137AA Transfer of sheriff court summary proceedings within sheriffdom: power of sheriff principal
Where, because of exceptional circumstances which could not reasonably have been foreseen, it is not practicable for a sheriff court in a sheriffdom to proceed with some or all of the summary cases due to call at a diet, the sheriff principal may, of the sheriff principal’s own accord, make an order for—
(a) the transfer of the proceedings to a sheriff court in any other district in that sheriffdom; and
(b) adjournment to a diet of that court.
137B Transfer of sheriff court summary proceedings outwith sheriffdom
(1) Where the sheriff clerk informs the prosecutor that, because of exceptional circumstances which could not reasonably have been foreseen, it is not practicable for the sheriff court or any other sheriff court in the sheriffdom to proceed with some or all of the summary cases due to call at a diet, the prosecutor shall as soon as practicable apply to the sheriff principal for an order for—
(a) the transfer of the proceedings to a sheriff court in another sheriffdom; and
(b) adjournment to a diet of that court.
(1A) Where this subsection applies, the prosecutor may apply to the sheriff for an order for—
(a) the transfer of the proceedings to a sheriff court in another sheriffdom; and
(b) adjournment to a diet of that court,
if there are also summary proceedings against the accused person in that court in the other sheriffdom.
(1B) Subsection (1A) 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.
(1C) Where the prosecutor intends to take summary proceedings against an accused person in the sheriff court, the prosecutor may apply to the sheriff for an order for authority for the proceedings to be taken at a sheriff court in another sheriffdom if there are also summary proceedings against the accused person in that court in the other sheriffdom.
(2) On an application under subsection (1) above the sheriff principal may make the order sought, provided that the sheriff principal of the other sheriffdom consents.
(2A) On an application under subsection (1A) or (1C) above, the sheriff is to make the order sought if—
(a) the sheriff considers that it would be expedient for the different cases involved to be dealt with by the same court; and
(b) a sheriff of the other sheriffdom consents.
(3) On the application of the prosecutor, a sheriff principal who has made an order under subsection (2) above may, if the sheriff principal of the other sheriffdom mentioned in that subsection consents—
(a) revoke; or
(b) vary so as to restrict the effect of,
that order.
(4) On the application of the prosecutor, the sheriff who has made an order under subsection (2A) above (or another sheriff of the same sheriffdom) may, if a sheriff of the other sheriffdom mentioned in paragraph (b) of that subsection consents—
(a) revoke; or
(b) vary so as to restrict the effect of,
that order.
(1) Where the prosecutor believes—
(a) that, because of exceptional circumstances (and without an order under subsection (3) below), it is likely that there would be an unusually high number of accused persons appearing from custody for the first calling of cases in summary prosecutions in the sheriff courts in the sheriffdom; and
(b) that it would not be practicable for those courts to deal with all the cases involved,
the prosecutor may apply to the sheriff principal for the order referred to in subsection (2) below.
(2) For the purposes of subsection (1) above, the order is for authority for summary proceedings against some or all of the accused persons to be—
(a) taken at a sheriff court in another sheriffdom; and
(b) maintained—
(i) there; or
(ii) at any of the sheriff courts referred to in subsection (1) above as may at the first calling of the case be appointed for further proceedings.
(3) On an application under subsection (1) above, the sheriff principal may make the order sought with the consent of the sheriff principal of the other sheriffdom.
(4) An order under subsection (3) above may be made by reference to a particular period or particular circumstances.
137CA Transfer of JP court proceedings within sheriffdom
(1) Subsection (2) applies—
(a) where the accused person has been cited in summary proceedings to attend a diet of a JP 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 a JP court.
(2) The prosecutor may apply to a justice for an order for the transfer of the proceedings to another JP court in the sheriffdom (and for adjournment to a diet of that court).
(3) On an application under subsection (2), the justice may make the order sought.
(4) In this section and sections 137CB and 137CC, “ justice ” does not include the sheriff.
137CB Transfer of JP court proceedings outwith sheriffdom
(1) Subsection (2) applies where the clerk of a JP court informs the prosecutor that, because of exceptional circumstances which could not reasonably have been foreseen, it is not practicable for the JP court or any other JP court in the sheriffdom to proceed with some or all of the summary cases due to call at a diet.
(2) The prosecutor shall as soon as practicable apply to the sheriff principal for an order for the transfer of the proceedings to a JP court in another sheriffdom (and for adjournment to a diet of that court).
(3) Subsection (4) applies where—
(a) either—
(i) the accused person has been cited in summary proceedings to attend a diet of a JP court, or
(ii) if the accused person has not been cited to such a diet, summary proceedings against the accused have been commenced in a JP court, and
(b) there are also summary proceedings against the accused person in a JP court in another sheriffdom.
(4) The prosecutor may apply to a justice for an order for the transfer of the proceedings to a JP court in the other sheriffdom (and for adjournment to a diet of that court).
(5) Subsection (6) applies where—
(a) the prosecutor intends to take summary proceedings against an accused person in a JP court, and
(b) there are also summary proceedings against the accused person in a JP court in another sheriffdom.
(6) The prosecutor may apply to a justice for an order for authority for the proceedings to be taken at a JP court in the other sheriffdom.
(7) On an application under subsection (2), the sheriff principal may make the order sought with the consent of the sheriff principal of the other sheriffdom.
(8) On an application under subsection (4) or (6), the justice is to make the order sought if—
(a) the justice considers that it would be expedient for the different cases involved to be dealt with by the same court, and
(b) a justice of the other sheriffdom consents.
(9) On the application of the prosecutor, the sheriff principal who has made an order under subsection (7) may, with the consent of the sheriff principal of the other sheriffdom—
(a) revoke the order, or
(b) vary it so as to restrict its effect.
(10) On the application of the prosecutor, the justice who has made an order under subsection (8) (or another justice of the same sheriffdom) may, with the consent of a justice of the other sheriffdom—
(a) revoke the order, or
(b) vary it so as to restrict its effect.
(1) Subsection (2) applies where the prosecutor believes—
(a) that, because of exceptional circumstances (and without an order under subsection (3)), it is likely that there would be an unusually high number of accused persons appearing from custody for the first calling of cases in summary prosecutions in the JP courts in the sheriffdom, and
(b) that it would not be practicable for those courts to deal with all the cases involved.
(2) The prosecutor may apply to the sheriff principal for an order authorising summary proceedings against some or all of the accused persons to be—
(a) taken at a JP court in another sheriffdom, and
(b) maintained—
(i) at that JP court, or
(ii) at any of the JP courts referred to in subsection (1) as may at the first calling of the case be appointed for further proceedings.
