| Bail, Judicial Appointments etc. (Scotland)
Act 2000 |
| 2000 asp 9 - continued |
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The Bill for this Act of the Scottish Parliament was passed by the
Parliament on 5th July 2000 and received Royal Assent on 9th August
2000
An Act of the Scottish Parliament to change the law about bail; to
enable alteration in the number of judges in the Inner House of the
Court of Session; to abolish temporary sheriffs and create a new kind
of sheriff; to change the law about justices of the peace; and to abolish
district court prosecutions brought on behalf of or by local authorities.
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PART 1
BAIL
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1 Consideration
of bail on first appearance
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Before section 23 (bail applications) of the Criminal
Procedure (Scotland) Act 1995 (c.46) (the "1995 Act"), there is
inserted-
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"22A Consideration of bail on first appearance
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(1) On the first occasion on which-
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(a) a person accused on petition is brought
before the sheriff prior to committal until liberated
in due course of law; or
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(b) a person charged on complaint with
an offence is brought before a judge having jurisdiction
to try the offence,
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the sheriff or, as the case may be, the judge
shall, after giving that person and the prosecutor an opportunity
to be heard and within the period specified in subsection
(2) below, either admit or refuse to admit that person to
bail.
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(2) That period is the period of 24 hours beginning
with the time when the person accused or charged is brought
before the sheriff or judge.
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(3) If, by the end of that period, the sheriff
or judge has not admitted or refused to admit the person accused
or charged to bail, then that person shall be forthwith liberated.
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(4) This section applies whether or not the
person accused or charged is in custody when that person is
brought before the sheriff or judge.".
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2 Bail
and liberation where person already in custody
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After section 23 (bail applications) of the 1995 Act
there is inserted-
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"23A Bail and liberation where person already in
custody
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(1) A person may be admitted to bail under section
22A or 23 of this Act although in custody-
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(a) having been refused bail in respect
of another crime or offence; or
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(b) serving a sentence of imprisonment.
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(2) A decision to admit a person to bail by
virtue of subsection (1) above does not liberate the person
from the custody mentioned in that subsection.
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(3) The liberation under section 22A(3) or 23(7)
of this Act of a person who may be admitted to bail by virtue
of subsection (1) above does not liberate that person from
the custody mentioned in that subsection.
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(4) In subsection (1) above, "another crime or offence" means a crime or offence other than that giving rise to the consideration of bail under section 22A or 23 of this Act.".
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3 Removal
of restrictions on bail
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(1) In section 24 (bail and bail conditions) of the
1995 Act, in subsection (1), the words "except, subject to subsection
(2) below, murder and treason" are repealed.
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(2) Section 26 (bail: circumstances where not available)
of the 1995 Act is repealed.
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4 Removal
of restriction on appeals against refusal of bail
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In section 32 (bail appeal) of the 1995 Act, in subsection
(1), for the words from the beginning to "offence" there is substituted
"Where, in any case, bail".
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PART 2
JUDICIAL APPOINTMENTS
CHAPTER 1
VARIATION OF NUMBER OF INNER HOUSE JUDGES AND FILLING OF VACANCIES
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5 Variation
of number of Inner House judges and filling of vacancies
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In section 2 (composition of court) of the Court of
Session Act 1988 (c.36)-
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(a) after subsection (2) there is
inserted-
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"(2A) The Scottish Ministers may from time to
time by order amend subsection (2) above so as to alter or
further alter the number of senior judges in the two Divisions.
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(2B) The power conferred by subsection (2A)
above may be exercised-
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(a) in relation only to one; or
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(b) differently in relation to each,
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of the two Divisions.
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(2C) An order under this section shall be made
by statutory instrument.
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(2D) No order shall be made under this section
unless a draft of the instrument containing it has been laid
before and approved by resolution of the Scottish Parliament.";
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(b) in subsection (6), for
the words "subsection (7)" there is substituted "subsections
(7) and (8)"; and
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(c) after subsection (7),
there is inserted-
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"(8) The Scottish Ministers shall not give their
consent under subsection (6) above to an appointment filling
a vacancy in one of the two Divisions of the Inner House unless
they are satisfied that the state of business in the Inner
House requires that the vacancy be filled.". |
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CHAPTER 2
TEMPORARY AND PART-TIME SHERIFFS
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6 Abolition
of temporary sheriffs
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(1) In section 11 (appointment of temporary sheriffs
principal and sheriffs) of the Sheriff Courts (Scotland) Act 1971
(c.58) (the "1971 Act"), subsection (2) is repealed.
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(2) Notwithstanding the coming into force of that
repeal-
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(a) a temporary sheriff may continue to exercise
the jurisdiction and powers of a sheriff for the purposes
of any proceedings commenced or other matter which began before
such coming into force; and
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(b) a temporary sheriff shall, for those purposes
and for the purposes of any further proceedings arising out
of the proceedings or other matter referred to in paragraph
(a) above, be treated as continuing to be a temporary sheriff. |
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7 Creation
of part-time sheriffs
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After section 11 of the 1971 Act there is inserted-
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"11A Appointment of part-time sheriffs
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(1) The Scottish Ministers may, under this section,
appoint persons to act as sheriffs, and persons so appointed
shall be known as "part-time sheriffs".
