88 Plea of not guilty, balloting and swearing of jury, etc.
(1) Where the accused pleads not guilty, the clerk of court shall record that fact and proceed to ballot the jury.
(2) The jurors for the trial shall be chosen in open court by ballot from the list of persons summoned in such manner as shall be prescribed by Act of Adjournal, and the persons so chosen shall be the jury to try the accused, and their names shall be recorded in the minutes of the proceedings.
(3) It shall not be competent for the accused or the prosecutor to object to a juror on the ground that the juror has not been duly cited to attend.
(4) Notwithstanding subsection (1) above, the jurors chosen for any particular trial may, when that trial is disposed of, without a new ballot serve on the trials of other accused, provided that—
(a) the accused and the prosecutor consent;
(b) the names of the jurors are contained in the list of jurors; and
(c) the jurors are duly sworn to serve on each successive trial.
(5) When the jury has been balloted, the clerk of court shall inform the jury of the charge against the accused—
(a) by reading the words of the indictment (with the substitution of the third person for the second); or
(b) if the presiding judge, because of the length or complexity of the indictment, so directs, by reading to the jury a summary of the charge approved by the judge,
and copies of the indictment shall be provided for each member of the jury without lists of witnesses or productions.
(6) After reading the charge as mentioned in subsection (5) above and any special defence as mentioned in section 89(1) of this Act, the clerk of court shall administer the oath in common form.
(7) The court may excuse a juror from serving on a trial where the juror has stated the ground for being excused in open court.
(8) Where a trial which is proceeding is adjourned from one day to another, the jury shall not be secluded during the adjournment, unless, on the motion of the prosecutor or the accused or ex proprio motu the court sees fit to order that the jury be kept secluded.
(1) This section applies where it appears to the court that a juror balloted in accordance with section 88(2) requires assistance with communication as a result of physical disability in order to participate effectively in the trial as a juror.
(2) The court may, before the charge is read to the jury in accordance with section 88(5), appoint a person (a “juror’s communication supporter”) to provide that assistance to the juror.
(3) More than one person may be appointed as a juror’s communication supporter in relation to a juror, and a juror’s communication supporter may be appointed in relation to more than one juror.
(4) Where a juror’s communication supporter is appointed, the court must, before reading the charge to the jury, administer the oath to the supporter.
(5) Where in the course of proceedings a juror’s communication supporter ceases, for whatever reason, to act as such, the court may appoint a person as a juror’s communication supporter in their place and subsection (3) applies in relation to such an appointment as it applies to an appointment under subsection (2).
(6) The court must, as soon as reasonably practicable after a juror’s communication supporter is appointed under subsection (5), administer the oath to the supporter.
(7) Before appointing a person as a juror’s communication supporter under this section, the court must give the prosecutor and the accused the opportunity to make representations.
(1) Subject to subsection (2) below, where the accused has lodged a plea of special defence, the clerk of court shall, after informing the jury, in accordance with section 88(5) of this Act, of the charge against the accused, and before administering the oath, read to the jury the plea of special defence.
(2) Where the presiding judge on cause shown so directs, the plea of special defence shall not be read over to the jury in accordance with subsection (1) above; and in any such case the judge shall inform the jury of the lodging of the plea and of the general nature of the special defence.
(3) Copies of a plea of special defence shall be provided for each member of the jury.
(1) This section applies where, in the course of a trial, a juror—
(a) dies, or
(b) is discharged by the court on the court being satisfied that it is for any reason inappropriate for the juror to continue to serve as a juror.
(2) The court may determine that the trial is to proceed before the remaining jurors provided that—
(a) there are at least 12 remaining jurors, and
(b) the court is satisfied that it is in the interests of justice that the trial proceed before the remaining jurors.
(3) Before determining whether the trial is to proceed, the court must give the prosecutor and the accused an opportunity to make representations on that question.
(4) Where a trial proceeds by virtue of subsection (2), the remaining jurors are a properly constituted jury for the purpose of the trial.
90A Apprehension of witnesses in proceedings on indictment
(1) In any proceedings on indictment, the court may, on the application of any of the parties, issue a warrant for the apprehension of a witness if subsection (2) or (3) below applies in relation to the witness.
(2) This subsection applies if the witness, having been duly cited to any diet in the proceedings, deliberately and obstructively fails to appear at the diet.
(3) This subsection applies if the court is satisfied by evidence on oath that the witness is being deliberately obstructive and is not likely to attend to give evidence at any diet in the proceedings without being compelled to do so.
(4) For the purposes of subsection (2) above, a witness who, having been duly cited to any diet, fails to appear at the diet is to be presumed, in the absence of any evidence to the contrary, to have so failed deliberately and obstructively.
(5) An application under subsection (1) above—
(a) may be made orally or in writing;
(b) if made in writing—
(i) shall be in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form; and
(ii) may be disposed of in court or in chambers after such inquiry or hearing (if any) as the court considers appropriate.
(6) A warrant issued under this section shall be in such form as may be prescribed by Act of Adjournal or as nearly as may be in such form.
(7) A warrant issued under this section in the form mentioned in subsection (6) above shall imply warrant to officers of law—
(a) to search for and apprehend the witness in respect of whom it is issued;
(b) to bring the witness before the court;
(c) in the meantime, to detain the witness in a police station, police cell or other convenient place; and
(d) so far as is necessary for the execution of the warrant, to break open shut and lockfast places.
(8) It shall not be competent, in any proceedings on indictment, for a court to issue a warrant for the apprehension of a witness otherwise than in accordance with this section.
(9) A person apprehended under a warrant issued under this section shall wherever practicable be brought before the court not later than in the course of the first day on which—
(a) in the case of a warrant issued by a single judge of the High Court, that Court;
(b) in any other case, the court,
is sitting after he is taken into custody.
(10) In this section and section 90B, “the court” means . . .
(a) where the witness is to give evidence in proceedings in the High Court, a single judge of that Court; or
(b) where the witness is to give evidence in proceedings on indictment in the sheriff court, any sheriff court with jurisdiction in relation to the proceedings.
90B Orders in respect of witnesses apprehended under section 90A
(1) Where a witness is brought before the court in pursuance of a warrant issued under section 90A of this Act, the court shall, after giving the parties and the witness an opportunity to be heard, make an order—
(a) detaining the witness until the conclusion of the diet at which the witness is to give evidence;
(b) releasing the witness on bail; or
(c) liberating the witness.
(2) The court may make an order under subsection (1)(a) or (b) above only if it is satisfied that—
(a) the order is necessary with a view to securing that the witness appears at the diet at which the witness is to give evidence; and
(b) it is appropriate in all the circumstances to make the order.
(2A) Whenever the court makes an order under subsection (1) above, it shall state the reasons for the terms of the order.
(3) Subsection (1) above is without prejudice to any power of the court to—
(a) make a finding of contempt of court in respect of any failure of a witness to appear at a diet to which he has been duly cited; and
(b) dispose of the case accordingly.
(4) Where—
(a) an order under subsection (1)(a) above has been made in respect of a witness; and
(b) at, but before the conclusion of, the diet at which the witness is to give evidence, the court in which the diet is being held excuses the witness,
that court, on excusing the witness, may recall the order under subsection (1)(a) above and liberate the witness.
(5) On making an order under subsection (1)(b) above in respect of a witness, the court shall impose such conditions as it considers necessary with a view to securing that the witness appears at the diet at which he is to give evidence.
(6) However, the court may not impose as such a condition a requirement that the witness or a cautioner on his behalf deposit a sum of money in court.
(7) Where the court makes an order under subsection (1)(a) above in respect of a witness, the court shall, on the application of the witness—
(a) consider whether the imposition of a remote monitoring requirement would enable it to make an order under subsection (1)(b) above releasing the witness on bail subject to a movement restriction condition; and
(b) if so—
(i) make an order under subsection (1)(b) above releasing the witness on bail subject to such a condition (as well as such other conditions required to be imposed under subsection (5) above); and
(ii) in the order, impose, as a further condition under subsection (5) above, a remote monitoring requirement.