(3) On an application under subsection (2), the sheriff principal may make the order sought with the consent of the sheriff principal of the other sheriffdom.
(4) An order under subsection (3) may be made by reference to a particular period or particular circumstances.
137D Transfer of JP court proceedings to the sheriff court
(1) Where an accused person is due to be sentenced at a sheriff court for an offence, the prosecutor may apply to the sheriff for an order for—
(a) the transfer to the sheriff court of any case against the accused in respect of which sentencing is pending at any JP court in the sheriffdom; and
(b) the case to call at a diet of the sheriff court.
(2) On an application under subsection (1) above, the sheriff is to make the order sought if the sheriff considers that it would be expedient for the different cases to be disposed of at the same court at the same time.
(3) If, in a case transferred under subsection (1) above, the finding of guilt was before a justice of the peace, the sentencing powers of the sheriff in the case are restricted to those of the justice.
(1) All proceedings under this Part of this Act for the trial of offences or recovery of penalties shall be instituted by complaint signed by the prosecutor or by a solicitor on behalf of a prosecutor other than the procurator fiscal.
(2) The complaint shall be in the form—
(a) set out in Schedule 5 to this Act; or
(b) prescribed by Act of Adjournal,
or as nearly as may be in such form.
(3) A solicitor may appear for and conduct any prosecution on behalf of a prosecutor other than the procurator fiscal.
(4) Schedule 3 to this Act shall have effect as regards complaints under this Act.
(1) On any complaint under this Part of this Act being laid before a judge of the court in which the complaint is brought, he shall have power on the motion of the prosecutor—
(a) to pronounce an order assigning a diet for the disposal of the case to which the accused may be cited as mentioned in section 141 of this Act;
(b) to grant warrant to apprehend the accused where this appears to the judge expedient;
(c) to grant warrant to search the person, dwelling-house and repositories of the accused and any place where he may be found for any documents, articles, or property likely to afford evidence of his guilt of, or guilty participation in, any offence charged in the complaint, and to take possession of such documents, articles or property;
(d) to grant any other order or warrant of court or warrant which may be competent in the circumstances.
(2) The power of a judge under subsection (1) above—
(a) to pronounce an order assigning a diet for the disposal of the case may be exercised on his behalf by the clerk of court;
(b) to grant a warrant to apprehend the accused shall be exercisable notwithstanding that there is power whether at common law or under any Act to apprehend him without a warrant.
(1) This Act shall be a sufficient warrant for —
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) the citation of the accused and witnesses in a summary prosecution to any ordinary sitting of the court or to any special diet fixed by the court or any adjournment thereof.
(2) Without prejudice to section 141(2A) of this Act,such citation shall be in the form prescribed by Act of Adjournal or as nearly as may be in such form and shall, in the case of the accused, proceed on an induciae of at least 48 hours unless in the special circumstances of the case the court fixes a shorter induciae.
(2A) Where the charge in the complaint in respect of which an accused is cited is of committing an offence listed in subsection (2C)(c), the citation shall include or be accompanied by notice to the accused—
(a) that his case at, or for the purposes of, any relevant hearing ... in the course of the proceedings (including at any commissioner proceedings) may be conducted only by a lawyer,
(b) that it is, therefore, in his interests, if he has not already done so, to get the professional assistance of a solicitor; and
(c) that, if he does not engage a solicitor for the purposes of the conduct of his case at, or for the purposes of, the hearing (or at any related commissioner proceedings) , the court will do so.
(2B) A failure to comply with subsection (2A) above does not affect the validity or lawfulness of any such citation or any other element of the proceedings against the accused.
(2C) For the purposes of subsection (2A)—
(a) “commissioner proceedings” means proceedings before a commissioner appointed under section 271I(1) or by virtue of section 272(1)(b),
(b) “relevant hearing” is to be construed in accordance with section 288C(1A) or (as the case may be) 288DC(4),
(c) the list is—
(i) an offence to which section 288C applies (certain sexual offending),
(ii) an offence to which section 288DC applies (domestic abuse cases).
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) The citation of the accused or a witness in a summary prosecution to any ordinary sitting of the court or to any special diet fixed by the court or to any adjourned sitting or diet shall be effected by an officer of law or other person—
(a) delivering the citation to him personally; or
(b) leaving it for him—
(i) at his dwelling-house or place of business with a resident or (as the case may be) employee there; or
(ii) where he has no known dwelling-house or place of business, at any other place in which he may be resident at the time.
(2) Notwithstanding subsection (1) above, citation may also be effected—
(a) where the accused or witness is the master of, or a seaman or person employed in a vessel, if the citation is left with a person on board the vessel and connected with it;
(b) where the accused is an organisation other than a body of trustees or a partnership prosecuted by virtue of section 1 of the Partnerships (Prosecution) (Scotland) Act 2013—
(i) if the citation is left at its ordinary place of business with a partner, director, secretary or other official; or
(ii) if it is cited in the same manner as if the proceedings were in a civil court; ...
(c) where the accused is a body of trustees, if the citation is left with any one of them who is resident in Scotland or with their known solicitor in Scotland or
(d) where the accused is a partnership prosecuted by virtue of section 1 of the Partnerships (Prosecution) (Scotland) Act 2013, if the citation is left with any one of the partners who is resident in Scotland;
; and in sub-paragraph (b)(i) of this subsection references to the director or secretary or other official, in relation to a limited liability partnership, are to any member of the limited liability partnership
(2A) Notwithstanding subsection (1) above and section 140(2) of this Act, citation of the accused may also be effected by an officer of law affixing to the door of the accused’s dwelling-house or place of business a notice in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form—
(a) specifying the date on which it was so affixed;
(b) informing the accused that he may collect a copy of the complaint from a police station specified in the notice; and
(c) calling upon him to appear and answer the complaint at such diet as shall be so specified.
(2B) Where the citation of the accused is effected by notice under subsection (2A) above, the induciae shall be reckoned from the date specified by virtue of paragraph (a) of that subsection.
(3) Subject to subsection (4) below and without prejudice to the effect of any other manner of citation, the citation of the accused or a witness to a sitting or diet or adjourned sitting or diet as mentioned in subsection (1) above shall be effective if it is . . .—
(a) in the case of the accused, signed by the prosecutor and sent by post in a registered envelope or through the recorded delivery service or by ordinary post; and
(b) in the case of a witness, sent by or on behalf of the prosecutor by ordinary post,
to the dwelling-house or place of business of the accused or witness or, if he has no known dwelling-house or place of business, to any other place in which he may be resident at the time.
