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.
