Part 4: Police Investigatory and Other Powers Chapter 2: Search of children under 12 Appeals
135.Section 110 of the Courts Reform (Scotland) Act 2014 (the “2014 Act”) provides generally that any decision of the sheriff may be appealed to the Sheriff Appeal Court. That section will apply to a decision of the sheriff under section 36 to make or refuse to make an order authorising the search of a child aged under 12. Sections 111 and 116 of the 2014 Act apply to appeals under section 110 and that the rules of court relating to section 110 appeals also apply. Section 111, for instance, provides that the Sheriff Appeal Court may uphold the sheriff’s decision or reverse it or vary it.
136.Section 38 of the Act provides for a number of aspects of the appeal process as it applies in relation to orders under section 36 (or applications for such orders). It sets out that either a constable or the child (or another person acting on the child’s behalf) must, within the time-limits specified in subsection (2), apply to the sheriff for permission to appeal. The appeal may proceed only where the sheriff gives permission. If permission to appeal is given, the appeal must be made on the day on which that permission is granted or during the following two working days (subsection (3)). Where an appeal is made, the decision of the Sheriff Appeal Court is final (subsection (4)).
137.The making of an appeal suspends the effect of any order under section 36 originally made by the sheriff. Such an order only authorises the search of the child (or other actions specified in the order) in the period of 7 days beginning with the day on which the order was made (section 36(5)). By the time an appeal is made and determined, that period may have expired. Section 38 therefore also allows the Sheriff Appeal Court, in a case where it upholds or varies the original order with the result that an action which has not yet taken place is authorised, to specify a new period (not exceeding seven days starting with the day the appeal is determined) during which the action is authorised.