(8) Subsections (7) to (19) of section 24A of this Act apply in relation to remote monitoring requirements imposed under subsection (7)(b)(ii) above and to the imposing of such requirements as they apply to remote monitoring requirements imposed under section 24A(1) or (2) of this Act and the imposing of such requirements, but with the following modifications—
(a) references to a remote monitoring requirement imposed under section 24A(1) or (2) of this Act shall be read as if they included references to a remote monitoring requirement imposed under subsection (7)(b)(ii) above;
(b) references to the accused shall be read as if they were references to the witness in respect of whom the order under subsection (1)(b) above is made.
(9) The powers conferred and duties imposed by sections 24B to 24D of this Act are exercisable in relation to remote monitoring requirements imposed under subsection (7)(b)(ii) above as they are exercisable in relation to remote monitoring requirements imposed under subsection (1) or (2) of section 24A of this Act; and—
(a) references in those sections to remote monitoring requirements shall be read accordingly; and
(b) references to the imposition of any requirement as a further condition of bail shall be read as if they were references to the imposition of the requirement as a further condition under subsection (5) above.
(10) Section 25 of this Act (which makes provision for an order granting bail to specify the conditions imposed on bail and the accused’s proper domicile of citation) shall apply in relation to an order under subsection (1)(b) above as it applies to an order granting bail, but with the following modifications—
(a) references to the accused shall be read as if they were references to the witness in respect of whom the order under subsection (1)(b) above is made;
(b) references to the order granting bail shall be read as if they were references to the order under subsection (1)(b) above;
(c) subsection (3) shall be read as if for the words from “relating” to “offence” in the third place where it occurs there were substituted at which the witness is to give evidence.
(11) In this section—
(a) “a movement restriction condition” means, in relation to a witness released on bail under subsection (1)(b) above, a condition imposed under subsection (5) above restricting the witness’s movements, including such a condition requiring the witness to be, or not to be, in any place or description of place for, or during, any period or periods or at any time; and
(b) “a remote monitoring requirement” means, in relation to a movement restriction condition, a requirement that compliance with the condition be remotely monitored.
(1) A witness who, having been released on bail by virtue of an order under subsection (1)(b) of section 90B of this Act, fails without reasonable excuse—
(a) to appear at any diet to which he has been cited; or
(b) to comply with any condition imposed under subsection (5) of that section,
shall be guilty of an offence and liable on conviction on indictment to the penalties specified in subsection (2) below.
(2) Those penalties are—
(a) a fine; and
(b) imprisonment for a period not exceeding two years.
(2A) In any proceedings in relation to an offence under subsection (1) above, the fact that (as the case may be) a person—
(a) was on bail;
(b) was subject to any particular condition of bail;
(c) failed to appear at a diet;
(d) was cited to a diet,
shall, unless challenged by giving notice of a preliminary objection in accordance with section 71(2) or 72(6)(b)(i) of this Act, be held as admitted.
(3) Subsection (4) below applies in proceedings against a witness for an offence under paragraph (b) of subsection (1) above where the condition referred to in that paragraph is—
(a) a movement restriction condition (within the meaning of section 90B(11) of this Act) in respect of which a remote monitoring requirement has been imposed under section 90B(7)(b)(ii) of this Act; or
(b) a requirement imposed under section 24D(3)(b)(as extended by section 90B(9)) of this Act.
(4) In proceedings in which this subsection applies, evidence of—
(a) in the case referred to in subsection (3)(a) above, the presence or absence of the witness at a particular place at a particular time; or
(b) in the case referred to in subsection (3)(b) above, any tampering with or damage to a device worn or carried by the witness for the purpose of remotely monitoring his whereabouts,
may, subject to subsections (7) and (8) below, be given by the production of the document or documents referred to in subsection (5) below.
(5) That document or those documents is or are a document or documents bearing to be—
(a) a statement automatically produced by a device specified in regulations made under section 24D(4)(as extended by section 90B(9)) of this Act by which the witness’s whereabouts were remotely monitored; and
(b) a certificate signed by a person nominated for the purpose of this paragraph by the Scottish Ministers that the statement relates to—
(i) in the case referred to in subsection (3)(a) above, the whereabouts of the witness at the dates and times shown in the statement; or
(ii) in the case referred to in subsection (3)(b) above, any tampering with or damage to the device.
(6) The statement and certificate mentioned in subsection (5) above shall, when produced in the proceedings, be sufficient evidence of the facts set out in them.
(7) Neither the statement nor the certificate mentioned in subsection (5) above shall be admissible in evidence unless a copy of both has been served on the witness prior to the trial.
(8) Without prejudice to subsection (7) above, where it appears to the court that the witness has had insufficient notice of the statement or certificate, it may adjourn the trial or make an order which it thinks appropriate in the circumstances.
(9) In subsections (7) and (8), “the trial” means the trial in the proceedings against the witness referred to in subsection (3) above.
(10) Section 28 of this Act shall apply in respect of a witness who has been released on bail by virtue of an order under section 90B(1)(b) of this Act as it applies to an accused released on bail, but with the following modifications—
(a) references to an accused shall be read as if they were references to the witness;
(b) in subsection (2), the reference to the court to which the accused’s application for bail was first made shall be read as if it were a reference to the court which made the order under section 90B(1)(b) of this Act in respect of the witness; and
(c) in subsection (4)—
(i) references to the order granting bail and original order granting bail shall be read as if they were references to the order under section 90B(1)(b) and the original such order respectively;
(ii) paragraph (a) shall be read as if at the end there were inserted “and make an order under section 90B(1)(a) or (c) of this Act in respect of the witness”; and
(iii) paragraph (c) shall be read as if for the words from “complies” to the end there were substituted “appears at the diet at which the witness is to give evidence”.
90D Review of orders under section 90B(1)(a) or (b)
(1) Where a court has made an order under subsection (1)(a) of section 90B of this Act, the court may, on the application of the witness in respect of whom the order was made, . . . and after giving the parties and the witness an opportunity to be heard—
(a) recall the order; and
(b) make an order under subsection (1)(b) or (c) of that section in respect of the witness.
(2) Where a court has made an order under subsection (1)(b) of section 90B of this Act, the court may, after giving the parties and the witness an opportunity to be heard—
(a) on the application of the witness in respect of whom the order was made . . . —
(i) review the conditions imposed under subsection (5) of that section at the time the order was made; and
(ii) make a new order under subsection (1)(b) of that section and impose different conditions under subsection (5) of that section;
(b) on the application of the party who made the application under section 90A(1) of this Act in respect of the witness, review the order and the conditions imposed under subsection (5) of section 90B at the time the order was made, and
(i) recall the order and make an order under subsection (1)(a) of that section in respect of the witness; or
(ii) make a new order under subsection (1)(b) of that section and impose different conditions under subsection (5) of that section.
(3) The court may not review an order by virtue of subsection (1) or (2) above unless—
(a) in the case of an application by the witness, the circumstances of the witness have changed materially; or
(b) in that or any other case, the witness or party making the application puts before the court material information which was not available to it when it made the order which is the subject of the application.
(4) An application under this section by a witness—
(a) where it relates to the first order made under section 90B(1)(a) or (b) of this Act in respect of the witness, shall not be made before the fifth day after that order is made;
(b) where it relates to any subsequent such order, shall not be made before the fifteenth day after the order is made.
(5) On receipt of an application under subsection (2)(b) above the court shall—
(a) intimate the application to the witness in respect of whom the order which is the subject of the application was made;
(b) fix a diet for hearing the application and cite the witness to attend the diet; and
(c) where it considers that the interests of justice so require, grant warrant to arrest the witness.
(6) Nothing in this section shall affect any right of a person to appeal against an order under section 90B(1).
90E Appeals in respect of orders under section 90B(1)
(1) Any of the parties specified in subsection (2) below may appeal to the High Court against—
(a) any order made under subsection (1)(a) or (c) of section 90B of this Act; or
(b) where an order is made under subsection (1)(b) of that section—
(i) the order;
(ii) any of the conditions imposed under subsection (5) of that section on the making of the order; or
(iii) both the order and any such conditions.
