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PART VII continued
Where—
(a) a diet is deserted pro loco et tempore;
(b) a diet is postponed or adjourned; or
(c) an order is issued for the trial to take place at a different place from that first given notice of,
the warrant of committal on which the accused is at the time in custody till liberated in due course of law shall continue in force.
(1) Where an accused person has been cited to attend a sitting of the sheriff court the prosecutor may, at any time before the commencement of his trial, apply to the sheriff to transfer the case to a sheriff court in any other district in that sheriffdom.
(2) On an application under subsection (1) above the sheriff may—
(a) after giving the accused or his counsel or solicitor an opportunity to be heard; or
(b) on the joint application of the parties,
make an order for the transfer of the case.
(1) For the purposes of a trial, the sheriff principal shall return such number of jurors as he thinks fit or, in relation to a trial in the High Court, such other number as the Lord Justice Clerk or any Lord Commissioner of Justiciary may direct.
(2) The Lord Justice General, whom failing the Lord Justice Clerk, may give directions as to the areas from which and the proportions in which jurors are to be summoned for trials to be held in the High Court, and for any such trial the sheriff principal of the sheriffdom in which the trial is to take place shall requisition the required number of jurors from the areas and in the proportions so specified.
(3) Where a sitting of the High Court is to be held at a town in which the High Court does not usually sit, the jury summoned to try any case in such a sitting shall be summoned from the list of potential jurors of the sheriff court district in which the town is situated.
(4) For the purpose of a trial in the sheriff court, the clerk of court shall be furnished with a list of names from lists of potential jurors of the sheriff court district in which the court is held containing the number of persons required.
(5) The sheriff principal, in any return of jurors made by him to a court, shall take the names in regular order, beginning at the top of the list of potential jurors in each of the sheriff court districts, as required; and as often as a juror is returned to him, he shall mark or cause to be marked, in the list of potential jurors of the respective sheriff court districts the date when any such juror was returned to serve; and in any such return he shall commence with the name immediately after the last in the preceding return, without regard to the court to which the return was last made, and taking the subsequent names in the order in which they are entered, as directed by this subsection, and so to the end of the lists respectively.
(6) Where a person whose name has been entered in the lists of potential jurors dies, or ceases to be qualified to serve as a juror, the sheriff principal, in making returns of jurors in accordance with the [6 Geo. 4. 1825 c. 22.] Jurors (Scotland) Act 1825, shall pass over the name of that person, but the date at which his name has been so passed over, and the reason therefor, shall be entered at the time in the lists of potential jurors.
(7) Only the lists returned in accordance with this section by the sheriffs principal to the clerks of court shall be used for the trials for which they were required.
(8) The persons to serve as jurors at sittings of the High Court shall be listed and their names and addresses shall be inserted in one roll to be signed by the judge, and the list made up under this section shall be known as the “list of assize”.
(9) When more than one case is set down for trial at a sitting of the High Court, it shall not be necessary to prepare more than one list of assize, and such list shall be authenticated by the signature of a judge of the Court, and shall be the list of assize for the trial of all parties cited to that particular sitting; and the persons included in such list shall be summoned to serve generally for the trials of all the accused cited to the sitting, and only one general execution of citation shall be returned against them; and a copy of the list of assize, certified by one of the clerks of court, shall have the like effect, for all purposes for which the list may be required, as the principal list of assize authenticated as aforesaid.
(10) No irregularity in—
(a) making up the lists in accordance with the provisions of this Act;
(b) transmitting the lists;
(c) the warrant of citation;
(d) summoning jurors; or
(e) in returning any execution of citation,
shall constitute an objection to jurors whose names are included in the jury list, subject to the ruling of the court in relation to the effect of an objection as to any criminal act by which jurors may be returned to serve in any case contrary to this Act or the [6 Geo 4. 1825 c. 22.] Jurors (Scotland) Act l825.
(1) It shall not be necessary to serve any list of jurors upon the accused, but on and after the date of the service of an indictment, a list of jurors prepared under the directions of the clerk of the court before which the trial is to take place shall be kept in the office of the sheriff clerk of the district in which the court of the trial diet is situated, and the accused shall be entitled to have a copy supplied to him on application free of charge.
(2) Such list shall contain not less than 30 names, and shall be headed “List of Assize for the Sitting of the High Court of Justiciary (or, the Sheriff Court of ... ... ... ... at ... ... ... ...) on the ... ... ... ... of ... ... ... ...”
