Act of Adjournal (Criminal Procedure Rules Amendment) (Criminal Procedure (Amendment) (Scotland) Act 2004) 2005

Citation and commencement

1.—(1) This Act of Adjournal may be cited as the Act of Adjournal (Criminal Procedure Rules Amendment) (Criminal Procedure (Amendment) (Scotland) Act 2004) 2005 and shall come into force on 1st February 2005.

(2) This Act of Adjournal shall be inserted in the Books of Adjournal.

Amendment of the Act of Adjournal (Criminal Procedure Rules) 1996

2.—(1) Subject to sub-paragraphs (2) to (4), the Act of Adjournal (Criminal Procedure Rules) 1996(1) shall be amended in accordance with sub-paragraphs (5) to (18).

(2) Nothing in this Act of Adjournal shall affect proceedings in which–

(a) the accused is cited on or before 1st March 2005 to a diet in the High Court or the sheriff court which commences before 1st April 2005; or

(b) the period mentioned in subsections (1) or (4) of section 65 of the Act of 1995 as so continued (taking into account any extension under subsections (3), (5) or (7)) expires before 1st April 2005.

(3) In sub-paragraph (2), the reference to citation to a diet which commences before 1st April 2005 includes–

(a) any further, adjourned, postponed or altered diet which commences before that date;

(b) re-indictment to any diet which commences before that date; and

(c) a first diet in the sheriff court which commences before that date and any subsequent trial diet in the sheriff court, provided the trial diet also commences before that date.

(4) For the purposes of sub-paragraphs (2) and (3)–

(a) a diet other than a trial diet shall be taken to commence when it is called; and

(b) a trial diet shall be taken to commence when the jury is sworn.

(5) After rule 2.2 (citation in solemn proceedings)(2), there shall be inserted the following:–

“Citation in solemn proceedings by service on solicitor

2.2A.   Where the documents mentioned in section 66(6C) of the Act of 1995 (citation by service on solicitor)(3) are to be served on a solicitor under that section, they shall be–

(a) delivered to the solicitor personally at the solicitor’s place of business;

(b) left for the solicitor with an employee or partner of the solicitor at the solicitor’s place of business; or

(c) posted to the solicitor’s place of business by the first class recorded delivery service,

with a notice in Form 2.2A.”.

(6) At the end of rule 2.6 (forms of execution of service)(4) there shall be inserted the following:–

“(7) The execution of service of documents under rule 2.2A (citation in solemn proceedings by service on solicitor) or rule 2.3A (service etc. on accused through a solicitor)(5) shall be in Form 2.6–G.”.

(7) At the end of rule 4.1 (application to alter address in bail order) there shall be inserted the following:–

“(6) Where–

(a) the application is made by a witness who has been granted bail under section 90B(1)(b) of the Act of 1995(6); and

(b) the warrant to apprehend the witness under section 90A(1) of the Act of 1995(7) was issued on the application of a party other than the prosecutor,

paragraphs (1) to (5) shall also apply to that party as they apply to the prosecutor.”.

(8) In rule 8.1 (appeals in relation to extension of time for trial)–

(a) in paragraph (1) for “(extension of 12 months period for commencement of trial on indictment)” there shall be substituted “(extension of periods for commencement of preliminary hearing or trial diet)”;

(b) in paragraph (2) “or (7)” shall be omitted and for “(extension of 80 or 110 days period of committal)” there shall be substituted “(extension of 80, 110 or 140 days period of committal)”.

(9) Rule 8.1A (further provision as respects extension of twelve months period for commencement of trial on indictment) and rule 8.1B (fresh indictment as alternative to serving notice fixing new trial diet)(8) shall be omitted.

(10) For rule 8.2 (citation of accused and witnesses) there shall be substituted the following:–

“Citation of accused and witnesses

8.2.— (1) Subject to paragraph (5), the notice to be affixed to the door of the relevant premises for the purposes of section 66(4)(b) of the Act of 1995(9) shall be in Form 8.2–A.

(2) Subject to paragraph (5), the notice for the purposes of section 66(6) of the Act of 1995 to be served on a person accused on indictment shall be in Form 8.2–B or, where the charge is of committing a sexual offence to which section 288C of that Act(10) applies, Form 8.2–C.

(3) The form of postal citation of a witness under section 66(1) of the Act of 1995(11) shall be in Form 8.2–D; and the witness shall return Form 8.2–E to the procurator fiscal, or the accused person or his solicitor, as the case may be, in the pre-paid envelope provided, within 14 days after the date of citation.

(4) The form of personal citation of a witness under section 66(1) of the Act of 1995 shall be in Form 8.2–F.

