Section 9 – National jurisdiction for custody cases in sheriff courts and JP courts
92.This section modifies the 1995 Act to make provision regarding the national jurisdiction for custody cases in sheriff courts and justice of the peace courts.
93.Subsection (2) inserts four new sections after section 5 of the 1995 Act regarding the jurisdiction of sheriff courts. Subsection (3) inserts four new sections after section 7 concerning justice of the peace courts.
94.Subsection (4) amends section 62(3) of the 2007 Act in consequence of subsection (3).
Inserted section 5B – Jurisdiction for callings of custody cases in a sheriff court
95.This section provides that where a person appears in the sheriff court for the first time from custody in criminal proceedings, that calling of the case may be taken in any sheriff court in Scotland and may be dealt with in that court by a sheriff of any sheriffdom. As provided by section 5E, the criminal proceedings that the person is appearing in respect of can be proceedings on petition, proceedings on indictment, summary proceedings, or ancillary proceedings such as, for example, those in respect of the failure of the person to attend a diet. For example, if a person is arrested for an offence allegedly committed in Edinburgh, the first time they appear in court from custody in connection with that offence could be in Glasgow Sheriff Court (in person or virtually), despite previous rules dictating that such a case should be heard by the sheriff court where the offence was committed (in this case Edinburgh Sheriff Court). This would equally mean that if a person was arrested after failing to attend summary proceedings at Aberdeen Sheriff Court, the person could appear from custody at Dundee Sheriff Court for the ancillary proceedings in respect of the warrant for that person’s arrest (see paragraphs 102 to 107 of these Notes for discussion of the procedure after such a hearing).
96.Subsection (3) (as read with subsection (1)) further provides that a calling of proceedings on petition can come before any sheriff court and may be dealt with by any sheriff where the accused is appearing from custody after a court has authorised the accused’s remand, and that court is unable to open due to the court building being closed in emergency or other special circumstances. For example, where the accused first appears on petition in Edinburgh Sheriff Court, and the court does not consider that the accused should be granted bail at that hearing, the accused will be required to be brought back before the court for a further hearing, known in practice as the “full committal hearing” or the “further examination”. If that hearing is unable to take place at Edinburgh Sheriff Court due to the court building being closed due to emergency or other special circumstances, such as severe weather, then subsection (3) provides that this hearing can be heard in any other sheriff court and by a sheriff of any sheriffdom. This provision will also encompass any other hearings that take place after the initial appearance on petition but before the end of the petition stage, such as a bail review hearing under section 30 of the 1995 Act if scheduled in that period, where the accused is appearing from custody and the court that authorised the accused’s remand is closed in emergency or other special circumstances. As the provision is limited to callings of proceedings on petition, it cannot encompass any hearings on indictment. Subsection (6) (see paragraph 99 of these Notes) does not apply to hearings held under subsection (3), and as such any subsequent hearings will not continue to be heard by the court which dealt with this particular appearance.
97.If there is more than one person subject to the proceedings (whether under subsection (2) or (3)), subsection (4) enables the proceedings to call before any sheriff court and any sheriff, provided that at least one of the people subject to the proceedings is appearing either for the first time from custody in connection with it (see paragraph 95 of these Notes) or in the circumstances described in subsection (3) (see paragraph 96 of these Notes). This means that, for example, where two people are co-accused of committing a crime, the case can call before any sheriff court even though only one of the accused has been arrested for the crime and is therefore appearing from custody at that court.
98.Subsection (5) confirms that it is for the Lord Advocate or the procurator fiscal to determine in which sheriff court the case is to be heard.
99.Subsection (6) provides the sheriff court that has heard the initial calling of the case with continuing jurisdiction over the proceedings (and that sheriff court can be presided over by a sheriff of any sheriffdom). This subsection applies only to proceedings under subsection (2), and therefore a court which has heard a calling of proceedings under subsection (3) will not have continuing jurisdiction under subsection (6). Subsection (7) confirms that this continuing jurisdiction granted by subsection (6) will come to an end at the points described in paragraph (a) or (b):
Paragraph (a) describes the situation where, in summary proceedings, the accused pleads not guilty and the prosecutor does not accept that plea. This means it is likely that the case will go to trial, which will be handled by the court that has normal territorial jurisdiction for the case. The court’s jurisdiction under subsection (6) will end at the end of the diet at which this plea was tendered. If an accused is charged with, say, two offences and pleads guilty to one and not guilty to the other, the continuing jurisdiction that subsection (6) creates over the proceedings will be lost only insofar as the proceedings relate to the charge to which the accused has pled not guilty. The court that has jurisdiction by virtue of subsection (6) would therefore be able to deal with the guilty plea as it sees fit, including by sentencing the accused for that offence.
Paragraph (b) describes the situations where the court’s continuing non-territorial jurisdiction will end in proceedings on petition or indictment (solemn proceedings). Sub-paragraph (i) provides that, as with summary proceedings, the jurisdiction will end where the accused pleads not guilty and the prosecutor does not accept that plea. Sub-paragraph (ii) provides that where the accused is committed until liberated in due course of law, which means that the court has ordered that the accused will be held in prison while proceedings are ongoing, the court’s jurisdiction will end. Finally, sub-paragraph (iii) provides that the first diet, and any proceedings following on from it, cannot be dealt with by virtue of subsection (6). As such, the court’s continuing jurisdiction will end before the first diet.
