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Criminal Justice (Scotland) Act 2016

Part 3 – Solemn Procedure

Section 78 – Proceedings on petition

183.Section 78 changes the procedure to be followed at what are usually the first court appearances of a person being prosecuted under solemn procedure, when the person appears on petition.

184.The purpose of these provisions is to abolish the procedure (commonly known as judicial examination) whereby the prosecutor can, at the commencement of a case being prosecuted under solemn procedure, question the accused in the presence of the sheriff. In addition, section 78 removes the rarely-used option for the accused to make a declaration – broadly, a statement of his or her position in respect of the charge or charges on the petition – at that stage in proceedings.

185.Subsection (1) inserts a provision into the 1995 Act which removes the accused’s common-law right to be given the opportunity to make a declaration at the commencement of a case being prosecuted under solemn procedure.

186.Subsection (2) both removes from statute various provisions which relate to declarations, and abolishes the procedure known as judicial examination.

187.Subsection (2)(a) removes, from the 1995 Act, provisions which govern the making of declarations, and the right of the prosecutor to question the accused on extra-judicial confessions.

188.Subsection (2)(b) removes from the 1995 Act three sections which enable and regulate procedure at judicial examinations. By so doing, it abolishes the procedure.

189.Subsections (2)(c), (2)(d), and (2)(e) remove from the 1995 Act various provisions in respect of any records made of a judicial examination. These changes are consequential to the abolition of the judicial examination procedure by subsection (2)(b).

Section 79 – Pre-trial time limits

190.Sections 79 to 81 make changes to the procedure followed in proceedings on indictment in the sheriff court.

191.Section 80 introduces a requirement on the prosecution and the defence to communicate and to lodge a written record of their state of preparation in advance of the first diet.

192.Section 81 provides that the arrangement by which a sheriff court indictment assigns dates for both the first diet and the trial ceases to have effect. Instead the court will appoint a trial diet at the first diet, or at a continuation of it, having ascertained the parties’ state of preparation.

193.Section 79 makes changes to the time limits prescribed in section 65 of the 1995 Act which are intended to allow time for the procedure set out in section 80. In particular the period during which the accused can be remanded in custody pending a first diet and trial are brought in line with the corresponding High Court limits to reflect the altered pre-trial procedure.

194.Subsection (2) amends section 65 of the 1995 Act to set out revised time limits for various procedural steps in proceedings on indictment in the sheriff court.

195.The amendments made by subsection (2)(a) and (b) prevent the accused being tried on indictment in the sheriff court where the first diet is not commenced within 11 months of the first appearance on petition. That period can be extended by the court under section 65(3) of the 1995 Act. The 12-month period within which the trial must be commenced, as specified in section 65(1)(b) of the 1995 Act is unaffected. The amended provisions mirror the equivalent arrangements for proceedings in the High Court.

196.Subsection (2)(c) amends the provisions in section 65(4) of the 1995 Act concerning the periods during which the accused person who is committed until liberated in due course of law (i.e. imprisoned to await the outcome of a trial) can be detained by virtue of that committal where an indictment has been served in respect of the sheriff court. The effect of the amendment is that the accused person must be liberated after 110 days, if no first diet has been held, and 140 days if such a diet has been held, unless the trial begins within that period. These periods can be extended by the court under section 65(5) of the 1995 Act. Again, the amended provisions mirror High Court procedure. To assist in the calculation of the time period, subsection (2)(d) amends section 65(9) of the 1995 Act to provide that the first diet in the sheriff and jury court shall be taken to commence when it is called.

197.Subsection (3) amends section 66(6) of the 1995 Act to replace the arrangements whereby an accused person to be tried on indictment in the sheriff court is given notice of the first diet and trial diet at the same time as being served with the indictment. Instead, the accused will be given notice only of the first diet and the date of the trial diet will be fixed at the first diet. The period within which the first diet must take place will be increased from 15 clear days from the service of the indictment to 29 clear days; this change makes the sheriff court practice consistent with High Court practice.

198.Subsection (4) amends section 72C(4) of the 1995 Act for consistency with the amendment made by subsection (3). Section 72C(4) is a provision in similar terms to section 66(6), it deals with the situation where a fresh indictment has to be served on an accused because a preliminary hearing before the High Court either did not take place when it was supposed to, or was deserted for the time being without another hearing being appointed.

Section 80 – Duty of parties to communicate

199.Section 80 amends the 1995 Act to impose a duty on the prosecution and the defence, in cases indicted to the sheriff court, to communicate and to prepare a written record of their state of preparation.

200.Subsection (2) amends section 71 of the 1995 Act by inserting a new subsection (1ZA) which requires the court to have regard to the written record when ascertaining the parties’ state of preparation at the first diet.

201.Subsection (3) inserts a new section 71C into the 1995 Act. Subsection (2) of this new section requires the prosecutor and the accused’s legal representative (as defined in subsections (8) and (9)) to communicate and jointly prepare a written record of the state of preparation of their respective cases. The requirement arises where the accused is indicted to the sheriff court and is represented by a solicitor (new section 71C(1)).

202.Subsection (3) of the new section 71C provides that the period within which the communication must take place, and within which the written record of the state of preparation must be prepared is the period beginning with the service of the indictment and ending 14 days later.

203.Subsection (4) of the new section 71C provides for the form, content, and arrangements for lodging of the written record, to be prescribed under an Act of Adjournal. Subsection (5) provides that the record must include a statement of how the communication required by this new section took place. Subsection (5) gives examples of the means by which the communication may take place, but the examples are not exhaustive of the means that might be employed.

