(1)It shall not be competent for an accused to state a special defence or to lead evidence calculated to exculpate the accused by incriminating a co-accused unless—
(a)a plea of special defence or, as the case may be, notice of intention to lead such evidence has been lodged and intimated in writing in accordance with subsection (3) belowF1. . .
(b)the court, on cause shown, otherwise directs.
[F2(1A)Subsection (1) does not apply where—
(a)the accused lodges a defence statement under section 70A, and
(b)the accused's defence consists of or includes a special defence.]
(2)Subsection (1) above shall apply [F3to a plea of diminished responsibility or] to a defence of automatism [F4, coercion or, in a prosecution for an offence to which section 288C of this Act applies, consent] as if it were a special defence.
[F5(2A)In subsection (2) above, the reference to a defence of consent is a reference to the defence which is stated by reference to the complainer’s consent to the act which is the subject matter of the charge or the accused’s belief as to that consent.
(2B)In subsection (2A) above, “complainer” has the same meaning as in section 274 of this Act.]
(3)A plea or notice is lodged and intimated in accordance with this subsection—
(a)where [F6the case is to be tried in the High Court] , by lodging the plea or notice with the Clerk of Justiciary and by intimating the plea or notice to the Crown Agent and to any co-accused not less than [F7seven clear days before the preliminary hearing] ;
(b)where the [F8case is to be tried in the sheriff court] , by lodging the plea or notice with the sheriff clerk and by intimating it to the procurator fiscal and to any co-accused at or before the first diet.
(4)It shall not be competent for the accused to examine any witnesses or to put in evidence any productions not included in the lists lodged by the prosecutor unless—
(a)written notice of the names and addresses of such witnesses and of such productions has been given—
(i)where the case is to be tried in the sheriff court, to the procurator fiscal of the district of the trial diet at or before the first diet; and
(ii)where the case is to be tried in the High Court, to the Crown Agent at least [F9seven clear days before the preliminary hearing]
(b)the court, on cause shown, otherwise directs.
(5)A copy of every written notice required by subsection (4) above shall be lodged by the accused with the sheriff clerk of the district in which the trial diet is to be held, or in any case the trial diet of which is to be held in the High Court in Edinburgh with the Clerk of Justiciary, at or before
[F10(a)where the case is to be tried in the High Court, the preliminary hearing;
(b)where the case is to be tried in the sheriff court, the trial diet,
for the use of the court.] .
Textual Amendments
F1Words in s. 78(1)(a) repealed (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 25(a); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)
F2S. 78(1A) inserted (6.6.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 124(4), 206(1) (with s. 124(1)); S.S.I. 2011/178, art. 2, sch.
F3Words in s. 78(2) inserted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 46; S.S.I. 2012/160, art. 3, sch.
F4Words in s. 78(2) substituted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 6(1)(a); S.S.I. 2002/443, art. 3 (with art. 4(4))
F5S. 78(2A)(2B) inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 6(1)(b); S.S.I. 2002/443, art. 3 (with art. 4(4))
F6Words in s. 78(3)(a) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 25(b)(i)(A); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)
F7Words in s. 78(3)(a) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 25(b)(i)(B); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)
F8Words in s. 78(3)(b) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 25(b)(ii); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)
F9Words in s. 78(4)(a)(ii) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 25(c); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)
F10Words in s. 78(5) substituted (1.2.2005) by Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), ss. 25, 27(1), Sch. para. 25(d); S.S.I. 2004/405, art. 2, Sch. 1 (subject to arts. 3-5)