Criminal Procedure (Scotland) Act 1995, section 288AA

Appeals to the Supreme Court: compatibility issues

PART XIII Miscellaneous

(1)For the purpose of determining any compatibility issue an appeal lies to the Supreme Court against a determination in criminal proceedings by a court of two or more judges of the High Court.

(2)On an appeal under this section—

(a)the powers of the Supreme Court are exercisable only for the purpose of determining the compatibility issue;

(b)for that purpose the Court may make any change in the formulation of that issue that it thinks necessary in the interests of justice.

(3)When it has determined the compatibility issue the Supreme Court must remit the proceedings to the High Court.

(4) In this section “compatibility issue” has the same meaning as in section 288ZA.

(5)An appeal under this section against a determination lies only with the permission of the High Court or, failing that permission, with the permission of the Supreme Court.

(6)Subsection (5) does not apply if it is an appeal by the Lord Advocate or the Advocate General for Scotland against a determination by the High Court of a compatibility issue referred to it under section 288ZB(2).

(7)An application to the High Court for permission under subsection (5) must be made—

(a)within 28 days of the date of the determination against which the appeal lies, or

(b)within such longer period as the High Court considers equitable having regard to all the circumstances.

(8)An application to the Supreme Court for permission under subsection (5) must be made—

(a)within 28 days of the date on which the High Court refused permission under that subsection, or

(b)within such longer period as the Supreme Court considers equitable having regard to all the circumstances.F2223]

Definitions used in section 288AA 6

appeal

(a) “appeal” includes an appeal under section 288AA of this Act or paragraph 13(a) of Schedule 6 to the Scotland Act 1998 ; and

Defined in s.121(5) · see it in the full Act

(5) In subsections (1) and (3) above, “appeal” includes an appeal under section 288AA of this Act or paragraph 13(a) of Schedule 6 to the Scotland Act 1998 .

Defined in s.122(5) · see it in the full Act
court

“court” means any of—

(a)

the High Court of Justiciary,

(b)

the Sheriff Appeal Court when exercising criminal jurisdiction,

(c)

the sheriff courts when exercising criminal jurisdiction, and

(d)

justice of the peace courts,

Defined in s.303O(1) · see it in the full Act
proceedings

“proceedings” includes any process before a court, or any office holder of a court (for example, a process by which a warrant may be obtained for the purpose of investigating a suspected offence),

Defined in s.303O(1) · see it in the full Act
judge

“judge”, in relation to solemn procedure, means a judge of a court of solemn criminal jurisdiction and, in relation to summary procedure, means any sheriff or any judge of a JP court ;

Defined in s.307(1) · see it in the full Act
High Court

“High Court” and “Court of Justiciary” shall mean “High Court of Justiciary” and shall include any court held by the Lords Commissioners of Justiciary, or any of them;

Defined in s.307(1) · see it in the full Act
justice

“justice” includes the sheriff and any ... justice of the peace;

Defined in s.307(1) · see it in the full Act

Cases considering section 288AA 5

Daly v His Majesty’s Advocate (Scotland)

[2025] UKSC 38 · 12 November 2025Limits

Confers the appeal to the Supreme Court for determining a compatibility issue and limits the Court’s powers to that purpose. After determination, the proceedings must be remitted to the High Court of Justiciary. (see paras [1]-[2]) Limits the Supreme Court’s powers to determining the compatibility issue. (see para [2]) Requires remittal to the High Court of Justiciary after the compatibility issue has been determined. (see para [2])

Sutherland v Her Majesty’s Advocate

[2020] UKSC 32 · 15 July 2020Limits

The section supplied the limited appellate jurisdiction over compatibility issues and required remittal after their determination (see paras [10]-[12]). The Supreme Court’s powers were exercisable only to determine the permitted compatibility issues (see paras [10]-[12]). After determining the compatibility issues, the Supreme Court was required to remit the proceedings to the High Court (see para [10]). Read with section 288ZA(2), the provision defined the relevant compatibility issue as a question whether a public authority had acted unlawfully under section 6(1) of the Human Rights Act 1998 (see para [10]). The provision requires permission from the High Court or Supreme Court for an appeal under section 288AA (see para [10]).

Macklin v Her Majesty’s Advocate

[2015] UKSC 77 · 16 December 2015Limits

The section confers a limited appellate jurisdiction to determine compatibility issues. It does not create a general criminal appellate jurisdiction (see paras [4]-[6]; [11]; [32]). The provision was applied as part of the statutory basis for the appeal concerning a compatibility issue (see para [32]). The Supreme Court’s powers are exercisable only for determining the compatibility issue. The subsection therefore excluded general review of the High Court’s factual assessment (see paras [11]; [32]). After determining the compatibility issue, the Supreme Court must remit the proceedings to the High Court (see para [11]). Cited only.

What each judgment says about section 288AA is in the case-law panel in the full Act.

Amendments and notes

4 notes from legislation.gov.uk

Amendments

  1. F2223S. 288AA inserted (22.4.2013) by Scotland Act 2012 (c. 11), ss. 36(6), 44(5); S.I. 2013/6, art. 2(c)

Modifications

  1. C386S. 288AA(1)(5) modified (22.4.2013) by The Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 (S.I. 2013/7), arts. 1(1), 7
  2. C387S. 288AA(7) modified (22.4.2013) by The Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 (S.I. 2013/7), arts. 1(1), 9
  3. C388S. 288AA applied (22.4.2013) by The Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 (S.I. 2013/7), arts. 1(1), 14