Citation and commencement, etc.

1.—(1) This Act of Adjournal may be cited as the Act of Adjournal (Criminal Procedure Rules 1996 Amendment) (Overseas Production Orders) 2022.

(2) It comes into force on 19th September 2022.

(3) A certified copy is to be inserted in the Books of Adjournal.

Amendment of the Criminal Procedure Rules 1996

2.—(1) The Criminal Procedure Rules 1996( 3) are amended in accordance with this paragraph.

(2) After Chapter 71 (electronic monitoring requirement under the Management of Offenders (Scotland) Act 2019)( 4) insert—

“CHAPTER  72 OVERSEAS PRODUCTION ORDERS

Interpretation of this Chapter

72.1.   In this Chapter—

“ the 2019 Act ” means the Crime (Overseas Production Orders) Act 2019( 5) and references to terms defined in section 18(1) of that Act (interpretation) have the same meaning here as given there;

“ any person affected by the order ” includes, where section 12 of the 2019 Act (notice of application for order: journalistic data) applies, those mentioned in section 12(3) other than those whom a judge has directed that notice need not be served on under section  12(4) of that Act;

“ equivalent appropriate officer ” has the meaning given by section 7(7) of the 2019 Act (equivalent appropriate officer for variation or revocation of order);

“ journalistic data ” has the meaning given by section 12 of the 2019 Act;

“ relevant persons ” means the persons who may apply for variation or revocation of an overseas production order under section 7(2)(b) and (d) of the 2019 Act (applicants for variation or revocation of order).

Application for an overseas production order

72.2.— (1)  An application under section 1 of the 2019 Act (making of overseas production order on application) must be made in Form 72.2.

(2)  When an application under paragraph (1) is lodged, the court may—

(a) subject to section 12 of the 2019 Act dispense, on cause shown, with intimation to any other person and proceed to consider the application;

(b) fix a date for hearing the application and, subject to section 12(4) of the 2019 Act (judicial direction that application need not be served), order intimation of the diet and application to—

(i) the person against whom the overseas production order is sought; and

(ii) where applicable, the person mentioned in section  12(3)(b) of the 2019 Act (persons on whom application must be served); or

(c) fix a date for hearing the application and order intimation of the diet and application to the persons mentioned in sub-paragraph (b) and, on special cause shown, dispense meantime with intimation of the schedule of the application.

(3)  The proceedings must be in private.

Disapplication of effects of notice of application or a non-disclosure requirement

72.3.— (1)  An application under sections 8(2)(a) (disapplication of non-disclosure requirement) or 13(2)(a) (disapplication of duty under section 13(1)) of the 2019 Act must be made in Form 72.3.

(2)  The court must order intimation of the application to the appropriate officer.

(3)  The appropriate officer must, within seven days of intimation of the application, notify the clerk of court in writing whether or not the application is opposed.

(4)  Where the appropriate officer notifies the clerk of court that the application is not opposed, the court must proceed to dispose of the application and may do so in the absence of the applicant.

(5)  Where the appropriate officer notifies the clerk of court that the application will be opposed, the clerk of court must arrange a hearing at which the parties may appear or be represented.

(6)  The proceedings must be in private.

(7)  The clerk of court must give notice in writing of the decision of the court on an application referred to in paragraph (1) to the applicant and the appropriate officer.

Variation or revocation of an overseas production order

72.4.— (1)  An application under section 7 of the 2019 Act (variation or revocation of order) must be made in Form 72.4.

(2)  When an application under paragraph (1) is lodged, subject to sections  8 (inclusion of non-disclosure requirement in order) and 12 (notice of application for order: journalistic data) where applicable, the court may—

(a) dispense, on cause shown, with intimation to any relevant persons and proceed to consider the application;

(b) fix a date for hearing the application and order intimation of the diet and application to—

(i) the Lord Advocate and any person affected by the order, where the appropriate officer who applied for the order or an equivalent appropriate officer is seeking to vary or revoke it;

(ii) the appropriate officer who applied for the overseas production order or an equivalent appropriate officer and any person affected by the order, where the Lord Advocate or the procurator fiscal, as the case may be, is seeking to vary or revoke it; or

(iii) the appropriate officer who applied for the overseas production order or an equivalent appropriate officer, the Lord Advocate and any person (other than the applicant) affected by the order, as the case may be, where a person affected by the order is seeking to vary or revoke it; or

(c) fix a date for hearing the application and order intimation of the diet and application to the persons specified in sub-paragraph (b) and, on special cause shown, dispense meantime with intimation of the schedule of the application.

(3)  The proceedings must be in private. ”.

(3) In the appendix, after Form 71.1 (form of order for electronic monitoring under section 1(1) of the Management of Offenders (Scotland) Act 2019)( 6) insert Forms 72.2, 72.3 and 72.4 set out in the schedule of this Act of Adjournal.

Paragraph 2(3)

SCHEDULE

EXPLANATORY NOTE

(This note is not part of the Act of Adjournal)

This Act of Adjournal inserts a new Chapter 72 into the Criminal Procedure Rules 1996 to make provision for the application, variation and revocation of overseas production orders under the Crime (Overseas Production Orders) Act 2019 (c. 5), with a process to apply for information to be provided to the court and withheld from a respondent or other persons.

It also provides for parties affected by overseas production orders to seek the leave of the court to do something prohibited either by non-disclosure provisions in such orders, or by the effect of the service of notice of applications for overseas productions orders, and applications for variation (see section 7(6) of the Crime (Overseas Production Orders) Act 2019).