(3A) Subject to subsection (4) below and without prejudice to the effect of any other manner of citation, the citation of the accused or a witness to a sitting or diet or adjourned sitting or diet as mentioned in subsection (1) above shall also be effective if an electronic citation is sent—
(a) by or on behalf of the prosecutor; and
(b) by means of electronic communication,
to the home or business email address of the person.
(4) Where the accused fails to appear at a diet or sitting or adjourned diet or sitting to which he has been cited in the manner provided by this section, sections 143(7), 150(3) and 150A(1) of this Act shall not apply unless it is proved to the court that he received the citation or that its contents came to his knowledge.
(5) The production in court of any letter or other communication (including a legible version of an electronic communication) purporting to be written by or on behalf of an accused who has been cited as mentioned in subsection (2A) or (3) above in such terms as to infer that the contents of such citation came to his knowledge, shall be admissible as evidence of that fact for the purposes of subsection (4) above.
(5ZA) The production in court of a legible version of an electronic communication which—
(a) bears to have come from an accused's email address; and
(b) is in such terms as to infer that the contents of an electronic citation sent as mentioned in subsection (3A) above came to the accused's knowledge,
shall (even if not purporting to be written by or on behalf of the accused) be admissible as evidence of those facts for the purposes of subsection (4) above.
(5A) The citation of a witness to a sitting or diet or adjourned sitting or diet as mentioned in subsection (1) above shall be effective if—
(a) it is sent by or on behalf of the accused's solicitor by ordinary post—
(i) to the dwelling-house or place of business of the witness; or
(ii) if he has no known dwelling-house or place of business, to any other place in which he may be resident at the time; or
(b) an electronic citation is sent by or on behalf of the accused's solicitor by means of electronic communication to the home or business email address of the witness.
(5B) Where a witness fails to appear at a diet or sitting or adjourned diet or sitting to which he has been cited in the manner provided by this section, subsection (2) of section 156 of this Act shall not apply unless it is proved to the court that he received the citation or that its contents came to his knowledge.
(6) When the citation of any person is effected by post in terms of this section or any other provision of this Act to which this section is applied, the induciae shall be reckoned from 24 hours after the time of posting.
(6A) When the citation of any person is effected by electronic citation under subsection (3A) above, the induciae shall be reckoned from the end of the day on which the citation was sent.
(7) It shall be sufficient evidence that
(a) a citation has been sent by post in terms of this section or any other provision of this Act mentioned in subsection (6) above, if there is produced in court a written execution, signed by the person who signed the citation in the form prescribed by Act of Adjournal, or as nearly as may be in such form, together with the post office receipt for the relative registered or recorded delivery letter; or
(b) citation has been effected by notice under subsection (2A) above, if there is produced in court a written execution, in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form, signed by the officer of law who affixed the notice.
(7A) It shall be sufficient evidence that citation has been effected electronically under subsection (3A) or (5A)(b) above if there is produced in court a legible version of an electronic communication which—
(a) is signed by electronic signature by the person who signed the citation;
(b) includes the citation; and
(c) bears to have been sent to the home or business email address of the person being cited.
(7B) In this section, an “electronic citation” is a citation in electronic form which—
(a) is capable of being kept in legible form; and
(b) is signed by electronic signature—
(i) in the case of citation of the accused, by the prosecutor;
(ii) in the case of citation of a witness, by or on behalf of the prosecutor or the accused's solicitor.
(1) Where summary proceedings are brought in respect of an offence alleged to have been committed by a child, the sheriff shall sit either in a different building or room from that in which he usually sits or on different days from those on which other courts in the building are engaged in criminal proceedings: and no person shall be present at any sitting for the purposes of such proceedings except—
(a) members and officers of the court;
(b) parties to the case before the court, their solicitors and counsel, and witnesses and other persons directly concerned in that case;
(c) bona fide representatives of news gathering or reporting organisations present for the purpose of the preparation of contemporaneous reports of the proceedings;
(d) such other persons as the court may specially authorise to be present.
(2) A sheriff sitting summarily for the purpose of hearing a charge against, or an application relating to, a person who is believed to be a child may, if he thinks fit to do so, proceed with the hearing and determination of the charge or application, notwithstanding that it is discovered that the person in question is not a child.
(3) When a sheriff sitting summarily has remanded a child for information to be obtained with respect to him, any sheriff sitting summarily in the same place—
(a) may in his absence extend the period for which he is remanded provided that he appears before a sheriff or a justice at least once every 21 days;
(b) when the required information has been obtained, may deal with him finally,
and where the sheriff by whom he was originally remanded has recorded a finding that he is guilty of an offence charged against him it shall not be necessary for any court which subsequently deals with him under this subsection to hear evidence as to the commission of that offence, except in so far as it may consider that such evidence will assist the court in determining the manner in which he should be dealt with.
(4) Any direction in any enactment that a charge shall be brought before a juvenile court shall be construed as a direction that he shall be brought before the sheriff sitting as a court of summary jurisdiction, and no such direction shall be construed as restricting the powers of any justice or justices to entertain an application for bail or for a remand, and to hear such evidence as may be necessary for that purpose.
(5) This section does not apply to summary proceedings before the sheriff in respect of an offence where a child has been charged jointly with a person who is not a child : but see section 142A.
142A Summary proceedings where child accused along with an adult
(1) Where summary proceedings are brought in respect of an offence alleged to have been committed by a child who is charged jointly with a person who is not a child, the sheriff may sit either in a different building or room from that in which the sheriff usually sits or on different days from those on which other courts in the building are engaged in criminal proceedings.
(2) Where summary proceedings are brought in respect of an offence alleged to have been committed by a child who is charged jointly with a person who is not a child, the sheriff may direct that no person is to be present at any sitting for the purposes of such proceedings except—
(a) members and officers of the court,
(b) parties to the case before the court, their solicitors and counsel, and witnesses and other persons directly concerned in that case,
(c) bona fide representatives of news gathering or reporting organisations present for the purpose of the preparation of contemporaneous reports of the proceedings,
(d) such other persons as the sheriff may specially authorise to be present.
(3) A sheriff sitting summarily for the purpose of hearing a charge against, or an application relating to, a person who is believed to be a child may, if the sheriff thinks fit, proceed with the hearing and determination of the charge or application even though it is discovered that the person in question is not a child.
(4) Subsections (3) and (4) of section 142 apply to summary proceedings to which this section applies as they apply to such proceedings to which section 142 applies.