100.Subsection (8) provides that where the situations described in subsection (7) do not occur, the court’s continuing jurisdiction can continue until the conclusion of the proceedings. As such, where the accused pleads guilty in advance of the first diet before a court exercising national jurisdiction under this section, the court’s continuing jurisdiction will not end under subsection (7), and the court will be able to deal with the subsequent sentencing hearing.
101.Subsection (9) provides that proceedings on indictment that follow from proceedings on petition are to be treated as the same proceedings. In solemn criminal procedure (which is the procedure used for the most serious crimes), cases usually begin with a petition and then progress to an indictment, which sets out the formal charges against the accused. Subsection (9) means that a court which began dealing with a case at the petition stage can continue dealing with it, under subsection (6), once it has reached indictment stage. This will be relevant for any hearings held under the jurisdiction after the service of the indictment but before the first diet (at which point the jurisdiction would end under subsection (6)(b)(iii)), such as where the accused makes an early guilty plea under section 76 of the 1995 Act.
Inserted section 5C – Jurisdiction for cases in a sheriff court after failure to appear
102.This section allows a sheriff court to deal with prosecution proceedings for which it would not normally have jurisdiction where the accused has come before it having been arrested for a failure to appear in those prosecution proceedings.
103.When an accused person fails to appear in court, the court can grant a warrant for the accused’s arrest. On arrest the person will be brought before a court as soon as is practicable. That court appearance will be a form of “ancillary proceedings” within the meaning of section 5E(d) and therefore any sheriff court can deal with it by virtue of section 5B(1). The ancillary proceedings for failing to appear are separate from the main prosecution proceedings. If the person had been brought before the court that had normal territorial jurisdiction for the main prosecution proceedings, the court might have dealt with those main prosecution proceedings as well as the proceedings for the person’s failure to appear. Section 5C allows a court that has jurisdiction to deal with the ancillary proceedings to deal with the prosecution proceedings in the same way that the court with normal territorial jurisdiction would. In most cases that will mean rescheduling diets in light of a hearing having been missed when the accused failed to attend, but in the case of summary proceedings if the accused pleads guilty it may include sentencing the accused or ordering reports ahead of sentencing. The national jurisdiction granted in respect of a person’s failure to appear applies regardless of whether the main prosecution proceedings are taking place under the national jurisdiction or whether they are taking place under normal jurisdictional rules.
104.Subsection (2) provides that where the “
105.Subsection (3) provides that where the principal proceedings are summary criminal proceedings, the proceedings can continue to be dealt with in the same sheriff court and by any sheriff, unless, and until the end of a diet at which, a plea of not guilty by the accused is rejected. Subsection (5) defines a plea of not guilty as being rejected where the accused either tenders a plea of not guilty or adheres to a previously tendered plea of not guilty, and that plea is not accepted by the prosecutor (see paragraph 99 of these Notes).
106.However, subsection (4) provides that despite subsections (2) and (3) permitting a court to continue to deal with the proceedings, the court may only pass a sentence or otherwise dispose of the principal proceedings where—
evidence has not been led in the principal proceedings, or
the court considers that it would be in the interests of justice.
107.On that basis, if evidence has been led in the principal proceedings and the court does not consider that it would be in the interests of justice for it to dispose of the case, then the court’s non-territorial jurisdiction will come to an end.
Inserted section 5D – Further provision about national jurisdiction of sheriff courts
108.As mentioned in the preceding paragraphs, section 5D supports sections 5B and 5C by ensuring that sheriffs and prosecutors have the necessary powers to deal with cases that come before a court by virtue of those sections. In particular, section 5D(3)(b) ensures that summary sheriffs benefit from this national jurisdiction in the sheriff court in the same way as sheriffs. Section 5D also makes clear that sections 5B and 5C supplement, rather than supersede, other legal bases for a sheriff hearing a case from outwith the sheriff's normal territorial jurisdiction (specifically those provided for in Part 1 and sections 34A and 137C of the 1995 Act – for example, section 137C makes more bespoke provision permitting the transfer of cases in exceptional circumstances).
Inserted section 5E – Interpretation of sections 5B to 5D
109.This section provides definitions for words and terms used in inserted sections 5B to 5D.
Inserted section 7A – Jurisdiction for callings of custody cases in a JP court
110.In a similar manner to inserted sections 5A to 5E, sections 7A to 7D extend the jurisdiction of JP courts, and that of those hearing JP cases, in respect of custody appearances. They also make provision allowing sheriffs to preside over JP courts in relation to the exercise of the national jurisdiction (in addition to justices of the peace and summary sheriffs, who ordinarily preside over JP courts).
111.Section 7A provides that, where a person appears in the JP court for the first time from custody in criminal proceedings, that calling of the case may be taken in any JP court in Scotland. The case may also be heard by any justice of the peace, summary sheriff or sheriff of any sheriffdom.
