Scotland Bill

Page 11, line 1, at end insert—

“( ) Subject to the rights of appeal created by the provisions of section 98A of the 1998 Act, the High Court shall remain the final court of criminal appeal in all criminal cases brought in Scotland, whether prosecuted by the Lord Advocate or by any other person or body.”

Page 11, line 6, leave out “The Lord Advocate and”

Page 11, line 6, leave out “rights etc” and insert “and Community law”

Page 11, leave out lines 7 to 10 and insert—

“( ) This section applies to any act or failure to act of any public authority occurring in the course of criminal proceedings if, in the course of those proceedings before any criminal court, that act or failure to act is alleged to be incompatible with any of the Convention rights or with Community law.

( ) In this section the term “public authority” has the same meaning as in section 6 of the Human Rights Act 1998.

( ) In this section the term “in the course of criminal proceedings” means and includes any time commencing with the detention or arrest of any person for a crime or offence that is the subject of those proceedings and ending with the pronouncing of the final interlocutor in proceedings before the High Court.”

Page 11, leave out lines 17 to 19 and insert—

“( ) An appeal to the Supreme Court under this section against a determination by a court of two or more judges of the High Court of Justiciary lies only with permission of that court or, failing such permission, with permission of the Supreme Court; but permission shall not be granted unless it is certified by the High Court that a point of law of general public importance is involved in the decision; and also it appears to the High Court or the Supreme Court (as the case may be) that the point is one which ought to be considered by the Supreme Court.

( ) The High Court must give reasons for any decision to withhold a certificate under the foregoing subsection; but that decision is final;

( ) An application for permission to appeal under this section—

(a) if made to the High Court, must be made within 28 days of the date of the final determination of the proceedings in that court or, as the case may be, the determination on a reference under section 17A (Compatibility questions: references to High Court and Supreme Court) of the Scotland Act 2012;

(b) if made to the Supreme Court, must be made within 28 days of the date on which the High Court refused permission under section 17A (Compatibility questions: references to High Court and Supreme Court) of the Scotland Act 2012.

( ) Except as provided by this Act, no appeal shall lie from any decision of the High Court on any question relating to compatibility.”

Page 11, leave out lines 20 to 34

Page 11, leave out lines 35 to 41 and insert—

“( ) In relation to an appeal under this section, the Supreme Court may (when determining a question relating to compatibility)

(a) determine and resolve the point of law of general public importance raised in the certificate;

(b) restate and reformulate the point of law, if it considers that to be necessary in the interests of justice, and determine the point of law as restated and reformulated;

(c) remit any issue for determination by the High Court.

( ) When the Supreme Court has determined an appeal under this section, it shall remit the case to the court below to proceed as accords in the light of that determination.”

Page 11, line 41, at end insert—

“( ) Subject to the provisions of the following subsections, no appeal to the Supreme Court shall be competent until all proceedings in the courts below, including appeal proceedings, have been concluded.

( ) The High Court may, if it considers that it would serve the interests of justice, grant permission to appeal, and a certificate under subsection (5) of this section, at any earlier stage in the proceedings; and, without prejudice to the forgoing generality, the High Court may grant such permission and certificate even if any question relating to sentence remains to be determined.”

Page 11, line 41, at end insert—

“( ) An appeal to the Supreme Court for the determination of a compatibility issue in any criminal proceedings may be instituted by the Advocate General for Scotland or by the Lord Advocate, at any time, if he considers that the issue raises a point of law of general public importance, but such an appeal lies only with the permission of the High Court or, failing such permission, with permission of the Supreme Court, and

(a) The Lord Advocate and the Advocate General for Scotland may take part in such proceedings;

(b) This subsection is without prejudice to any power to institute or defend proceedings exercisable by any other person.”

Page 11, line 44, after “But” insert “, for the removal of doubt,”

Lord McCluskey gives notice of his intention to oppose the Question that Clause 17 stand part of the Bill.

Insert the following new Clause—

“17A Compatibility questions: references to High Court and Supreme Court

(1) A court, other than any court of two or more judges of the High Court, may refer any compatibility question that arises in criminal proceedings before it to the High Court for determination.

(2) The Lord Advocate or the Advocate General for Scotland for Scotland may require any court other than a court of two or more judges of the High Court to refer any compatibility question that arises in criminal proceedings before it to the High Court for determination.

(3) The High Court need not determine a compatibility question on a reference under subsection (1) or in pursuance of subsection (2) unless it considers that determination of the question by it is appropriate to enable the proceedings before the court making the reference to be finally determined.

(4) Subsection (5) applies where the Lord Advocate or the Advocate General for Scotland for Scotland considers that the determination of a compatibility question by a court of two or more judges of the High Court raises a point of general public importance that ought to be considered by the Supreme Court.

(5) The Lord Advocate or the Advocate General for Scotland for Scotland may require the High Court to refer the question to the Supreme Court for determination.”