107F Other appeals under section 107A or 107B: appeal against directions etc.
(1) This section applies where—
(a) an appeal brought under section 107A or 107B is not an expedited appeal, and
(b) the appeal is not against an acquittal.
(2) The court of first instance must desert the diet pro loco et tempore in relation to any offence to which the appeal relates.
(3) The trial is to proceed only if another offence of which the accused has not been acquitted and to which the appeal does not relate is libelled in the indictment.
(4) However, if the prosecutor moves for the diet to be deserted pro loco et tempore in relation to such other offence, the court must grant the motion.
(5) 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.
108 Lord Advocate’s right of appeal against disposal.
(1) Where a person has been convicted on indictment, the Lord Advocate may, in accordance with subsection (2) below, appeal against any of the following disposals, namely—
(a) a sentence passed on conviction;
(b) a decision under section 209(1)(b) of this Act not to make a supervised release order;
(c) a decision under section 234A(2) of this Act not to make a non-harassment order;
(ca) a decision under section 92 of the Proceeds of Crime Act 2002 not to make a confiscation order;.
(cb) a decision under section 22A of the Serious Crime Act 2007 not to make a serious crime prevention order;
(cb) a decision under section 36(2) of the Regulatory Reform (Scotland) Act 2014 not to make a publicity order;
(cc) a decision under section 41(2) of that Act not to make a remediation order;
(cd) a decision under section 97B(2) of the Proceeds of Crime Act 2002 to make or not to make a compliance order;
(ce) a decision under section 30(2) of the Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 not to make a remedial order,
(cf) a decision under section 30(2) of that Act not to make a publicity order,
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(dd) a drug treatment and testing order;
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(f) a decision to remit to the Principal Reporter made under section 49(1)(a) of this Act;
(g) an order deferring sentence;
(h) an admonition; or
(i) an absolute discharge.
(2) An appeal under subsection (1) above may be made—
(a) on a point of law;
(b) where it appears to the Lord Advocate, in relation to an appeal under—
(i) paragraph (a), (h) or (i) of that subsection, that the disposal was unduly lenient;
(ii) paragraph (b) , (c) , (ca), (cb) , (cc) , (cd), (ce) or (cf) of that subsection, that the decision not to make the order in question was inappropriate;
(iii) paragraph (cd) or (dd) of that subsection, that the making of the order concerned was unduly lenient or was on unduly lenient terms;
(iv) under paragraph (f) of that subsection, that the decision to remit was inappropriate;
(v) under paragraph (g) of that subsection, that the deferment of sentence was inappropriate or was on unduly lenient conditions.
(2A) In deciding whether to appeal under subsection (1) in any case, the Lord Advocate must have regard to any sentencing guidelines which are applicable in relation to the case.
(3) For the purposes of subsection (2)(b)(i) above in its application to a confiscation order by virtue of section 92(11) of the Proceeds of Crime Act 2002, the reference to the disposal being unduly lenient is a reference to the amount required to be paid by the order being unduly low.
(1) Subject to section 111(2) of this Act and to section 99 of the Proceeds of Crime Act 2002 (postponement) , where a person desires to appeal under section 106(1)(a) or (f) of this Act, he shall within two weeks of the final determination of the proceedings, lodge with the Clerk of Justiciary written intimation of intention to appeal which shall identify the proceedings and be in as nearly as may be the form prescribed by Act of Adjournal.
(1A) Where a person desires to appeal under section 106(1)(a) of this Act by virtue of section 11(7) of the Double Jeopardy (Scotland) Act 2011 (asp 16), subsection (1) applies with the following modifications—
(a) for the words “two weeks of the final determination of the proceedings” substitute “ two weeks of the date on which the person is acquitted of an offence mentioned in section 11(2) of the Double Jeopardy (Scotland) Act 2011 (asp 16) ”; and
(b) the reference to identifying the proceedings is to be construed as a reference to identifying—
(i) the proceedings which resulted in the conviction desired to be appealed; and
(ii) the proceedings which resulted in the person's acquittal as mentioned in section 11(7) of the Double Jeopardy (Scotland) Act 2011 (asp 16).
(1B) Subsections (5) to (9) of section 106 of this Act do not apply where the modifications specified in subsection (1A) apply.
(2) A copy of intimation given under subsection (1) above shall be sent to the Crown Agent.
(3) On intimation under subsection (1) above being lodged by a person in custody, the Clerk of Justiciary shall give notice of the intimation to the Secretary of State.
(4) Subject to subsection (5) below, for the purposes of subsection (1) above and section 106(5) to (7) of this Act, proceedings shall be deemed finally determined on the day on which sentence is passed in open court.
(5) Where in relation to an appeal under section 106(1)(a) of this Act sentence is deferred under section 202 of this Act, the proceedings shall be deemed finally determined on the day on which sentence is first so deferred in open court.
(6) Without prejudice to section 10 of the said Act of 1995, the reference in subsection (4) above to “the day on which sentence is passed in open court” shall, in relation to any case in which, under subsection (1) of that section, a decision has been postponed for a period, be construed as a reference to the day on which that decision is made, whether or not a confiscation order is then made or any other sentence is then passed.
(1) Subject to section 111(2) of this Act—
(a) within eight weeks of lodging intimation of intention to appeal or, in the case of an appeal under section 106(1)(b) to (e) of this Act . . . , within two weeks of the appropriate date (being, as the case may be, the date on which sentence was passed, the order disposing of the case was made, sentence was deferred ... or the previous conviction was quashed as mentioned in section 106A(1)(c) or (2)(c) of this Act) in open court, the convicted person may lodge a written note of appeal with the Clerk of Justiciary who shall send a copy to the judge who presided at the trial and to the Crown Agent; or, as the case may be,
(b) within four weeks of the passing of the sentence in open court, the Lord Advocate may lodge such a note with the Clerk of Justiciary, who shall send a copy to the said judge and to the convicted person or that person’s solicitor.