(2) The parties referred to in subsection (1) above are—
(a) the witness in respect of whom the order which is the subject of the appeal was made;
(b) the prosecutor; and
(c) the accused.
(3) A party making an appeal under subsection (1) above shall intimate it to the other parties specified in subsection (2) above and, for that purpose, intimation to the Crown Agent shall be sufficient intimation to the prosecutor.
(4) An appeal under this section shall be disposed of by the High Court or any Lord Commissioner of Justiciary in court or in chambers after such inquiry and hearing of the parties as shall seem just.
(5) Where the witness in respect of whom the order which is the subject of an appeal under this section was made is under 21 years of age, section 51 of this Act shall apply to the High Court or, as the case may be, the Lord Commissioner of Justiciary when disposing of the appeal as it applies to a court when remanding or committing a person of the witness’s age for trial or sentence.
(1) Without prejudice to section 54 of this Act, and subject to subsections (2) and (2A) below, no part of a trial shall take place outwith the presence of the accused.
(2) If during the course of his trial an accused so misconducts himself that in the view of the court a proper trial cannot take place unless he is removed, the court may order—
(a) that he is removed from the court for so long as his conduct makes it necessary; and
(b) that the trial proceeds in his absence,
but if he is not legally represented the court shall appoint . . . a solicitor to represent his interests during such absence.
(2A) If—
(a) after evidence has been led which substantially implicates the accused in respect of the offence charged in the indictment or, where two or more offences are charged in the indictment, any of them, the accused fails to appear at the trial diet; and
(b) the failure to appear occurred at a point in proceedings where the court is satisfied that it is in the interests of justice to do so,
then the court may, on the motion of the prosecutor and after hearing the parties on the motion, proceed with the trial and dispose of the case in the absence of the accused.
(2B) Where a motion is made under subsection (2A) above, the court shall—
(a) if satisfied that there is a solicitor with authority to act for the purposes of—
(i) representing the accused’s interests at the hearing on the motion; and
(ii) if the motion is granted, the accused’s defence at the trial,
allow that solicitor to act for those purposes; or
(b) if there is no such solicitor, at its own hand appoint a solicitor to act for those purposes.
(2C) It is the duty of a solicitor appointed under subsection (2) or (2B)(b) above to act in the best interests of the accused.
(2D) In all other respects, a solicitor so appointed has, and may be made subject to, the same obligations and has, and may be given, the same authority as if engaged by the accused; and any employment of and instructions given to counsel by the solicitor shall proceed and be treated accordingly.
(2E) Where the court is satisfied that—
(a) a solicitor allowed to act under subsection (2B)(a) above no longer has authority to act; or
(b) a solicitor appointed under subsection (2) or (2B)(b) above is no longer able to act in the best interests of the accused,
the court may relieve that solicitor and appoint another solicitor for the purposes referred to in subsection (2) or, as the case may be, (2B) above.
(2F) Subsections (2B)(b) and (2E) above shall not apply in the case of proceedings—
(a) in respect of a sexual offence to which section 288C of this Act applies; or
(aa) in respect of an offence to which section 288DC of this Act applies;
(b) in respect of which section 288E of this Act applies; or
(c) in which an order has been made under section 288F(2) of this Act.
(3) From the commencement of the leading of evidence in a trial for rape or the like the judge may, if he thinks fit, cause all persons other than the accused and counsel and solicitors to be removed from the court-room.
(4) In this section—
(a) references to a solicitor appointed under subsection (2) or (2B)(b) above include references to a solicitor appointed under subsection (2E) above;
(b) “ counsel ” includes, in relation to the High Court of Justiciary, a solicitor who has a right of audience in that Court under section 25A of the Solicitors (Scotland) Act 1980 (c. 46).
(1) The proceedings at the trial of any person who, if convicted, is entitled to appeal under Part VIII of this Act, shall be recorded by means of shorthand notes or by mechanical means.
(2) A shorthand writer shall—
(a) sign the shorthand notes taken by him of such proceedings and certify them as being complete and correct; and
(b) retain the notes.
(3) A person recording such proceedings by mechanical means shall—
(a) certify that the record is true and complete;
(b) specify in the certificate the proceedings or, as the case may be, the part of the proceedings to which the record relates; and
(c) retain the record.
(4) The cost of making a record under subsection (1) above shall be defrayed, in accordance with scales of payment fixed for the time being by Treasury, out of money provided by Parliament.
(5) In subsection (1) above “proceedings at the trial” means the whole proceedings including, without prejudice to that generality—
(a) discussions—
(i) on any objection to the relevancy of the indictment;
(ii) with respect to any challenge of jurors; and
(iii) on all questions arising in the course of the trial;
(b) the decision of the court on any matter referred to in paragraph (a) above;
(c) the evidence led at the trial;
(d) any statement made by or on behalf of the accused whether before or after the verdict;
(e) the judge’s charge to the jury;
(f) the speeches of counsel or agent;
(g) the verdict of the jury;
(h) the sentence by the judge.
94 Transcripts of record and documentary productions.
(1) The Clerk of Justiciary may direct that a transcript of a record made under section 93(1) of this Act, or any part thereof, be made and delivered to him for the use of any judge.
(2) Subject to subsection (3) below, the Clerk of Justiciary shall, if requested to do so by—
(a) the Secretary of State or, subject to subsection (2B) below, the prosecutor; or
(b) any other person , not being a person convicted at the trial, on payment of such charges as may be fixed for the time being by Treasury,
direct that such a transcript be made and sent to the person who requested it.
(2ZA) The Clerk of Justiciary must direct that such a transcript be made and sent to a complainer that has requested it, if the complainer was a complainer in a trial that—
(a) was of an offence as described in section 288C(2) (certain sexual offences),
(b) was in the High Court or the Sexual Offences Court, and
(c) commenced on or after 31 December 2006.
(2A) If—
(a) on the written application of a person convicted at the trial and granted leave to appeal; and
(b) either of the conditions in subsection(2AZA) is met or it is otherwise in the interests of justice to do so,
a judge of the High Court may order, and in that event the Clerk of Justiciary shall direct, on payment of such charges as are mentioned in paragraph (b) of subsection (2) above, that such a transcript be made and sent to that person.
(2AZA) The conditions mentioned in subsection(2A)(b) are that—
(a) a ground of appeal, for which leave to appeal has been granted, reveals a significant dispute between that ground and the report of the trial judge on the nature and extent of the evidence, speech or other part of the record to which the application relates; or
(b) the trial judge’s report does not, in relation to a ground of appeal for which leave to appeal has been granted, provide a sufficient narrative of the nature and extent of the evidence, speech or other part of the record to which the application relates.
(2AA) Subsection (2A) applies to a person mentioned in subsection (2AB) as it applies to a person convicted at the trial, with the modification that the reference to the transcript in subsection (2A) is to be construed as a reference to the transcript of the record made of proceedings at the trial resulting in the acquittal mentioned in subsection (2AB)(b).
(2AB) The person mentioned in subsection (2AA) is a person who—
(a) is convicted of the offence mentioned in subsection (1) of section 11 of the Double Jeopardy (Scotland) Act 2011 (asp 16));
(b) is subsequently acquitted of an offence mentioned in subsection (2) of that section; and
(c) desires to appeal, under subsection (7) of that section, against the conviction of the offence mentioned in paragraph (a).
(2B) Where, as respects any person convicted at the trial, the Crown Agent has received intimation under section 107(10) of this Act, the prosecutor shall not be entitled to make a request under subsection (2)(a) above; but if, on the written application of the prosecutor and on cause shown, a judge of the High Court so orders, the Clerk of Justiciary shall direct that such a transcript be made and sent to the prosecutor.
(2C) Any application under subsection (2A) above shall—
(a) be made within 14 days after the date on which leave to appeal was granted or within such longer period after that date as a judge of the High Court may, on written application and on cause shown, allow; and
(aa) set out, for each ground of appeal to which the application relates, the particular evidence, speech or other part of the record required; and
(b) be intimated forthwith by the applicant to the prosecutor.
