156D Appeals in respect of orders under section 156A(1)
(1) Any of the parties specified in subsection (2) below may appeal to the Sheriff Appeal Court against—
(a) any order made under subsection (1)(a) or (c) of section 156A of this Act;
(b) where an order is made under subsection (1)(b) of that section—
(i) the order;
(ii) any of the conditions imposed under subsection (6) of that section on the making of the order; or
(iii) both the order and any such conditions.
(2) The parties referred to in subsection (1) above are—
(a) the witness in respect of whom the order which is the subject of the appeal was made;
(b) the prosecutor; and
(c) the accused.
(3) A party making an appeal under subsection (1) above shall intimate it to the other parties specified in subsection (2) above; and, for that purpose, intimation to the Crown Agent shall be sufficient intimation to the prosecutor.
(4) An appeal under this section shall be disposed of by Sheriff Appeal Court or any Appeal Sheriff in court or in chambers after such enquiry and hearing of the parties as shall seem just.
(5) Where the witness in respect of whom the order which is the subject of an appeal under this section was made is under 21 years of age, section 51 of this Act shall apply to the Sheriff Appeal Court or, as the case may be, Appeal Sheriff when disposing of the appeal as it applies to a court when remanding or committing a person of the witness's age for trial and sentence.
(1) Proceedings in a summary prosecution shall be conducted summarily viva voce and, except where otherwise provided and subject to subsection (2) below, no record need be kept of the proceedings other than the complaint, or a copy of the complaint certified as a true copy by the procurator fiscal, the plea, a note of any documentary evidence produced, and the conviction and sentence or other finding of the court.
(2) Any objection taken to the competency or relevancy of the complaint or proceedings, or to the competency or (subject to subsection (3) below) admissibility of evidence, shall, if either party desires it, be entered in the record of the proceedings.
(3) An application for the purposes of subsection (1) of section 275 of this Act, together with the court’s decision on it, the reasons stated therefor and any conditions imposed and directions issued under subsection (7) of that section shall be entered in the record of the proceedings.
158 Interruption of summary proceedings for verdict in earlier trial.
Where the sheriff is sitting in summary proceedings during the period in which the jury in a criminal trial in which he has presided are retired to consider their verdict, it shall be lawful, if he considers it appropriate to do so, to interrupt those proceedings—
(a) in order to receive the verdict of the jury and dispose of the cause to which it relates;
(b) to give a direction to the jury on any matter on which they may wish one from him, or to hear a request from them regarding any matter,
and the interruption shall not affect the validity of the proceedings nor cause the instance to fall in respect of any person accused in the proceedings.
(1) It shall be competent at any time prior to the determination of the case, unless the court see just cause to the contrary, to amend the complaint or any notice of previous conviction relative thereto by deletion, alteration or addition, so as to—
(a) cure any error or defect in it;
(b) meet any objection to it; or
(c) cure any discrepancy or variance between the complaint or notice and the evidence.
(2) Nothing in this section shall authorise an amendment which changes the character of the offence charged, and, if it appears to the court that the accused may in any way be prejudiced in his defence on the merits of the case by any amendment made under this section, the court shall grant such remedy to the accused by adjournment or otherwise as appears to the court to be just.
(3) An amendment made under this section shall be sufficiently authenticated by the initials of the clerk of the court.
(1) Immediately after the close of the evidence for the prosecution, the accused may intimate to the court his desire to make a submission that he has no case to answer both—
(a) on an offence charged in the complaint; and
(b) on any other offence of which he could be convicted under the complaint were the offence charged the only offence so charged.
(2) If, after hearing both parties, the judge is satisfied that the evidence led by the prosecution is insufficient in law to justify the accused being convicted of the offence charged in respect of which the submission has been made or of such other offence as is mentioned, in relation to that offence, in paragraph (b) of subsection (1) above, he shall acquit him of the offence charged in respect of which the submission has been made and the trial shall proceed only in respect of any other offence charged in the complaint.
(3) If, after hearing both parties, the judge is not satisfied as is mentioned in subsection (2) above, he shall reject the submission and the trial shall proceed, with the accused entitled to give evidence and call witnesses, as if such submission had not been made.
In a summary prosecution in a court consisting of more than one judge, if the judges are equally divided in opinion as to the guilt of the accused, the accused shall be found not guilty of the charge or part thereof on which such division of opinion exists.
(1) Where imprisonment is authorised by the sentence of a court of summary jurisdiction, an extract of the finding and sentence in the form prescribed by Act of Adjournal shall be a sufficient warrant for the apprehension and commitment of the accused, and no such extract shall be void or liable to be set aside on account of any error or defect in point of form.
(2) In any proceedings in a court of summary jurisdiction consisting of more than one judge, the signature of one judge shall be sufficient in all warrants or other proceedings prior or subsequent to conviction, and it shall not be necessary that the judge so signing shall be one of the judges trying or dealing with the case otherwise.
165 “Conviction” and “sentence” not to be used for children.
The words “conviction” and “sentence” shall not be used in relation to children dealt with summarily and any reference in any enactment, whether passed before or after the commencement of this Act, to a person convicted, a conviction or a sentence shall in the case of a child be construed as including a reference to a person found guilty of an offence, a finding of guilt or an order made upon such a finding as the case may be.
(1) This section shall apply where the accused in a summary prosecution has been previously convicted of any offence and the prosecutor has decided to lay a previous conviction before the court.
(2) A notice in the form prescribed by Act of Adjournal or as nearly as may be in such form specifying the previous conviction shall be served on the accused with the complaint where he is cited to a diet, and where he is in custody the complaint and such a notice shall be served on him before he is asked to plead.
(3) The previous conviction shall not , subject to section 275A(1) of this Act, be laid before the judge until he is satisfied that the charge is proved.
(4) If a plea of guilty is tendered or if, after a plea of not guilty, the accused is convicted the prosecutor shall lay the notice referred to in subsection (2) above before the judge, and—
(a) in a case where the plea of guilty is tendered in writing the accused shall be deemed to admit any previous conviction set forth in the notice, unless he expressly denies it in the writing by which the plea is tendered;
(b) in any other case the judge or the clerk of court shall ask the accused whether he admits the previous conviction,
and if such admission is made or deemed to be made it shall be entered in the record of the proceedings; and it shall not be necessary for the prosecutor to produce extracts of any previous convictions so admitted.
(5) Where the accused does not admit any previous conviction, the prosecutor unless he withdraws the conviction shall adduce evidence in proof thereof either then or at any other diet.
(6) A copy of any notice served on the accused under this section shall be entered in the record of the proceedings.
(7) Where a person is convicted of an offence, the court may have regard to any previous conviction in respect of that person in deciding on the disposal of the case.
(8) Nothing in this section shall prevent the prosecutor—
(a) asking the accused questions tending to show that the accused has been convicted of an offence other than that with which he is charged, where he is entitled to do so under section 266 of this Act; or
(b) leading evidence of previous convictions where it is competent to do so—
(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ii) under section 270 of this Act.