(c) where the prosecutor intimates intention to appeal under section 107A(1), within 7 days after the acquittal or direction appealed against, the prosecutor may, except in the case of an expedited appeal, lodge such a note with the Clerk of Justiciary, who must send a copy to the judge and to the accused or to the accused's solicitor,
(d) within 7 days after leave to appeal under section 107B(1) is granted, the prosecutor may, except in the case of an expedited appeal, lodge such a note with the Clerk of Justiciary, who must send a copy to the judge and to the accused or to the accused's solicitor,
(e) in the case of an expedited appeal, as soon as practicable after the decision as to hearing and determining the case is made under section 107D(2), the prosecutor may—
(i) lodge such a note with the Clerk of Justiciary, and
(ii) provide a copy to the judge and to the accused or to the accused's solicitor.
(2) The period of eight weeks mentioned in paragraph (a) of subsection (1) above may be extended, before it expires, by the Clerk of Justiciary.
(3) A note of appeal shall—
(a) identify the proceedings;
(b) contain a full statement of all the grounds of appeal; and
(c) be in as nearly as may be the form prescribed by Act of Adjournal.
(3A) In respect of a written note of appeal relating to an appeal by virtue of section 11(7) of the Double Jeopardy (Scotland) Act 2011 (asp 16)—
(a) subsection (1) applies as if the reference to the judge who presided at the trial were a reference to—
(i) the judge who presided at the trial resulting in the conviction to which the written note of appeal relates; and
(ii) the judge who presided at the trial for an offence mentioned in section 11(2) of that Act resulting in the convicted person's acquittal; and
(b) subsection (3)(a) applies as if the reference to the proceedings were a reference to—
(i) the proceedings which resulted in the conviction to which the written note of appeal relates; and
(ii) the proceedings which resulted in the convicted person's acquittal.
(4) Except by leave of the High Court on cause shown, it shall not be competent for an appellant to found any aspect of his appeal on a ground not contained in the note of appeal.
(5) Subsection (4) above shall not apply as respects any ground of appeal specified as an arguable ground of appeal by virtue of subsection (7) of section 107 of this Act.
(6) On a note of appeal under section 106(1)(b) to (e) of this Act being lodged by an appellant in custody the Clerk of Justiciary shall give notice of that fact to the Secretary of State.
111 Provisions supplementary to sections 109 and 110.
(1) Where the last day of any period mentioned in sections 109(1) and 110(1) of this Act falls on a day on which the office of the Clerk of Justiciary is closed, such period shall extend to and include the next day on which such office is open.
(2) Any period mentioned in section 109(1) or 110(1)(a) of this Act may be extended at any time by the High Court in respect of any convicted person; and an application for such extension may be made under this subsection and shall be in as nearly as may be the form prescribed by Act of Adjournal.
(2ZA) Where an application under subsection (2) is received after the period to which it relates has expired, the High Court may extend the period only if it is satisfied that doing so is justified by exceptional circumstances.
(2ZB) In considering whether there are exceptional circumstances for the purpose of subsection (2ZA), the High Court must have regard to—
(a) the length of time that has elapsed between the expiry of the period and the making of the application,
(b) the reasons stated in accordance with subsection (2A)(a)(i),
(c) the proposed grounds of appeal.
(2A) An application under subsection (2) ... must—
(a) state—
(i) the reasons why the applicant failed , or expects to fail, to comply with the time limit ..., and
(ii) the proposed grounds of appeal, and
(b) be intimated in writing by the applicant to the Crown Agent.
(2B) If the prosecutor so requests within 7 days of receipt of intimation of the application under subsection (2A)(b), the prosecutor must be given an opportunity to make representations before the application is determined.
(2C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) An application under subsection (2) is to be dealt with by the High Court—
(a) in chambers, and
(b) unless the Court directs otherwise, without the parties being present.
(5) If the High Court extends a period under subsection (2), it must—
(a) give reasons for the decision in writing, and
(b) give the reasons in ordinary language.
(1) Subject to subsections (2), (2A) and (9) below, the High Court may, if it thinks fit, on the application of a convicted person, admit him to bail pending the determination of—
(a) his appeal; or
(b) any relevant appeal by the Lord Advocate under section 108 or 108A of this Act.
(2) The High Court shall not admit a convicted person to bail under subsection (1) above unless—
(a) the application for bail—
(i) states reasons why it should be granted; and
(ii) where he is the appellant and has not lodged a note of appeal in accordance with section 110(1)(a) of this Act, sets out the proposed grounds of appeal; . . .
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2A) Where—
(a) the convicted person is the appellant and has not lodged a note of appeal in accordance with section 110(1)(a) of this Act; or
(b) the Lord Advocate is the appellant,
the High Court shall not admit the convicted person to bail under subsection (1) above unless it considers there to be exceptional circumstances justifying admitting him to bail.
(3) A person who is admitted to bail under subsection (1) above shall, unless the High Court otherwise directs, appear personally in court on the day or days fixed for the hearing of the appeal.
(4) Where an appellant fails to appear personally in court as mentioned in subsection (3) above, the court may—
(a) if he is the appellant—
(i) decline to consider the appeal; and
(ii) dismiss it summarily; or
(b) whether or not he is the appellant—
(i) consider and determine the appeal; or
(ii) without prejudice to section 27 of this Act, make such other order as the court thinks fit.
(5) For the purposes of subsections (1), (3) and (4) above, “appellant” includes not only a person who has lodged a note of appeal but also one who has lodged an intimation of intention to appeal.
(6) Subject to subsections (7) and (9) below, the High Court may, if it thinks fit, on the application of a convicted person, admit him to bail pending the determination of any appeal under section 288AA of this Act or paragraph 13(a) of Schedule 6 to the Scotland Act 1998 and the disposal of the proceedings by the High Court thereafter.