204.Section 80(4) of the Act amends section 75 of the 1995 Act to include a reference to the period mentioned in section 71C. This ensures that, where the 14 day period referred to in section 71C(3) ends on a weekend or on a court holiday, it is extended to include the next day that is not a Saturday, Sunday or court holiday.

Section 81 – First diets

205.Section 81 deals with the procedure at first diets in proceedings on indictment in the sheriff court.

206.Subsection (2) amends section 66 of the 1995 Act. Subsection (2)(a) requires the notice served on the accused with the indictment to include a warning to the accused that the first diet may proceed in his or her absence and that a trial diet may be fixed in his or her absence. This is distinct from the intimation that requires to be given by virtue of section 66(6AA) where the accused is a body corporate. However, even if the notice does not contain this warning, the amendment to section 66(6B) of the 1995 Act made by subsection (2)(b) ensures that the validity of the notice, and other procedure against the accused, is not invalidated by the omission.

207.Subsection (3) amends section 71 of the 1995 Act. The amendments provided for in subsection (3)(a), (b) and (d) are consequential on the new arrangements whereby the trial diet is appointed at the first diet (see discussion below of new section 71B). Subsection (3)(c) ensures that the requirement in section 71(6) that the accused should be called upon to plead at the first diet does not prevent the first diet proceeding in the absence of the accused. Subsection (3)(e) extends to the new section 71B discussed below the definition of the word “court” in section 71 of the 1995 Act, so that in the new section 71B references to the court will be understood as references to the sheriff court only.

208.Subsection (4) inserts a new section 71B into the 1995 Act, to deal with appointment of a trial diet at the first diet.

209.Subsection (1) of the new section 71B provides that, having taken the steps and examined the issues required at the first diet, the court only then goes on to appoint a trial. The appointing of a trial has to be in accordance with subsections (3) to (7), which are discussed below. Subsection (2) requires the accused to appear at the trial diet.

210.Subsections (3) and (4) of the new section 71B apply when a case is subject to the requirement that the trial must commence within 12 months of the accused’s first appearance on petition. If the court considers that the case would be likely to be ready to proceed to trial within the 12 months (which may not be 12 months from the petition appearance, because the period can be extended under section 65(3) of the 1995 Act) the court must, subject to subsections (5) to (7) appoint a trial within the 12 month period. If the court does not think the case will be ready to proceed within the 12 months, the prosecutor must be given an opportunity to seek an extension of the 12 month period. If an extension is granted the court must, again subject to subsections (5) to (7), appoint a trial within the 12 month period as extended. If the period is not extended the court may desert the first diet (either permanently or for the time being only) and if the accused is being held in custody pending trial, the accused must be liberated.

211.Subsections (5) to (7) of the new section 71B apply where, in addition to the court being required to appoint a trial diet within the 12 month period under subsection (3) or (4), the accused has been committed until liberated in due course of law (i.e. imprisoned to await the outcome of a trial) and cannot be detained by reason of that committal for more than 140 days without being put on trial. In that event, as well as appointing a trial diet within the 12 month period, the court must appoint a trial within the 140 day period if it is satisfied that the case will be ready to go to trial within that period. If the court is not satisfied about that, the prosecutor must be given an opportunity to apply for an extension of the 140 day period. If an extension is granted the court must appoint a trial for a date within the 140 day period as extended (as well as within the 12 month period). If the period is not extended the accused is entitled to be admitted to bail. In that event, subsection (8) requires the court to give the prosecutor an opportunity to be heard before admitting the accused to bail.

212.Where the court has appointed a trial diet for an accused on bail (other than in the circumstances where the accused has been bailed as described in the previous paragraph) subsection (9) of the new section 71B requires that the court must review the accused’s bail conditions and empowers it, if it considers it appropriate, to set different conditions.

213.Subsection (10) of the new section 71B defines the 12 month and 140 day time limits with reference to the applicable provisions of section 65 of the 1995 Act.

214.Subsection (5) of section 81 amends section 76(3) the 1995 Act which makes provision for the situation where a diet fixed as a result of an intimation given by the accused under section 76(1) of the 1995 Act (that he intends to plead guilty) does not result in pleas being accepted in respect of all charges. The amendment allows the court to postpone a first diet where a case has been indicted to the sheriff court on the same basis as the power to postpone a preliminary hearing where the case has been indicted to the High Court.

215.Subsection (6) inserts a new section 83B into the 1995 Act applying to jury trials in the sheriff court. The section allows trials that have not yet been commenced to be continued from sitting day to sitting day, up to a maximum number of sitting days after the day originally appointed for the trial, the maximum being set by Act of Adjournal. Failure to commence the trial by the end of the last sitting day permitted results in the indictment falling and proceedings against the accused coming to an end.

Section 82 – Preliminary hearings

216.Section 82 reverses the effect of amendments to section 72A of the 1995 Act Criminal effected by section 7(3) of the Vulnerable Witnesses (Scotland) Act 2004. The amendments, which relate to proceedings in the High Court, were mistakenly applied after the section to which they related was repealed by the Criminal Procedure (Amendment) (Scotland) Act 2004, and replaced with another section with the same number.

Section 83 – Plea of guilty

217.Section 83 repeals that part of section 77(1) of the 1995 Act which requires that the accused pleading guilty to an indictment should sign a copy of the plea. Section 70(7) of the 1995 Act, which provides for an exception to the signing requirement where the accused pleading guilty is an organisation, is thereby rendered obsolete and is also repealed.

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