(9) This section, except subsection (8) above, applies in relation to the alternative disposals mentioned in subsection (10) below as it applies in relation to previous convictions.
(10) Those alternative disposals are—
(a) a—
(i) fixed penalty under section 302(1) of this Act;
(ii) compensation offer under section 302A(1) of this Act,
that has been accepted (or deemed to have been accepted) by the accused in the two years preceding the date of an offence charged;
(b) a work order under section 303ZA(6) of this Act that has been completed in the two years preceding the date of an offence charged ;
(c) a restoration notice given under subsection (4) of section 20A of the Nature Conservation (Scotland) Act 2004 (asp 6) in respect of which the accused has given notice of intention to comply under subsection (5) of that section in the two years preceding the date of an offence charged.
(11) Nothing in this section shall prevent the prosecutor, following conviction of an accused of an offence—
(a) to which a fixed penalty offer made under section 302(1) of this Act related;
(b) to which a compensation offer made under section 302A(1) of this Act related; ...
(c) to which a work offer made under section 303ZA(1) of this Act related ; or
(d) to which a restoration notice given under section 20A(4) of the Nature Conservation (Scotland) Act 2004 (asp 6) related,
providing the judge with information about the making of the offer (including the terms of the offer) or, as the case may be, about the giving of the notice (including the terms of the notice).
(12) Any reference in this section to a previous conviction includes, where relevant, a conviction by a court in any part of the United Kingdom or in any member State of the European Union.
(1) This section applies where an accused person is convicted of an offence (“offence O”) on summary complaint.
(2) The court may, in deciding on the disposal of the case, have regard to—
(a) any conviction in respect of the accused which occurred on or after the date of offence O but before the date of conviction in respect of that offence,
(b) any of the alternative disposals in respect of the accused that are mentioned in subsection (3).
(3) Those alternative disposals are—
(a) a—
(i) fixed penalty under section 302(1) of this Act, or
(ii) compensation offer under section 302A(1) of this Act,
that has been accepted (or deemed to have been accepted) on or after the date of offence O but before the date of conviction in respect of that offence,
(b) a work order under section 303ZA(6) of this Act that has been completed on or after the date of offence O but before the date of conviction in respect of that offence.
(4) The court may have regard to any such conviction or alternative disposal only if it is—
(a) specified in a notice laid before the court by the prosecutor, and
(b) admitted by the accused or proved by the prosecutor (on evidence adduced then or at another diet).
(5) A reference in this section to a conviction which occurred on or after the date of offence O is a reference to such a conviction by a court in any part of the United Kingdom or , where the court considers appropriate, in any member State of the European Union.
(1) Nothing in section 166 of this Act prevents—
(a) the prosecutor leading evidence of previous convictions where it is competent to do so as evidence in support of a substantive charge;
(b) the prosecutor proceeding with a charge—
(i) which discloses a previous conviction; or
(ii) in support of which evidence of a previous conviction may competently be led,
on a complaint which includes a charge in relation to which the conviction is irrelevant; or
(c) the court trying a charge—
(i) which discloses a previous conviction; or
(ii) in support of which evidence of a previous conviction may competently be led,
together with a charge on another complaint in relation to which the conviction is irrelevant.
(2) But subsections (1)(b) and (c) above apply only if the charges are of offences which—
(a) relate to the same occasion; or
(b) are of a similar character and amount to (or form part of) a course of conduct.
(3) The reference in subsection (1)(c) above to trying a charge together with a charge on another complaint means doing so under section 152A of this Act.
(1) Every sentence imposed by a court of summary jurisdiction shall unless otherwise provided be pronounced in open court in the presence of the accused, but need not be written out or signed in his presence.
(2) The finding and sentence and any order of a court of summary jurisdiction, as regards both offences at common law and offences under any enactment, shall be entered in the record of the proceedings in the form, as nearly as may be, prescribed by Act of Adjournal.
(3) The record of the proceedings shall be sufficient warrant for all execution on a finding, sentence or order and for the clerk of court to issue extracts containing such executive clauses as may be necessary for implement thereof.
(4) When imprisonment forms part of any sentence or other judgement, warrant for the apprehension and interim detention of the accused pending his being committed to prison shall, where necessary, be implied.
(5) Where a fine imposed by a court of summary jurisdiction is paid at the bar it shall not be necessary for the court to refer to the period of imprisonment applicable to the non-payment thereof.
(6) Where several charges at common law or under any enactment are embraced in one complaint, a cumulo penalty may be imposed in respect of all or any of such charges of which the accused is convicted.
(7) Subject to section 204A of this Act, a court of summary jurisdiction may frame—
(a) a sentence following on conviction; or
(b) an order for committal in default of payment of any sum of money or for contempt of court,
so as to take effect on the expiry of any previous sentence for a term or order which, at the date of the later conviction or order, the accused is undergoing.
(7A) Where the court imposes a sentence as mentioned in paragraph (a) of subsection (7) above for an offence committed after the coming into force of this subsection, the court may—
(a) if the person is serving or is liable to serve the punishment part of a previous sentence, frame the sentence to take effect on the day after that part of that sentence is or would be due to expire; or
(b) if the person is serving or is liable to serve the punishment parts of two or more previous sentences, frame the sentence to take effect on the day after the later or (as the case may be) latest expiring of those parts is or would be due to expire.
(7B) Where it falls to the court to sentence a person who is subject to a previous sentence in respect of which a punishment part requires to be (but has not been) specified, the court shall not sentence the person until such time as the part is either specified or no longer requires to be specified.
(7C) In subsections (7A) and (7B) above, any reference to a punishment part of a sentence shall be construed by reference to—
(a) the punishment part of the sentence as is specified in an order mentioned in section 2(2) of the 1993 Act; or
(b) any part of the sentence which has effect, by virtue of section 10 of the 1993 Act or the schedule to the Convention Rights (Compliance)(Scotland) Act 2001 (asp 7), as if it were the punishment part so specified,
and “ the 1993 Act ” means the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9).
(8) It shall be competent at any time before imprisonment has followed on a sentence for the court to alter or modify it; but no higher sentence than that originally pronounced shall be competent, and—
(a) the signature of the judge or clerk of court to any sentence shall be sufficient also to authenticate the findings on which such sentence proceeds; and
(b) the power conferred by this subsection to alter or modify a sentence may be exercised without requiring the attendance of the accused.
(1) This section applies with regard to the finding, forfeiture, and recovery of caution in any proceedings under this Part of this Act.
(2) Caution may be found by consignation of the amount with the clerk of court, or by bond of caution signed by the cautioner.
(3) Where caution becomes liable to forfeiture, forfeiture may be granted by the court on the motion of the prosecutor, and, where necessary, warrant granted for the recovery of the caution.