(2D) The prosecutor may, within 7 days after receiving intimation under subsection (2C)(b) above, make written representations to the court as respects the application under subsection (2A) above (the application being determined without a hearing).
(2E) Any application under subsection (2B) above shall—
(a) be made within 14 days after the receipt of intimation mentioned in that subsection or within such longer period after that receipt as a judge of the High Court may, on written application and on cause shown, allow; and
(b) be intimated forthwith by the prosecutor to the person granted leave to appeal.
(2F) The person granted leave to appeal may, within 7 days after receiving intimation under subsection (2E)(b) above, make written representations to the court as respects the application under subsection (2B) above (the application being determined without a hearing).
(3) The Secretary of State may, after consultation with the Lord Justice General, by order made by statutory instrument provide that in any class of proceedings specified in the order the Clerk of Justiciary shall only make a direction under subsection (2)(b) above if satisfied that the person requesting the transcript is of a class of person so specified and, if purposes for which the transcript may be used are so specified, intends to use it only for such a purpose; and different purposes may be so specified for different classes of proceedings or classes of person.
(4) Where subsection (3) above applies as respects a direction, the person to whom the transcript is sent shall, if purposes for which that transcript may be used are specified by virtue of that subsection, use it only for such a purpose.
(5) A statutory instrument containing an order under subsection (3) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(6) A direction under subsection (1) or (2) above may require that the transcript be made by the person who made the record or by such competent person as may be specified in the direction; and that person shall comply with the direction.
(7) A transcript made in compliance with a direction under subsection (1) or (2) above—
(a) shall be in legible form; and
(b) shall be certified by the person making it as being a correct and complete transcript of the whole or, as the case may be, the part of the record purporting to have been made and certified, and in the case of shorthand notes signed, by the person who made the record.
(8) The cost of making a transcript in compliance with a direction under subsection (1) or (2)(a) above shall be defrayed, in accordance with scales of payment fixed for the time being by the Treasury, out of money provided by Parliament.
(9) The Clerk of Justiciary shall, on payment of such charges as may be fixed for the time being by the Treasury, provide a copy of any documentary production lodged in connection with an appeal under this Part of this Act to such of the following persons as may request it—
(a) the prosecutor;
(b) any person convicted in the proceedings;
(c) any other person named in, or immediately affected by, any order made in the proceedings; and
(d) any person authorised to act on behalf of any of the persons mentioned in paragraphs (a) to (c) above.
(10) In this section, “complainer” means a person against whom an offence to which the trial related was alleged to have been committed.
(1) Where, at any time after the jury has been sworn to serve in a trial, the prosecutor intimates to the court that he does not intend to proceed in respect of an offence charged in the indictment, the judge shall acquit the accused of that offence and the trial shall proceed only in respect of any other offence charged in the indictment.
(2) Where, at any time after the jury has been sworn to serve in a trial, the accused intimates to the court that he is prepared to tender a plea of guilty as libelled, or such other plea as the Crown is prepared to accept, in respect of any offence charged in the indictment, the judge shall accept the plea tendered and shall convict the accused accordingly.
(3) Where an accused is convicted under subsection (2) above of an offence—
(a) the trial shall proceed only in respect of any other offence charged in the indictment; and
(b) without prejudice to any other power of the court to adjourn the case or to defer sentence, the judge shall not sentence him or make any other order competent following conviction until a verdict has been returned in respect of every other offence mentioned in paragraph (a) above.
(1) No trial shall fail or the ends of justice be allowed to be defeated by reason of any discrepancy or variance between the indictment and the evidence.
(2) It shall be competent at any time prior to the determination of the case, unless the court see just cause to the contrary, to amend the indictment by deletion, alteration or addition, so as to—
(a) cure any error or defect in it;
(b) meet any objection to it; or
(c) cure any discrepancy or variance between the indictment and the evidence.
(3) Nothing in this section shall authorise an amendment which changes the character of the offence charged, and, if it appears to the court that the accused may in any way be prejudiced in his defence on the merits of the case by any amendment made under this section, the court shall grant such remedy to the accused by adjournment or otherwise as appears to the court to be just.
(4) An amendment made under this section shall be sufficiently authenticated by the initials of the clerk of the court.
(1) Immediately after the close of the evidence for the prosecution, the accused may intimate to the court his desire to make a submission that he has no case to answer both—
(a) on an offence charged in the indictment; and
(b) on any other offence of which he could be convicted under the indictment.
(2) If, after hearing both parties, the judge is satisfied that the evidence led by the prosecution is insufficient in law to justify the accused being convicted of the offence charged in respect of which the submission has been made or of such other offence as is mentioned, in relation to that offence, in paragraph (b) of subsection (1) above, he shall acquit him of the offence charged in respect of which the submission has been made and the trial shall proceed only in respect of any other offence charged in the indictment.
(3) If, after hearing both parties, the judge is not satisfied as is mentioned in subsection (2) above, he shall reject the submission and the trial shall proceed, with the accused entitled to give evidence and call witnesses, as if such submission had not been made.
(4) A submission under subsection (1) above shall be heard by the judge in the absence of the jury.
(1) Immediately after one or other (but not both) of the appropriate events, the accused may make either or both of the submissions mentioned in subsection (2) in relation to an offence libelled in an indictment (the “indicted offence”).
(2) The submissions are—
(a) that the evidence is insufficient in law to justify the accused's being convicted of the indicted offence or any other offence of which the accused could be convicted under the indictment (a “related offence”),
(b) that there is no evidence to support some part of the circumstances set out in the indictment.
(3) For the purposes of subsection (1), “the appropriate events” are—
(a) the close of the whole of the evidence,
(b) the conclusion of the prosecutor's address to the jury on the evidence.
(4) A submission made under this section must be heard by the judge in the absence of the jury.
97B Acquittals etc. on section 97A(2)(a) submissions
(1) This section applies where the accused makes a submission of the kind mentioned in section 97A(2)(a).
(2) If the judge is satisfied that the evidence is insufficient in law to justify the accused's being convicted of the indicted offence, then—
(a) where the judge is satisfied that the evidence is also insufficient in law to justify the accused's being convicted of a related offence—
(i) the judge must acquit the accused of the indicted offence, and
(ii) the trial is to proceed only in respect of any other offence libelled in the indictment,
(b) where the judge is satisfied that the evidence is sufficient in law to justify the accused's being convicted of a related offence, the judge must direct that the indictment be amended accordingly.
(3) If the judge is not satisfied as is mentioned in subsection (2)—
(a) the judge must reject the submission, and
(b) the trial is to proceed as if the submission had not been made.
(4) The judge may make a decision under this section only after hearing both (or all) parties.
(5) An amendment made by virtue of this section must be sufficiently authenticated by the initials of the judge or the clerk of court.
(6) In this section, “indicted offence” and “related offence” have the same meanings as in section 97A.
97C Directions etc. on section 97A(2)(b) submissions
(1) This section applies where the accused makes a submission of the kind mentioned in section 97A(2)(b).
(2) If the judge is satisfied that there is no evidence to support some part of the circumstances set out in the indictment, the judge must direct that the indictment be amended accordingly.
(3) If the judge is not satisfied as is mentioned in subsection (2)—
(a) the judge must reject the submission, and
(b) the trial is to proceed as if the submission had not been made.
(4) The judge may make a decision under this section only after hearing both (or all) parties.
(5) An amendment made by virtue of this section must be sufficiently authenticated by the initials of the judge or the clerk of court.
(1) A judge has no power to direct the jury to return a not guilty verdict on any charge on the ground that no reasonable jury, properly directed on the evidence, could convict on the charge.
(2) Accordingly, no submission based on that ground or any ground of like effect is to be allowed.
(1) When the jury retire to consider their verdict, the clerk of court shall enclose the jury in a room by themselves and, except in so far as provided for, or is made necessary, by an instruction under subsection (4) below, neither he nor any other person shall be present with the jury while they are enclosed.