(3) It shall not be necessary to summon all the jurors contained in any list of jurors under this Act, but it shall be competent to summon such jurors only, commencing from the top of the list, as may be necessary to ensure a sufficient number for the trial of the cases which remain for trial at the date of the citation of the jurors, and such number shall be fixed by the clerk of the court in which the trial diet is to be called, or in any case in the High Court by the Clerk of Justiciary, and the jurors who are not so summoned shall be placed upon the next list issued, until they have attended to serve.
(4) The sheriff clerk of the sheriffdom in which a sitting of the High Court is to be held or the sheriff clerk of the sheriff court district in which any juror is to be cited where the citation is for a trial before a sheriff, shall fill up and sign a proper citation addressed to each such juror, and shall cause the same to be transmitted to him by letter, sent to him at his place of residence as stated in the lists of potential jurors by registered post or recorded delivery or to be served on him by an officer of law; and a certificate under the hand of such sheriff clerk of the citation of any jurors or juror in the manner provided in this subsection shall be a legal citation.
(5) The sheriff clerk of the sheriffdom in which a sitting of the High Court is to be held shall issue citations to the whole jurors required for the sitting, whether the jurors reside in that or in any other sheriffdom.
(6) Persons cited to attend as jurors may, unless they have been excused in respect thereof under section 1 of the [1980 c. 55.] Law Reform (Miscellaneous Provisions) (Scotland) Act l980, be fined up to level 3 on the standard scale if they fail to attend in compliance with the citation.
(7) A fine imposed under subsection (6) above may, on application, be remitted—
(a) by a Lord Commissioner of Justiciary where imposed in the High Court;
(b) by the sheriff court where imposed in the sheriff court,
and no court fees or expenses shall be exigible in respect of any such application.
(8) A person shall not be exempted by sex or marriage from the liability to serve as a juror.
(1) Where, before a juror is sworn to serve, the parties jointly apply for him to be excused the court shall, notwithstanding that no reason is given in the application, excuse that juror from service.
(2) Nothing in subsection (1) above shall affect the right of the accused or the prosecutor to object to any juror on cause shown.
(3) If any objection is taken to a juror on cause shown and such objection is founded on the want of sufficient qualification as provided by section 1(1) of the [1980 c. 55.] Law Reform (Miscellaneous Provisions) (Scotland) Act 1980, such objection shall be proved only by the oath of the juror objected to.
(4) No objection to a juror shall be competent after he has been sworn to serve.
(1) Where the court is unable to proceed owing to the death, illness or absence of the presiding judge, the clerk of court may convene the court (if necessary) and—
(a) in a case where no evidence has been led, adjourn the diet and any other diet appointed for that sitting to—
(i) a time later the same day, or a date not more than seven days later, when he believes a judge will be available; or
(ii) a later sitting not more than two months after the date of the adjournment; or
(b) in a case where evidence has been led—
(i) adjourn the diet and any other diet appointed for that sitting to a time later the same day, or a date not more than seven days later, when he believes a judge will be available; or
(ii) with the consent of the parties, desert the diet pro loco et tempore.
(2) Where a diet has been adjourned under sub-paragraph (i) of either paragraph (a) or paragraph (b) of subsection (1) above the clerk of court may, where the conditions of that subsection continue to be satisfied, further adjourn the diet under that sub-paragraph; but the total period of such adjournments shall not exceed seven days.
(3) Where a diet has been adjourned under subsection (1)(b)(i) above the court may, at the adjourned diet—
(a) further adjourn the diet; or
(b) desert the diet pro loco et tempore.
(4) Where a diet is deserted in pursuance of subsection (1)(b)(ii) or (3)(b) above, the Lord Advocate may raise and insist in a new indictment, and—
(a) where the accused is in custody it shall not be necessary to grant a new warrant for his incarceration, and the warrant or commitment on which he is at the time in custody till liberation in due course of law shall continue in force; and
(b) where the accused is at liberty on bail, his bail shall continue in force.
(1) Where the accused pleads not guilty, the clerk of court shall record that fact and proceed to ballot the jury.
(2) The jurors for the trial shall be chosen in open court by ballot from the list of persons summoned in such manner as shall be prescribed by Act of Adjournal, and the persons so chosen shall be the jury to try the accused, and their names shall be recorded in the minutes of the proceedings.
(3) It shall not be competent for the accused or the prosecutor to object to a juror on the ground that the juror has not been duly cited to attend.
(4) Notwithstanding subsection (1) above, the jurors chosen for any particular trial may, when that trial is disposed of, without a new ballot serve on the trials of other accused, provided that—
(a) the accused and the prosecutor consent;
(b) the names of the jurors are contained in the list of jurors; and
(c) the jurors are duly sworn to serve on each successive trial.