(4) Where a cautioner fails to pay the amount due under his bond within six days after he has received a charge to that effect, the court may—
(a) order him to be imprisoned for the maximum period applicable in pursuance of section 219 of this Act to that amount or until payment is made; or
(b) if it considers it expedient, on the application of the cautioner grant time for payment; or
(c) instead of ordering imprisonment, order recovery by civil diligence in accordance with section 221 of this Act.
(1) No judge, clerk of court or prosecutor in the public interest shall be found liable by any court in damages for or in respect of any proceedings taken, act done, or judgment, decree or sentence pronounced in any summary proceedings under this Act, unless—
(a) the person suing has suffered imprisonment in consequence thereof; and
(b) such proceedings, act, judgment, decree or sentence has been quashed; and
(c) the person suing specifically avers and proves that such proceeding, act, judgment, decree or sentence was taken, done or pronounced maliciously and without probable cause.
(2) No such liability as aforesaid shall be incurred or found where such judge, clerk of court or prosecutor establishes that the person suing was guilty of the offence in respect whereof he had been convicted, or on account of which he had been apprehended or had otherwise suffered, and that he had undergone no greater punishment than was assigned by law to such offence.
(3) No action to enforce such liability as aforesaid shall lie unless it is commenced within two months after the proceeding, act, judgment, decree or sentence founded on, or in the case where the Act under which the action is brought fixes a shorter period, within that shorter period.
(4) In this section “judge” shall not include “sheriff”, and the provisions of this section shall be without prejudice to the privileges and immunities possessed by sheriffs.
(1) All penalties, for the recovery of which no special provision has been made by any enactment may be recovered by the public prosecutor in any court having jurisdiction.
(2) Where a court has power to take cognisance of an offence the penalty attached to which is not defined, the punishment therefore shall be regulated by that applicable to common law offences in that court.
(1) The forms of procedure for the purposes of summary proceedings under this Act and appeals therefrom shall be in such forms as are prescribed by Act of Adjournal or as nearly as may be in such forms.
(2) All warrants (other than warrants of apprehension or search), orders of court, and sentences may be signed either by the judge or by the clerk of court, and execution upon any warrant, order of court, or sentence may proceed either upon such warrant, order of court, or sentence itself or upon an extract thereof issued and signed by the clerk of court.
(3) Where, preliminary to any procedure, a statement on oath is required, the statement may be given before any judge, whether the subsequent procedure is in his court or another court.
173 Quorum of Sheriff Appeal Court in relation to appeals.
(1) For the purpose of hearing and determining any appeal under this Part of this Act, or any proceeding connected therewith, three of the Appeal Sheriffs shall be a quorum of the Sheriff Appeal Court, and the determination of any question under this Part of this Act by the court shall be according to the votes of the majority of the members of the court sitting, including the presiding Appeal Sheriff, and each Appeal Sheriff so sitting shall be entitled to pronounce a separate opinion.
(2) For the purpose of hearing and determining appeals under section 175(2)(b), (c) or (cza) ... of this Act, or any proceeding connected therewith, two of the Appeal Sheriffs shall be a quorum of the Sheriff Appeal Court, and each Appeal Sheriff shall be entitled to pronounce a separate opinion; but where the two Appeal Sheriffs are unable to reach agreement on the disposal of the appeal, or where they consider it appropriate, the appeal shall be heard and determined in accordance with subsection (1) above.
(1) Without prejudice to any right of appeal under section 175(1) to (6) or 191 of this Act, a party may, ... in accordance with such procedure as may be prescribed by Act of Adjournal, appeal to the Sheriff Appeal Court against a decision of the court of first instance (other than a decision not to grant leave under subsection (1A)(b)) which relates to such objection or denial as is mentioned in section 144(4) of this Act; but such appeal must be taken not later than seven days after such decision.
(1A) An appeal under subsection (1) may be taken—
(a) in the case of a decision to dismiss the complaint or any part of it, by the prosecutor without the leave of the court,
(b) in any other case, only with the leave of the court of first instance (granted on the motion of a party or ex proprio motu).
(2) Where an appeal is taken under subsection (1) above, the Sheriff Appeal Court may postpone the trial diet (if one has been fixed) for such period as appears to it to be appropriate and may, if it thinks fit, direct that such period (or some part of it) shall not count towards any time limit applying in respect of the case.
(2A) Subsection (3) applies where—
(a) the court grants leave to appeal under subsection (1), or
(b) the prosecutor—
(i) indicates an intention to appeal under subsection (1), and
(ii) by virtue of subsection (1A)(a), does not require the leave of the court.
(3) Where this subsection applies, the court of first instance shall not proceed to trial at once under subsection (2) of section 146 of this Act; and subsection (3) of that section shall be construed as requiring sufficient time to be allowed for the appeal to be taken.
(4) In disposing of an appeal under subsection (1) above the Sheriff Appeal Court may affirm the decision of the court of first instance or may remit the case to it with such directions in the matter as it thinks fit; and where the court of first instance had dismissed the complaint, or any part of it, may reverse that decision and direct that the court of first instance fix a trial diet (if it has not already fixed one as regards so much of the complaint as it has not dismissed.)
(1) This section is without prejudice to any right of appeal under section 191 of this Act.
(2) Any person convicted, or found to have committed an offence, in summary proceedings may, with leave granted in accordance with section 180 or, as the case may be, 187 of this Act, appeal under this section to the Sheriff Appeal Court—
(a) against such conviction, or finding;
(b) against the sentence passed on such conviction;
(c) against his absolute discharge or admonition or any drug treatment and testing order or any order deferring sentence; ...
(cza) against any disposal under section 227ZC(7)(a) to (c) or (e) or (8)(a) of this Act;
(ca) against any decision to remit made under section 49(1)(a) or (7)(b) of this Act;
(cb) ... or
(d) against
(i) both such conviction and such sentence or disposal or order.
(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) The prosecutor in summary proceedings may appeal under this section to the Sheriff Appeal Court on a point of law—
(a) against an acquittal in such proceedings; or
(b) against a sentence passed on conviction in such proceedings.
(4) The prosecutor in summary proceedings, in any class of case specified by order made by the Secretary of State, may, in accordance with subsection (4A) below, appeal to the Sheriff Appeal Court 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) or (7)(b) of this Act;
(g) an order deferring sentence;
(h) an admonition; or
(i) an absolute discharge.
(4A) An appeal under subsection (4) 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) or (cb), (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.
(4B) For the purposes of subsection (4A)(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.
(4C) In deciding whether to appeal under subsection (4) in any case, the prosecutor must have regard to any sentencing guidelines which are applicable in relation to the case.
(5) By an appeal under subsection (2) above, an appellant may bring under review of the Sheriff Appeal Court any alleged miscarriage of justice which may include such a miscarriage based, subject to subsections (5A) to (5D) below, on the existence and significance of evidence which was not heard at the original proceedings.
(5A) Evidence which was not heard at the original proceedings may found an appeal only where there is a reasonable explanation of why it was not so heard.