(7) The High Court shall not admit a convicted person to bail under subsection (6) above unless
(a) the application for bail states reasons why it should be granted and the High Court considers there to be exceptional circumstances justifying admitting the convicted person to bail and
(b) where the appeal relates to conviction on indictment, the prosecutor has had an opportunity to be heard on the application.
(8) A person who is admitted to bail under subsection (6) above shall, unless the High Court otherwise directs, appear personally in the High Court at any subsequent hearing in the High Court in relation to the proceedings; and if he fails to do so the court may, without prejudice to section 27 of this Act, make such order as it thinks fit.
(9) An application for the purposes of subsection (1) or (6) above by a person convicted on indictment shall be—
(a) intimated by him immediately and in writing to the Crown Agent; and
(b) heard not less than seven days after the date of that intimation.
(1) Subject to subsections (1A) to (1D), As soon as is reasonably practicable after receiving the copy note of appeal sent to him under any of paragraphs (a) to (d) of section 110(1) of this Act, the judge who presided at the trial shall furnish the Clerk of Justiciary with a written report giving the judge’s opinion on the case generally and on the grounds contained in the note of appeal.
(1A) Subsections (1B) to (1D) apply where the copy note of appeal mentioned in subsection (1) relates to an appeal by virtue of section 11(7) of the Double Jeopardy (Scotland) Act 2011 (asp 16).
(1B) The reference in subsection (1) to the judge who presided at the trial is to be construed as a reference to—
(a) the judge who presided at the trial for an offence mentioned in section 11(2) of that Act resulting in the appellant's acquittal; and
(b) where subsection (1C) applies, the judge who presided at the trial resulting in the conviction to which the copy note of appeal relates.
(1C) This subsection applies—
(a) where, in connection with the appeal, the High Court calls for the report to be furnished by the judge mentioned in subsection (1B)(b); and
(b) it is reasonably practicable for the judge to furnish the report.
(1D) For the purposes of subsections (1) to (1C), it is irrelevant whether or not the judge mentioned in subsection (1B)(b) had previously furnished a report under subsection (1).
(2) The Clerk of Justiciary shall send a copy of the judge’s report—
(a) to the convicted person or his solicitor;
(b) to the Crown Agent; and
(c) in a case referred under Part XA of this Act, to the Commission.
(3) Where the judge’s report is not furnished as mentioned in subsections (1) to (1D) above, the High Court may call for the report to be furnished within such period as it may specify or, if it thinks fit, hear and determine the appeal without the report.
(4) Subject to subsection (2) above, the report of the judge shall be available only to the High Court, the parties and, on such conditions as may be prescribed by Act of Adjournal, such other persons or classes of persons as may be so prescribed.
(1) On receiving a note of appeal given under section 110(1)(e), the judge who presided at the trial may give the Clerk of Justiciary any written observations that the judge thinks fit on—
(a) the case generally,
(b) the grounds contained in the note of appeal.
(2) The High Court may hear and determine the appeal without any such written observations.
(3) If written observations are given under subsection (1), the Clerk of Justiciary must give a copy of them to—
(a) the accused or the accused's solicitor, and
(b) the prosecutor.
(4) The written observations of the judge are available only to—
(a) the High Court,
(b) the parties, and
(c) any other person or classes of person prescribed by Act of Adjournal, in accordance with any conditions prescribed by Act of Adjournal.
Subject to any provision of this Part of this Act or to rules made under section 305 of this Act to the contrary, any application to the High Court may be made by the appellant or respondent as the case may be or by counsel on his behalf, orally or in writing.
(1) Subject to rules made under section 305 of this Act, if an appellant, . . . desires to present his case and his argument in writing instead of orally he shall, at least four days before the diet fixed for the hearing of the appeal—
(a) intimate this desire to the Clerk of Justiciary;
(b) lodge with the Clerk of Justiciary three copies of his case and argument; and
(c) send a copy of the intimation, case and argument to the Crown Agent.
(2) Any case or argument presented as mentioned in subsection (1) above shall be considered by the High Court.
(3) Unless the High Court otherwise directs, the respondent shall not make a written reply to a case and argument presented as mentioned in subsection (1) above, but shall reply orally at the diet fixed for the hearing of the appeal.
(4) Unless the High Court otherwise allows, an appellant who has presented his case and argument in writing shall not be entitled to submit in addition an oral argument to the court in support of the appeal.
(1) An appellant may abandon his appeal by lodging with the Clerk of Justiciary a notice of abandonment in as nearly as may be the form prescribed by Act of Adjournal; and on such notice being lodged the appeal shall be deemed to have been dismissed by the court.
(2) A person who has appealed against both conviction and sentence (or, as the case may be, against both conviction and a decision mentioned in section 106(1)(bb) or both conviction and disposal and order) may abandon the appeal in so far as it is against conviction and may proceed with it against sentence (or, as the case may be, decision, disposal or order) alone.
117 Presence of appellant or applicant at hearing.
(1) Where an appellant or applicant is in custody the Clerk of Justiciary shall notify—
(a) the appellant or applicant;
(b) the Governor of the prison in which the appellant or applicant then is; and
(c) the Secretary of State,
of the probable day on which the appeal or application will be heard.
(2) The Secretary of State shall take steps to transfer the appellant or applicant to a prison convenient for his appearance before the High Court at such reasonable time before the hearing as shall enable him to consult his legal adviser, if any.
(3) A convicted appellant, notwithstanding that he is in custody, shall be entitled to be present if he desires it, at the hearing of his appeal.