(5) Where the accused is a body corporate,

(a) the notice to be affixed to the door of the relevant premises for the purposes of section 66(4)(b) of the Act of 1995 shall be in Form 8.2–G;

(b) the notice for the purposes of section 66(6) of the Act of 1995 shall be in Form 8.2–H.”.

(11) For Chapter 9 (first diets and preliminary diets) there shall be substituted the following:–

“CHAPTER 9 FIRST DIETS (SHERIFF COURT)

Minute giving notice of preliminary pleas or preliminary issues

9.1.— (1) Any notice given under section 71(2) of the Act of 1995 (notice of preliminary pleas or preliminary issues before first diet)(12) shall be by minute in Form 9.1.

(2) That minute shall be lodged with the sheriff clerk and served on every other party by the minuter.

Procedure on lodging minute

9.2.   On the lodging of a minute under rule 9.1 (minute giving notice of preliminary pleas or preliminary issues) with a certificate of execution of service, the sheriff clerk shall endorse on the minute the time and date on which it was received.

Orders for further diets under section 71 of the Act of 1995

9.3.— (1) An order for a further diet under section 71(2ZA) of the Act of 1995 (further diet to consider objection to the admissibility of evidence)(13) may be signed by the sheriff clerk.

(2) Intimation of the terms of an order–

(a) mentioned in paragraph (1); or

(b) for an adjourned diet under section 71(5A) of the Act of 1995 (adjournment of first diet)(14),

shall be given by the sheriff clerk to the governor of any institution in which the accused is detained.

Procedure at first diet

9.4.— (1) A first diet shall commence on the diet being called.

(2) A record of the proceedings at the first diet, including–

(a) a note of the decision made by the court in respect of any notice placed before it;

(b) any adjournment, and

(c) the plea stated under section 71(6) of the Act of 1995 (plea at first diet),

shall be kept in accordance with existing law and practice.

Applications for leave to appeal

9.5.— (1) An application for leave to appeal to the High Court under section 74(1) of the Act of 1995 (appeal against a decision of the sheriff at a first diet)(15) shall be made by motion to the sheriff at that diet immediately following the making of the decision in question, and shall be granted or refused at that time.

(2) A decision under this rule shall be recorded in the minute of proceedings.

Note of appeal

9.6.— (1) An appeal under section 74(1) of the Act of 1995 against a decision of the sheriff at a first diet shall be made by lodging a note of appeal in Form 9.6.

(2) The note of appeal shall be lodged with the sheriff clerk not later than two days after the making of the decision in question.

Procedure on lodging note of appeal

9.7.— (1) On the lodging of a note of appeal with the sheriff clerk, he shall endorse on it a certificate that leave to appeal has been granted and the date and time of lodging.

(2) As soon as possible after the lodging of a note of appeal with the sheriff clerk, he shall–

(a) send a copy of the note of appeal to the other parties or their solicitors;

(b) request a report on the circumstances relating to the decision from the sheriff; and

(c) transmit the note of appeal to the Clerk of Justiciary with a certified copy of–

(i) the indictment;

(ii) the record of proceedings; and

(iii) any other relevant document.

Report of sheriff

9.8.— (1) The sheriff, on receiving a request for a report under rule 9.7(2)(b) (report on circumstances relating to decision) shall, as soon as possible, send his report to the Clerk of Justiciary.

(2) The Clerk of Justiciary shall, on receiving the report of the sheriff–

(a) send a copy of the report to the parties or their solicitors;

(b) arrange for a hearing of the appeal as soon as possible; and

(c) cause to be copied any documents necessary for the appeal.

Intimation of order postponing trial diet

9.9.— (1) Where, in relation to an appeal under section 74(1) of the Act of 1995 (appeal in connection with first diet) in a case set down for trial in the sheriff court, the High Court makes an order under section 74(3) of that Act (postponement of trial diet)(16), the Clerk of Justiciary shall send a copy of the order to–

(a) the sheriff clerk;

(b) all parties to the proceedings; and

(c) the governor of any institution in which any accused is detained.

(2) If, in relation to any case a trial diet has been postponed by virtue of an order mentioned in paragraph (1), any requirement to call that diet shall have effect only in relation to the date to which the diet has been postponed.

Orders of appeal court

9.10.   The Clerk of Justiciary shall intimate to the sheriff clerk the decision of the High Court disposing of an appeal under section 74(1) of the Act of 1995 in relation to a first diet.

Abandonment of appeal

9.11.— (1) An appellant who has taken an appeal under section 74(1) of the Act of 1995 (appeal in connections with first diet) may abandon the appeal at any time before the hearing of the appeal.

