Part 1

Criminal justice modernisation

Amendment of indictment

Addition of charge to indictment
11
1
The Criminal Procedure (Scotland) Act 1995 is modified in accordance with subsections (2) to (6).
2
In section 65 (prevention of delays in trials), after subsection (2) insert—
2A
For the avoidance of doubt, where a charge has been added to the indictment under section 70AA, nothing in subsection (1A) affects the indictment as respects the additional charge (and, accordingly, the accused is not discharged from the indictment in relation to that charge).
.
3
In section 70 (proceedings against organisations), in subsection (4), after paragraph (a) insert—
aa
making representations regarding an application to add an additional charge to the indictment under section 70AA; or
.
4
After section 70A insert—

Addition of charge to indictment
70AA
1
After the service of the indictment on the accused, it is competent, on application by the prosecutor, to amend the indictment to add an additional charge against the accused (or any or all of the accused if more than one).
2
The court—
a
may grant an application only where the conditions mentioned in subsection (3) are satisfied, and
b
must, if those conditions are so satisfied, grant the application, unless it considers there is just cause not to.
3
The conditions are that—
a
the prosecutor was not aware, and could not reasonably have been aware, of the act or omission forming the subject matter of the additional charge before the service of the indictment, and
b
the prosecutor made the application as soon as reasonably practicable after becoming so aware.
4
Any application under subsection (1)—
a
must be made at least two months before the trial diet, or
b
may be made at a later date on special cause shown.
5
Subsection (4) does not apply where the trial diet has not been fixed at the time of making the application.
6
At the same time as an application under subsection (1) is made, the application must be intimated to the accused or, if more than one, to all of the accused (regardless of whether the additional charge would be against all of them).
7
On receipt of an application under subsection (1) the court must, subject to subsection (8), fix a diet for hearing the application and, in a case where subsection (4)(b) applies, for considering any representations regarding a late application.
8
The court may proceed to determine the application without fixing a diet under subsection (7) where—
a
a diet has already been fixed at which such matters can be appropriately dealt with, or
b
the accused consents to the charge being added to the indictment.
9
The court may determine an application at a first diet only if the accused has first stated how the accused pleads to the indictment under section 71(6) (as to preliminary hearings, see section 72(6)).
10
Where an application is being heard at a first diet or preliminary hearing—
a
if a plea of guilty is tendered and accepted in respect of the indictment, the court must refuse the application,
b
in the event that the court grants the application, the court is to require the accused to tender a plea in respect of the additional charge at that diet.
11
Where the court is determining an application at a diet other than a first diet, the court may, on cause shown, allow a hearing in respect of an application to proceed notwithstanding the absence of the accused.
12
Where it appears to the court that the accused may in any way be prejudiced in the accused’s defence on the merits of the case by an amendment to the indictment under this section, the court must grant such remedy to the accused by adjournment or otherwise as appears to the court to be just.
13
An amendment to an indictment made under this section must be sufficiently authenticated by the initials of the clerk of court.
14
Where—
a
the charge added to the indictment under this section is of committing an offence listed in section 66(14A)(b), and
b
the accused has not previously received a notice containing intimation of the matters specified in section 66(6A)(a) in respect of the current proceedings,
the accused must, as soon as is reasonably practicable after the charge is added to the indictment, be served with a notice specifying such matters.
15
A failure to comply with subsection (14) does not affect the validity or lawfulness of the proceedings against the accused.
16
Intimation of an application under subsection (1) and service of any notice under subsection (14) may be effected by any officer of law.
17
Where an application under subsection (1) is determined at a diet other than the first diet or preliminary hearing, section 74 and any Act of Adjournal made under that section apply to the determination as they apply to a decision taken at a first diet or a preliminary hearing.
18
In this section, “the court” means—
a
where the indictment has been served on the accused in respect of the High Court, a single judge of that court,
b
in any other case, the sheriff.
.
5
In section 71 (first diet)—
a
in subsection (2A), after “of” where it first appears insert “section 70AA,”,
b
in subsection (3), for the words from “for” to the end substitute “mentioned in subsection (2A)”.
6
In section 72 (preliminary hearing procedure), in subsection (6)(b)(iii), after “section” insert “70AA,”.
7
The Criminal Justice and Licensing (Scotland) Act 2010 is modified in accordance with subsections (8) to (12).
8
In section 117 (provision of information to prosecutor: solemn cases)—
a
in subsection (1)—
i
the word “or” immediately following paragraph (a) is repealed,
ii
in paragraph (b) at the end insert
, or
c
a charge is added to the indictment under section 70AA of the 1995 Act after the accused has appeared as mentioned in paragraph (a) or (b).
,
b
in subsection (2)—
i
after “appearance” where it first appears insert “or, as the case may be, the addition of the charge”,
ii
after “appearance” where it second appears insert “or additional charge”,
iii
at the end, insert “(other than, in the case of an additional charge, any information that has previously been provided to the prosecutor in relation to the accused under this section)”.
9
In section 118 (continuing duty to provide information: solemn cases), in subsection (2), at the end insert “(other than, in the case of an additional charge, any information that has previously been provided to the prosecutor in relation to the accused under this section)”.
10
In section 121 (prosecutor’s duty to disclose information)—
a
in subsection (1)—
i
the word “or” immediately following paragraph (b) is repealed,
ii
after paragraph (b) insert—
ba
a charge is added to the indictment under section 70AA of the 1995 Act after the accused has appeared as mentioned in paragraph (a) or (b), or
,
b
in subsection (2)—
i
in the opening words after “appearance” insert “, the addition of the charge”,
ii
in paragraph (b), at the end insert “(other than, in the case of an additional charge, any information that has previously been disclosed to the accused under this section)”.
11
In section 122 (disclosure of other information: solemn cases)—
a
in subsection (1), for “or (b)” substitute “, (b) or (ba)”,
b
in subsection (2), at the end insert “(other than, in the case of an additional charge, any information that has previously been disclosed to the accused under this section)”.
12
In section 123 (continuing duty of prosecutor), in subsection (3)—
a
for “or (b)” substitute “, (b) or (ba)”,
b
at the end insert “(other than, in the case of an additional charge, any information that has previously been disclosed to the accused under this section)”.
S. 11 not in force at Royal Assent, see s. 34(4)