(4) When an appellant or applicant is to be present at any diet—
(a) before the High Court or any judge of that court; or
(b) for the taking of additional evidence before a person appointed for that purpose under section 104(1)(b) of this Act, or
(c) for an examination or investigation by a special commissioner in terms of section 104(1)(d) of this Act,
the Clerk of Justiciary shall give timeous notice to the Secretary of State, in the form prescribed by Act of Adjournal or as nearly as may be in such form.
(5) A notice under subsection (4) above shall be sufficient warrant to the Secretary of State for transmitting the appellant or applicant in custody from prison to the place where the diet mentioned in that subsection or any subsequent diet is to be held and for reconveying him to prison at the conclusion of such diet.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) Where the Lord Advocate is the appellant, subsections (1) to (5) above shall apply in respect of the convicted person, if in custody, as they apply to an appellant or applicant in custody.
(8) The Secretary of State shall, on notice under subsection (4) above from the Clerk of Justiciary, ensure that sufficient male and female prison officers attend each sitting of the court, having regard to the list of appeals for the sitting.
(9) When the High Court fixes the date for the hearing of an appeal, or of an application under section 111(2) of this Act, the Clerk of Justiciary shall give notice to the Crown Agent and to the solicitor of the convicted person, or to the convicted person himself if he has no known solicitor.
(1) The High Court may, subject to subsection (4) below, dispose of an appeal against conviction by—
(a) affirming the verdict of the trial court;
(b) setting aside the verdict of the trial court and either quashing the conviction or, subject to subsection (2) below, substituting therefor an amended verdict of guilty; or
(c) setting aside the verdict of the trial court and quashing the conviction and granting authority to bring a new prosecution in accordance with section 119 of this Act.
(1A) Where an appeal against conviction is by virtue of section 11(7) of the Double Jeopardy (Scotland) Act 2011 (asp 16), paragraph (c) of subsection (1) does not apply.
(2) An amended verdict of guilty substituted under subsection (1) above must be one which could have been returned on the indictment before the trial court.
(3) In setting aside, under subsection (1) above, a verdict the High Court may quash any sentence imposed on the appellant (or, as the case may be, any disposal or order made) as respects the indictment, and—
(a) in a case where it substitutes an amended verdict of guilty, whether or not the sentence (or disposal or order) related to the verdict set aside; or
(b) in any other case, where the sentence (or disposal or order) did not so relate,
may pass another (but not more severe) sentence or make another (but not more severe) disposal or order in substitution for the sentence, disposal or order so quashed.
(4) The High Court may, subject to subsection (5) below, dispose of an appeal against sentence by—
(a) affirming such sentence; or
(b) if the Court thinks that, having regard to all the circumstances, including any . . . evidence such as is mentioned in section 106(3) of this Act, a different sentence should have been passed, quashing the sentence and passing another sentence whether more or less severe in substitution therefor,
and, in this subsection, “appeal against sentence” shall, without prejudice to the generality of the expression, be construed as including an appeal under section 106(1)(ba), (bb), (c), (d), (da), (e) or (f), and any appeal under section 108, of this Act; and other references to sentence shall be construed accordingly.
(4AA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4A) On an appeal under section 108A of this Act, the High Court may dispose of the appeal—
(a) by affirming the decision and any sentence or order passed;
(b) where it is of the opinion mentioned in section 205A(3) or, as the case may be, 205B(3) of this Act but it considers that a different sentence or order should have been passed, by affirming the decision but quashing any sentence or order passed and passing another sentence or order whether more or less severe in substitution therefor; or
(c) in any other case, by setting aside the decision appealed against and any sentence or order passed by the trial court and where the decision appealed against was taken under—
(i) subsection (3) of section 205A of this Act, by passing the sentence mentioned in subsection (2) of that section;
(ii) subsection (3) of section 205B of this Act, by passing a sentence of imprisonment of at least the length mentioned in subsection (2) of that section; or
(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) In relation to any appeal under section 106(1) of this Act, the High Court shall, where it appears to it that the appellant committed the act charged against him but that he was not, because of section 51A of this Act, criminally responsible for it, dispose of the appeal by—
(a) setting aside the verdict of the trial court and substituting therefor a verdict of acquittal by reason of the special defence set out in section 51A of this Act; and
(b) quashing any sentence imposed on the appellant (or disposal or order made) as respects the indictment and—
(i) making, in respect of the appellant, any order mentioned in section 57(2)(a) to (d) of this Act; or
(ii) making no order.
(6) Subsections (3) to (6) of section 57 of this Act shall apply to an order made under subsection (5)(b)(i) above as they apply to an order made under subsection (2) of that section.
(7) In disposing of an appeal under section 106(1)(b) to (f) or 108 of this Act the High Court may, without prejudice to any other power in that regard, pronounce an opinion on
(a) the sentence or other disposal or order which is appropriate in any similar case ; ...,
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) No conviction, sentence, judgment, order of court or other proceeding whatsoever in or for the purposes of solemn proceedings under this Act—
(a) shall be quashed for want of form; or
(b) where the accused had legal assistance in his defence, shall be suspended or set aside in respect of any objections to—
(i) the relevancy of the indictment, or the want of specification therein; or
(ii) the competency or admission or rejection of evidence at the trial in the inferior court,
unless such objections were timeously stated.
(9) The High Court may give its reasons for the disposal of any appeal in writing without giving those reasons orally.
119 Provision where High Court authorises new prosecution.
(1) Subject to subsection (2) below, where authority is granted under section 118(1)(c) or 107E(3) or 107F(5) of this Act, a new prosecution may be brought charging the accused with the same or any similar offence arising out of the same facts; and the proceedings out of which the appeal arose shall not be a bar to such new prosecution.
