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Criminal Procedure (Amendment) (Scotland) Act 2004

New section 72A – preliminary hearing: appointment of trial diet

18.New section 72A(1) provides that after complying with the procedures in section 72 the court is to proceed to appoint a trial diet having regard to earlier proceedings at the preliminary hearing Subsection (2) provides that, if satisfied that it is appropriate to do so, the court may in appointing the trial diet, indicate that it is to be floating diet for the purposes of section 83A of the 1995 Act (see comments on section 5 below). In contrast to a fixed diet, the indictment does not fall if a floating diet is not commenced on the day appointed but may be continued from sitting day to sitting day.

19.The appointment of the trial diet is subject to the provisions of subsections (3) to (7) which require that the trial diet is appointed so as to take place within any time limits for commencement of the trial applicable to the case. If the court considers that a trial date cannot be fixed within these time limits the court will give the prosecution an opportunity to apply to extend the relevant time limit. If the application to extend the time limit is granted the court shall then appoint a trial date within the time limit as extended.

20.The relevant time limits for these purposes are the 12 month period specified in section 65(1) of the 1995 Act and the new 140 day period specified in section 65(4) of that Act as amended by section 6 of the Act. They require that the trial be commenced within 12 months of first appearance on petition and, where the accused has been held in custody, after not more than 140 days detention by virtue of the warrant committing him to prison to await trial. Where the accused is in custody and the trial date cannot be appointed within the 140 days of the new time limit but can be appointed within the 12 month time limit, and no application is made to extend the custody time limit or an application is made and refused, the trial may be appointed within the 12 month time limit and the accused is entitled to be admitted to bail.

21.Where the court considers it unlikely that a trial can be fixed within the 12 month time limit and no application is made to extend that period (or an application is refused) the court may desert the case simpliciter (for ever) or pro loco et tempore (temporarily). In the first case the Crown cannot re-indict the case, but in the second re-indictment is possible. If the accused is in custody he will be liberated forthwith.

22.Subsection (8) requires that the prosecutor is given an opportunity to be heard before the accused is admitted to bail where the 140 day period cannot be met. Subsection (9) provides that where the accused is on bail the court shall review the bail conditions and if necessary fix bail on different conditions.

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