(5) The sheriff must, in considering whether to take the steps mentioned in subsection (1) or to make a direction as mentioned in subsection (2), have regard to the rights of the person with whom the child is jointly charged to effectively participate in the proceedings.
(1) Without prejudice to any other or wider powers conferred by statute, this section shall apply in relation to the prosecution by summary procedure of an organisation.
(2) Proceedings may be taken against the organisation in its corporate capacity, and in that event any penalty imposed shall be recovered by civil diligence in accordance with section 221 of this Act.
(3) Proceedings may be taken against an individual representative of a partnership, association or body corporate as follows:—
(a) in the case of a partnership or firm, any one of the partners, or the manager or the person in charge or locally in charge of its affairs;
(b) in the case of an association or body corporate, the managing director or the secretary or other person in charge, or locally in charge, of its affairs,
may be dealt with as if he was the person offending, and the offence shall be deemed to be the offence of the partnership, association or body corporate ; and in paragraph 3(b) of this subsection references to the managing director or the secretary, in relation to a limited liability partnership, are to any member of the limited liability partnership.
(4) An organisation may, for the purpose of—
(a) stating objections to the competency or relevancy of the complaint or proceedings;
(b) tendering a plea of guilty or not guilty;
(c) making a statement in mitigation of sentence,
appear by a representative.
(5) In subsection (4) above, “ representative ” means—
(a) an individual representative as mentioned in subsection (3) above; or
(b) an employee , officer or official of the organisation duly appointed by it for the purpose of the proceedings.
(6) For the purposes of subsection (5)(b) above, a statement—
(a) in the case of a body corporate (other than a limited liability partnership), purporting to be signed by an officer of the body;
(b) in the case of a limited liability partnership, purporting to be signed by a member of the partnership;
(c) in the case of a partnership (other than a limited liability partnership), purporting to be signed by a partner of the partnership;
(d) in the case of an association, purporting to be signed by an officer of the association,
(e) in the case of a government department or part of the Scottish Administration, purporting to be signed by a senior officer in the department or part,
to the effect that the person named in the statement has been appointed as the representative for the purposes of any proceedings to which this section applies is sufficient evidence of such appointment.
(7) Where at a diet (apart from a diet fixed for the first calling of the case) an organisation does not appear as mentioned in subsection (4) above, or by counsel or a solicitor, the court may—
(a) on the motion of the prosecutor or, in relation to sentencing, of its own accord; and
(b) if satisfied as to the matters specified in subsection (8) below,
proceed to hear and dispose of the case in the absence of the organisation.
(8) The matters referred to in subsection (7)(b) above are—
(a) that citation has been effected or other intimation of the diet has been received; and
(b) that it is in the interests of justice to proceed as mentioned in subsection (7) above.
(9) The reference in subsection (7) above to proceeding to hear and dispose of the case includes, in relation to a trial diet, proceeding with the trial.
(1) Where the accused is present at the first calling of the case in a summary prosecution and—
(a) the complaint has been served on him, or
(b) the complaint or the substance thereof has been read to him, or
(c) he has legal assistance in his defence,
he shall, unless the court adjourns the case under the section 145 or 145ZA of this Act and subject to subsection (4) below, be asked to plead to the charge.
(2) Where the accused is not present at a calling of the case in a summary prosecution and either—
(a) the prosecutor produces to the court written intimation that the accused pleads not guilty or pleads guilty . . .
(b) counsel or a solicitor, or a person not being counsel or a solicitor who satisfies the court that he is authorised by the accused, appears on behalf of the accused and tenders a plea of not guilty or a plea of guilty,
subsection (3) below shall apply.
(3) Where this subsection applies—
(a) in the case of a plea of not guilty, this Part of this Act except section 146(2) shall apply in like manner as if the accused had appeared and tendered the plea; and
(b) in the case of a plea of guilty, the court may, if the prosecutor accepts the plea, proceed to hear and dispose of the case in the absence of the accused in like manner as if he had appeared and pled guilty, or may, if it thinks fit, continue the case to another diet and require the attendance of the accused with a view to pronouncing sentence in his presence.
(3ZA) Where the prosecutor is not satisfied, in relation to a written intimation of a plea—
(a) that the intimation of the plea has been made or authorised by the accused; or
(b) that the terms of the plea are clear,
the court may continue the case to another diet.
(3ZB) The clerk of court may perform the functions of the court under—
(a) subsections (2) and (3) above in relation to a plea of not guilty;
(b) subsection (3ZA) above,
without the court being properly constituted.
(3A) Where an accused charged with an offence listed in subsection (3AA)(b) is present, whether or not with a solicitor, at a calling of the case in a summary prosecution, he shall be told—
(a) that his case at, or for the purposes of, any relevant hearing ... in the course of the proceedings may be conducted only by a lawyer,
(b) that it is, therefore, in his interests, if he has not already done so, to get the professional assistance of a solicitor; and
(c) that if he does not engage a solicitor for the purposes of the conduct of his case at, or for the purposes of, the hearing, the court will do so.
(3AA) For the purposes of subsection (3A)—
(a) “relevant hearing” is to be construed in accordance with section 288C(1A) or (as the case may be) 288DC(4),
(b) the list is—
(i) an offence to which section 288C applies (certain sexual offending),
(ii) an offence to which section 288DC applies (domestic abuse cases).
(3B) A failure to comply with subsection (3A) above does not affect the validity or lawfulness of anything done at the calling of the case or any other element of the proceedings against the accused.
(4) Any objection to the competency or relevancy of a summary complaint or the proceedings thereon, or any denial that the accused is the person charged by the police with the offence shall be stated before the accused pleads to the charge or any plea is tendered on his behalf.
(5) No objection or denial such as is mentioned in subsection (4) above shall be allowed to be stated or issued at any future diet in the case except with the leave of the court, which may be granted only on cause shown.
(6) Where in pursuance of subsection (3)(b) above the court proceeds to hear and dispose of a case in the absence of the accused, it shall not pronounce a sentence of imprisonment or of detention in a young offenders institution... or other establishment.
(7) In this section a reference to a plea of guilty shall include a reference to a plea of guilty to only part of the charge, but where a plea of guilty to only part of a charge is not accepted by the prosecutor it shall be deemed to be a plea of not guilty.
(8) It shall not be competent for any person appearing to answer a complaint, or for counsel or a solicitor appearing for the accused in his absence, to plead want of due citation or informality therein or in the execution thereof.
(9) In this section, a reference to the first calling of a case includes a reference to any adjourned diet fixed by virtue of section 145 , 145ZAor 145A of this Act.