(5B) Where the explanation referred to in subsection (5A) above or, as the case may be, (5C) below is that the evidence was not admissible at the time of the original proceedings, but is admissible at the time of the appeal, the court may admit that evidence if it appears to the court that it would be in the interests of justice to do so.
(5C) Without prejudice to subsection (5A) above, where evidence such as is mentioned in ... subsection (5) above is evidence—
(a) which is—
(i) from a person; or
(ii) of a statement (within the meaning of section 259(1) of this Act) by a person,
who gave evidence at the original proceedings; and
(b) which is different from, or additional to, the evidence so given,
it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence.
(5D) For the purposes of subsection (5C) above, “independent evidence” means evidence which—
(a) was not heard at the original proceedings;
(b) is from a source independent of the person referred to in subsection (5C) above; and
(c) is accepted by the court as being credible and reliable.
(5E) By an appeal against acquittal under subsection (3) above a prosecutor may bring under review of the Sheriff Appeal Court any alleged miscarriage of justice.
(6) The power of the Secretary of State to make an order under subsection (4) above shall be exercisable by statutory instrument; and any order so made shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(7) Where a person desires to appeal under subsection (2)(a) or (d) or (3) above, he shall pursue such appeal in accordance with sections 176 to 179, 181 to 185, 188, 190 and 192(1) and (2) of this Act.
(8) A person who has appealed against both conviction and sentence may abandon the appeal in so far as it is against conviction and may proceed with it against sentence alone, subject to such procedure as may be prescribed by Act of Adjournal.
(9) Where a convicted person or as the case may be a person found to have committed an offence desires to appeal under subsection (2)(b) or (c) ... above, or the prosecutor desires so to appeal by virtue of subsection (4) above, he shall pursue such appeal in accordance with sections 186, 189(1) to (6), 190 and 192(1) and (2) of this Act; but nothing in this section shall prejudice any right to proceed by bill of suspension, or as the case may be advocation, against an alleged fundamental irregularity relating to the imposition of sentence.
(10) Where any statute provides for an appeal from summary proceedings to be taken under any public general or local enactment, such appeal shall be taken under this Part of this Act.
175A Power to refer points of law for the opinion of the High Court
(1) In an appeal under this Part, the Sheriff Appeal Court may refer a point of law to the High Court for its opinion if it considers that the point is a complex or novel one.
(2) The Sheriff Appeal Court may make a reference under subsection (1)—
(a) on the application of a party to the appeal proceedings, or
(b) on its own initiative.
(3) On giving its opinion on a reference under subsection (1), the High Court may also give a direction as to further procedure in, or disposal of, the appeal.
(1) An appeal under section 175(2)(a) or (d) or (3) of this Act shall be by application for a stated case, which application shall—
(a) be made within one week of the final determination of the proceedings;
(b) contain a full statement of all the matters which the appellant desires to bring under review and, where the appeal is also against sentence or disposal or order, the ground of appeal against that sentence or disposal or order; and
(c) be signed by the appellant or his solicitor and lodged with the clerk of court,
and a copy of the application shall, within the period mentioned in paragraph (a) above, be sent by the appellant to the respondent or the respondent’s solicitor.
(2) The clerk of court shall enter in the record of the proceedings the date when an application under subsection (1) above was lodged.
(3) The appellant may, at any time within the period of three weeks mentioned in subsection (1) of section 179 of this Act, or within any further period afforded him by virtue of section 181(1) of this Act, amend any matter stated in his application or add a new matter; and he shall intimate any such amendment, or addition, to the respondent or the respondent’s solicitor.
(4) Where such an application has been made by the person convicted, and the judge by whom he was convicted dies before signing the case or is precluded by illness or other cause from doing so, it shall be competent for the convicted person to present a bill of suspension to the Sheriff Appeal Court and to bring under the review of that court any matter which might have been brought under review by stated case.
(5) The record of the procedure in the inferior court in an appeal mentioned in subsection (1) above shall be as nearly as may be in the form prescribed by Act of Adjournal.
176A Application of section 176 in relation to certain appeals
(1) Section 176 applies in relation to an appeal under section 175(2)(a) by virtue of section 11(7) of the Double Jeopardy (Scotland) Act 2011 (asp 16) with the following modifications.
(2) In subsection (1)(a), for the words “one week of the final determination of the proceedings” substitute “ one week of the date on which the appellant is acquitted of an offence mentioned in section 11(2) of the Double Jeopardy (Scotland) Act 2011 (asp 16) ”.
(3) In subsection (2), the reference to the proceedings is to be construed as a reference to the proceedings resulting in the appellant's acquittal as mentioned in section 11(7) of the Double Jeopardy (Scotland) Act 2011 (asp 16).
(4) In subsection (5), the reference to the inferior court is to be construed as a reference to the court which acquitted the appellant of an offence under section 11(2) of the Double Jeopardy (Scotland) Act 2011 (asp 16).
(1) If an appellant making an application under section 176 of this Act is in custody, the court of first instance may—
(a) grant bail;
(b) grant a sist of execution;
(c) make any other interim order.
(2) An application for bail shall be disposed of by the court before the end of the day (not being a Saturday or Sunday, or a court holiday prescribed for the court which is to determine the question of bail, unless that court is sitting on that day for the disposal of criminal business) after the day on which the application is made.
(3) If bail is refused or the appellant is dissatisfied with the conditions imposed, he may, within 24 hours after the judgment of the court, appeal against it by a note of appeal written on the complaint and signed by himself or his solicitor, and the complaint and proceedings shall thereupon be transmitted to the Clerk of the Sheriff Appeal Court, and the Sheriff Appeal Court or any Appeal Sheriff thereof, either in court or in chambers, shall . . . have power to review the decision of the inferior court and to grant bail on such conditions as the Court or Appeal Sheriff may think fit, or to refuse bail.
(4) No clerks’ fees, court fees or other fees or expenses shall be exigible from or awarded against an appellant in custody in respect of an appeal to the Sheriff Appeal Court against the conditions imposed or on account of refusal of bail by a court of summary jurisdiction.
(5) If an appellant who has been granted bail does not thereafter proceed with his appeal, the inferior court shall have power to grant warrant to apprehend and imprison him for such period of his sentence as at the date of his bail remained unexpired and, subject to subsection (6) below, such period shall run from the date of his imprisonment under the warrant or, on the application of the appellant, such earlier date as the court thinks fit, not being a date later than the date of expiry of any term or terms of imprisonment imposed subsequently to the conviction appealed against.
(6) Where an appellant who has been granted bail does not thereafter proceed with his appeal, the court from which the appeal was taken shall have power, where at the time of the abandonment of the appeal the person is in custody or serving a term or terms of imprisonment imposed subsequently to the conviction appealed against, to order that the sentence or, as the case may be, the unexpired portion of that sentence relating to that conviction should run from such date as the court may think fit, not being a date later than the date on which any term or terms of imprisonment subsequently imposed expired.