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(2) In making those appointments, the Scottish
Ministers shall comply with such requirements as to procedure
and consultation as may be prescribed by regulations made
by them.
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(3) A person shall not be appointed a part-time
sheriff unless qualified under section 5(1) of this Act to
be appointed to the office of sheriff.
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(4) A part-time sheriff shall, without the necessity
of receiving a commission in that behalf, be entitled to exercise
in every sheriffdom the jurisdiction and powers attaching
to the office of sheriff.
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(5) The number of persons holding appointments
as part-time sheriffs shall not, at any one time, exceed 60
or such other number as may be fixed in substitution by order
made by the Scottish Ministers.
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(6) A part-time sheriff shall be subject to
such instructions, arrangements and other provisions as fall
to be made under this Act by the sheriff principal of the
sheriffdom in which the part-time sheriff is sitting.
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(7) In the performance of their functions under
this Act, sheriffs principal shall together have regard to
the desirability of securing that every part-time sheriff-
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(a) is given the opportunity of sitting
on not fewer than 20 days; and
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(b) does not sit for more than 100 days,
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in each successive period of 12 months beginning
with the day of the part-time sheriff's appointment as such.
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(8) The Scottish Ministers shall pay to part-time
sheriffs such remuneration and allowances as they determine.
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11B Limitation,
termination etc. of appointment of part-time sheriffs
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(1) An appointment as a part-time sheriff shall,
subject to subsections (2) to (4) below, last for 5 years.
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(2) A part-time sheriff may resign at any time
by giving notice to that effect to the Scottish Ministers.
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(3) An appointment of a person as a part-time
sheriff shall not extend beyond the day when the person reaches
the age of 70.
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(4) A part-time sheriff's appointment shall
come to an end upon the part-time sheriff's being removed
from office under section 11C of this Act.
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(5) A part-time sheriff whose appointment comes
to an end by operation of subsection (1) above may be reappointed
and, except in the circumstances set out in subsection (6)
below, shall be reappointed.
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(6) The circumstances mentioned in subsection
(5) above are that-
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(a) the part-time sheriff has declined
that reappointment;
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(b) the part-time sheriff is aged 69 or
over;
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(c) a sheriff principal has made a recommendation
to the Scottish Ministers against the reappointment;
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(d) the part-time sheriff has not sat
for a total of 50 or more days in the preceding five
year period; or
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(e) the Scottish Ministers have, since
the part-time sheriff was last appointed, made an order
under section 11A(5) of this Act reducing the number
of persons who may hold appointment as part-time sheriffs.
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(7) A part-time sheriff whose appointment comes
to an end by resignation under subsection (2) above may be
reappointed.
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(8) The provisions of section 11A and this section
of this Act apply to a reappointment under subsections (5)
and (7) above as they apply to an appointment.
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(9) A part-time sheriff who is a solicitor in
practice shall not carry out any function as a part-time sheriff
in a sheriff court district in which his or her main place
of business as such solicitor is situated.
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11C Removal of part-time sheriffs from office
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(1) A part-time sheriff may be removed from
office by and only by order of the tribunal constituted by
and under subsection (3) below ("the tribunal").
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(2) The tribunal may order the removal from
office of a part-time sheriff only if, after investigation
carried out at the request of the Scottish Ministers, it finds
that the part-time sheriff is unfit for office by reason of
inability, neglect of duty or misbehaviour.
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(3) The tribunal shall consist of the following
three members, who shall be appointed by the Lord President
of the Court of Session-
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(a) either a Senator of the College of
Justice or a sheriff principal (who shall preside);
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(b) a person who is, and has been for
at least ten years, legally qualified within the meaning
of section 5(1) of this Act; and
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(c) one other person.
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(4) Regulations, made by the Scottish Ministers-
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(a) may make provision enabling the tribunal,
at any time during an investigation, to suspend a part-time
sheriff from office and providing as to the effect and
duration of such suspension; and
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(b) shall make such further provision
as respects the tribunal as the Scottish Ministers consider
necessary or expedient, including provision for the
procedure to be followed by and before it.
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11D Regulations and orders under sections 11A and
11C
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(1) Regulations under section 11A or section
11C and orders under section 11A of this Act shall be made
by statutory instrument.
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(2) No such regulations or order shall be made
unless laid in draft before, and approved by a resolution
of, the Scottish Parliament.".
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CHAPTER 3
JUSTICES OF THE PEACE
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8 Appointment
of justices
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In section 9 (appointment and removal of justices)
of the District Courts (Scotland) Act 1975 (c.20) (the "1975 Act")-
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(a) after subsection (2), there is inserted-
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"(2A) That instrument shall specify whether
the appointment is as a full justice or as a signing justice,
and the name of any signing justice so appointed shall be
entered in the supplemental list.