(2) In a new prosecution under this section—
(a) where authority for the prosecution is granted under section 118(1)(c), the accused must not be charged with an offence more serious than that of which the accused was convicted in the earlier proceedings,
(b) where authority for the prosecution is granted under section 107E(3), the accused must not be charged with an offence more serious than that of which the accused was acquitted in the earlier proceedings,
(c) where authority for the prosecution is granted under section 107F(5), the accused must not be charged with an offence more serious than that originally libelled in the indictment in the earlier proceedings.
(2A) In a new prosecution under this section brought by virtue of section 107F(5), the circumstances set out in the indictment are not to be inconsistent with any direction given under section 97B(2)(b) or 97C(2) in the proceedings which gave rise to the appeal in question unless the High Court, in disposing of that appeal, determined that the direction was wrong in law.
(3) No sentence may be passed on conviction under the new prosecution which could not have been passed on conviction under the earlier proceedings.
(4) A new prosecution may be brought under this section, notwithstanding that any time limit, other than the time limit mentioned in subsection (5) below, for the commencement of such proceedings has elapsed.
(5) Proceedings in a prosecution under this section shall be commenced within two months of the date on which authority to bring the prosecution was granted.
(6) In proceedings in a new prosecution under this section it shall, subject to subsection (7) below, be competent for either party to lead any evidence which it was competent for him to lead in the earlier proceedings.
(7) The indictment in a new prosecution under this section shall identify any matters as respects which the prosecutor intends to lead evidence by virtue of subsection (6) above which would not have been competent but for that subsection.
(8) For the purposes of subsection (5) above, proceedings shall be deemed to be commenced—
(a) in a case where a warrant to apprehend the accused is granted—
(i) on the date on which the warrant is executed; or
(ii) if it is executed without unreasonable delay, on the date on which it is granted;
(b) in any other case, on the date on which the accused is cited.
(9) Where the two months mentioned in subsection (5) above elapse and no new prosecution has been brought under this section, the order under section 118(1)(c) of this Act setting aside the verdict or under section 107E(3) or 107F(5) granting authority to bring a new prosecution shall have the effect, for all purposes, of an acquittal.
(10) On granting authority under section 118(1)(c) or 107E(3) or 107F(5) of this Act to bring a new prosecution, the High Court shall, after giving the parties an opportunity of being heard, order the detention of the accused person in custody or admit him to bail.
(11) Section 65(4)(aa) and (b) and (4A) to (9) of this Act (prevention of delay in trials) shall apply to an accused person who is detained under subsection (10) above as they apply to an accused person detained by virtue of being committed until liberated in due course of law.
(1) Where—
(a) intimation of the diet appointed for the hearing of the appeal has been made to the appellant;
(b) no appearance is made by or on behalf of an appellant at the diet; and
(c) no case or argument in writing has been timeously lodged,
the High Court shall dispose of the appeal as if it had been abandoned.
(2) The power of the High Court to pass any sentence under this Part of this Act may be exercised notwithstanding that the appellant (or, where the Lord Advocate is the appellant, the convicted person) is for any reason not present.
(3) When the High Court has heard and dealt with any application under this Part of this Act, the Clerk of Justiciary shall (unless it appears to him unnecessary so to do) give to the applicant if he is in custody and has not been present at the hearing of such application notice of the decision of the court in relation to the said application.
(4) On the final determination of any appeal under this Part of this Act or of any matter under section 103(5) of this Act, the Clerk of Justiciary shall give notice of such determination—
(a) to the appellant or applicant if he is in custody and has not been present at such final determination;
(b) to the clerk of the court in which the conviction took place; and
(c) to the Secretary of State.
121 Suspension of disqualification, forfeiture, etc.
(1) Any disqualification, forfeiture or disability which attaches to a person by reason of a conviction shall not attach—
(a) for the period of four weeks from the date of the verdict against him; or
(b) where an intimation of intention to appeal or, in the case of an appeal under section 106(1)(b) to (e) , 108 or 108A of this Act, a note of appeal is lodged, until the appeal, if it is proceeded with, is determined.
(2) The destruction or forfeiture or any order for the destruction or forfeiture of any property, matter or thing which is the subject of or connected with any prosecution following upon a conviction shall be suspended—
(a) for the period of four weeks after the date of the verdict in the trial; or
(b) where an intimation of intention to appeal or, in the case of an appeal under section 106(1)(b) to (e) , 108 or 108A of this Act, a note of appeal is lodged, until the appeal, if it is proceeded with, is determined.
(3) This section does not apply in the case of any disqualification, destruction or forfeiture or order for destruction or forfeiture under or by virtue of any enactment which makes express provision for the suspension of the disqualification, destruction or forfeiture or order for destruction or forfeiture pending the determination of an appeal against conviction or sentence.
(4) Where, upon conviction, a fine has been imposed on a person or a compensation order has been made against him under section 249 of this Act, then, for a period of four weeks from the date of the verdict against such person or, in the event of an intimation of intention to appeal (or in the case of an appeal under section 106(1)(b) to (e) , 108 or 108A of this Act a note of appeal) being lodged under this Part of this Act, until such appeal, if it is proceeded with, is determined—
(a) the fine or compensation order shall not be enforced against that person and he shall not be liable to make any payment in respect of the fine or compensation order; and
(b) any money paid by that person under the compensation order shall not be paid by the clerk of court to the person entitled to it under subsection (9) of the said section 249.
(5) In this section–
(a) “appeal” includes an appeal under section 288AA of this Act or paragraph 13(a) of Schedule 6 to the Scotland Act 1998; and
(b) in relation to such an appeal, references to an appeal being determined are to be read as references to the disposal of the proceedings by the High Court following determination of the appeal.
121A Suspension of certain sentences pending determination of appeal.
(1) Where an intimation of intention to appeal or, in the case of an appeal under section 106(1)(b) to (e) ... , 108 or 108A of this Act, a note of appeal is lodged, the court may on the application of the appellant direct that the whole, or any remaining part, of a relevant sentence shall be suspended until the appeal, if it is proceeded with, is determined.