(2) Except in so far as is provided for, or is made necessary, by an instruction under subsection (4) below, while the jury are enclosed and until they intimate that they are ready to return their verdict—
(a) subject to subsection (3) below, no person shall visit the jury or communicate with them; and
(b) no juror shall come out of the jury room other than to receive or seek a direction from the judge or to make a request—
(i) for an instruction under subsection (4)(a), (c) or (d) below; or
(ii) regarding any matter in the cause.
(2A) Subsections (1) and (2) are subject to subsection (2B).
(2B) A juror’s communication supporter may—
(a) be present with the jury while they are enclosed,
(b) visit or communicate with a juror, and
(c) accompany a juror who comes out of the jury room to receive or seek a direction, or to make a request for instruction or regarding any matter, as mentioned in subsection (2)(b).
(3) Nothing in paragraph (a) of subsection (2) above shall prohibit the judge, or any person authorised by him for the purpose, communicating with the jury for the purposes—
(a) of giving a direction, whether or not sought under paragraph (b) of that subsection; or
(b) responding to a request made under that paragraph.
(4) The judge may give such instructions as he considers appropriate as regards—
(a) the provision of meals and refreshments for the jury;
(b) the making of arrangements for overnight accommodation for the jury and , unless under subsection (7) below the court permits them to separate, for their continued seclusion if such accommodation is provided;
(c) the communication of a personal or business message, unconnected with any matter in the cause, from a juror to another person (or vice versa); or
(d) the provision of medical treatment, or other assistance, immediately required by a juror.
(5) If the prosecutor or any other person contravenes the provisions of this section, the accused shall be acquitted of the crime with which he is charged.
(6) During the period in which the jury are retired to consider their verdict, the judge may sit in any other proceedings; and the trial shall not fail by reason only of his so doing.
(7) The court may, if it thinks fit, permit the jury to separate even after they have retired to consider their verdict.
(8) In subsection (2B), a “juror’s communication supporter” has the meaning given by section 88A(2).
99A Verdict of guilty or not guilty and majority for guilty verdict
(1) In respect of each charge, the jury must deliver a verdict of either—
(a) guilty, or
(b) not guilty.
(2) The jury may return a verdict of guilty only if a majority of the jurors are in favour of that verdict.
(3) Otherwise, the jury must return a verdict of not guilty.
(4) For the purposes of subsection (2), a majority of jurors are in favour of a verdict if—
(a) in the case of a jury consisting of 14 or 15 jurors, at least 10 of the jurors are so in favour,
(b) in the case of a jury consisting of 13 jurors, at least 9 jurors are so in favour,
(c) in the case of a jury consisting of 12 jurors, at least 8 jurors are so in favour.
(1) The verdict of the jury, whether the jury are unanimous or not, shall be returned orally by the foreman of the jury unless the court directs a written verdict to be returned.
(2) Where the jury are not unanimous in their verdict, the foreman shall announce that fact so that the relative entry may be made in the record.
(3) The verdict of the jury may be given orally through the foreman of the jury after consultation in the jury box without the necessity for the jury to retire.
(1) Previous convictions against the accused shall not , subject to subsection (2) below and section 275A(2) of this Act, be laid before the jury, nor shall reference be made to them in presence of the jury before the verdict is returned.
(2) Nothing in subsection (1) above shall prevent the prosecutor—
(a) asking the accused questions tending to show that he has been convicted of an offence other than that with which he is charged, where he is entitled to do so under section 266 of this Act; or
(b) leading evidence of previous convictions where it is competent to do so under section 270 of this Act,
and nothing in this section or in section 69 of this Act shall prevent evidence of previous convictions being led in any case where such evidence is competent in support of a substantive charge.
(3) Previous convictions shall not , subject to section 275A(1) of this Act, be laid before the presiding judge until the prosecutor moves
(a) for sentence ; or
(b) for a risk assessment order (or the court at its own instance proposes to make such an order),
and in that event the prosecutor shall lay before the judge a copy of the notice referred to in subsection (2) or (4) of section 69 of this Act.
(3A) Where, under paragraph (b) of subsection (3) above, the prosecutor lays previous convictions before the judge, he shall also provide the judge with such details regarding the offences in question as are available to him.
(4) On the conviction of the accused it shall be competent for the court, subject to subsection (5) below, to amend a notice of previous convictions so laid by deletion or alteration for the purpose of curing any error or defect.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) Any conviction which is admitted in evidence by the court shall be entered in the record of the trial.
(7) Where a person is convicted of an offence, the court may have regard to any previous conviction in respect of that person in deciding on the disposal of the case.
(8) Where any such intimation as is mentioned in section 69 of this Act is given by the accused, it shall be competent to prove any previous conviction included in a notice under that section in the manner specified in section 285 , or as the case may be 286A, of this Act, and the provisions of the section in question shall apply accordingly.
(9) This section, except subsection (2) above, applies in relation to the alternative disposals mentioned in subsection (10) below as it applies in relation to previous convictions.
(10) Those alternative disposals are—
(a) a—
(i) fixed penalty under section 302(1) of this Act;
(ii) compensation offer under section 302A(1) of this Act,
that has been accepted (or deemed to have been accepted) by the accused in the two years preceding the date of an offence charged;
(b) a work order under section 303ZA(6) of this Act that has been completed in the two years preceding the date of an offence charged;
(c) a restoration notice given under subsection (4) of section 20A of the Nature Conservation (Scotland) Act 2004 (asp 6) in respect of which the accused has given notice of intention to comply under subsection (5) of that section in the two years preceding the date of an offence charged.
(11) Nothing in this section or in section 69 of this Act shall prevent the prosecutor, following conviction of an accused of an offence—
(a) to which a fixed penalty offer made under section 302(1) of this Act related;
(b) to which a compensation offer made under section 302A(1) of this Act related; ...
(c) to which a work offer made under section 303ZA(1) of this Act related; or
(d) to which a restoration notice given under section 20A(4) of the Nature Conservation (Scotland) Act 2004 (asp 6) related,
providing the judge with information about the making of the offer (including the terms of the offer) or, as the case may be, about the giving of the notice (including the terms of the notice).
(12) Any reference in this section to a previous conviction includes, where relevant, a conviction by a court in any part of the United Kingdom or in any member State of the European Union.
(1) This section applies where an accused person is convicted of an offence (“offence O”) on indictment.
(2) The court may, in deciding on the disposal of the case, have regard to—
(a) any conviction in respect of the accused which occurred on or after the date of offence O but before the date of conviction in respect of that offence,
(b) any of the alternative disposals in respect of the accused that are mentioned in subsection (3).
(3) Those alternative disposals are—
(a) a—
(i) fixed penalty under section 302(1) of this Act, or
(ii) compensation offer under section 302A(1) of this Act,
that has been accepted (or deemed to have been accepted) on or after the date of offence O but before the date of conviction in respect of that offence,
(b) a work order under section 303ZA(6) of this Act that has been completed on or after the date of offence O but before the date of conviction in respect of that offence.
(4) The court may have regard to any such conviction or alternative disposal only if it is—
(a) specified in a notice laid before the court by the prosecutor, and
(b) admitted by the accused or proved by the prosecutor (on evidence adduced then or at another diet).
(5) A reference in this section to a conviction which occurred on or after the date of offence O is a reference to such a conviction by a court in any part of the United Kingdom or , where the court considers appropriate, in any member State of the European Union.
(1) When the jury have retired to consider their verdict, and the diet in another criminal cause has been called, then, subject to subsection (3) below, if it appears to the judge presiding at the trial to be appropriate, he may interrupt the proceedings in such other cause—
(a) in order to receive the verdict of the jury in the preceding trial, and thereafter to dispose of the case;
(b) to give a direction to the jury in the preceding trial upon any matter upon which the jury may wish a direction from the judge or to hear any request from the jury regarding any matter in the cause.