(1) Where the accused is present at the first calling of a case in a summary prosecution the court may, in order to allow time for inquiry into the case or for any other cause which it considers reasonable, adjourn the case under this section, for such period as it considers appropriate, without calling on the accused to plead to any charge against him but remanding him in custody or on bail or ordaining him to appear at the diet thus fixed; and, subject to subsections (2) and (3) below, the court may from time to time so adjourn the case.
(2) Where the accused is remanded in custody, the total period for which he is so remanded under this section shall not exceed 21 days and no one period of adjournment shall, except on special cause shown, exceed 7 days.
(3) Where the accused is remanded on bail or ordained to appear, no one period of adjournment shall exceed 28 days.
145ZA Adjournment where assessment order made at first calling
Where the accused is present at the first calling of a case in a summary prosecution the court may, where it makes an assessment order in respect of the accused, adjourn the case under this section for a period not exceeding 28 days without calling on the accused to plead to any charge against him; and the court may so adjourn the case for a further period not exceeding 7 days.
145A Adjournment at first calling to allow accused to appear etc.
(1) Without prejudice to section 150 of this Act, where the accused is not present at the first calling of the case in a summary prosecution, the court may (whether or not the prosecutor is able to provide evidence that the accused has been duly cited) adjourn the case under this section for such period as it considers appropriate; and subject to subsections (2) and (3) below, the court may from time to time so adjourn the case.
(2) An adjournment under this section shall be—
(a) for the purposes of allowing—
(i) the accused to appear in answer to the complaint; or
(ii) time for inquiry into the case; or
(b) for any other cause the court considers reasonable.
(3) No one period of adjournment under this section shall exceed 28 days.
(4) The clerk of court may perform the functions of the court under subsection (1) above without the court being properly constituted.
(1) This section applies where the accused in a summary prosecution—
(a) pleads not guilty to the charge; or
(b) pleads guilty to only part of the charge and the prosecutor does not accept the partial plea.
(2) The court may proceed to trial at once unless either party moves for an adjournment and the court considers it expedient to grant it.
(3) The court may adjourn the case for trial to as early a diet as is consistent with the just interest of both parties, and the prosecutor shall, if requested by the accused, furnish him with a copy of the complaint if he does not already have one.
(3ZA) Where a case is adjourned under subsection (3) above, the court shall intimate to the accused the trial diet assigned and any intermediate diet fixed.
(3ZB) When intimating a diet under subsection (3ZA) above, the court shall inform the accused that, if he fails to appear at any diet in the proceedings in respect of the case, the court might hear and dispose of the case in his absence.
(3A) Where, under subsection (3) above, the prosecutor furnishes an accused charged with an offence listed in subsection (3AA)(b) with a copy of the complaint, it shall be accompanied by a notice to the accused—
(a) that his case at, or for the purposes of, any relevant hearing ... in the course of the proceedings may be conducted only by a lawyer,
(b) that it is, therefore, in his interests, if he has not already done so, to get the professional assistance of a solicitor; and
(c) that, if he does not engage a solicitor for the purposes of the conduct of his case at, or for the purposes of, the hearing, the court will do so.
(3AA) For the purposes of subsection (3A)—
(a) “relevant hearing” is to be construed in accordance with section 288C(1A) or (as the case may be) 288DC(4),
(b) the list is—
(i) an offence to which section 288C applies,
(ii) an offence to which section 288DC applies.
(3B) A failure to comply with subsection (3A) above does not affect the validity or lawfulness of any such copy complaint or any other element of the proceedings against the accused.
(4) Where the accused is brought before the court from custody the court shall inform the accused of his right to an adjournment of the case for not less than 48 hours and if he requests such adjournment before the prosecutor has commenced his proof, subject to subsection (5) below, the adjournment shall be granted.
(5) Where the court considers that it is necessary to secure the examination of witnesses who otherwise would not be available, the case may proceed to trial at once or on a shorter adjournment than 48 hours.
(6) Where the accused is in custody, he may be committed to prison or to legalised police cells or to any other place to which he may lawfully be committed pending trial—
(a) if he is neither granted bail nor ordained to appear; or
(b) if he is granted bail on a condition imposed under section 24(6) of this Act that a sum of money is deposited in court, until the accused or a cautioner on his behalf has so deposited that sum.
(7) The court may from time to time at any stage of the case on the motion of either party or ex proprio motu grant such adjournment as may be necessary for the proper conduct of the case, and where from any cause a diet has to be continued from day to day it shall not be necessary to intimate the continuation to the accused.
(8) It shall not be necessary for the prosecutor to establish a charge or part of a charge to which the accused pleads guilty.
(9) The court may, in any case where it considers it expedient, permit any witness for the defence to be examined prior to evidence for the prosecution having been led or concluded, but in any such case the accused shall be entitled to lead additional evidence after the case for the prosecution is closed.
(1) Subject to subsections (2) and (3) below, a person charged with an offence in summary proceedings shall not be detained in that respect for a total of more than 40 days after the bringing of the complaint in court unless his trial is commenced within that period, failing which he shall be liberated forthwith and thereafter he shall be for ever free from all question or process for that offence.
(2) On an application made for the purpose, the sheriff may, on cause shown—
(a) extend the period mentioned in subsection (1) above; and
(b) order the accused to be detained awaiting trial,
for such period as the sheriff thinks fit.
(2A) Before determining an application under subsection (2) above, the sheriff shall give the parties an opportunity to be heard.
(2B) However, where all the parties join in the application, the sheriff may determine the application without hearing the parties and, accordingly, may dispense with any hearing previously appointed for the purpose of considering the application.
(3) The grant or refusal of any application to extend the period mentioned in subsection (1) above may be appealed against by note of appeal presented to the Sheriff Appeal Court; and that Court may affirm, reverse or amend the determination made on such application.
(4) For the purposes of this section, a trial shall be taken to commence when the first witness is sworn.
(1) The court may, when adjourning a case for trial in terms of section 146(3) of this Act, and may also, at any time thereafter, whether before, on or after any date assigned as a trial diet, fix a diet (to be known as an intermediate diet) for the purpose of ascertaining, so far as is reasonably practicable, whether the case is likely to proceed to trial on any date assigned as a trial diet and, in particular—
(a) the state of preparation of the prosecutor and of the accused with respect to their cases;
(b) whether the accused intends to adhere to the plea of not guilty; and
(ba) how many witnesses are required by—
(i) the prosecutor;
(ii) the accused,
to attend the trial;
(c) the extent to which the prosecutor and the accused have complied with the duty under section 257(1) of this Act.