(2) Where the court has directed the suspension of the whole or any remaining part of a person’s relevant sentence, the person shall, unless the High Court otherwise directs, appear personally in court on the day or days fixed for the hearing of the appeal.
(3) Where a person fails to appear personally in court as mentioned in subsection (2) above, the court may—
(a) if he is the appellant—
(i) decline to consider the appeal; and
(ii) dismiss it summarily; or
(b) whether or not he is the appellant—
(i) consider and determine the appeal; or
(ii) make such other order as the court thinks fit.
(4) In this section “ relevant sentence ” means any one or more of the following—
(aa) a community payback order;
(d) a restriction of liberty order.
(5) Subsections (1), (2) and (4) above apply to an appeal under section 288AA of this Act or paragraph 13(a) of Schedule 6 to the Scotland Act 1998 and, in relation to such an appeal–
(a) references to an appeal being determined are to be read as references to the disposal of the proceedings by the High Court following determination of the appeal; and
(b) the reference in subsection (2) to the hearing of the appeal is to be read as a reference to any subsequent hearing in the High Court in relation to the proceedings.
(6) Where a person fails to appear personally in court as mentioned in subsection (2) as read with subsection (5) above, the court may make such order as it thinks fit.
(1) Where a person has on conviction been sentenced to payment of a fine and in default of payment to imprisonment, the person lawfully authorised to receive the fine shall, on receiving it, retain it until the determination of any appeal in relation to the conviction or sentence.
(2) If a person sentenced to payment of a fine remains in custody in default of payment of the fine he shall be deemed, for the purposes of this Part of this Act, to be a person sentenced to imprisonment.
(3) An appellant who has been sentenced to the payment of a fine, and has paid it in accordance with the sentence, shall, in the event of his appeal being successful, be entitled, subject to any order of the High Court, to the return of the sum paid or any part of it.
(4) A convicted person who has been sentenced to the payment of a fine and has duly paid it shall, if an appeal against sentence by the Lord Advocate or any appeal by the Lord Advocate or the Advocate General for Scotland under section 288AA of this Act or paragraph 13(a) of Schedule 6 to the Scotland Act 1998results in the sentence being quashed and no fine, or a lesser fine than that paid, being imposed, be entitled, subject to any order of the High Court, to the return of the sum paid or as the case may be to the return of the amount by which that sum exceeds the amount of the lesser fine.
(5) In subsections (1) and (3) above, “appeal” includes an appeal under section 288AA of this Act or paragraph 13(a) of Schedule 6 to the Scotland Act 1998.
(1) Where a person tried on indictment is acquitted or convicted of a charge, the Lord Advocate may refer a point of law which has arisen in relation to that charge to the High Court for their opinion; and the Clerk of Justiciary shall send to the person and to any solicitor who acted for the person at the trial, a copy of the reference and intimation of the date fixed by the Court for a hearing.
(2) The person may, not later than seven days before the date so fixed, intimate in writing to the Clerk of Justiciary and to the Lord Advocate either—
(a) that he elects to appear personally at the hearing; or
(b) that he elects to be represented thereat by counsel,
but, except by leave of the Court on cause shown, and without prejudice to his right to attend, he shall not appear or be represented at the hearing other than by and in conformity with an election under this subsection.
(3) Where there is no intimation under subsection (2)(b) above, the High Court shall appoint counsel to act at the hearing as amicus curiae .
(4) The costs of representation elected under subsection (2)(b) above or of an appointment under subsection (3) above shall, after being taxed by the Auditor of the Court of Session, be paid by the Lord Advocate.
(5) The opinion on the point referred under subsection (1) above shall not affect the acquittal or, as the case may be, conviction in the trial.
124 Finality of proceedings and Secretary of State’s reference.
(1) Nothing in this Part or Part XA of this Act shall affect the prerogative of mercy.
(2) Subject to Part XA and section 288AA of this Act and paragraph 13(a) of Schedule 6 to the Scotland Act 1998, every interlocutor and sentence pronounced by the High Court under this Part of this Act shall be final and conclusive and not subject to review by any court whatsoever and , except for the purposes of ... an appeal under section 288AA of this Act or paragraph 13(a) of that Schedule, it shall be incompetent to stay or suspend any execution or diligence issuing from the High Court under this Part of this Act.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) Subject to subsection (2) below, where a convicted person is admitted to bail under section 112 of this Act, the period beginning with the date of his admission to bail and ending on the date of his readmission to prison in consequence of the determination or abandonment of—
(a) his appeal; or, as the case may be,
(b) any relevant appeal by the Lord Advocate under section 108 or 108A of this Act,
shall not be reckoned as part of any term of imprisonment under his sentence.
(2) The time, including any period consequent on the recall of bail, during which an appellant is in custody pending the determination of his appeal or, as the case may be, of any relevant appeal by the Lord Advocate under section 108 or 108A of this Act shall, subject to any direction which the High Court may give to the contrary, be reckoned as part of any term of imprisonment under his sentence.
(3) Subject to any direction which the High Court may give to the contrary, imprisonment of an appellant or, where the appellant is the Lord Advocate, of a convicted person—
(a) who is in custody in consequence of the conviction or sentence appealed against, shall be deemed to run as from the date on which the sentence was passed;
(b) who is in custody other than in consequence of such conviction or sentence, shall be deemed to run or to be resumed as from the date on which his appeal was determined or abandoned;
(c) who is not in custody, shall be deemed to run or to be resumed as from the date on which he is received into prison under the sentence.
(4) In this section references to a prison and imprisonment shall include respectively references to a young offenders institution or place of safety or, as respects a child sentenced to be detained under section 208 of this Act, the place directed by the Secretary of State and to detention in such institution, centre or place of safety, or, as respects such a child, place directed by the Secretary of State and any reference to a sentence shall be construed as a reference to a sentence passed by the court imposing sentence or by the High Court on appeal as the case may require.