(2) Where in any case the diet of which has not been called, the accused intimates to the clerk of court that he is prepared to tender a plea of guilty as libelled or such qualified plea as the Crown is prepared to accept, or where a case is remitted to the High Court for sentence, then, subject to subsection (3) below, any trial then proceeding may be interrupted for the purpose of receiving such plea or dealing with the remitted case and pronouncing sentence or otherwise disposing of any such case.
(3) In no case shall any proceedings in the preceding trial take place in the presence of the jury in the interrupted trial, but in every case that jury shall be directed to retire by the presiding judge.
(4) On the interrupted trial being resumed the diet shall be called de novo.
(5) In any case an interruption under this section shall not be deemed an irregularity, nor entitle the accused to take any objection to the proceedings.
(1) In proceedings on indictment, an accused person who without reasonable excuse fails to appear at a diet of which the accused has been given due notice (apart from a diet which the accused is not required to attend) is—
(a) guilty of an offence; and
(b) liable on conviction on indictment to a fine or to imprisonment for a period not exceeding 5 years or to both.
(2) In proceedings on indictment, where an accused person fails to appear at a diet of which the accused has been given due notice (apart from a diet which the accused is not required to attend), the court may grant a warrant to apprehend the accused.
(3) It is not, otherwise than under subsection (2) above, competent in any proceedings on indictment for a court to grant a warrant for the apprehension of an accused person for failure to appear at a diet.
(4) However, it remains competent for a court to grant a warrant on petition (as referred to in section 34 of this Act) in respect of an offence under—
(a) subsection (1) above;
(b) section 27(7) of this Act,
whether or not a warrant has been granted under subsection (2) above in respect of the same failure to appear to which that offence relates.
(5) Where a warrant to apprehend an accused person is granted under subsection (2) above at any stage prior to conviction, the indictment falls as respects that accused.
(6) Subsection (5) above is subject to any order to different effect made by the court when granting the warrant.
(7) An order under subsection (6) above—
(a) for the purpose of proceeding with the trial in the absence of the accused under section 92(2A) (where the warrant is granted at a trial diet), may be made on the motion of the prosecutor;
(b) for any other purpose, may be made on the motion of the prosecutor or of the court's own accord.
(8) A warrant granted under subsection (2) above shall be in such form as may be prescribed by Act of Adjournal or as nearly as may be in such form.
(9) A warrant granted under subsection (2) above (in the form mentioned in subsection (8) above) shall imply warrant to officers of law—
(a) to search for and apprehend the accused;
(b) to bring the accused before the court;
(c) in the meantime, to detain the accused in a police station, police cell or other convenient place; and
(d) so far as is necessary for the execution of the warrant, to break open shut and lockfast places.
(10) An accused apprehended under a warrant granted under subsection (2) above shall wherever practicable be brought before the court not later than in the course of the first day on which the court is sitting after the accused is taken into custody.
(11) Where the accused is brought before the court in pursuance of a warrant granted under subsection (2) above, the court shall make an order—
(a) detaining the accused until liberated in due course of law; or
(b) releasing the accused on bail.
(12) For the purposes of subsection (11) above, the court is to have regard to the terms of the indictment in relation to which the warrant was granted even if that indictment has fallen.
(13) In a case where a warrant is granted under subsection (2) above, any period of time during which the accused was detained in custody—
(a) as regards that case; and
(b) prior to the making of an order under subsection (11) above,
does not count towards any time limit applying in that case by virtue of section 65(4) of this Act.
(14) For the purposes of subsection (13) above—
(a) detention as regards a case includes, in addition to detention as regards the indictment in relation to which the warrant was granted (whether or not that indictment has fallen), detention as regards any preceding petition;
(b) it is immaterial whether or not further proceedings are on a fresh indictment.
(15) At any time before the trial of an accused person on indictment, it is competent—
(a) to amend the indictment so as to include an additional charge of an offence under subsection (1) above;
(b) to include, in the list of witnesses or productions associated with the indictment, witnesses or productions relating to that offence.
(16) In this section, “ the court ” means—
(a) where the accused failed to appear at the High Court—
(i) for the purposes of subsections (10) to (12) above, that Court (whether or not constituted by a single judge);
(ii) otherwise, a single judge of that Court;
(b) where the accused failed to appear at a sheriff court, any sheriff court with jurisdiction in relation to the proceedings.
(1) The High Court shall hold both during session and during vacation such sittings as are necessary for the disposal of appeals and other proceedings under this Part of this Act.
(2) Subject to subsection (3) below, for the purpose of hearing and determining any appeal or other proceeding under this Part of this Act three of the Lords Commissioners of Justiciary shall be a quorum of the High Court, and the determination of any question under this Part of this Act by the court shall be according to the votes of the majority of the members of the court sitting, including the presiding judge, and each judge so sitting shall be entitled to pronounce a separate opinion.
(3) For the purpose of hearing and determining any appeal under section 106(1)(b) to (e) of this Act, or any proceeding connected therewith, two of the Lords Commissioners of Justiciary shall be a quorum of the High Court, and each judge shall be entitled to pronounce a separate opinion; but where the two Lords Commissioners of Justiciary are unable to reach agreement on the disposal of the appeal, or where they consider it appropriate, the appeal shall be heard and determined in accordance with subsection (2) above.
(4) Subsections (1) to (3) above shall apply to cases certified to the High Court by a single judge of the said court and to appeals by way of advocation in like manner as they apply to appeals under this Part of this Act.
(5) The powers of the High Court under this Part of this Act—
(a) to extend the time within which intimation of intention to appeal and note of appeal may be given;
(b) to allow the appellant to be present at any proceedings in cases where he is not entitled to be present without leave; and
(c) to admit an appellant to bail,
may be exercised by any judge of the High Court, sitting and acting wherever convenient, in the same manner as they may be exercised by the High Court, and subject to the same provisions.
(6) Where a judge acting under subsection (5) above refuses an application by an appellant to exercise under that subsection any power in his favour, the appellant shall be entitled to have the application determined by the High Court.
(6A) Where a judge acting under subsection (5)(c) above grants an application by an appellant to exercise that power in his favour, the prosecutor shall be entitled to have the application determined by the High Court.
(7) Subject to subsection (5) , (6) and (6A) above and without prejudice to it, preliminary and interlocutory proceedings incidental to any appeal or application may be disposed of by a single judge.
(8) In all proceedings before a judge under section (5) above, and in all preliminary and interlocutory proceedings and applications except such as are heard before the full court, the parties may be represented and appear by a solicitor alone.
(1) Without prejudice to any existing power of the High Court, it may for the purposes of an appeal under section 106(1), 107A, 107B or 108 of this Act—
(a) order the production of any document or other thing connected with the proceedings;
(b) hear any . . .evidence relevant to any alleged miscarriage of justice or order such evidence to be heard by a judge of the High Court or by such other person as it may appoint for that purpose;
(c) take account of any circumstances relevant to the case which were not before the trial judge;
(d) remit to any fit person to enquire and report in regard to any matter or circumstance affecting the appeal;
(e) appoint a person with expert knowledge to act as assessor to the High Court in any case where it appears to the court that such expert knowledge is required for the proper determination of the case.
(2) The evidence of any witnesses ordered to be examined before the High Court or before any judge of the High Court or other person appointed by the High Court shall be taken in accordance with the existing law and practice as to the taking of evidence in criminal trials in Scotland.
(3) The appellant or applicant and the respondent or counsel on their behalf shall be entitled to be present at and take part in any examination of any witness to which this section relates.
(1) When an application or applications have been dealt with by a judge of the High Court, under section 103(5) of this Act, the Clerk of Justiciary shall—
(a) notify to the applicant the decision in the form prescribed by Act of Adjournal or as nearly as may be in such form; and
(b) where all or any of such applications have been refused, forward to the applicant the prescribed form for completion and return forthwith if he desires to have the application or applications determined by the High Court as fully constituted for the hearing of appeals under this Part of this Act.
(2) Where the applicant does not desire a determination as mentioned in subsection (1)(b) above, or does not return within five days to the Clerk the form duly completed by him, the refusal of his application or applications by the judge shall be final.