(1A) At an intermediate diet in summary proceedings in the sheriff court, the court shall also—
(a) ascertain whether subsection (1B) below applies to any person who is to give evidence at or for the purposes of the trial or to the accused, and
(b) if so, consider whether it should make an order under section 271A(7) or 271D(2) of this Act in relation to person or, as the case may be, the accused.
(1B) This subsection applies—
(a) to a person who is to give evidence at or for the purposes of the trial if that person is, or is likely to be, a vulnerable witness,
(b) to the accused if, were he to give evidence at or for the purposes of the trial, he would be, or would be likely to be, a vulnerable witness.
(2) Where at an intermediate diet the court concludes that the case is unlikely to proceed to trial on the date assigned for the trial diet, the court—
(a) may postpone the trial diet; and
(b) may fix a further intermediate diet.
(3) The court may, if it considers it appropriate to do so, adjourn an intermediate diet.
(3AA) At an intermediate diet, the court shall also dispose of any application for a witness anonymity order under section 271P of this Act of which notice has been given in accordance with section 271Q(2)(a) of this Act.
(3A) At an intermediate diet, the court may consider an application for the purposes of subsection (1) of section 275 of this Act; and, notwithstanding subsection (1) above, the court may fix a diet under that subsection for the purpose only of considering such an application.
(3B) Subsection (3A) above shall not operate so as to relieve any court prescribed by order under subsection (7) below of its duty, which arises by virtue of the operation of that subsection, to fix an intermediate diet for the purpose mentioned in subsection (1) above.
(4) At an intermediate diet, the court shall make such enquiry of the parties as is reasonably required for the purposes of subsections (1) and (3A) above.
(5) The accused shall attend an intermediate diet of which he has received intimation or to which he has been cited unless—
(a) he is legally represented; and
(b) the court considers that, on cause shown, he need not attend.
(6) A plea of guilty may be tendered at the intermediate diet.
(7) The foregoing provisions of this section shall have effect as respects any court prescribed by the Secretary of State by order, in relation to proceedings commenced after such date as may be so prescribed, with the following modifications—
(a) in subsection (1), for the word “may” where it first appears, there shall be substituted “shall, subject to subsection (1A) below,”; and
(b) after subsection (1) there shall be inserted the following subsections—
(1A) If, on a joint application by the prosecutor and the accused made at any time before the commencement of the intermediate diet, the court considers it inappropriate to have such a diet, the duty under subsection (1) above shall not apply and the court shall discharge any such diet already fixed.
(1B) The court may consider an application under subsection (1A) above without hearing the parties.
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(8) An order under subsection (7) above shall be made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
148A Interim diet required in certain sexual or domestic abuse cases
(1) Where, in a case which is adjourned for trial, the charge is of committing an offence listed in subsection (10), the court shall order that, before the trial diet, there shall be a diet under this section and ordain the accused then to attend.
(2) At a diet under this section, the court shall ascertain whether or not the accused has engaged a solicitor for the purposes of his defence at the trial.
(3) Where, following inquiries for the purposes of subsection (2) above, it appears to the court that the accused has not engaged a solicitor for the purposes of his defence at his trial, it may adjourn the diet under this section for a period of not more than 48 hours and ordain the accused then to attend.
(4) A diet under this section may be conjoined with an intermediate diet.
(5) A court may, at a diet under this section, postpone the trial diet.
(6) The court may dispense with a diet under this section previously ordered, but only if a solicitor engaged by the accused for the purposes of the defence of the accused at the trial has, in writing—
(a) confirmed his engagement for that purpose; and
(b) requested that the diet be dispensed with.
(7) Where—
(a) a solicitor has requested, under subsection (6) above, that a diet under this section be dispensed with; and
(b) before that diet has been held or dispensed with, the solicitor—
(i) is dismissed by the accused; or
(ii) withdraws,
the solicitor shall forthwith inform the court in writing of those facts.
(8) It is the duty of a solicitor who—
(a) was engaged for the purposes of the defence of the accused at the trial—
(i) at the time of a diet under this section; or
(ii) in the case of a diet which, under subsection (6) above, is dispensed with, at the time when it was so dispensed with; and
(b) after that time but before the trial diet—
(i) is dismissed by the accused; or
(ii) withdraws,
forthwith to inform the court in writing of those facts.
(9) On being so informed, the court shall order a further diet under this section.
(10) For the purposes of this section, the list is—
(a) an offence to which section 288C applies,
(b) an offence to which section 288DC applies.
148B Pre-trial procedure in sheriff court where no intermediate diet is fixed
(1) Where, in any summary proceedings in the sheriff court, no intermediate diet is fixed, the court shall, at the trial diet before the first witness is sworn—
(a) ascertain whether subsection (2) below applies to any person who is to give evidence at or for the purposes of the trial or to the accused and, if so, consider whether it should make an order under section 271A(7) or 271D(2) of this Act in relation to the person or, as the case may be, the accused, and
(b) if—
(i) section 288E of this Act applies to the proceedings, or
(ii) an order under section 288F(2) has been made in the proceedings,
ascertain whether or not the accused has engaged a solicitor for the purposes of his defence at the trial.
(2) This subsection applies—
(a) to a person who is to give evidence at or for the purposes of the trial if that person is, or is likely to be, a vulnerable witness,
(b) to the accused if, were he to give evidence at or for the purposes of the trial, he would be, or be likely to be, a vulnerable witness.
(3) Where, following inquiries for the purposes of subsection (1)(b) above, it appears to the court that the accused has not engaged a solicitor for the purposes of his defence at the trial, the court may adjourn the trial diet for a period of not more than 48 hours and ordain the accused then to attend.
(4) At the trial diet, the court may ask the prosecutor and the accused any question in connection with any matter which it is required to ascertain or consider under subsection (1) above.
148C Engagement, dismissal and withdrawal of solicitor representing accused
(1) In summary proceedings, it is the duty of a solicitor who is engaged by the accused for the purposes of his defence at trial to notify the court and the prosecutor of that fact forthwith in writing.
(2) The duty under subsection (1) above shall be regarded as having been complied with if the solicitor has represented the accused at the first calling of the case—
(a) by submitting a written intimation of the accused's plea as described in subsection (2)(a) of section 144 of this Act; or
(b) by appearing on behalf of the accused—
(i) as described in subsection (2)(b) of that section; or
(ii) with the accused present,
and has, when acting as described in paragraph (a) or (b) above, notified the court and the prosecutor orally or in writing that the solicitor is also engaged by the accused for the purposes of his defence at trial.
(3) Where a solicitor referred to in subsection (1) above—
(a) is dismissed by the accused; or
(b) withdraws,
it is the duty of the solicitor to notify the court and the prosecutor of that fact forthwith in writing.
