PART VIIS Solemn Proceedings

Pre-trial proceedingsS

71 First diet.S

[F1(A1)At a first diet [F2in proceedings to which subsection (B1) below applies], the court shall, F3. . . ascertain whether [F4the accused] has engaged a solicitor for the purposes of [F5the conduct of his case at any relevant hearing in the course of the proceedings].]

[F6(B1)This subsection applies to proceedings—

(a)in which the accused is charged with a sexual offence to which section 288C of this Act applies,

[F7(aa)in respect of an offence to which section 288DC of this Act applies (domestic abuse cases),]

(b)to which section 288E of this Act applies, or

(c)in which an order under section 288F(2) of this Act has been made [F8in relation to any hearing in the course of the proceedings].]

(1)At a first diet the court shall, so far as is reasonably practicable, ascertain F9...—

(a)the state of preparation of the prosecutor and of the accused with respect to their cases; and

(b)the extent to which the prosecutor and the accused have complied with the duty under section 257(1) of this Act.

[F10(1ZA)If a written record has been lodged in accordance with section 71C, the court must have regard to the written record when ascertaining the state of preparation of the parties.]

[F11(1A)At a first diet, the court shall also—

(a)ascertain whether subsection (1B) below applies to any person who is to give evidence at or for the purposes of [F12any hearing in the course of the proceedings] or to the accused, and

(b)if so, consider whether it should make an order under section 271A(7) or 271D(2) of this Act in relation to the person or, as the case may be, the accused.

(1B)This subsection applies—

(a)to a person who is to give evidence at or for the purposes of [F13any hearing in the course of the proceedings] if that person is, or is likely to be, a vulnerable witness,

(b)to the accused if, were he to give evidence at or for the purposes of the trial, he would be, or would be likely to be, a vulnerable witness.]

[F14(1C)At a first diet, the court—

(a)shall ascertain which of the witnesses included in the list of witnesses are required by the prosecutor or the accused to attend the trial; and

(b)shall, where the accused has been admitted to bail, review the conditions imposed on his bail and may—

(i)after giving the parties an opportunity to be heard; and

(ii)if it considers it appropriate to do so,

fix bail on different conditions.]

(2)In addition to the matters mentioned in subsection (1) [F15, (1A) and (1C)] above the court shall, at a first diet, consider any [F16preliminary plea or preliminary issue (within the meanings given to those terms in section 79(2) of this Act)] of which a party has, not less than two clear days before the first diet, given notice to the court and to the other parties.

[F17(2XA)At a first diet the court shall also dispose of any [F18vulnerable] witness notice under section 271A(2) or vulnerable witness application under section 271C(2) appointed to be disposed of at that diet.]

[F19(2YA)At a first diet, the court shall also ascertain whether there is any objection to the admissibility of any evidence which any party wishes to raise despite not having given the notice referred to in subsection (2) above, and—

(a)if so, decide whether to grant leave under section 79(1) of this Act for the objection to be raised; and

(b)if leave is granted, dispose of the objection unless it considers it inappropriate to do so at the first diet.

(2ZA)Where the court, having granted leave for the objection to be raised, decides not to dispose of it at the first diet, the court may—

(a)appoint a further diet to be held before the trial diet for the purpose of disposing of the objection; or

(b)appoint the objection to be disposed of at the trial diet.]

[F20(2A)At a first diet the court may consider an application for the purposes of subsection (1) of section 275 of this Act.]

(3)At a first diet the court may ask the prosecutor and the accused any question in connection with any matter which it is required to ascertain or consider under subsection (1) [F21, (1A)][F22, (1C)][F23, (2) or (2YA)] above [F24or which is relevant to an application for the purposes of subsection (1) of the said section 275].

(4)The accused shall attend a first diet of which he has been given notice F25. . .

(5)A first diet may proceed [F26, and a trial diet may be appointed,] notwithstanding the absence of the accused.

[F27(5A)Where, however—

[F28(a)the proceedings in which the first diet is being held are proceedings to which subsection (B1) above applies;]

(b)the court has not ascertained (whether at that diet or earlier) that he has engaged a solicitor for the purposes of [F29the conduct of his case at any relevant hearing in the course of the proceeding],

a first diet may not proceed in his absence; and, in such a case, the court shall adjourn the diet and ordain the accused then to attend.]

(6)[F30Where the accused appears at the first diet, the accused is to be required at that diet] to state how he pleads to the indictment, and section 77 of this Act shall apply where he tenders a plea of guilty.

F31(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F32(7A)In subsections (A1) and (5A)(b), “relevant hearing” means—

(a)in relation to proceedings mentioned in paragraph (a) of subsection (B1), any hearing at, or for the purposes of, which a witness is to give evidence,

(b)in relation to proceedings mentioned in paragraph (b) of that subsection, a hearing referred to in section 288E(2A),

(c)in relation to proceedings mentioned in paragraph (c) of that subsection, a hearing in respect of which an order is made under section 288F.]

F33(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F33(8A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)In this section [F34and section 71B] “the court” means the sheriff court.

Textual Amendments

F2Words in s. 71(A1) inserted (1.4.2005 for certain purposes and 1.4.2006 for further certain purposes and otherwise prosp.) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 7(1)(a)(i), 25; S.S.I. 2005/168, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art. 4(1))

F3Words in s. 71(A1) repealed (1.4.2005 for certain purposes and 1.4.2006 for further certain purposes and otherwise prosp.) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 7(1)(a)(ii), 25; S.S.I. 2005/168, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art. 4(1))

F4Word in s. 71(A1) substituted (1.4.2005 for certain purposes and 1.4.2006 for further certain purposes and otherwise prosp.) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 7(1)(a)(iii), 25; S.S.I. 2005/168, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art. 4(1))

F6S. 71(B1) inserted (1.4.2005 for certain purposes and 1.4.2006 for further certain purposes and otherwise prosp.) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 7(1)(b), 25; S.S.I. 2005/168, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art. 4(1))

F10S. 71(1ZA) inserted (29.5.2017 for specified purposes) by Criminal Justice (Scotland) Act 2016 (asp 1), ss. 80(2), 117(2); S.S.I. 2017/99, art. 3(1)(2) (with art. 6)

F11S. 71(1A)(1B) inserted (1.4.2005 and 1.4.2006 for certain purposes, otherwise 1.4.2008) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 2(1)(a), 25; S.S.I. 2005/168, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art 4(1)); S.S.I. 2008/57, art. 2 (with art. 3)

F21Words in s. 71(3) inserted (1.4.2005 and 1.4.2006 for certain purposes and otherwise 1.4.2008) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 2(1)(c), 25; S.S.I. 2005/168, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art. 4(1)); S.S.I. 2008/57, art. 2 (with art. 3)

F28S. 71(5A)(a) substituted (1.4.2005 for certain purposes and 1.4.2006 for further certain purposes and otherwise prosp.) by Vulnerable Witnesses (Scotland) Act 2004 (asp 3), ss. 7(1)(c), 25; S.S.I. 2005/168, art. 2, Sch. (with art. 4); S.S.I. 2006/59, art. 2, Sch. (with art. 4(1))