1Where a list of assize falls to be returned upon requisition of the Clerk of Justiciary for a criminal trial in which the second diet is to be held before the High Court, or falls to be prepared by the clerk of the district where the second diet is to be held in cases in which the second diet is to be in a sheriff court, the following provisions shall apply, namely:—
(a)Where according to the existing law and practice the number of jurors in any list to be requisitioned by the Clerk of Justiciary would not exceed 45 in the case of a sitting of the High Court, the Clerk shall make requisition for a return of such a number of jurors—not exceeding 90, nor fewer than 60 where 45 would be requisitioned, and in the like proportion in other cases—as he may deem requisite: and the sheriffs responsible for making the return shall return such increased number accordingly, returning as nearly as possible the names of men and women equally.
(b)Where a number of jurors in excess of the numbers specified in the preceding sub-paragraph is to be requisitioned, the Act of Adjournal or the Lord Commissioner of Justiciary making the direction for the return shall specify the number of jurors to be returned; and of the number so specified, men and women respectively shall be returned as nearly as may be equally.
(c)The provisions of this Act regulating the proportions in which jurors are to be drawn from the various districts included in any area for which a return is made by a sheriff, shall extend to and be observed in the return of women as well as of men.
(d)In making his return the sheriff shall group the men and women respectively returned by him separately, by placing their names in different columns, or in some other convenient manner.
(e)The clerk charged with the preparation of any list of assize for a trial of which the second diet is appointed to be held in a sheriff court, shall, in preparing the same, include such equal number of women as of men therein as shall seem to him to be reasonably sufficient to ensure the attendance of a number of jurors of each sex so as to provide a jury of that sex only, if such should be required for the trial of such case or cases.
(f)A husband and wife shall not be returned in any case on the same list of assize.
2Any application by a prosecutor or by the accused in terms of section 100 of this Act for a jury of men only, or of women only, must be made at the first (pleading) diet immediately after the recording of a plea or pleas of " not guilty " (or where no plea is taken because of preliminary objections held by the sheriff not to be frivolous, then immediately after such objections have been certified by the sheriff under section 105 of this Act or otherwise disposed of by him). An entry recording the making of the application shall be entered on the record copy of the indictment, and signed by the presiding sheriff.
3If the second diet is appointed to be held in the sheriff court, and the judge presiding at the first diet is a sheriff having jurisdiction to try the case, he may, if so advised, forthwith deal with the application in the manner in which as hereinafter provided it may be dealt with by a judge of the court of the second diet, or he may at his own instance make an order as to the composition of the jury in respect of sex conform to the said subsection, and in that case his decision shall be recorded as aforesaid and shall be final; or he may reserve consideration of the question to be dealt with as aftermentioned.
4In 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.
5Notwithstanding anything herein contained, it shall nevertheless be competent, in any case in which no such application has been made and disposed of as hereinbefore provided for, for the judge appointed to preside at the trial of the case, at any stage prior to the empanelling of the jury to make an order, if in his discretion he shall think proper so to do, that the jury for trial of the case shall be composed of men only or of women only, subject always to the condition that no such order shall be made or take effect unless there are a sufficient number of men or women (as the case may be) on the assize list and present and available to form a jury of the composition contemplated.
6(1)If, prior to the date of citation of the jurors for any diet, an order shall have been made directing that all the cases appointed for trial at such diet shall be tried by a jury or juries composed of men only, or of women only, as the case may be, the clerk of court may reduce the list of assize by striking out the names of the persons of the other sex from the list of assize, and it shall not be necessary to cite any of these persons as jurors.
(2)Where no such application as is hereinbefore provided for in respect of any of the cases appointed for trial at a sitting to which any list of assize applies has been made at the first diet, the clerk of court may forthwith reduce the list of assize to such number as would fall to be cited according to former law and practice. This he shall do by striking out of the list of assize the names of men and women, in equal numbers so far as may be, commencing with the names lowest on the list returned for each district, and only the assizors whose names remain on the list when so reduced shall be cited. Provided, however, that if intimation shall have been given of any special defence which shall appear to the clerk of court to be of such a nature as to involve enquiry into an issue which may be suited for trial before a jury of persons of one sex only, he shall, before proceeding to reduce the list of assize take the instructions of a judge competent to try the case.