It shall not be competent for the accused in a summary prosecution to found on a plea of alibi unless he gives, at any time before the first witness is sworn, notice to the prosecutor of the plea with particulars as to time and place and of the witnesses by whom it is proposed to prove it; and, on such notice being given, the prosecutor shall be entitled, if he so desires, to an adjournment of the case.
(1) It shall not be competent for the accused in a summary prosecution for an offence to which section 288C of this Act applies to found on a defence of consent unless, not less than 10 clear days before the trial diet, he gives notice to the prosecutor of the defence and of the witnesses by whom he proposes to maintain it.
(2) The court may, however, on cause shown, allow the accused to maintain such a defence after giving such notice although given after the time limit specified in subsection (1) above.
(3) In subsection (1) above, the reference to a defence of consent is a reference to the defence which is stated by reference to the complainer’s consent to the act which is the subject matter of the charge or the accused’s belief as to that consent.
(4) In subsection (3) above, “complainer” has the same meaning as in section 274 of this Act.
(1) It is not competent for an accused in a summary prosecution to found on a defence to which this subsection applies unless—
(a) notice of the defence has been given to the prosecutor in accordance with subsection (5) below; or
(b) the court, on cause shown, allows the accused to found on the defence despite the failure so to give notice of it.
(2) Subsection (1) above applies—
(a) to a special defence;
(b) to a defence which may be made out by leading evidence calculated to exculpate the accused by incriminating a co-accused;
(c) to a defence of automatism or coercion;
(d) in a prosecution for an offence to which section 288C of this Act applies, to a defence of consent.
(2A) Subsection (1) does not apply where—
(a) the accused lodges a defence statement under section 125 of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13),
(b) the statement is lodged—
(i) where an intermediate diet is to be held, at or before the diet, or
(ii) where such a diet is not to be held, no later than 10 clear days before the trial diet, and
(c) the accused's defence consists of or includes a defence to which that subsection applies.
(3) In subsection (2)(d) above, the reference to a defence of consent is a reference to the defence which is stated by reference to the complainer's consent to the act which is the subject matter of the charge or the accused's belief as to that consent.
(4) In subsection (3) above, “complainer” has the same meaning as in section 274 of this Act.
(5) Notice of a defence is given in accordance with this subsection if it is given—
(a) where an intermediate diet is to be held, at or before that diet; or
(b) where such a diet is not to be held, no later than 10 clear days before the trial diet,
together with the particulars mentioned in subsection (6) below.
(6) The particulars are—
(a) in relation to a defence of alibi, particulars as to time and place; and
(b) in relation to that or any other defence, particulars of the witnesses who may be called to give evidence in support of the defence.
(7) Where notice of a defence to which subsection (1) above applies is given to the prosecutor, the prosecutor is entitled to an adjournment of the case.
(8) The entitlement to an adjournment under subsection (7) above may be exercised whether or not—
(a) the notice was given in accordance with subsection (5) above;
(b) the entitlement could have been exercised at an earlier diet.
(1) This section applies where the accused in a summary prosecution fails to appear at any diet of which he has received intimation, or to which he has been cited other than a diet which, by virtue of section 148(5) of this Act, he is not required to attend.
(2) The court may adjourn the proceedings to another diet, and order the accused to attend at such diet, and appoint intimation of the diet to be made to him.
(3) The court may grant warrant to apprehend the accused.
(3A) The grant, under subsection (3) above, at an intermediate diet or a diet under section 148A of this Act of a warrant to apprehend the accused has the effect of discharging the trial diet as respects that accused.
(3B) Subsection (3A) above is subject to any order to different effect made by the court when granting the warrant.
(3C) An order under subsection (3B) above—
(a) for the purpose of having a trial in absence of the accused under section 150A of this Act, 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.
(4) Intimation under subsection (2) above shall be sufficiently given by an officer of law, or by letter signed by the clerk of court or prosecutor and sent to the accused at his last known address by registered post or by the recorded delivery service, and the production in court of the written execution of such officer or of an acknowledgement or certificate of the delivery of the letter issued by the postal operator shall be sufficient evidence of such intimation having been duly given.
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(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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(8) An accused who without reasonable excuse fails to attend any diet of which he has been given due notice, shall be guilty of an offence and liable on summary conviction—
(a) to a fine not exceeding level 3 on the standard scale; and
(b) to a period of imprisonment not exceeding—
(i) in the JP court , 60 days; or
(ii) in the sheriff court, 12 months.
(9) A penalty under subsection (8) above shall be imposed in addition to any other penalty which it is competent for the court to impose, notwithstanding that the total of penalties imposed may exceed the maximum penalty which it is competent to impose in respect of the original offence.
(9A) The reference in subsection (9) above to a penalty being imposed in addition to another penalty means, in the case of sentences of imprisonment or detention—
(a) where the sentences are imposed at the same time (whether or not in relation to the same complaint), framing the sentences so that they have effect consecutively;
(b) where the sentences are imposed at different times, framing the sentence imposed later so that (if the earlier sentence has not been served) the later sentence has effect consecutive to the earlier sentence.
(9B) Subsection (9A)(b) above is subject to section 204A of this Act.
(9C) In any proceedings in relation to an offence under subsection (8) above, the fact that (as the case may be) an accused—
(a) failed to appear at a diet; or
(b) was given due notice of a diet,
shall, unless challenged by preliminary objection before his plea is recorded, be held as admitted.
(10) At any time before the trial in the prosecution in which the failure to appear occurred, it is competent to amend the complaint to include an additional charge of an offence under subsection (8).
(1) Where the accused does not appear at a diet (apart from a diet fixed for the first calling of the case), the court—
(a) on the motion of the prosecutor or, in relation to sentencing, of its own accord; and
(b) if satisfied as to the matters specified in subsection (2) below,
may proceed to hear and dispose of the case in the absence of the accused in like manner as if the accused were present.
(2) The matters referred in subsection (1)(b) above are—
(a) that citation of the accused has been effected or the accused has received other intimation of the diet; and
(b) that it is in the interests of justice to proceed as mentioned in subsection (1) above.
(3) In subsection (1) above, the reference to proceeding to hear and dispose of the case includes, in relation to a trial diet, proceeding with the trial.
(4) Where the court is considering whether to proceed in pursuance of subsection (1) above, it shall—
(a) if satisfied that there is a solicitor with authority to act—
(i) for the purposes of representing the accused's interests at the hearing on whether to proceed that way; and
(ii) if it proceeds that way, for the purposes of representing the accused's further interests at the diet (including, in relation to a trial diet, presenting a 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 if it considers that it is in the interests of justice to do so.