(5) When the jury has been balloted, the clerk of court shall inform the jury of the charge against the accused—
(a) by reading the words of the indictment (with the substitution of the third person for the second); or
(b) if the presiding judge, because of the length or complexity of the indictment, so directs, by reading to the jury a summary of the charge approved by the judge,
and copies of the indictment shall be provided for each member of the jury without lists of witnesses or productions.
(6) After reading the charge as mentioned in subsection (5) above and any special defence as mentioned in section 89(1) of this Act, the clerk of court shall administer the oath in common form.
(7) The court may excuse a juror from serving on a trial where the juror has stated the ground for being excused in open court.
(8) Where a trial which is proceeding is adjourned from one day to another, the jury shall not be secluded during the adjournment, unless, on the motion of the prosecutor or the accused or ex proprio motu the court sees fit to order that the jury be kept secluded.
(1) Subject to subsection (2) below, where the accused has lodged a plea of special defence, the clerk of court shall, after informing the jury, in accordance with section 88(5) of this Act, of the charge against the accused, and before administering the oath, read to the jury the plea of special defence.
(2) Where the presiding judge on cause shown so directs, the plea of special defence shall not be read over to the jury in accordance with subsection (1) above; and in any such case the judge shall inform the jury of the lodging of the plea and of the general nature of the special defence.
(3) Copies of a plea of special defence shall be provided for each member of the jury.
(1) Where in the course of a trial—
(a) a juror dies; or
(b) the court is satisfied that it is for any reason inappropriate for any juror to continue to serve as a juror,
the court may in its discretion, on an application made by the prosecutor or an accused, direct that the trial shall proceed before the remaining jurors (if they are not less than twelve in number), and where such direction is given the remaining jurors shall be deemed in all respects to be a properly constituted jury for the purpose of the trial and shall have power to return a verdict accordingly whether unanimous or, subject to subsection (2) below, by majority.
(2) The remaining jurors shall not be entitled to return a verdict of guilty by majority unless at least eight of their number are in favour of such verdict and if, in any such case, the remaining jurors inform the court that—
(a) fewer than eight of their number are in favour of a verdict of guilty; and
(b) there is not a majority in favour of any other verdict,
they shall be deemed to have returned a verdict of not guilty.
Every trial shall proceed from day to day until it is concluded unless the court sees cause to adjourn over a day or days.
(1) Without prejudice to section 54 of this Act, and subject to subsection (2) below, no part of a trial shall take place outwith the presence of the accused.
(2) If during the course of his trial an accused so misconducts himself that in the view of the court a proper trial cannot take place unless he is removed, the court may order—
(a) that he is removed from the court for so long as his conduct makes it necessary; and
(b) that the trial proceeds in his absence,
but if he is not legally represented the court shall appoint counsel or a solicitor to represent his interests during such absence.
(3) From the commencement of the leading of evidence in a trial for rape or the like the judge may, if he thinks fit, cause all persons other than the accused and counsel and solicitors to be removed from the court-room.
(1) The proceedings at the trial of any person who, if convicted, is entitled to appeal under Part VIII of this Act, shall be recorded by means of shorthand notes or by mechanical means.
(2) A shorthand writer shall—
(a) sign the shorthand notes taken by him of such proceedings and certify them as being complete and correct; and
(b) retain the notes.
(3) A person recording such proceedings by mechanical means shall—
(a) certify that the record is true and complete;
(b) specify in the certificate the proceedings or, as the case may be, the part of the proceedings to which the record relates; and
(c) retain the record.
(4) The cost of making a record under subsection (1) above shall be defrayed, in accordance with scales of payment fixed for the time being by Treasury, out of money provided by Parliament.
(5) In subsection (1) above “proceedings at the trial” means the whole proceedings including, without prejudice to that generality—
(a) discussions—
(i) on any objection to the relevancy of the indictment;
(ii) with respect to any challenge of jurors; and
(iii) on all questions arising in the course of the trial;
(b) the decision of the court on any matter referred to in paragraph (a) above;
(c) the evidence led at the trial;
(d) any statement made by or on behalf of the accused whether before or after the verdict;
(e) the judge’s charge to the jury;
(f) the speeches of counsel or agent;
(g) the verdict of the jury;
(h) the sentence by the judge.
(1) The Clerk of Justiciary may direct that a transcript of a record made under section 93(1) of this Act, or any part thereof, be made and delivered to him for the use of any judge.
(2) Subject to subsection (3) below, the Clerk of Justiciary shall, if requested to do so by—
(a) the Secretary of State; or
(b) any other person on payment of such charges as may be fixed for the time being by Treasury,
direct that such a transcript be made and sent to the person who requested it.