No extract conviction shall be issued—
(a) during the period of four weeks after the day on which the conviction took place, except in so far as it is required as a warrant for the detention of the person convicted under any sentence which has been pronounced against him; nor
(b) where an intimation of intention to appeal or, in the case of an appeal under section 106(1)(b) to (e) , 108 or 108Aof this Act, a note of appeal is lodged, until the appeal, if it is proceeded with, is determined.
(1) The Clerk of Justiciary shall furnish the necessary forms and instructions in relation to intimations of intention to appeal, notes of appeal or notices of application under this Part of this Act to—
(a) any person who demands them; and
(b) to officers of courts, governors of prisons, and such other officers or persons as he thinks fit.
(2) The governor of a prison shall cause the forms and instructions mentioned in subsection (1) above to be placed at the disposal of prisoners desiring to appeal or to make any application under this Part of this Act.
(3) The governor of a prison shall, if requested to do so by a prisoner, forwarded on the prisoner’s behalf to the Clerk of Justiciary any intimation, note or notice mentioned in subsection (1) above given by the prisoner.
Except as otherwise provided in this Part of this Act, no court fees, or other fees or expenses shall be exigible from or awarded against an appellant or applicant in respect of an appeal or application under this Part of this Act.
129 Non-compliance with certain provisions may be waived.
(1) Non-compliance with—
(a) the provisions of this Act set out in subsection (3) below; or
(b) any rule of practice for the time being in force under this Part of this Act relating to appeals,
shall not prevent the further prosecution of an appeal if the High Court or a judge thereof considers it just and proper that the non-compliance is waived or, in the manner directed by the High Court or judge, remedied by amendment or otherwise.
(2) Where the High Court or a judge thereof directs that the non-compliance is to be remedied, and the remedy is carried out, the appeal shall proceed.
(3) The provisions of this Act referred to in subsection (1) above are:—
section 94
section 103(1), (4), (6) and (7)
section 104(2) and (3)
section 105
section 106(4)
section 111
section 114
section 115
section 116
section 117
section 120(1), (3) and (4)
section 121
section 122
section 126
section 128.
(4) This section does not apply to any rule of practice relating to appeals under section 60 of this Act.
It shall not be competent to appeal to the High Court by bill of suspension against any conviction, sentence, judgement or order pronounced in any proceedings on indictment in the sheriff court.
(1) Without prejudice to section 74 of this Act, the prosecutor’s right to bring a decision under review of the High Court by way of bill of advocation in accordance with existing law and practice shall extend to the review of a decision of any court of solemn jurisdiction.
(2) Where a decision to which a bill of advocation relates is reversed on the review of the decision the prosecutor may, whether or not there has already been a trial diet at which evidence has been led, proceed against the accused by serving him with an indictment containing, subject to subsection (3) below, the charge or charges which were affected by the decision.
(3) The wording of the charge or charges referred to in subsection (2) above shall be as it was immediately before the decision appealed against.
In this Part of this Act, unless the context otherwise requires—
“ appellant ” includes a person who has been convicted and desires to appeal under this Part of the Act;
“ sentence ” includes any order of the High Court made on conviction with reference to the person convicted or his wife or children, and any recommendation of the High Court as to the making of a deportation order in the case of a person convicted and the power of the High Court to pass a sentence includes a power to make any such order of the court or recommendation, and a recommendation so made by the High Court shall have the same effect for the purposes of Articles 20 and 21 of the Aliens Order 1953 as the certificate and recommendation of the convicting court.
(1) This Part of this Act applies to summary proceedings in respect of any offence which might prior to the passing of this Act, or which may under the provisions of this or any Act, whether passed before or after the passing of this Act, be tried summarily.
(2) Without prejudice to subsection (1) above, this Part of this Act also applies to procedure in all courts of summary jurisdiction in so far as they have jurisdiction in respect of—
(a) any offence or the recovery of a penalty under any enactment or rule of law which does not exclude summary procedure as well as, in accordance with section 211(3) and (4) of this Act, to the enforcement of a fine imposed in solemn proceedings; and
(b) any order ad factum praestandum, or other order of court or warrant competent to a court of summary jurisdiction.
(3) Where any statute provides for summary proceedings to be taken under any public general or local enactment, such proceedings shall be taken under this Part of this Act.
(4) Nothing in this Part of this Act shall—
(a) extend to any complaint or other proceeding under or by virtue of any statutory provision for the recovery of any rate, tax, or impost whatsoever; or
(b) affect any right to raise any civil proceedings.
(5) Except where any enactment otherwise expressly provides, all prosecutions under this Part of this Act shall be brought at the instance of the procurator fiscal.
(1) This section applies to any application to a court for any warrant or order of court—
(a) as incidental to proceedings by complaint; or
(b) where a court has power to grant any warrant or order of court, although no subsequent proceedings by complaint may follow thereon.
(2) An application to which this section applies may be made by petition at the instance of the prosecutor in the form prescribed by Act of Adjournal.
(3) Where it is necessary for the execution of a warrant or order granted under this section, warrant to break open shut and lockfast places shall be implied.
(1) A warrant of apprehension or search may be in the form prescribed by Act of Adjournal or as nearly as may be in such form, and any warrant of apprehension or search shall, where it is necessary for its execution, imply warrant to officers of law to break open shut and lockfast places.
(2) A warrant of apprehension of an accused in the form mentioned in subsection (1) above shall imply warrant to officers of law to search for and to apprehend the accused, and to bring him before the court issuing the warrant, or before any other court competent to deal with the case, to answer to the charge on which such warrant is granted, and, in the meantime, until he can be so brought, to detain him in a police station, police cell, or other convenient place.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) A warrant of apprehension or other warrant shall not be required for the purpose of bringing before the court an accused who has been apprehended without a written warrant or who attends without apprehension in answer to any charge made against him.