(7) The court shall not make an order under subsection (6) above to the effect that the sentence or, as the case may be, unexpired portion of the sentence shall run other than concurrently with the subsequently imposed term of imprisonment without first notifying the appellant of its intention to do so and considering any representations made by him or on his behalf.
(8) Subsections (6) and (7) of section 112 of this Act (bail pending determination of appeals under section 288AA of this Act or paragraph 13(a) of Schedule 6 to the Scotland Act 1998) shall apply to appeals arising in summary proceedings as they do to appeals arising in solemn proceedings.
(1) Within three weeks of the final determination of proceedings in respect of which an application for a stated case is made under section 176 of this Act—
(a) where the appeal is taken from the JP court and the trial was presided over by a justice of the peace or justices of the peace, the Clerk of Court; or
(b) in any other case the judge who presided at the trial,
shall prepare a draft stated case, and the clerk of the court concerned shall forthwith issue the draft to the appellant or his solicitor and a duplicate thereof to the respondent or his solicitor.
(1A) Where an application for a stated case under section 176 of this Act relates to an appeal by virtue of section 11(7) of the Double Jeopardy (Scotland) Act 2011 (asp 16)—
(a) the reference in subsection (1) to the final determination of proceedings is to be construed as a reference to the date on which the appellant is acquitted of an offence mentioned in section 11(2) of that Act; and
(b) the reference in subsection (1)(b) to the judge who presided at the trial is to be construed as a reference to the judge who presided at the trial resulting in the conviction in respect of which the application for a stated case is made.
(2) A stated case shall be, as nearly as may be, in the form prescribed by Act of Adjournal, and shall set forth the particulars of any matters competent for review which the appellant desires to bring under the review of the Sheriff Appeal Court, and of the facts, if any, proved in the case, and any point of law decided, and the grounds of the decision.
(1) Subject to section 181(1) of this Act, within three weeks of the issue of the draft stated case under section 178 of this Act, each party shall cause to be transmitted to the court and to the other parties or their solicitors a note of any adjustments he proposes be made to the draft case or shall intimate that he has no such proposal.
(2) The adjustments mentioned in subsection (1) above shall relate to evidence heard or purported to have been heard at the trial and not to such . . . evidence as is mentioned in section 175(5) of this Act.
(3) Subject to section 181(1) of this Act, if the period mentioned in subsection (1) above has expired and the appellant has not lodged adjustments and has failed to intimate that he has no adjustments to propose, he shall be deemed to have abandoned his appeal; and subsection (5) of section 177 of this Act shall apply accordingly.
(4) If adjustments are proposed under subsection (1) above or if the judge desires to make any alterations to the draft case there shall, within one week of the expiry of the period mentioned in that subsection or as the case may be of any further period afforded under section 181(1) of this Act, be a hearing (unless the appellant has, or has been deemed to have, abandoned his appeal) for the purpose of considering such adjustments or alterations.
(5) Where a party neither attends nor secures that he is represented at a hearing under subsection (4) above, the hearing shall nevertheless proceed.
(6) Where at a hearing under subsection (4) above—
(a) any adjustment proposed under subsection (1) above by a party (and not withdrawn) is rejected by the judge; or
(b) any alteration proposed by the judge is not accepted by all the parties,
that fact shall be recorded in the minute of the proceedings of the hearing.
(7) Within two weeks of the date of the hearing under subsection (4) above or, where there is no hearing, within two weeks of the expiry of the period mentioned in subsection (1) above, the judge shall (unless the appellant has been deemed to have abandoned the appeal) state and sign the case and shall append to the case—
(a) any adjustment, proposed under subsection (1) above, which is rejected by him, a note of any evidence rejected by him which is alleged to support that adjustment and the reasons for his rejection of that adjustment and evidence; and
(b) a note of the evidence upon which he bases any finding of fact challenged, on the basis that it is unsupported by the evidence, by a party at the hearing under subsection (4) above.
(8) As soon as the case is signed under subsection (7) above the clerk of court—
(a) shall send the case to the appellant or his solicitor and a duplicate thereof to the respondent or his solicitor; and
(b) shall transmit a certified copy of the complaint, the minute of proceedings and any other relevant documents to the Clerk of the Sheriff Appeal Court.
(9) Subject to section 181(1) of this Act, within one week of receiving the case the appellant or his solicitor, as the case may be, shall cause it to be lodged with the Clerk of the Sheriff Appeal Court.
(10) Subject to section 181(1) of this Act, if the appellant or his solicitor fails to comply with subsection (9) above the appellant shall be deemed to have abandoned the appeal; and subsection (5) of section 177 of this Act shall apply accordingly.
(11) In relation to a draft stated case under section 178 of this Act relating to an appeal by virtue of section 11(7) of the Double Jeopardy (Scotland) Act 2011 (asp 16)—
(a) the reference in subsection (1) to the court is to be construed as a reference to the court by which the appellant was convicted; and
(b) the references in this section to the judge are to be construed as references to the judge who presided at the trial resulting in that conviction.
(1) The decision whether to grant leave to appeal for the purposes of section 175(2)(a) or (d) of this Act shall be made by an Appeal Sheriff of the Sheriff Appeal Court who shall—
(a) if he considers that the documents mentioned in subsection (2) below disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and
(b) in any other case—
(i) refuse leave to appeal and give reasons in writing for the refusal; and
(ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him.
(2) The documents referred to in subsection (1) above are—
(a) the stated case lodged under subsection (9) of section 179 of this Act; and
(b) the documents transmitted to the Clerk of the Sheriff Appeal Court under subsection (8)(b) of that section.
(3) A warrant granted under subsection (1)(b)(ii) above shall not take effect until the expiry of the period of 14 days mentioned in subsection (4) below (and if that period is extended under subsection (4A) below before the period being extended expires, until the expiry of the period as so extended) without an application to the Sheriff Appeal Court for leave to appeal having been lodged by the appellant under subsection (4) below.
(4) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 days of intimation under subsection (10) below, apply to the Sheriff Appeal Court for leave to appeal.
(4A) The Sheriff Appeal Court may, on cause shown, extend the period of 14 days mentioned in subsection (4) above, or that period as extended under this subsection, whether or not the period to be extended has expired (and if that period of 14 days has expired, whether or not it expired before section 25(1) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) came into force).
(5) In deciding an application under subsection (4) above the Sheriff Appeal Court shall—
(a) if, after considering the documents mentioned in subsection (2) above and the reasons for the refusal, the court is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as the court considers appropriate; and
(b) in any other case—
(i) refuse leave to appeal and give reasons in writing for the refusal; and
(ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him.
(6) The question whether to grant leave to appeal under subsection (1) or (5) above shall be considered and determined in chambers without the parties being present.
(7) Comments in writing made under subsection (1)(a) or (5)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the stated case) on the basis of which leave to appeal is granted.