(3) The Secretary of State may, after consultation with the Lord Justice General, by order made by statutory instrument provide that in any class of proceedings specified in the order the Clerk of Justiciary shall only make a direction under subsection (2)(b) above if satisfied that the person requesting the transcript is of a class of person so specified and, if purposes for which the transcript may be used are so specified, intends to use it only for such a purpose; and different purposes may be so specified for different classes of proceedings or classes of person.
(4) Where subsection (3) above applies as respects a direction, the person to whom the transcript is sent shall, if purposes for which that transcript may be used are specified by virtue of that subsection, use it only for such a purpose.
(5) A statutory instrument containing an order under subsection (3) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(6) A direction under subsection (1) or (2) above may require that the transcript be made by the person who made the record or by such competent person as may be specified in the direction; and that person shall comply with the direction.
(7) A transcript made in compliance with a direction under subsection (1) or (2) above—
(a) shall be in legible form; and
(b) shall be certified by the person making it as being a correct and complete transcript of the whole or, as the case may be, the part of the record purporting to have been made and certified, and in the case of shorthand notes signed, by the person who made the record.
(8) The cost of making a transcript in compliance with a direction under subsection (1) or (2)(a) above shall be defrayed, in accordance with scales of payment fixed for the time being by the Treasury, out of money provided by Parliament.
(9) The Clerk of Justiciary shall, on payment of such charges as may be fixed for the time being by the Treasury, provide a copy of any documentary production lodged in connection with an appeal under this Part of this Act to such of the following persons as may request it—
(a) the prosecutor;
(b) any person convicted in the proceedings;
(c) any other person named in, or immediately affected by, any order made in the proceedings; and
(d) any person authorised to act on behalf of any of the persons mentioned in paragraphs (a) to (c) above.
(1) Where, at any time after the jury has been sworn to serve in a trial, the prosecutor intimates to the court that he does not intend to proceed in respect of an offence charged in the indictment, the judge shall acquit the accused of that offence and the trial shall proceed only in respect of any other offence charged in the indictment.
(2) Where, at any time after the jury has been sworn to serve in a trial, the accused intimates to the court that he is prepared to tender a plea of guilty as libelled, or such other plea as the Crown is prepared to accept, in respect of any offence charged in the indictment, the judge shall accept the plea tendered and shall convict the accused accordingly.
(3) Where an accused is convicted under subsection (2) above of an offence—
(a) the trial shall proceed only in respect of any other offence charged in the indictment; and
(b) without prejudice to any other power of the court to adjourn the case or to defer sentence, the judge shall not sentence him or make any other order competent following conviction until a verdict has been returned in respect of every other offence mentioned in paragraph (a) above.
(1) No trial shall fail or the ends of justice be allowed to be defeated by reason of any discrepancy or variance between the indictment and the evidence.
(2) It shall be competent at any time prior to the determination of the case, unless the court see just cause to the contrary, to amend the indictment by deletion, alteration or addition, so as to—
(a) cure any error or defect in it;
(b) meet any objection to it; or
(c) cure any discrepancy or variance between the indictment and the evidence.
(3) Nothing in this section shall authorise an amendment which changes the character of the offence charged, and, if it appears to the court that the accused may in any way be prejudiced in his defence on the merits of the case by any amendment made under this section, the court shall grant such remedy to the accused by adjournment or otherwise as appears to the court to be just.
(4) An amendment made under this section shall be sufficiently authenticated by the initials of the clerk of the court.
(1) Immediately after the close of the evidence for the prosecution, the accused may intimate to the court his desire to make a submission that he has no case to answer both—
(a) on an offence charged in the indictment; and
(b) on any other offence of which he could be convicted under the indictment.
(2) If, after hearing both parties, the judge is satisfied that the evidence led by the prosecution is insufficient in law to justify the accused being convicted of the offence charged in respect of which the submission has been made or of such other offence as is mentioned, in relation to that offence, in paragraph (b) of subsection (1) above, he shall acquit him of the offence charged in respect of which the submission has been made and the trial shall proceed only in respect of any other offence charged in the indictment.
(3) If, after hearing both parties, the judge is not satisfied as is mentioned in subsection (2) above, he shall reject the submission and the trial shall proceed, with the accused entitled to give evidence and call witnesses, as if such submission had not been made.
(4) A submission under subsection (1) above shall be heard by the judge in the absence of the jury.
In any trial the accused or, where he is legally represented, his counsel or solicitor shall have the right to speak last.
(1) When the jury retire to consider their verdict, the clerk of court shall enclose the jury in a room by themselves and, except in so far as provided for, or is made necessary, by an instruction under subsection (4) below, neither he nor any other person shall be present with the jury after they are enclosed.