(2) An abandonment of such an appeal shall be made by lodging a minute of abandonment in Form 9.11 with the Clerk of Justiciary.

(3) The Clerk of Justiciary, on receiving such a minute of abandonment, shall inform the sheriff clerk and the other parties or their solicitors.

(4) The sheriff, on the sheriff clerk being so informed, may proceed as accords with the case.

CHAPTER 9A PRELIMINARY HEARINGS (HIGH COURT OF JUSTICIARY)

Notice of preliminary pleas and preliminary issues

9A.1.— (1) Any notice given under section 72(3) (notice of preliminary pleas) or section 72(6)(b)(i) (notice of preliminary issues) of the Act of 1995(17) shall be by minute in Form 9A.1.

(2) A minute under paragraph (1) shall be lodged with the Clerk of Justiciary and served on every other party by the minuter.

Applications to dispense with preliminary hearings

9A.2.— (1) An application to dispense with a preliminary hearing shall made in Form 9A.2.

(2) Prior to making an application under paragraph (1), the parties shall consult with the Clerk of Justiciary as to a suitable date for a trial diet.

(3) An application under paragraph (1) shall indicate whether or not a date for a trial diet has been agreed by the parties with the Clerk of Justiciary and shall give details of any applicable time limits under section 65 of the Act of 1995(18).

(4) On the lodging of an application under paragraph (1), the Clerk of Justiciary shall attach it to the record copy of the indictment and place it before a judge in chambers.

(5) The order made by the judge in chambers in respect of the application shall be–

(a) recorded by endorsation on the record copy of the indictment;

(b) signed by the Clerk of Justiciary;

(c) entered in the record of proceedings; and

(d) intimated by the Clerk of Justiciary to the applicants or their solicitors.

(6) The Clerk of Justiciary shall send to the governor of any institution in which any accused is detained a copy of any order of the court dispensing with a preliminary hearing.

Notice to appear where preliminary hearing deserted

9A.3.   A notice referred to in section 72C(4) of the Act of 1995 (notice to appear at further preliminary hearing)(19) shall be in Form 8.2–B or, where the charge is of committing a sexual offence to which section 288C of the Act of 1995 (prohibition of personal conduct of defence in cases of certain sexual offences)(20) applies, Form 8.2–C.

Written record of state of preparation

9A.4.— (1) A written record referred to in section 72E of the Act of 1995 (written record of the state of preparation in certain cases)(21) shall be in Form 9A.4 and shall contain the information indicated in that form.

(2) A written record under paragraph (1) may be lodged by sending a copy by facsimile or other electronic means followed by the lodging of the principal and the time and date of lodging shall be the date and time on which the copy was received by the Clerk of Justiciary.

(3) A written record under paragraph (1) which is lodged after 2pm on the last date for lodging under section 72E of that Act shall be deemed to have been lodged on the next day after that date.

Proceedings at preliminary hearing

9A.5.— (1) Any order under section 72(9)(a) (appointment of further diet) of the Act of 1995(22) shall be intimated by the Clerk of Justiciary to the parties or their solicitors.

(2) On the making of an order mentioned in paragraph (1), the Clerk of Justiciary shall send a copy of the order to the governor of any institution in which the accused is detained.

(3) On the appointment of a trial diet, the Clerk of Justiciary shall intimate the date of that diet to the governor of any institution in which the accused is detained.

Applications for leave to appeal

9A.6.— (1) An application for leave to appeal to the High Court under section 74(1) of the Act of 1995(23) against a decision of the High Court at a preliminary hearing shall be made by motion to the court at that hearing immediately following the making of the decision in question, and shall be granted or refused at that time.

(2) A decision made under this rule shall be recorded in the record of proceedings.

Note of appeal

9A.7.— (1) An appeal under section 74(1) of the Act of 1995 against a decision of the High Court at a preliminary hearing shall be made by lodging a note of appeal in Form 9A.7 with the Clerk of Justiciary.

(2) The appellant shall send a copy of a note of appeal under paragraph (1) to the other parties.

Abandonment of appeal

9A.8.— (1) An appellant who has taken an appeal under section 74(1) of the Act of 1995 (appeals against decision at a preliminary hearing) may abandon the appeal at any time before the hearing of the appeal.

(2) An abandonment of such appeal shall be made by lodging a minute of abandonment in Form 9A.8.

CHAPTER 9B OBJECTIONS TO THE ADMISSIBILITY OF EVIDENCE RAISED AFTER FIRST DIET OR PRELIMINARY HEARING

Notice etc. of objections raised after first diet or preliminary hearing

9B.1.— (1) Any notice given under section 79A(2) of the Act of 1995(objections to the admissibility of evidence after first diet or preliminary hearing)(24) shall be by minute in Form 9B.1 and shall be served on the other parties by the minuter.