(8) Where the arguable grounds of appeal are specified by virtue of subsection (7) above it shall not, except by leave of the Sheriff Appeal Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the stated case but not so specified.
(9) Any application by the appellant for the leave of the Sheriff Appeal Court under subsection (8) above—
(a) shall be made within 14 days of the date of intimation under subsection (10) below; and
(b) shall, within 14 days of that date, be intimated by the appellant to the prosecutor.
(9A) The Sheriff Appeal Court may, on cause shown, extend the periods of 14 days mentioned in subsection (9) above.
(10) The Clerk of the Sheriff Appeal Court shall forthwith intimate—
(a) a decision under subsection (1) or (5) above; and
(b) in the case of a refusal of leave to appeal, the reasons for the decision,
to the appellant or his solicitor and to the prosecutor.
181 Stated case: directions by Sheriff Appeal Court.
(1) Without prejudice to any other power of relief which the Sheriff Appeal Court may have, where it appears to that court on application made in accordance with subsection (2) below, that the applicant has failed to comply with any of the requirements of—
(a) subsection (1) of section 176 of this Act; or
(b) subsection (1) or (9) of section 179 of this Act,
the Sheriff Appeal Court may direct that such further period of time as it may think proper be afforded to the applicant to comply with any requirement of the aforesaid provisions.
(1A) Where an application for a direction under subsection (1)—
(a) is made by the person convicted, and
(b) relates to the requirements of section 176(1),
the Sheriff Appeal Court may make a direction only if it is satisfied that doing so is justified by exceptional circumstances.
(1B) In considering whether there are exceptional circumstances for the purpose of subsection (1A), the Sheriff Appeal Court must have regard to—
(a) the length of time that has elapsed between the expiry of the period mentioned in section 176(1)(a) and the making of the application,
(b) the reasons stated in accordance with subsection (2A)(a)(i),
(c) the proposed grounds of appeal.
(2) Any application for a direction under subsection (1) above shall be made in writing to the Clerk of the Sheriff Appeal Court and shall state the ground for the application, and, in the case of an application for the purposes of paragraph (a) of subsection (1) above, notification of the application shall be made by the appellant or his solicitor to the clerk of the court from which the appeal is to be taken, and the clerk shall thereupon transmit the complaint, documentary productions and any other proceedings in the cause to the Clerk of the Sheriff Appeal Court.
(2A) An application for a direction under subsection (1) in relation to the requirements of section 176(1) of this Act must—
(a) state—
(i) the reasons why the applicant failed to comply with the requirements of section 176(1), and
(ii) the proposed grounds of appeal, and
(b) be intimated in writing by the applicant to the respondent or the respondent's solicitor.
(2B) If the respondent so requests within 7 days of receipt of intimation of the application under subsection (2A)(b), the respondent must be given an opportunity to make representations before the application is determined.
(2C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) The Sheriff Appeal Court shall dispose of any application under subsection (1) above in like manner as an application to review the decision of an inferior court on a grant of bail, but shall have power—
(a) to dispense with a hearing ...; and
(b) to make such enquiry in relation to the application as the court may think fit,
and when the Sheriff Appeal Court has disposed of the application the Clerk of the Sheriff Appeal Court shall inform the clerk of the inferior court of the result.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) If the Sheriff Appeal Court makes a direction under subsection (1), it must—
(a) give reasons for the decision in writing, and
(b) give the reasons in ordinary language.
(1) A stated case under this Part of this Act shall be heard by the Sheriff Appeal Court on such date as it may fix.
(2) For the avoidance of doubt, where an appellant, in his application under section 176(1) of this Act (or in a duly made amendment or addition to that application), refers to an alleged miscarriage of justice, but in stating a case under section 179(7) of this Act the inferior court is unable to take the allegation into account, the Sheriff Appeal Court may nevertheless have regard to the allegation at a hearing under subsection (1) above.
(3) Except by leave of the Sheriff Appeal Court on cause shown, it shall not be competent for an appellant to found any aspect of his appeal on a matter not contained in his application under section 176(1) of this Act (or in a duly made amendment or addition to that application).
(4) Subsection (3) above shall not apply as respects any ground of appeal specified as an arguable ground of appeal by virtue of subsection (7) of section 180 of this Act.
(5) Without prejudice to any existing power of the Sheriff Appeal Court, that court may in hearing a stated case—
(a) order the production of any document or other thing connected with the proceedings;
(b) hear any . . .evidence relevant to any alleged miscarriage of justice or order such evidence to be heard by an Appeal Sheriff at the Sheriff Appeal Court or by such other person as it may appoint for that purpose;
(c) take account of any circumstances relevant to the case which were not before the trial judge;
(d) remit to any fit person to enquire and report in regard to any matter or circumstance affecting the appeal;
(e) appoint a person with expert knowledge to act as assessor to the Sheriff Appeal Court in any case where it appears to the court that such expert knowledge is required for the proper determination of the case;
(f) take account of any matter proposed in any adjustment rejected by the trial judge and of the reasons for such rejection;
(g) take account of any evidence contained in a note of evidence such as is mentioned in section 179(7) of this Act.
(6) The Sheriff Appeal Court may at the hearing remit the stated case back to the inferior court to be amended and returned.
(1) The Sheriff Appeal Court may, subject to subsection (3) below and to section 190(1) of this Act, dispose of a stated case by—
(a) remitting the cause to the inferior court with its opinion and any direction thereon;
(b) affirming the verdict of the inferior court;
(c) setting aside the verdict of the inferior court and either quashing the conviction or, subject to subsection (2) below, substituting therefor an amended verdict of guilty; or
(d) setting aside the verdict of the inferior court and granting authority to bring a new prosecution in accordance with section 185 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), paragraphs (a) and (d) of subsection (1) do not apply.
(2) An amended verdict of guilty substituted under subsection (1)(c) above must be one which could have been returned on the complaint before the inferior court.
(3) The Sheriff Appeal Court shall, in an appeal—
(a) against both conviction and sentence, subject to section 190(1) of this Act, dispose of the appeal against sentence; or
(b) by the prosecutor, against sentence, dispose of the appeal,
by exercise of the power mentioned in section 189(1) of this Act.
(4) In setting aside, under subsection (1) above, a verdict the Sheriff Appeal Court may quash any sentence imposed on the appellant as respects the complaint, and—
(a) in a case where it substitutes an amended verdict of guilty, whether or not the sentence related to the verdict set aside; or
(b) in any other case, where the sentence did not so relate,
may pass another (but not more severe) sentence in substitution for the sentence so quashed.
(5) For the purposes of subsections (3) and (4) above, “sentence” shall be construed as including disposal or order.
(6) Where an appeal against acquittal is sustained, the Sheriff Appeal Court may—
(a) convict and, subject to subsection (7) below, sentence the respondent;
(b) remit the case to the inferior court with instructions to convict and sentence the respondent, who shall be bound to attend any diet fixed by the court for such purpose; or
(c) remit the case to the inferior court with their opinion thereon.