(1) Proceedings under this Part of this Act in respect of any offence to which this section applies shall be commenced—
(a) within six months after the contravention occurred;
(b) in the case of a continuous contravention, within six months after the last date of such contravention,
and it shall be competent in a prosecution of a contravention mentioned in paragraph (b) above to include the entire period during which the contravention occurred.
(2) This section applies to any offence triable only summarily and consisting of the contravention of any enactment, unless the enactment fixes a different time limit.
(3) For the purposes of this section proceedings shall be deemed to be commenced on the date on which a warrant to apprehend or to cite the accused is granted, if the warrant is executed without undue delay.
136A Time limits for transferred and related cases
(1) This section applies where the prosecutor recommences proceedings by complaint containing both—
(a) a charge to which proceedings—
(i) transferred to a court by authority of an order made under section 137A or 137CA of this Act; or
(ii) transferred to, or taken at, a court by authority of an order made under 137B or 137CB of this Act,
relate; and
(b) a charge to which previous proceedings at that court relate.
(2) Where this section applies, proceedings for an offence charged in that complaint are, for the purposes of—
(a) section 136 of this Act (so far as applying to the offence);
(b) any provision of any other enactment for a time limit within which proceedings are to be commenced (so far as applying to the offence); and
(c) any rule of law relating to delay in bringing proceedings (so far as applying to the offence),
to be regarded as having been commenced when any previous proceedings for the offence were first commenced.
136B Time limits where fixed penalty offer etc. made
(1) For the purposes of section 136 of this Act, and any provision of any other enactment for a time limit within which proceedings are to be commenced, in calculating the period since a contravention occurred—
(a) where a fixed penalty offer is made under section 302(1) of this Act, the period between the date of the offer and—
(i) the receipt by the procurator fiscal of a notice under section 302(4) of this Act;
(ii) a recall of the fixed penalty by virtue of section 302C of this Act,
shall be disregarded;
(b) where a compensation offer is made under section 302A(1) of this Act, the period between the date of the offer and—
(i) the receipt by the procurator fiscal of a notice under section 302A(4) of this Act;
(ii) a recall of the offer by virtue of section 302C of this Act,
shall be disregarded;
(c) where a work offer is made under section 303ZA(1) of this Act, the period between the date of the offer and—
(i) if the alleged offender does not accept the offer in the manner described in section 303ZA(5) of this Act, the last date for notice of acceptance of the offer;
(ii) if the alleged offender accepts the offer as so described, but fails to complete the subsequent work order, the date specified for completion of the order,
shall be disregarded.
(2) A certificate purporting to be signed by or on behalf of the prosecutor which states a period to be disregarded by virtue of subsection (1) above is sufficient authority for the period to be disregarded.
(1) Where a diet has been fixed in a summary prosecution, it shall be competent for the court, on a joint application in writing by the parties or their solicitors, to discharge the diet and fix an earlier diet in lieu.
(2) Where the prosecutor and the accused make joint application to the court (orally or in writing) for postponement of a diet which has been fixed, the court shall discharge the diet and fix a later diet in lieu unless the court considers that it should not do so because there has been unnecessary delay on the part of one of more of the parties.
(3) Where all the parties join in an application under subsection (2) above, the court may proceed under that subsection without hearing the parties.
(4) Where the prosecutor has intimated to the accused that he desires to postpone or accelerate a diet which has been fixed, and the accused refuses, or any of the accused refuse, to make a joint application to the court for that purpose, the prosecutor may make an incidental application for that purpose under section 134 of this Act; and after giving the parties an opportunity to be heard, the court may discharge the diet and fix a later diet or, as the case may be, an earlier diet in lieu.
(5) Where an accused had intimated to the prosecutor and to all the other accused that he desires such postponement or acceleration and the prosecutor refuses, or any of the other accused refuse, to make a joint application to the court for that purpose, the accused who has so intimated may apply to the court for that purpose; and, after giving the parties an opportunity to be heard, the court may discharge the diet and fix a later diet or, as the case may be, an earlier diet in lieu.
(1) This section applies where in a summary prosecution any diet has been fixed for a non-sitting day.
(2) The court may at any time before the non-sitting day—
(a) discharge the diet; and
(b) fix a new diet for a date earlier or later than that for which the discharged diet was fixed.
(3) That is, by acting—
(a) of the court's own accord; and
(b) without the need for a hearing for the purpose.
(4) In the case of a trial diet—
(a) the prosecutor;
(b) the accused,
shall be entitled to an adjournment of the new diet fixed if the court is satisfied that it is not practicable for that party to proceed with the case on that date.
(5) The power of the court under subsection (1) above is not exercisable for the sole purpose of ensuring compliance with a time limit applying in the proceedings.
(6) In subsections (1) and (2) above, a “non-sitting day” is a day on which the court is under this Act not required to sit.
(1) Where in a summary prosecution any diet has been fixed for a day which is no longer suitable to the court it may, of its own accord, at any time before that diet—
(a) discharge the diet; and
(b) fix a new diet for a date earlier or later than that for which the discharged diet was fixed.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
137A Transfer of sheriff court summary proceedings within sheriffdom
(1) Where this subsection applies, the prosecutor may apply to the sheriff for an order for the transfer of the proceedings to a sheriff court in any other district in that sheriffdom and for adjournment to a diet of that court.
(1A) Subsection (1) above applies—
(a) where the accused person has been cited in summary proceedings to attend a diet of the court; or
(b) if the accused person has not been cited to such a diet, where summary proceedings against the accused have been commenced in the court.
(2) On an application under subsection (1) above the sheriff may make such order as is mentioned in that subsection.