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72 Disciplinary committee’s powers

(1) This section applies where, after dealing with a matter referred to the disciplinary committee under section 67(6), 69(2) or 70(2) of this Act, the committee is satisfied that it is appropriate to take further action under this section.

(2) Where the disciplinary committee is satisfied that—

(a) the judicial officer is guilty of misconduct; or

(b) the officer has admitted misconduct under section 67(4)(a) of this Act,

the committee may make one or more of the orders mentioned in subsection (5) below.

(3) Where the matter referred to the disciplinary committee is one to which section 70 of this Act applies, the committee may make an order under paragraph (a) or (c) of subsection (5) below.

(4) Where the judicial officer has been convicted of an offence, the disciplinary committee may make an order under paragraph (a), (b) or (c) of subsection (5) below.

(5) Those orders are—

(a) an order—

(i) suspending the judicial officer from practice for a period specified in the order; or

(ii) recommending that the Lord President of the Court of Session deprives the officer of office;

(b) an order censuring the officer;

(c) an order restricting—

(i) the functions which the officer may exercise; or

(ii) the activities which the officer may undertake,

for such period as the committee considers appropriate;

(d) an order imposing a fine on the officer not exceeding level 4 on the standard scale;

(e) if the misconduct consists of or includes the charging of excessive fees or outlays, an order requiring the officer to repay so much of those fees or outlays as is excessive together with such interest as the disciplinary committee considers appropriate.

(6) Where a judicial officer fails to comply with an order under subsection (5)(d) above the disciplinary committee may, if it has not already done so, make an order—

(a) suspending the officer from practice for a period specified in the order; or

(b) recommending that the Lord President of the Court of Session deprives the officer of office.

(7) The disciplinary committee must send a copy of any decision it makes under this section to the judicial officer to whom that decision relates.

73 Orders under sections 68 and 72: supplementary provision

(1) An order mentioned in section 72(5)(d) of this Act is enforceable as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff.

(2) The Commission may recover any fine imposed by such an order.

(3) The Commission must intimate any order made by the disciplinary committee under section 68(2) or (3) or 72 (other than an order under section 72(5)(a)(ii) or (6)(b)) of this Act to—

(a) the Court of Session;

(b) every sheriff principal; and

(c) the professional association.

Appeals

74 Appeals from decisions under sections 58, 68 and 72

(1) Where the Commission decides under section 58(1) of this Act not to recommend that the Lord President grants a person a commission as a judicial officer, the person who applied may appeal to the Inner House against that decision.

(2) Where the disciplinary committee makes an order under—

(a) section 68(2) or (3)(a); or

(b) section 72(2), (3), (4) or (6),

of this Act, the judicial officer to whom the order relates may appeal to the Inner House against that order.

(3) The decision of the Inner House on an appeal under subsection (1) or (2) above is final.

(4) The Court of Session may, by Act of Sederunt, prescribe the procedure in relation to an appeal under subsection (1) or (2) above.

Miscellaneous

75 Judicial officer’s actions void where officer has interest

(1) Anything done by a judicial officer in exercising or purporting to exercise a prescribed function in relation to a matter in which the officer has an interest is void.

(2) A judicial officer has an interest in a matter where the matter—

(a) is one in which the officer has an interest as an individual; or

(b) consists of or includes a debt in relation to which any of the circumstances mentioned in subsection (3) below apply.

(3) The circumstances referred to in subsection (2)(b) above are that the debt is due to or by—

(a) a business associate of the judicial officer;

(b) a member of the officer’s family; or

(c) a company or firm, and the officer, a business associate of the officer or a member of the officer’s family—

(i) is a director or partner of that company or firm;

(ii) holds, either alone or along with an other person, a controlling interest in that company or firm; or

(iii) has a pecuniary interest in that company or firm and the sole or main business of the company or firm is the purchase of debts for enforcement.

(4) Any reference in subsection (3) above to—

(a) a business associate of a judicial officer is to be construed as a reference to a co-director, partner, employer, employee, agent or principal of the officer;

(b) a controlling interest in a company is to be construed as a reference to an interest giving a person control of a company within the meaning of section 840 of the Income and Corporation Taxes Act 1988 (c. 1) (meaning of “control”).

(5) Any reference in subsection (3) above to a member of a judicial officer’s family is to be construed as a reference to—

(a) the spouse of the officer;

(b) a person living together with the officer as husband and wife;

(c) a civil partner of the officer;

(d) a person living with the officer in a relationship which has the characteristics of the relationship between a husband and wife except that the person and the officer are of the same sex;

(e) a parent of the officer;

(f) a brother or sister of the officer;

(g) a child of the officer, including—

(i) a stepchild; and

(ii) any child brought up or treated by the officer or any person mentioned in paragraph (b), (c) or (d) above as a child of the officer or, as the case may be, of that person;

(h) a grandchild of the officer,

and any relationships of the half blood or by affinity are to be construed as relationships of the full blood.

(6) In subsection (4)(a) above, “principal” does not include a principal in a contract for the carrying out by the judicial officer of the prescribed function in relation to the debt concerned.

(7) In subsections (1) and (6) above, “prescribed function” means any function conferred on a judicial officer by virtue of this Act or any other enactment which the Scottish Ministers by regulations specify for the purposes of this section.

76 Measure of damages payable by judicial officer for negligence or other fault

For the avoidance of doubt, nothing in this Part—

(a) revives any rule of law whereby, if a messenger-at-arms or a sheriff officer has been found liable to a creditor for negligent delay or failure to execute diligence, or for other fault in the execution of diligence, the damages payable by the messenger or, as the case may be, officer are determined solely by reference to the amount of the debt; or

(b) applies any such rule of law to a judicial officer.

77 Effect of code of practice

(1) A judicial officer must, in exercising the officer’s functions or undertaking any activities, have regard to the provisions (so far as they are applicable) of any code of practice published under section 55 or 56 of this Act.

(2) A failure on the part of a judicial officer to comply with any provision of a code of practice does not of itself render the officer liable to any criminal or civil proceedings.

(3) A code of practice is admissible in evidence in any criminal or civil proceedings.

(4) If any provision of a code of practice appears to—

(a) the court or tribunal conducting any civil or criminal proceedings; or

(b) the disciplinary committee holding a hearing under section 71 of this Act,

to be relevant to any question arising in the proceedings, that provision of the code may be taken into account in determining that question.

78 Electronic publications and communications

In this Part—

(a) references to “publishing” include publishing by electronic means and cognate expressions are to be construed accordingly; and

(b) any reference to a notification, admission or representation being in writing includes a reference to that notification, admission or representation being an electronic communication.