(2) On the lodging of a minute under paragraph (1), the Clerk of Justiciary or the sheriff clerk, as the case may be, shall place the minute before a judge in chambers.

(3) On considering the minute in the absence of the parties or of any person acting on their behalf, the judge shall appoint–

(a) a further diet to be held before the trial diet for the purpose of hearing the parties on whether leave should be granted for the objection to be raised; or

(b) the question of whether leave should be granted under section 79A(2) of the Act of 1995 for the objection to be disposed of at the trial diet.

(4) The Clerk of Justiciary or the sheriff clerk, as the case may be, shall intimate the order under paragraph (3) to the parties and to the governor of any institution in which the accused is detained.”.

(12) In rule 10.1 (procedure for plea of guilty)–

(a) in paragraph (2)(a) “at any sitting” shall be omitted;

(b) in paragraph (2)(b) for “(notice of first and trial diet)” there shall be substituted “(notice of first diet and trial diet or preliminary hearing)”; and

(c) paragraph (4)(d) shall be omitted.

(13) For Chapter 12 (alteration and postponement of solemn trial diet) there shall be substituted the following:–

“CHAPTER 12 ADJOURNMENT AND ALTERATION OF DIETS IN SOLEMN PROCEEDINGS

Adjournment

12.1.— (1) Where circumstances arise in which the court may adjourn a diet under section 75A(2) of the Act of 1995 (adjournment and alteration of diets)(25), and the prosecutor proposes such an adjournment, he may for that purpose require the diet to be called on the date for which it was originally fixed at such time as he thinks appropriate.

(2) The presence of the accused in court when the diet was so called and adjourned shall be sufficient intimation to him of the adjourned diet.

(3) If the diet was so called and adjourned in the absence of the accused, the prosecutor shall forthwith serve on the accused an intimation of adjournment in Form 12.1.

(4) The calling and the adjournment of the diet including a record as to the presence or absence of the accused, as the case may be, shall be endorsed by the clerk of court on the record copy indictment and entered in the record of proceedings in accordance with existing law and practice.

(5) A copy of the order of the court adjourning the diet under section 75A(2) of the Act of 1995 shall be sent by the clerk of court to the governor of any institution in which the accused is detained.

Applications for alteration of diet

12.2.— (1) Subject to paragraph (2), an application under section 75A(5) of the Act of 1995 (application for alteration of diet)(26) shall be made by minute in Form 12.2–A.

(2) Where all parties join in the application, the application shall be made by joint minute in Form 12.2–B.

(3) A minute under this rule shall be lodged–

(a) in the case of proceedings in the High Court, with the Clerk of Justiciary,

(b) in the case of proceedings in the sheriff court, with the sheriff clerk.

Orders fixing diet for hearing application to alter diet

12.3.   Where a minute referred to in rule 12.2 (applications for alteration of diet) has been lodged, the court shall, or, in a case in which all parties join in the application, may, make an order endorsed on the minute–

(a) fixing a diet for a hearing of the application; and

(b) for service of the minute with the date of the diet on all parties.

Calling of diet for hearing application

12.4.   A diet fixed under rule 12.3 (orders fixing diet for hearing application to alter diet) shall be held in open court in the presence of all parties unless the court permits the hearing to proceed in the absence of the accused under section 75A(8) of the Act of 1995, and shall be commenced by the calling of the diet.

Joint applications without hearing

12.5.— (1) Where, in the case of a joint application under subsection (5) of section 75A of the Act of 1995 (application for alteration of diet), the court proposes to proceed without hearing the parties by virtue of subsection (7) of that section (joint application for alteration of diet), the clerk of court shall on the lodging of the minute attach it to the record copy of the indictment and place it before a judge in chambers.

(2) The order made by the judge in chambers in respect of the joint application shall be–

(a) recorded by endorsation on the record copy of the indictment;

(b) signed by the clerk of court;

(c) entered in the record of proceedings; and

(d) intimated by the clerk of court to the applicants or their solicitors.

(3) The clerk of court shall send to the governor of any institution in which the accused is detained a copy of the following orders of the court–

(a) an order under rule 12.3 (order fixing diet for hearing of application to alter diet);

(b) an order under section 65(3) or (5) of the Act of 1995 (extension of time limits)(27); and

(c) an order under section 75A(5) of the Act of 1995( discharging a diet and fixing a new diet).