(3) Where an applicant who desires a determination by the High Court as mentioned in subsection (1)(b) above—
(a) is not legally represented, he may be present at the hearing and determination by the High Court of the application;
(b) is legally represented, he shall not be entitled to be present without leave of the court.
(3A) Subsection (3) does not entitle an applicant to be present at the hearing and determination of an application under section 111(2) unless the High Court has made a direction under section 111(4)(b).
(4) When an applicant duly completes and returns to the Clerk of Justiciary within the prescribed time the form expressing a desire to be present at the hearing and determination by the court of the applications mentioned in this section, the form shall be deemed to be an application by the applicant for leave to be so present, and the Clerk of Justiciary, on receiving the form, shall take the necessary steps for placing the application before the court.
(4A) An application by a convicted person for a determination by the High Court of a decision of a judge acting under section 103(5)(c) of this Act to refuse to admit him to bail shall be intimated by him immediately and in writing to the Crown Agent.
(5) If the application to be present is refused by the court, the Clerk of Justiciary shall notify the applicant; and if the application is granted, he shall notify the applicant and the Governor of the prison where the applicant is in custody and the Secretary of State.
(6) For the purpose of constituting a Court of Appeal, the judge who has refused any application may sit as a member of the court, and take part in determining the application.
(1) Where the prosecutor desires a determination by the High Court as mentioned in subsection (6A) of section 103 of this Act, he shall apply to the judge immediately after the power in subsection (5)(c) of that section is exercised in favour of the appellant.
(2) Where a judge acting under section 103(5)(c) of this Act has exercised that power in favour of the appellant but the prosecutor has made an application under subsection (1) above—
(a) the appellant shall not be liberated until the determination by the High Court; and
(b) that application by the prosecutor shall be heard not more than seven days after the making of the application,
and the Clerk of the Justiciary shall forward to the appellant the prescribed form for completion and return forthwith if he desires to be present at the hearing.
(3) At a hearing and determination as mentioned in subsection (2) above, if the appellant—
(a) is not legally represented, he may be present;
(b) is legally represented, he shall not be entitled to be present without leave of the court.
(4) If the appellant completes and returns the form mentioned in subsection (2) above indicating a desire to be present at the hearing, the form shall be deemed to be an application by the appellant for leave to be so present, and the Clerk of Justiciary, on receiving the form, shall take the necessary steps for placing the application before the court.
(5) If the application to be present is refused by the court, the Clerk of Justiciary shall notify the appellant; and if the application is granted, he shall notify the appellant and the Governor of the prison where the applicant is in custody and the Scottish Ministers.
(6) For the purposes of constituting a Court of Appeal, the judge who exercised the power in section 103(5)(c) of this Act in favour of the appellant may sit as a member of the court, and take part in determining the application of the prosecutor.
(1) Any person convicted on indictment may, with leave granted in accordance with section 107 of this Act, appeal in accordance with this Part of this Act, to the High Court—
(a) against such conviction;
(b) subject to subsection (2) below, against the sentence passed on such conviction;
(ba) against the making of an order for lifelong restriction;
(bb) against any decision not to exercise the power conferred by section 205A(3), or 205B(3) of this Act;
(c) against his absolute discharge or admonition;
(d) against any drug treatment and testing order;
(dza) against any disposal under section 227ZC(7)(a) to (c) or (e) or (8)(a) of this Act;
(da) against any decision to remit made under section 49(1)(a) of this Act;
(db) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(dc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) against any order deferring sentence; or
(f) against
(i) both such conviction and, subject to subsection (2) below, such sentence or disposal or order.
(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) There shall be no appeal against any sentence fixed by law.
(3) By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on—
(a) subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings; and
(b) the jury’s having returned a verdict which no reasonable jury, properly directed, could have returned.
(3A) Evidence such as is mentioned in subsection (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not so heard.
(3B) Where the explanation referred to in subsection (3A) above or, as the case may be, (3C) below is that the evidence was not admissible at the time of the original proceedings, but is admissible at the time of the appeal, the court may admit that evidence if it appears to the court that it would be in the interests of justice to do so.
(3C) Without prejudice to subsection (3A) above, where evidence such as is mentioned in paragraph (a) of subsection (3) above is evidence—
(a) which is—
(i) from a person; or
(ii) of a statement (within the meaning of section 259(1) of this Act) by a person,
who gave evidence at the original proceedings; and
(b) which is different from, or additional to, the evidence so given,
it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence.
(3D) For the purposes of subsection (3C) above, “ independent evidence ” means evidence which—
(a) was not heard at the original proceedings;
(b) is from a source independent of the person referred to in subsection (3C) above; and
(c) is accepted by the court as being credible and reliable.
(4) Any document, production or other thing lodged in connection with the proceedings on the trial of any person who, if convicted, is entitled or may be authorised to appeal under this Part of this Act, shall, in accordance with subsections (5) to (9) below, be kept in the custody of the court in which the conviction took place.
(5) All documents and other productions produced at the trial of a convicted person shall be kept in the custody of the court of trial in such manner as it may direct until any period allowed under or by virtue of this Part of this Act for lodging intimation of intention to appeal has elapsed.
(6) Where no direction is given as mentioned in subsection (5) above, such custody shall be in the hands of the sheriff clerk of the district of the court of the second diet to whom the clerk of court shall hand them over at the close of the trial, unless otherwise ordered by the High Court on an intimation of intention to appeal being lodged, and if within such period there has been such lodgement under this Part of this Act, they shall be so kept until the appeal, if it is proceeded with, is determined.
(7) Notwithstanding subsections (5) and (6) above, the judge of the court in which the conviction took place may, on cause shown, grant an order authorising any of such documents or productions to be released on such conditions as to custody and return as he may deem it proper to prescribe.
(8) All such documents or other productions so retained in custody or released and returned shall, under supervision of the custodian thereof, be made available for inspection and for the purpose of making copies of documents or productions to a person who has lodged an intimation of intention to appeal or as the case may be, to the convicted person’s counsel or agent, and to the Crown Agent and the procurator fiscal or his deputes.
(9) Where no intimation of intention to appeal is lodged within the period mentioned in subsection (6) above, all such documents and productions shall be dealt with as they are dealt with according to the existing law and practice at the conclusion of a trial; and they shall be so dealt with if, there having been such intimation, the appeal is not proceeded with.
106A Appeal against automatic sentences where earlier conviction quashed.
(1) This subsection applies where—
(a) a person has been sentenced under section 205A(2) of this Act;
(b) he had, at the time at which the offence for which he was so sentenced was committed, only one previous conviction for a qualifying offence or a relevant offence within the meaning of that section; and
(c) after he has been so sentenced, the conviction mentioned in paragraph (b) above has been quashed.
(2) This subsection applies where—
(a) a person has been sentenced under section 205B(2) of this Act;
(b) he had, at the time at which the offence for which he was so sentenced was committed, only two previous convictions for class A drug trafficking offences within the meaning of that section; and
(c) after he has been so sentenced, one of the convictions mentioned in paragraph (b) above has been quashed.
(3) Where subsection (1) or (2) above applies, the person may appeal under section 106(1)(b) of this Act against the sentence imposed on him under section 205A(2) or, as the case may be, 205B(2) of this Act.
(4) An appeal under section 106(1)(b) of this Act by virtue of subsection (3) above—
(a) may be made notwithstanding that the person has previously appealed under that section; and
(b) shall be lodged within two weeks of the quashing of the conviction as mentioned in subsection (1)(c) or, as the case may be, (2)(c) above.
(5) Where an appeal is made under section 106(1)(b) by virtue of this section, the following provisions of this Act shall not apply in relation to such an appeal, namely—
(a) section 121; and
(b) section 126.
(1) The decision whether to grant leave to appeal for the purposes of section 106(1) of this Act shall be made by a judge of the High Court who shall—
(a) if he considers that the documents mentioned in subsection (2) below disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and
(b) in any other case—
(i) refuse leave to appeal and give reasons in writing for the refusal; and
(ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him.
