Criminal Procedure (Scotland) Act 1975

4 In all cases in which such an application shall be made as hereinbefore provided for, but not dealt with by the judge presiding at the first diet in terms of the immediately preceding paragraph after transmission of the record copy of the indictment in terms of section 103 or 105 of this Act, or on receipt of the telegraphic intimation of the presentation of an application hereinafter provided for, the Clerk of Justiciary, or the clerk of the court of the second diet, shall on the third lawful day after the date of the first diet submit the report of the proceedings at the first diet to a Lord Commissioner of Justiciary, or, where the second diet is in a sheriff court, to a sheriff having jurisdiction to try the case, who shall deal with it as follows:

(a) The application shall be disposed of by him summarily, in court, or in chambers, after such intimation to parties, enquiry, or hearing (if any) as to him shall seem just, by order granting or refusing the same, which order shall be entered on the record copy of the indictment and signed by the judge making it, and shall be final: provided, however, that if any party (including any person accused in the same indictment as the applicant) shall have given notice, either at the time of making the application or by letter received by the clerk before the proceedings are reported to the judge, intimating that he desires to be heard in support of or against the application, then the judge shall not proceed to dispose of the application without giving the party who has so given notice, or his agent, such intimation and opportunity of being heard by counsel or by an agent qualified to practise in the court of the second diet as shall seem to him to be reasonable in the circumstances. But nothing herein contained shall confer any right on the accused to be personally present at the disposal of the application.

(b) Where owing to defective postal facilities or other cause the record copy of the indictment appointed under this Act to be transmitted to the Clerk of Justiciary or the clerk of the district of the court of the second diet shall not be in the hands of the said clerk on the morning of the third lawful day after the first diet, the procedure hereinbefore directed to be taken before a judge on said third lawful day may competently proceed upon telegraphic or telephonic intimation given to the clerk of court of the proceedings at the first diet bearing upon—

(i) the plea recorded (if any) ;

(ii) any application then made for a jury of one sex only; and

(iii) any special defence of which notice may have been given ;

and in that case any order by the judge may, pending receipt of the record copy of the indictment, be made and signed by the judge making it on a separate copy of the indictment or in the books of the court, but shall afterwards be endorsed on the record copy of the indictment.

(c) Where having regard to the usual course of post, or to any exceptional circumstances existing at the time, there is reason to believe that the record copy of the indictment may not reach the said clerk by the morning of the third day after the first diet, it shall be the duty of the clerk of the court of the first diet to send to the said clerk for the second diet by telegraph or telephone intimation in terms of the preceding sub-paragraph immediately after the first diet.