Commentary on Sections Subsection (2) – application to new prosecutions brought following appeal
9.The main application of subsection (1) is to cases arising from pre-repeal behaviour which have not yet been disposed of by the relevant date. However, subsection (2) makes clear that it also applies to new prosecutions brought (further to an appeal) either before the relevant date, on that date or after it, under either section 119 (in solemn cases, prosecuted on indictment) or 185 (in summary cases) of the Criminal Procedure (Scotland) Act 1995.
10.A new prosecution under section 119 may result from the High Court disposing of an appeal against conviction by quashing the conviction given by the trial court and granting the Crown authority to bring a new prosecution (under section 118 of the 1995 Act). It may also result from the High Court disposing of an appeal against acquittal by quashing the acquittal on the basis that it was wrong in law, but granting the Crown leave to bring a new prosecution charging the accused with the same offence or with a similar offence arising out of the same facts (under section 107E of the 1995 Act).
11.Similarly, section 185 of the 1995 Act allows a new prosecution to be brought when the Sheriff Appeal Court disposes of a “stated case” by setting aside the verdict of the inferior court and grants authority for a new prosecution.
12.Accordingly, if a person is convicted (or acquitted) of a 2012 Act offence before the “relevant date” (i.e. the date on which the 2012 Act is repealed), the convicted person (or the Crown) appeals and the appeal court, in disposing of the appeal, grants authority for a new prosecution, then any such new prosecution (whether it is brought before, on or after the relevant date) cannot result in a conviction for the 2012 Act offence or the imposition of a penalty in respect of it, on or after the relevant date.