112.If there is more than one person subject to the proceedings, subsection (3) allows the proceedings to call before any JP court and any justice of the peace, summary sheriff or sheriff, provided that at least one of the people subject to the proceedings is appearing for the first time from custody in connection with it. This means that, for example, where two people are co-accused of committing a crime, the case can call before any JP court even though only one of the accused has been arrested for the crime and is therefore appearing from custody.
113.Subsection (4) confirms that it is for the procurator fiscal to determine in which JP court the case is to be heard.
114.Subsection (5) provides the JP court that has heard the initial calling of the case with continuing jurisdiction over the proceedings (and that JP court can be presided over by a justice of the peace, summary sheriff or sheriff of any sheriffdom). However, subsection (6) qualifies this and provides that where the accused pleads not guilty and the prosecutor does not accept that plea, the continuing jurisdiction under subsection (5) will cease at the end of the diet at which that plea was made. Such a scenario will mean it is likely that the case will go to trial, which will therefore be handled by the court that has normal territorial jurisdiction for the case. If an accused is charged with, say, two offences and pleads guilty to one and not guilty to the other, the continuing jurisdiction that subsection (5) creates over the proceedings will be lost only insofar as the proceedings relate to the charge to which the accused has pled not guilty. The court that has jurisdiction by virtue of sub-paragraph (5) would therefore be able to deal with the guilty plea as it sees fit, including by sentencing the accused for that. Subsection (7) provides that where the court’s national jurisdiction is not brought to an end as described in subsection (6), the court can continue to deal with the proceedings until their conclusion.
115.Subsection (8) confirms that where a sheriff is hearing a JP case under inserted section 7A or 7B, the jurisdiction and powers of the JP court are exercisable by the sheriff. The court itself will still be a JP court and the fact that a sheriff is presiding over it should result in no difference in treatment compared to a JP court presided over by a justice of the peace or summary sheriff. For example, where section 52A of the 1995 Act applies and there is a requirement to transfer jurisdiction to a sheriff, such a transfer would still need to be made despite the fact that the person presiding over the JP court is a sheriff.
Inserted section 7B – Jurisdiction for cases in a JP court after failure to appear
116.This section allows a JP court to deal with prosecution proceedings for which it would not normally have jurisdiction where the accused has come before it having been arrested for a failure to appear in those prosecution proceedings.
117.When an accused person fails to appear in court, the court can grant a warrant for the accused’s arrest. On arrest the person will be brought before a court as soon as is practicable. That court appearance will be a form of “ancillary proceedings” within the meaning of section 7D(1) and therefore any JP court can deal with it by virtue of section 7A(1). The ancillary proceedings for failing to appear are separate from the main prosecution proceedings. If the person had been brought before the court that had normal territorial jurisdiction for the main prosecution proceedings, the court might have dealt with those main prosecution proceedings as well as the proceedings for the person’s failure to appear. Section 7C allows a court that has jurisdiction to deal with the ancillary proceedings to deal with the prosecution proceedings in the same way that the court with normal territorial jurisdiction would. In most cases that will mean rescheduling diets in light of a hearing having been missed when the accused failed to attend, and if the accused pleads guilty it may include sentencing the accused or ordering reports ahead of sentencing. The national jurisdiction granted in respect of a person’s failure to appear applies regardless of whether the main prosecution proceedings are taking place under the national jurisdiction or whether they are taking place under normal jurisdictional rules.
118.Subsection (2) provides that the principal proceedings can continue to be dealt with in the same JP court and by any justice of the peace, summary sheriff or sheriff. In a similar manner to section 7A(6), this continuing jurisdiction will cease at the end of the diet at which the accused either tenders a plea of not guilty or adheres to a previously tendered plea of not guilty, and that plea is not accepted by the prosecutor (see paragraph 114 of these Notes). Subsection (4) confirms the circumstances in which a plea of not guilty is rejected for the purposes of subsection (2).
119.However, subsection (3) provides that despite subsection (2) permitting a court to continue to deal with the proceedings, the court may only pass a sentence or otherwise dispose of the principal proceedings where—
evidence has not been led in the principal proceedings, or
the court considers that it would be in the interests of justice.
120.On that basis, if evidence has been led in the principal proceedings and the court does not consider that it would be in the interests of justice for it to dispose of the case, then the court’s non-territorial jurisdiction will come to an end.
Inserted section 7C – Further provision about national jurisdiction of JP courts
121.As mentioned in the preceding paragraphs, section 7C supports sections 7A and 7B by ensuring that justices of the peace, summary sheriffs, sheriffs and prosecutors have the necessary powers to deal with cases that come before a court by virtue of those sections. It also makes clear that sections 7A and 7B supplement, rather than supersede, other legal bases for a JP court taking a case from outwith its normal territorial jurisdiction (specifically those provided for in Part 1 and section 137CC of the 1995 Act, and section 62 of the 2007 Act - for example, section 137CC makes more bespoke provision permitting the transfer of cases in exceptional circumstances).
Inserted section 7D – Interpretation of sections 7A to 7C
122.This section provides definitions for words and terms used in inserted sections 7A to 7C.