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(2B) A signing justice may, subject to sections
9A, 12 and 15(1) of this Act, be appointed under subsection
(2) above as a full justice.";
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(b) after subsection (8), there is inserted-
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"(8A) In making appointments of justices of
the peace, the Scottish Ministers shall comply with such requirements
as to procedure and consultation as may be prescribed by regulations
made by them.
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(8B) Regulations under subsection (8A) above
shall be made by statutory instrument.
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(8C) No such regulations shall be made unless
laid in draft before, and approved by resolution of, the Scottish
Parliament."; and
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(c) resolution of, the Scottish Parliament.";
and (c) after subsection (11), there is inserted-
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"(12) In this section-
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a "full justice" means a justice of the
peace who is qualified as a justice to do any act (including
any function of a judicial nature) or to be a member
of any committee or other body; and
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a "signing justice" means a justice of
the peace who is qualified only to do all or any of
the acts as a justice set out in section 15(9) of this
Act.".
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9 Removal,
restriction of functions and suspension of justices
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(1) After section 9 of the 1975 Act there is inserted-
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"9A Removal and restriction of functions of justices
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(1) A full justice may be removed from office
or be restricted to having the functions of a signing justice
by, and only by, order of the tribunal constituted by and
under subsection (3) below (the "tribunal"); but this subsection
is without prejudice to sections 9(4) (as read with (6)) and
(7), 12(2) and 15(1) of this Act.
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(2) The tribunal may make an order under subsection
(1) above only if, after investigation carried out at the
request of the Scottish Ministers, it finds that the full
justice is, by reason of inability, neglect of duty or misbehaviour-
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(a) unfit for office as such; or, as the
case may be,
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(b) unfit for performing functions of
a judicial nature.
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(3) The tribunal shall consist of the following
three members, who shall be appointed by the Lord President
of the Court of Session-
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(a) a sheriff principal (who shall preside);
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(b) a person who is, and has been for
at least ten years, legally qualified within the meaning
of section 5(2) of this Act; and
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(c) one other person. |
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(4) Except in a case to which subsection (5)
below applies, the sheriff principal shall be the sheriff
principal for the sheriffdom which includes the commission
area for which the justice who is the subject of the investigation
was appointed.
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(5) This subsection applies where it appears
to the Lord President of the Court of Session to be inappropriate
for that sheriff principal to be a member of the tribunal.
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(6) The sheriff principal referred to in subsection
(3)(a) above shall not be a temporary sheriff principal.
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(7) Regulations, made by the Scottish Ministers-
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(a) may make provision enabling the tribunal,
at any time during an investigation, to suspend a full
justice from office or from performing functions of
a judicial nature and providing as to the effect and
duration of such suspension;
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(b) shall make such further provision
as respects the tribunal as the Scottish Ministers consider
necessary or expedient, including provision for the
procedure to be followed by and before it. |
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(8) Regulations under subsection (7) above shall
be made by statutory instrument.
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(9) No such regulations shall be made unless
laid in draft before, and approved by resolution of, the Scottish
Parliament.
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(10) A person who has been removed under subsection
(1) above from the office of justice shall be ineligible for
re-appointment; and a justice whose functions have been restricted
under that subsection to those of a signing justice shall
be ineligible for re-appointment as a full justice.
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(11) The name of a person who is the subject
of an order under subsection (1) above, restricting that person's
functions to those of a signing justice, shall be entered
in the supplemental list.
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(12) The Scottish Ministers shall send a copy
of each order under subsection (1) above to the clerk of the
peace for the commission area for which the justice who is
the subject of the order was appointed.
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(13) In this section, "full justice" and "signing
justice" have the same meanings as in section 9 of this Act.".
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(2) In section 9 of the 1975 Act, after subsection
(2), there is inserted-
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"(2C) A signing justice may, in the name of
Her Majesty and by instrument under the hand of the Scottish
Ministers, be removed from office.".
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(3) The modifications made by this section and
paragraph 2(1) of the schedule to this Act have effect as
respects justices appointed before this section comes into
force (as well as those appointed thereafter).
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10 Restriction
of functions of justices who are councillors etc.
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For section 12 (disqualification in certain cases
of justices who are members of local authorities) of the 1975 Act
there is substituted-
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"12 Restriction of functions of justices who are
councillors etc.
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(1) A member of a local authority-
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(a) shall not be appointed to hold office
as a full justice;
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(b) may be appointed as a signing justice.
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(2) A full justice who-
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(a) at the coming into force of section
9 of the Bail, Judicial Appointments etc. (Scotland)
Act 2000 (asp 9) is; or
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(b) at any time thereafter becomes,
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a member of a local authority, shall thereupon
become a signing justice.
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(3) The name of a person-
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(a) appointed as a justice under subsection
(1)(b) above;
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(b) who becomes a signing justice by virtue
of the operation of subsection (2) above,
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shall be entered in the supplemental
list.
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(4) In subsection (1) above-
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"local authority" includes the Service
Authority for the National Criminal Intelligence Service;
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"full justice" and "signing justice" have
the same meanings as in section 9 of this Act.".
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