(7) Where the Sheriff Appeal Court sentences the respondent under subsection (6)(a) above it shall not in any case impose a sentence beyond the maximum sentence which could have been passed by the inferior court.
(8) Any reference in subsection (6) above to convicting and sentencing shall be construed as including a reference to—
(a) convicting and making some other disposal; or
(b) convicting and deferring sentence.
(9) The Sheriff Appeal Court shall have power in an appeal under this Part of this Act to award such expenses both in the Sheriff Appeal Court and in the inferior court as it may think fit.
(10) Where, following an appeal, other than an appeal under section 175(2)(b) or (3) of this Act, the appellant remains liable to imprisonment or detention under the sentence of the inferior court, or is so liable under a sentence passed in the appeal proceedings the Sheriff Appeal Court shall have the power where at the time of disposal of the appeal the appellant—
(a) was at liberty on bail, to grant warrant to apprehend and imprison or detain the appellant for a term, to run from the date of such apprehension, not longer than that part of the term or terms of imprisonment or detention specified in the sentence brought under review which remained unexpired at the date of liberation;
(b) is serving a term or terms of imprisonment or detention imposed in relation to a conviction subsequent to the conviction appealed against, to exercise the like powers in regard to him as may be exercised, in relation to an appeal which has been abandoned, by a court of summary jurisdiction in pursuance of section 177(6) of this Act.
(1) An appellant in an appeal such as is mentioned in section 176(1) of this Act may at any time prior to lodging the case with the Clerk of the Sheriff Appeal Court abandon his appeal by minute signed by himself or his solicitor, written on the complaint or lodged with the clerk of the inferior court, and intimated to the respondent or the respondent’s solicitor, but such abandonment shall be without prejudice to any other competent mode of appeal, review, advocation or suspension.
(2) Subject to section 191 of this Act, on the case being lodged with the Clerk of the Sheriff Appeal Court, the appellant shall be held to have abandoned any other mode of appeal which might otherwise have been open to him.
(1) Subject to subsection (2) below, where authority is granted under section 183(1)(d) 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 stated case arose shall not be a bar to such prosecution.
(2) In a new prosecution under this section the accused shall not be charged with an offence more serious than that of which he was convicted in the earlier proceedings.
(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 complaint 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 such warrant is executed without unreasonable delay, on the date on which a warrant to apprehend or to cite the accused is granted; and
(b) in any other case, on the date on which the warrant is executed.
(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 183(1)(d) of this Act setting aside the verdict shall have the effect, for all purposes, of an acquittal.
(10) On granting authority under section 183(1)(d) of this Act to bring a new prosecution, the Sheriff Appeal Court may, after giving the parties an opportunity of being heard, order the detention of the accused person in custody; but an accused person may not be detained by virtue of this subsection for a period of more than 40 days.
(1) An appeal under section 175(2)(b), (c) or (cza) ..., or by virtue of section 175(4), of this Act shall be by note of appeal, which shall state the ground of appeal.
(2) The note of appeal shall, where the appeal is—
(a) under section 175(2)(b), (c) or (cza) ... be lodged, within one week of—
(i) the passing of the sentence; . . . or
(ii) the making of the order disposing of the case or deferring sentence; ...
(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
with the clerk of the court from which the appeal is to be taken; or
(b) by virtue of section 175(4) be so lodged within four weeks of such passing or making.
(3) The clerk of court on receipt of the note of appeal shall—
(a) send a copy of the note to the respondent or his solicitor; and
(b) obtain a report from the judge who sentenced the convicted person or, as the case may be, who disposed of the case or deferred sentence.
(4) Subject to subsection (5) below, the clerk of court shall within two weeks of the passing of the sentence or within two weeks of the disposal or order against which the appeal is taken—
(a) send to the Clerk of the Sheriff Appeal Court the note of appeal, together with the report mentioned in subsection (3)(b) above, a certified copy of the complaint, the minute of proceedings and any other relevant documents; and
(b) send copies of that report to the appellant and respondent or their solicitors.
(5) The sheriff principal of the sheriffdom in which the judgment was pronounced may, on cause shown, extend the period of two weeks specified in subsection (4) above for such period as he considers reasonable.
(6) Subject to subsection (4) above, the report mentioned in subsection (3)(b) above shall be available only to the Sheriff Appeal 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.
(7) Where the judge’s report is not furnished within the period mentioned in subsection (4) above or such period as extended under subsection (5) above, the Sheriff Appeal Court may extend such period, or, if it thinks fit, hear and determine the appeal without the report.
(8) Section 181 of this Act shall apply where an appellant fails to comply with the requirement of subsection (2)(a) above as they apply where an applicant fails to comply with any of the requirements of section 176(1) of this Act.
(9) An appellant under section 175(2)(b), (c) or (cza) ..., or by virtue of section 175(4), of this Act may at any time prior to the hearing of the appeal abandon his appeal by minute, signed by himself or his solicitor, lodged—
(a) in a case where the note of appeal has not yet been sent under subsection (4)(a) above to the Clerk of the Sheriff Appeal Court, with the clerk of court;
(b) in any other case, with the Clerk of the Sheriff Appeal Court,
and intimated to the respondent.
(10) Sections 176(5), 177 and 182(5)(a) to (e) of this Act shall apply to appeals under section 175(2)(b), (c) or (cza) ..., or by virtue of section 175(4), of this Act as they apply to appeals under section 175(2)(a) or (d) of this Act, except that, for the purposes of such application to any appeal by virtue of section 175(4), references in subsections (1) to (4) of section 177 to the appellant shall be construed as references to the convicted person and subsections (6) and (7) of that section shall be disregarded.
(1) The decision whether to grant leave to appeal for the purposes of section 175(2)(b), (c) or (cza) ... of this Act shall be made by an Appeal Sheriff of the Sheriff Appeal Court who shall—
(a) if he considers that the note of appeal and other documents sent to the Clerk of the Sheriff Appeal Court under section 186(4)(a) of this Act disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and
(b) in any other case—
(i) refuse leave to appeal and give reasons in writing for the refusal; and
(ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him.
(2) A warrant granted under subsection (1)(b)(ii) above shall not take effect until the expiry of the period of 14 days mentioned in subsection (3) below (and if that period is extended under subsection (3A) below before the period being extended expires, until the expiry of the period as so extended) without an application to the Sheriff Appeal Court for leave to appeal having been lodged by the appellant under subsection (3) below.
(3) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 days of intimation under subsection (9) below, apply to the Sheriff Appeal Court for leave to appeal.
(3A) The Sheriff Appeal Court may, on cause shown, extend the period of 14 days mentioned in subsection (3) above, or that period as extended under this subsection, whether or not the period to be extended has expired (and if that period of 14 days has expired, whether or not it expired before section 25(3) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) came into force).