(5) It is the duty of a solicitor appointed under subsection (4)(b) above to act in the best interests of the accused.
(6) 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.
(7) Where the court is satisfied that—
(a) a solicitor allowed to act under subsection (4)(a) above no longer has authority to act; or
(b) a solicitor appointed under subsection (4)(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 (4) above.
(8) Subsections (4)(b) and (7) above do not apply in the case of proceedings—
(a) in respect of a sexual offence to which section 288C of this Act applies;
(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.
(9) Reference in this section to a solicitor appointed under subsection (4)(b) above includes reference to a solicitor appointed under subsection (7) above.
(10) Where the court proceeds in pursuance of subsection (1) above, it shall not in the absence of the accused pronounce a sentence of imprisonment or detention.
(11) Nothing in this section prevents—
(a) a warrant being granted at any stage of proceedings for the apprehension of the accused;
(b) a case subsequently being adjourned (in particular, with a view to having the accused present at any proceedings).
(1) Where the court is unable to proceed owing to the death, illness or absence of the presiding judge, it shall be lawful for the clerk of court—
(a) where the diet has not been called, to convene the court and adjourn the diet;
(b) where the diet has been called but no evidence has been led, to adjourn the diet; and
(c) where the diet has been called and evidence has been led—
(i) with the agreement of the parties, to desert the diet pro loco et tempore; or
(ii) to adjourn the diet.
(2) Where, under subsection (1)(c)(i) above, a diet has been deserted pro loco et tempore, any new prosecution charging the accused with the same or any similar offence arising out of the same facts shall be brought within two months of the date on which the diet was deserted notwithstanding that any other time limit for the commencement of such prosecution has elapsed.
(3) For the purposes of subsection (2) above, a new prosecution shall be deemed to commence on the date on which a warrant to apprehend or to cite the accused is granted, if such warrant is executed without undue delay.
(1) It shall be competent at the diet of trial, at any time before the first witness is sworn, for the court, on the application of the prosecutor, to desert the diet pro loco et tempore.
(2) If, at a diet of trial, the court refuses an application by the prosecutor to adjourn the trial or to desert the dietpro loco et tempore, and the prosecutor is unable or unwilling to proceed with the trial, the court shall desert the diet simpliciter.
(3) Where the court has deserted a diet simpliciter under subsection (2) above (and the court’s decision in that regard has not been reversed on appeal), it shall not be competent for the prosecutor to raise a fresh libel.
(1) Where—
(a) two or more complaints against an accused call for trial in the same court on the same day; and
(b) they each contain one or more charges to which the accused pleads not guilty,
the prosecutor may apply to the court for those charges to be tried together at that diet despite the fact that they are not all contained in the one complaint.
(2) On an application under subsection (1) above, the court is to try those charges together if it appears to the court that it is expedient to do so.
(3) For the purposes of subsections (1) and (2) above, any other charges contained in the complaints are (without prejudice to further proceedings as respects those other charges) to be disregarded.
(4) Where charges are tried together under this section, they are to be treated (including, in particular, for the purposes of and in connection with the leading of evidence, proof and verdict) as if they were contained in one complaint.
(5) But the complaints mentioned in subsection (1)(a) above are, for the purposes of further proceedings (including as to sentence), to be treated as separate complaints.
(1) Subject to section 150A of this Act and subsection (2) 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 counsel or a solicitor to represent his interests during such absence.
(1) If a witness in a summary prosecution—
(a) wilfully fails to attend after being duly cited; or
(b) unlawfully refuses to be sworn; or
(c) after the oath has been administered to him refuses to answer any question which the court may allow; or
(d) prevaricates in his evidence,
he shall be deemed guilty of contempt of court and be liable to be summarily punished forthwith for such contempt by a fine not exceeding level 3 on the standard scale or by imprisonment for any period not exceeding 21 days.
(2) Where punishment is summarily imposed as mentioned in subsection (1) above, the clerk of court shall enter in the record of the proceedings the acts constituting the contempt or the statements forming the prevarication.
(3) Subsections (1) and (2) above are without prejudice to the right of the prosecutor to proceed by way of formal complaint for any such contempt where a summary punishment, as mentioned in the said subsection (1), is not imposed.
(4) Any witness who, having been duly cited in accordance with section 140 of this Act—
(a) fails without reasonable excuse, after receiving at least 48 hours’ notice, to attend for precognition by a prosecutor at the time and place mentioned in the citation served on him; or
(b) refuses when so cited to give information within his knowledge regarding any matter relative to the commission of the offence in relation to which such precognition is taken,
shall be liable to the like punishment as is provided in subsection (1) above.
(1) In any summary proceedings, 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 enquiry 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 necessary for the execution of the warrant, to break open shut and lockfast places.
(8) It shall not be competent in summary proceedings for a court to issue a warrant for the apprehension of a witness otherwise than in accordance with this section.
(9) Section 135(3) of this Act makes provision as to bringing before the court a person apprehended under a warrant issued under this section.
(10) In this section and section 156A, “the court” means the court in which the witness is to give evidence.
156A Orders in respect of witnesses apprehended under section 156
(1) Where a witness is brought before the court in pursuance of a warrant issued under section 156 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.
(3) Whenever the court makes an order under subsection (1) above, it shall state the reasons for the terms of the order.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
(8) Section 25 of this Act 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 ”.
(1) A witness who, having been released on bail by virtue of an order under subsection (1)(b) of section 156A 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 (6) of that section,
shall be guilty of an offence and liable on summary conviction to the penalties specified in subsection (2) below.
(2) Those penalties are—
(a) a fine not exceeding level 3 on the standard scale; and
(b) imprisonment for a period—
(i) where conviction is in the JP court, not exceeding 60 days;
(ii) where conviction is in the sheriff court, not exceeding 12 months.
(3) 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 preliminary objection before his plea is recorded, be held as admitted.
(4) 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 156A(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 156A(1)(b) of this Act in respect of the witness;
(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 156A(1)(b) of this Act 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 156A(1)(a) or (c) of this Act in respect of the witness ”;
(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 ”.
156C Review of orders under section 156A(1)(a) or (b)
(1) Where a court has made an order under subsection (1)(a) of section 156A 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 156A 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 (6) 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 (6) of that section;
(b) on the application of the party who made the application under section 156(1) of this Act in respect of the witness, review the order and the conditions imposed under subsection (6) of section 156A of this Act 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 (6) 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 156A(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 156A(1).