(3)Where applications have been made at the first diet as hereinbefore provided for in any cases appointed for trial at any such sitting and these applications shall all have been dealt with and refused prior to the date of citation of the jury, the clerk of court shall, upon the refusal of said applications, proceed as provided in the preceding sub-paragraph.
(4)In all other cases (subject to the provisions of section 97 of this Act as to summoning only so many jurors as may be necessary), the persons whose names appear on the list of assize shall be summoned, men and women equally.
(5)Where, owing to change of circumstances, by reason of the withdrawal of charges or otherwise, after the citation of jurors the conditions are found to be such that if they had existed prior to the citation the provisions of sub-paragraphs (1), (2) or (3) of this paragraph would have been applicable, the clerk of court may thereupon, notwithstanding citation, proceed to reduce the list of assize as in these sub-paragraphs provided for, and to countermand the citations of those jurors whose names are struck out of the list when reduced.
(6)In this paragraph " clerk of court" shall mean and include the clerk of court of the second diet, and in cases in which the second diet is before a sheriff, the sheriff-clerk of the district of the court of the second diet, and in any case falling to be tried in the High Court, the Clerk of Justiciary.
(7)Jurors whose names are struck out in reducing the list of assize, or whose citations are countermanded as above provided for shall be liable to future service as jurors as if their names had not been included in the particular list of assize.
7(1)Where any case shall be remitted to an assize in which an order shall have been made as aforesaid that it shall be tried before a jury composed of men only or of women only, then in balloting for the jury in that case there shall be placed in the bor or glass used for containing the slips of the names of jurors (as provided in section 129 of this Act) the slips containing the names of all the jurors who have been summoned; but in balloting for the jury, persons whose names shall be drawn who are not of the sex of which the jury has been directed to be composed, shall be passed over and not called on to serve on that particular jury; but the jury shall consist of the 15 persons of the sex of which it has been ordered to be composed whose names shall be first drawn and who shall not be successfully challenged. The slips containing the names of persons passed over under this provision shall be laid aside and returned to the ballot glass before another jury is balloted for.
(2)Where no order such as is mentioned in the preceding sub-paragraph shall have been made, then the names of all the persons appearing on the list of assize and summoned to attend shall be placed in the box or glass irrespective of whether they are men or women; and the ballot shall be carried through according to the method presently in use without distinguishing between men and women.
8Any woman summoned to serve on a jury shall be entitled to apply to be exempted from service on account of pregnancy or other feminine condition or ailment, subject to the following conditions:—
(a)Application for exemption shall be made by her to the clerk of the court in which the second diet is to be called, or in any case in the High Court to the Clerk of Justiciary, as soon as may be after receipt of the citation, and unless on special cause shown not later than the third day before the date of said diet, and the same shall be supported by evidence (by a medical certificate or otherwise) vouching to the satisfaction of the said clerk that the applicant is or will be, by reason of pregnancy or some other feminine condition or ailment, unfit to attend and serve as a juror at the trial.
(b)Applications duly made as herein provided for shall be dealt with by the said clerk, who shall have power to dispose of them after such consultation with a judge competent to try the case as he may think necessary. Intimation of the granting or refusal of the application shall be made to the applicant by the clerk.
(c)Any such juror whose application for exemption is granted shall as regards liability for future jury service be in the same position as if she had not been included in the list of the assize on which she is exempted from serving.
9Every citation upon a woman to attend as a juror shall contain a notification as nearly as may be in terms of the appropriate form contained in an Act of Adjournal under this Act.
10Nothing herein contained shall prejudice—
(a)the right of the judge presiding at any trial at any time before the jury is empanelled to grant exemption in his discretion to a woman from serving as a juror in any case in respect of any of the reasons provided for in section 100 of this Act; nor
(b)any power presently exercised by any clerk of court or the Clerk of Justiciary, or by any judge presiding at a trial, to excuse at any time any person summoned to attend as a juror from attendance.