(2) Except in so far as is provided for, or is made necessary, by an instruction under subsection (4) below, until the jury intimate that they are ready to return their verdict—
(a) subject to subsection (3) below, no person shall visit the jury or communicate with them; and
(b) no juror shall come out of the jury room other than to receive or seek a direction from the judge or to make a request—
(i) for an instruction under subsection (4)(a), (c) or (d) below; or
(ii) regarding any matter in the cause.
(3) Nothing in paragraph (a) of subsection (2) above shall prohibit the judge, or any person authorised by him for the purpose, communicating with the jury for the purposes—
(a) of giving a direction, whether or not sought under paragraph (b) of that subsection; or
(b) responding to a request made under that paragraph.
(4) The judge may give such instructions as he considers appropriate as regards—
(a) the provision of meals and refreshments for the jury;
(b) the making of arrangements for overnight accommodation for the jury and for their continued seclusion if such accommodation is provided;
(c) the communication of a personal or business message, unconnected with any matter in the cause, from a juror to another person (or vice versa); or
(d) the provision of medical treatment, or other assistance, immediately required by a juror.
(5) If the prosecutor or any other person contravenes the provisions of this section, the accused shall be acquitted of the crime with which he is charged.
(6) During the period in which the jury are retired to consider their verdict, the judge may sit in any other proceedings; and the trial shall not fail by reason only of his so doing.
(1) The verdict of the jury, whether the jury are unanimous or not, shall be returned orally by the foreman of the jury unless the court directs a written verdict to be returned.
(2) Where the jury are not unanimous in their verdict, the foreman shall announce that fact so that the relative entry may be made in the record.
(3) The verdict of the jury may be given orally through the foreman of the jury after consultation in the jury box without the necessity for the jury to retire.
(1) Previous convictions against the accused shall not be laid before the jury, nor shall reference be made to them in presence of the jury before the verdict is returned.
(2) Nothing in subsection (1) above shall prevent the prosecutor—
(a) asking the accused questions tending to show that he has been convicted of an offence other than that with which he is charged, where he is entitled to do so under section 266 of this Act; or
(b) leading evidence of previous convictions where it is competent to do so under section 270 of this Act,
and nothing in this section or in section 69 of this Act shall prevent evidence of previous convictions being led in any case where such evidence is competent in support of a substantive charge.
(3) Previous convictions shall not be laid before the presiding judge until the prosecutor moves for sentence, and in that event the prosecutor shall lay before the judge a copy of the notice referred to in subsection (2) or (4) of section 69 of this Act.
(4) On the conviction of the accused it shall be competent for the court, subject to subsection (5) below, to amend a notice of previous convictions so laid by deletion or alteration for the purpose of curing any error or defect.
(5) An amendment made to the notice of previous convictions shall not be to the prejudice of the accused.
(6) Any conviction which is admitted in evidence by the court shall be entered in the record of the trial.
(7) Where a person is convicted of an offence, the court may have regard to any previous conviction in respect of that person in deciding on the disposal of the case.
(8) Where any such intimation as is mentioned in section 69 of this Act is given by the accused, it shall be competent to prove any previous conviction included in a notice under that section in the manner specified in section 285 of this Act, and the provisions of the said section shall apply accordingly.
(1) When the jury have retired to consider their verdict, and the diet in another criminal cause has been called, then, subject to subsection (3) below, if it appears to the judge presiding at the trial to be appropriate, he may interrupt the proceedings in such other cause—
(a) in order to receive the verdict of the jury in the preceding trial, and thereafter to dispose of the case;
(b) to give a direction to the jury in the preceding trial upon any matter upon which the jury may wish a direction from the judge or to hear any request from the jury regarding any matter in the cause.
(2) Where in any case the diet of which has not been called, the accused intimates to the clerk of court that he is prepared to tender a plea of guilty as libelled or such qualified plea as the Crown is prepared to accept, or where a case is remitted to the High Court for sentence, then, subject to subsection (3) below, any trial then proceeding may be interrupted for the purpose of receiving such plea or dealing with the remitted case and pronouncing sentence or otherwise disposing of any such case.
(3) In no case shall any proceedings in the preceding trial take place in the presence of the jury in the interrupted trial, but in every case that jury shall be directed to retire by the presiding judge.
(4) On the interrupted trial being resumed the diet shall be called de novo.
(5) In any case an interruption under this section shall not be deemed an irregularity, nor entitle the accused to take any objection to the proceedings.
Criminal Procedure (Scotland) Act 1995