Criminal Procedure (Scotland) Act 1995, section 288ZA

Right of Advocate General to take part in proceedings

PART XIII Miscellaneous

(1)The Advocate General for Scotland may take part as a party in criminal proceedings so far as they relate to a compatibility issue.

(2) In this section “compatibility issue” means a question, arising in criminal proceedings, as to—

(a)whether a public authority has acted (or proposes to act)—

(i)in a way which is made unlawful by section 6(1) of the Human Rights Act 1998, or

F2214 (ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is incompatible with any of the Convention rights F2215...).

(3)In subsection (2)—

(a) “public authority” has the same meaning as in section 6 of the Human Rights Act 1998 ;

(b)references to acting include failing to act;F2213]

F2216 (c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Definitions used in section 288ZA 2

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
public authority

(2) For the purposes of the definition of “public official”, “public authority” is to be construed in accordance with section 6 of the Human Rights Act 1998 .

Defined in s.303O(2) · see it in the full Act

Cases considering section 288ZA 6

Macklin v Her Majesty’s Advocate

[2015] UKSC 77 · 16 December 2015Defines

The provision defines compatibility issues, including questions whether a public authority acted unlawfully under human-rights law, incompatibly with EU law, or whether Scottish legislation is incompatible with Convention rights or EU law (see paras [7]-[10]; [32]).

Kapri v The Lord Advocate representing The Government of the Republic of Albania (Scotland)

[2013] UKSC 48 · 10 July 2013Interprets

The subsection defines a compatibility issue as a Convention or EU-law question arising in criminal proceedings. Extradition proceedings fall outside that definition because they do not determine a criminal charge (see paras [15]–[23]).

O'Neill No 2 v Her Majesty's Advocate (Scotland)

[2013] UKSC 36 · 13 June 2013Defines

The subsection defines a compatibility issue to include Convention or EU-law incompatibility in Scottish criminal proceedings. It governed the characterisation of both issues before the Court. (see paras [6]; [9]-[11])

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

Amendments and notes

5 notes from legislation.gov.uk

Amendments

  1. F2213S. 288ZA inserted (22.4.2013) by Scotland Act 2012 (c. 11), ss. 34(3), 44(5); S.I. 2013/6, art. 2(a)
  2. F2214S. 288ZA(2)(a)(ii) and word omitted (31.3.2022) by virtue of The European Union (Withdrawal) Act 2018 (Repeal of EU Restrictions in Devolution Legislation, etc.) Regulations 2022 (S.I. 2022/357), regs. 1(1), 5(3)(b)
  3. F2215Words in s. 288ZA(2)(b) omitted (31.3.2022) by virtue of The European Union (Withdrawal) Act 2018 (Repeal of EU Restrictions in Devolution Legislation, etc.) Regulations 2022 (S.I. 2022/357), regs. 1(1), 5(3)(b)
  4. F2216S. 288ZA(3)(c) omitted (31.12.2020) by virtue of European Union (Withdrawal) Act 2018 (c. 16), s. 25(4), Sch. 8 para. 29(3) (with s. 19, Sch. 8 para. 37); S.I. 2020/1622, reg. 3(n) (with reg. 22)

Modifications

  1. C384S. 288ZA(1) modified (22.4.2013) by The Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 (S.I. 2013/7), arts. 1(1), 8