Form of notice where trial diet does not take place

12.6.   A notice referred to in section 81(5) of the Act of 1995 (notice to appear where trial diet has not taken place)(28) shall be in Form 8.2–B or, where the charge is of committing a sexual offence to which section 288C of that Act (prohibition of personal conduct of defence in cases of certain sexual offences)(29) applies, Form 8.2–C.

Floating diets in the High Court of Justiciary

12.7.— (1) A minute referred to in section 83A(2)(a) of the Act of 1995 (minute of continuation of floating trial diet)(30) shall be in Form 12.7.

(2) The maximum number of days for which a floating diet may be continued from sitting day to sitting day shall be four days after the day originally appointed for the trial diet.”.

(14) For rule 13.1 (list of jurors) there shall be substituted the following:–

“List of jurors

13.1.— (1) A list of jurors shall–

(a) contain not less than 30 names;

(b) be prepared under the directions of the clerk of court before which the trial is to take place;

(c) be kept at the office of the sheriff clerk of the district in which the court of the trial diet is situated; and

(d) be headed “List of Assize for the sitting of the High Court of Justiciary (or the sheriff court of.at.) on the.of.”.

(2) The clerk of the court before which the trial is to take place, in preparing a list of jurors for the trial diet, shall have regard, in determining the number of jurors to be listed, to the powers of altering the date of or adjourning any trial diet exercisable under the following provisions of the Act of 1995:–

• section 74(3) (postponement of trial diet in appeals in connection with first diets or preliminary hearings)(31),

• section 75A (adjournment and alteration of diets)(32),

• section 76(3) (postponement where not guilty plea accepted)(33).”.

(15) After rule 13A.1 (citation of witnesses for precognition)(34), there shall be inserted the following:–

“Warrants for apprehension

13A.2.— (1) An application made in writing for a warrant for the apprehension of a witness under section 90A or 90D of the Act of 1995(35) shall be in Form 13A.2–A.

(2) On receipt of an application under paragraph (1), the Clerk of Justiciary or sheriff clerk, as the case may be, shall fix a diet for the hearing of the application and intimate the date of that hearing to the parties.

(3) A warrant for the apprehension of a witness under section 90A of the Act of 1995 shall be in Form 13A.2–B.

Review of orders

13A.3.   An application for review under section 90D of the Act of 1995 of an order under section 90A(1)(a) or (b) of that Act shall be in Form 13A.3.

Appeals

13A.4.   An appeal under section 90E(1) of the Act of 1995 (appeal in respect of an order under section 90B(1) of the Act of 1995) shall be made by lodging a note of appeal in Form 13A.4 with the Clerk of Justiciary.”.

(16) After rule 21.2 (notice of challenge of evidence as uncontroversial) there shall be inserted the following:–

“Application for direction that challenge be disregarded

22.2A.   An application under section 258(4A) of the Act of 1995 (application for direction that challenge be disregarded)(36) shall be in Form 21.2A.”.

(17) In rule 40.2(5) (raising devolution issues: proceedings on indictment)(37) for “or objection or to make any submission or application under section 72 of the Act of 1995” there shall be substituted “objection, preliminary plea or preliminary issue”.

(18) In the appendix–

(a) at the beginning there shall be inserted the form set out in Part 1 of the Schedule to this Act of Adjournal;

(b) in Forms 2.6–AA and 2.6–BA(38), for “accused’s dwelling-house [or place of business]”, there shall be substituted “relevant premises”;

(c) after Form 2.6–F there shall be inserted the form set out in Part 2 of the Schedule to this Act of Adjournal;

(d) for Forms 8.1–A, 8.1–B, 9.1(39), 9.9 and 9.17 there shall be substituted respectively the forms set out in Part 3 of the Schedule to this Act of Adjournal;

(e) for Forms 8.2–A to 8.2–E(40) there shall be substituted the forms set out in Part 4 of the Schedule to this Act of Adjournal;

(f) for Form 9.12 there shall be substituted the forms set out in Part 5 of the Schedule to this Act of Adjournal;

(g) for Forms 12.1, 12.2–A, 12.2–B and 12.6 there shall be substituted respectively the forms set out in Part 6 of the Schedule to this Act of Adjournal; and

(h) after Form 13.2–B there shall be inserted the forms set out in Part 7 of the Schedule to this Act of Adjournal;

(i) after Form 21.2 there shall be inserted the form set out in Part 8 of the Schedule to this Act of Adjournal;

(j) in Forms 40.2A and 40.2B, in paragraph 1, for “trial” there shall be substituted “preliminary hearing”.

Cullen of Whitekirk

Lord Justice General I.P.D.

Edinburgh

28th January 2005