(4) In deciding an application under subsection (3) above the Sheriff Appeal Court shall—
(a) if, after considering the note of appeal and other documents mentioned in subsection (1) above and the reasons for the refusal, it is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and
(b) in any other case—
(i) refuse leave to appeal and give reasons in writing for the refusal; and
(ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him.
(5) The question whether to grant leave to appeal under subsection (1) or (4) above shall be considered and determined in chambers without the parties being present.
(6) Comments in writing made under subsection (1)(a) or (4)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted.
(7) Where the arguable grounds of appeal are specified by virtue of subsection (6) above it shall not, except by leave of the Sheriff Appeal Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified.
(8) Any application by the appellant for the leave of the Sheriff Appeal Court under subsection (7) above—
(a) shall be made within 14 days of the date of intimation under subsection (9) below; and
(b) shall, within 14 days of that date, be intimated by the appellant to the prosecutor.
(8A) The Sheriff Appeal Court may, on cause shown, extend the periods of 14 days mentioned in subsection (8) above.
(9) The Clerk of the Sheriff Appeal Court shall forthwith intimate—
(a) a decision under subsection (1) or (4) above; and
(b) in the case of a refusal of leave to appeal, the reasons for the decision,
to the appellant or his solicitor and to the prosecutor.
188 Setting aside conviction or sentence: prosecutor’s consent or application.
(1) Without prejudice to section 175(3) or (4) of this Act, where—
(a) an appeal has been taken under section 175(2) of this Act or by suspension or otherwise and the prosecutor is not prepared to maintain the judgment appealed against he may, by a relevant minute, consent to the conviction or sentence or, as the case may be, conviction and sentence (“sentence” being construed in this section as including disposal or order) being set aside either in whole or in part; or
(b) no such appeal has been taken but the prosecutor is, at any time, not prepared to maintain the judgment on which a conviction is founded or the sentence imposed following such conviction he may, by a relevant minute, apply for the conviction or sentence or, as the case may be, conviction and sentence to be set aside.
(2) For the purposes of subsection (1) above, a “relevant minute” is a minute, signed by the prosecutor—
(a) setting forth the grounds on which he is of the opinion that the judgment cannot be maintained; and
(b) written on the complaint or lodged with the clerk of court.
(3) A copy of any minute under subsection (1) above shall be sent by the prosecutor to the convicted person or his solicitor and the clerk of court shall—
(a) thereupon ascertain and note on the record, whether that person or solicitor desires to be heard by the Sheriff Appeal Court before the appeal, or as the case may be application, is disposed of; and
(b) thereafter transmit the complaint and relative proceedings to the Clerk of the Sheriff Appeal Court.
(4) The Clerk of the Sheriff Appeal Court, on receipt of a complaint and relative proceedings transmitted under subsection (3) above, shall lay them before any Appeal Sheriff of the Sheriff Appeal Court either in court or in chambers who, after hearing parties if they desire to be heard, may—
(a) set aside the conviction or the sentence, or both, either in whole or in part and—
(i) award such expenses to the convicted person, both in the Sheriff Appeal Court and in the inferior court, as the Appeal Sheriff may think fit;
(ii) where the conviction is set aside in part, pass another (but not more severe) sentence in substitution for the sentence imposed in respect of that conviction; and
(iii) where the sentence is set aside, pass another (but not more severe) sentence; or
(b) refuse to set aside the conviction or sentence or, as the case may be, conviction and sentence, in which case the complaint and proceedings shall be returned to the clerk of the inferior court.
(5) Where an appeal has been taken and the complaint and proceedings in respect of that appeal returned under subsection (4)(b) above, the appellant shall be entitled to proceed with the appeal as if it had been marked on the date of their being received by the clerk of the inferior court on such return.
(6) Where an appeal has been taken and a copy minute in respect of that appeal sent under subsection (3) above, the preparation of the draft stated case shall be delayed pending the decision of the Sheriff Appeal Court.
(7) The period from an application being made under subsection (1)(b) above until its disposal under subsection (4) above (including the day of application and the day of disposal) shall, in relation to the conviction to which the application relates, be disregarded in any computation of time specified in any provision of this Part of this Act.
(1) An appeal against sentence by note of appeal shall be heard by the Sheriff Appeal Court on such date as it may fix, and the Sheriff Appeal Court may, subject to section 190(1) of this Act, dispose of such appeal by—
(a) affirming the sentence; or
(b) if the Court thinks that, having regard to all the circumstances, including any . . . evidence such as is mentioned in section 175(5) of this Act, a different sentence should have been passed, quashing the sentence and, subject to subsection (2) below, passing another sentence, whether more or less severe, in substitution therefor.
(2) In passing another sentence under subsection (1)(b) above, the Court shall not in any case increase the sentence beyond the maximum sentence which could have been passed by the inferior court.
(2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) The Sheriff Appeal Court shall have power in an appeal by note of appeal to award such expenses both in the Sheriff Appeal Court and in the inferior court as it may think fit.
(4) Where, following an appeal under section 175(2)(b) or (c), or by virtue of section 175(4), of this Act, the convicted person remains liable to imprisonment or detention under the sentence of the inferior court or is so liable under a sentence passed in the appeal proceedings, the Sheriff Appeal Court shall have power where at the time of disposal of the appeal the convicted person—
(a) was at liberty on bail, to grant warrant to apprehend and imprison or detain the appellant for a term, to run from the date of such apprehension, not longer than that part of the term or terms of imprisonment or detention specified in the sentence brought under review which remained unexpired at the date of liberation; or
(b) is serving a term or terms of imprisonment or detention imposed in relation to a conviction subsequent to the conviction in respect of which the sentence appealed against was imposed, to exercise the like powers in regard to him as may be exercised, in relation to an appeal which has been abandoned, by a court of summary jurisdiction in pursuance of section 177(6) of this Act.
(5) In subsection (1) above, “appeal against sentence” shall, without prejudice to the generality of the expression, be construed as including an appeal under section 175(2)(c) or (cza), and any appeal by virtue of section 175(4), of this Act; and without prejudice to subsection (6) below, other references to sentence in that subsection and in subsection (4) above shall be construed accordingly.
(6) In disposing of any appeal in a case where the accused has not been convicted, the Sheriff Appeal Court may proceed to convict him; and where it does, the reference in subsection (4) above to the conviction in respect of which the sentence appealed against was imposed shall be construed as a reference to the disposal or order appealed against.
(7) In disposing of an appeal under section 175(2)(b) to (d), (3)(b) or (4) of this Act the Sheriff Appeal 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
190 Disposal of appeal where appellant not criminally responsible.
(1) In relation to any appeal under section 175(2) of this Act, the Sheriff Appeal 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 inferior 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 as respects the complaint 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.
(2) Subsections (3) to (6) of section 57 of this Act shall apply to an order made under subsection (1)(b)(i) above as it applies to an order made under subsection (2) of that section.