) was amended by the Criminal Justice and Licensing (Scotland) Act 2010, schedule 4, paragraph 4.
  55. 35
    Section 204(1) and (2) were amended by the Criminal Justice and Licensing (Scotland) Act 2010, schedule 4, paragraph 5(a). Section 204(2) was amended by the Crime and Punishment (Scotland) Act 1997 c.48, schedule 3, paragraph 1.
  56. 36
    Section 204(4A) was added by the Criminal Justice and Licensing (Scotland) Act 2010, schedule 4, paragraph 5(b).
  57. 37
    Section 205B was added by the Crime and Punishment (Scotland) Act 1997, section 2(1). Subsection (1A) was added by the Criminal Justice and Licensing (Scotland) Act 2010, schedule 4, paragraph 6(b).
  58. 38
    Section 210C was added by the Criminal Justice (Scotland) Act 2003 (asp. 7), section 1(1).
  59. 39
    Section 271S was added by the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), section 90(1).
  60. 40
    Section 275A was added by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp. 9), section 10.
  61. 41
    Subsection (10)(aa) was added by the Criminal Justice and Licensing (Scotland) Act 2010, schedule 4, paragraph 7(a).
  62. 42
    Section 286(3) was added by the Criminal Justice (Scotland) Act 2003, section 57(3).
  63. 43
    Section 286A was added by the Criminal Justice (Scotland) Act 2003, section 57(4).
  64. 44
    Section 307(5) was amended by the Criminal Justice (Scotland) Act 2003, section 57(5)(b) and by the Criminal Justice and Licensing (Scotland) Act 2010, schedule 4, paragraph 8(b).
  65. 45
    2009 asp 9; section 39 was amended by the Criminal Justice and Licensing (Scotland) Act 2010, section 44 and schedule 4, paragraph 13.
  66. 46
    Section 39(2)(a)(ia) and (2)(b)(ia) were added by the Criminal Justice and Licensing (Scotland) Act 2010, schedule 4, paragraphs 13(2)(a) and (b).
  67. 47
    Section 39(5)(aa) was added by the Criminal Justice and Licensing (Scotland) Act 2010, schedule 4, paragraph 13(3).
  68. 48
    2010 asp 13.
  69. 49
    See Article 62(1)(g) of the withdrawal agreement and sections 7A and 7C of the European Union (Withdrawal) Act 2018.
  70. 50
    2016 asp 1.
  71. 51
    S.S.I. 2014/95.
  72. 52
    S.S.I. 2019/6.