(2) The documents referred to in subsection (1) above are—
(a) the note of appeal lodged under section 110(1)(a) of this Act;
(b) in the case of an appeal against conviction or sentence in a sheriff court, the certified copy or, as the case may be, the record of the proceedings at the trial;
(c) where the judge who presided at the trial furnishes a report under section 113 of this Act, that report; and
(d) where, by virtue of section 94(1) of this Act, a transcript of the charge to the jury of the judge who presided at the trial is delivered to the Clerk of Justiciary, that transcript.
(2A) In respect of an appeal by virtue of section 11(7) of the Double Jeopardy (Scotland) Act 2011 (asp 16), the “report under section 113” in subsection (2)(c) means—
(a) the report of the judge who presided at the trial resulting in the appellant's acquittal for an offence mentioned in section 11(2) of that Act;
(b) where an appeal against conviction was taken before that acquittal, the report of the judge who presided at the trial resulting in the conviction in respect of which leave to appeal is sought prepared at that time; and
(c) any other report of that judge furnished under section 113.
(3) A warrant granted under subsection (1)(b)(ii) above shall not take effect until the expiry of the period of 14 days mentioned in subsection (4) below (and if that period is extended under subsection (4A) below before the period being extended expires, until the expiry of the period as so extended) without an application to the High Court for leave to appeal having been lodged by the appellant under subsection (4) .
(4) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 days of intimation under subsection (10) below, apply to the High Court for leave to appeal.
(4A) The High Court may, on cause shown, extend the period of 14 days mentioned in subsection (4) above, or that period as extended under this subsection, whether or not the period to be extended has expired (and if that period of 14 days has expired, whether or not it expired before section 62 of the Criminal Justice (Scotland) Act 2003 (asp 7) came into force).
(5) In deciding an application under subsection (4) above the High Court shall—
(a) if, after considering the documents mentioned in subsection (2) above and the reasons for the refusal, the court is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as the court considers appropriate; and
(b) in any other case—
(i) refuse leave to appeal and give reasons in writing for the refusal; and
(ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him.
(6) Consideration whether to grant leave to appeal under subsection (1) or (5) above shall take place in chambers without the parties being present.
(7) Comments in writing made under subsection (1)(a) or (5)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted.
(8) Where the arguable grounds of appeal are specified by virtue of subsection (7) above it shall not, except by leave of the High Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified.
(9) Any application by the appellant for the leave of the High Court under subsection (8) above—
(a) shall be made within 14 days of the date of intimation under subsection (10) below ; and
(b) shall, within 14 days of that date, be intimated by the appellant to the Crown Agent.
(9A) The High Court may, on cause shown, extend the periods of 14 days mentioned in subsection (9) above.
(10) The Clerk of Justiciary shall forthwith intimate—
(a) a decision under subsection (1) or (5) above; and
(b) in the case of a refusal of leave to appeal, the reasons for the decision,
to the appellant or his solicitor and to the Crown Agent.
107A Prosecutor's right of appeal: decisions on section 97 and 97A submissions
(1) The prosecutor may appeal to the High Court against—
(a) an acquittal under section 97 or 97B(2)(a), or
(b) a direction under section 97B(2)(b) or 97C(2).
(2) If, immediately after an acquittal under section 97 or 97B(2)(a), the prosecutor moves for the trial diet to be adjourned for no more than 2 days in order to consider whether to appeal against the acquittal under subsection (1), the court of first instance must grant the motion unless the court considers that there are no arguable grounds of appeal.
(3) If, immediately after the giving of a direction under section 97B(2)(b) or 97C(2), the prosecutor moves for the trial diet to be adjourned for no more than 2 days in order to consider whether to appeal against the direction under subsection (1), the court of first instance must grant the motion unless the court considers that it would not be in the interests of justice to do so.
(4) In considering whether it would be in the interests of justice to grant a motion for adjournment under subsection (3), the court must have regard, amongst other things, to—
(a) whether, if an appeal were to be made and to be successful, continuing with the diet would have any impact on any subsequent or continued prosecution,
(b) whether there are any arguable grounds of appeal.
(5) An appeal may not be brought under subsection (1) unless the prosecutor intimates intention to appeal—
(a) immediately after the acquittal or, as the case may be, the giving of the direction,
(b) if a motion to adjourn the trial diet under subsection (2) or (3) is granted, immediately upon resumption of the diet, or
(c) if such a motion is refused, immediately after the refusal.
(6) Subsection (7) applies if—
(a) the prosecutor intimates an intention to appeal under subsection (1)(a), or
(b) the trial diet is adjourned under subsection (2).
(7) Where this subsection applies, the court of first instance must suspend the effect of the acquittal and may—
(a) make an order under section 4(2) of the Contempt of Court Act 1981 (c.49) (which gives a court power, in some circumstances, to order that publication of certain reports be postponed) as if proceedings for the offence of which the person was acquitted were pending or imminent,
(b) after giving the parties an opportunity of being heard, order the detention of the person in custody or admit him to bail.
(8) The court may, under subsection (7)(b), order the detention of the person in custody only if the court considers that there are arguable grounds of appeal.
107B Prosecutor's right of appeal: decisions on admissibility of evidence
(1) The prosecutor may appeal to the High Court against a finding, made after the jury is empanelled and before the close of the evidence for the prosecution, that evidence that the prosecution seeks to lead is inadmissible.
(2) The appeal may be made only with the leave of the court of first instance, granted—
(a) on the motion of the prosecutor, or
(b) on that court's initiative.
(3) Any motion for leave to appeal must be made before the close of the case for the prosecution.
(4) In determining whether to grant leave to appeal the court must consider—
(a) whether there are arguable grounds of appeal, and
(b) what effect the finding has on the strength of the prosecutor's case.
107C Appeals under section 107A and 107B: general provisions
(1) In an appeal brought under section 107A or 107B the High Court may review not only the acquittal, direction or finding appealed against but also any direction, finding, decision, determination or ruling in the proceedings at first instance if it has a bearing on the acquittal, direction or finding appealed against.
(2) The test to be applied by the High Court in reviewing the acquittal, direction or finding appealed against is whether it was wrong in law.
(1) Subsection (2) applies where—
(a) the prosecutor intimates intention to appeal under section 107A or leave to appeal is granted by the court under section 107B, and
(b) the court is able to obtain confirmation from the Keeper of the Rolls that it would be practicable for the appeal to be heard and determined during an adjournment of the trial diet.
(2) The court must inform both parties of that fact and, after hearing them, must decide whether or not the appeal is to be heard and determined during such an adjournment.
(3) An appeal brought under section 107A or 107B which is heard and determined during such an adjournment is referred to in this Act as an “expedited appeal”.
(4) If the court decides that the appeal is to be an expedited appeal the court must, pending the outcome of the appeal—
(a) adjourn the trial diet, and
(b) where the appeal is against an acquittal, suspend the effect of the acquittal.
(5) Where the court cannot obtain from the Keeper of the Rolls confirmation of the kind mentioned in subsection (1)(b), the court must inform the parties of that fact.
(6) Where the High Court in an expedited appeal determines that an acquittal of an offence libelled in the indictment was wrong in law it must quash the acquittal and direct that the trial is to proceed in respect of the offence.
107E Other appeals under section 107A: appeal against acquittal
(1) This section applies where—
(a) an appeal brought under section 107A is not an expedited appeal,
(b) the appeal is against an acquittal, and
(c) the High Court determines that the acquittal was wrong in law.
(2) The court must quash the acquittal.
(3) If the prosecutor seeks leave to bring a new prosecution charging the accused with the same offence as that libelled in the indictment, or a similar offence arising out of the same facts as the offence libelled in the indictment, the High Court must grant the prosecutor authority to do so in accordance with section 119, unless the court considers that it would be contrary to the interests of justice to do so.
(4) If—
(a) no motion is made under subsection (3), or
(b) the High Court does not grant a motion made under that subsection,
the High Court must in disposing of the appeal acquit the accused of the offence libelled in the indictment.