(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) The accused shall be entitled to see the productions according to the existing law and practice in the office of the sheriff clerk of the district in which the court of the trial diet is situated or, where the trial diet is to be in the High Court in Edinburgh, in the Justiciary Office.
(3) Where a person who has examined a production is adduced to give evidence with regard to it and the production has been lodged , where the case is to be tried in the sheriff court, at least eight days before the trial diet or, where the case is to be tried in the High Court, at least 14 days before the preliminary hearing, , it shall not be necessary to prove—
(a) that the production was received by him in the condition in which it was taken possession of by the procurator fiscal or the police and returned by him after his examination of it to the procurator fiscal or the police; or
(b) that the production examined by him is that taken possession of by the procurator fiscal or the police,
unless the accused, where the case is to be tried in the sheriff court, at least four days before the trial diet or, where the case is to be tried in the High Court, at least seven days before the preliminary hearing, , gives in accordance with subsection (4) below written notice that he does not admit that the production was received or returned as aforesaid or, as the case may be, that it is that taken possession of as aforesaid.
(4) The notice mentioned in subsection (3) above shall be given—
(a) where the case is to be tried in the High Court , to the Crown Agent; and
(b) where the case is to be tried in the sheriff court , to the procurator fiscal.
(1) No mention shall be made in the indictment of previous convictions, nor shall extracts of previous convictions be included in the list of productions annexed to the indictment.
(2) If the prosecutor intends to place before the court any previous conviction, he shall cause to be served on the accused along with the indictment a notice in the form set out in an Act of Adjournal or as nearly as may be in such form, and any conviction specified in the notice shall be held to apply to the accused unless he gives, in accordance with subsection (3) below, written intimation objecting to such conviction on the ground that it does not apply to him or is otherwise inadmissible.
(3) Intimation objecting to a conviction under subsection (2) above shall be given—
(a) where the accused is indicted to the High Court, to the Crown Agent not less than seven clear days before the preliminary hearing;
(b) where the accused is indicted to the sheriff court, to the procurator fiscal at least five clear days before the first day of the sitting in which the trial diet is to be held.
.
(4) Where notice is given by the accused under section 76 of this Act of his intention to plead guilty and the prosecutor intends to place before the court any previous conviction, he shall cause to be served on the accused along with the indictment a notice in the form set out in an Act of Adjournal or as nearly as may be in such form.
(4A) A notice served under subsection (2) or (4) above shall include any details which the prosecutor proposes to provide under section 101(3A) of this Act; and subsection (3) above shall apply in relation to intimation objecting to the provision of such details, on the grounds that they do not apply to the accused or are otherwise inadmissible, as it applies in relation to intimation objecting to a conviction.
(5) Where the accused pleads guilty at any diet, no objection to any conviction of which notice has been served on him under this section , or to the provision of such details as are, by virtue of subsection (4A) above, included in a notice so served, shall be entertained unless he has, at least two clear days before the diet, given intimation to the procurator fiscal of the district to the court of which the accused is cited for the diet.
(6) This section applies in relation to the alternative disposals mentioned in subsection (7) below as it applies in relation to previous convictions.
(7) 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.
(8) 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 to proceedings on indictment against an organisation.
(2) The indictment may be served by delivery of a copy of the indictment together with notice to appear at—
(a) in the case of a body of trustees—
(i) the dwelling-house or place of business of any of the trustees, or
(ii) if the solicitor of the body of trustees is known, the place of business of the solicitor,
(aa) in the case of a partnership prosecuted by virtue of section 1 of the Partnerships (Prosecution) (Scotland) Act 2013, the dwelling-house or place of business of any of the partners,
(b) in the case of any other organisation, the registered office or, if there is no registered office or the registered office is not in the United Kingdom, at the principal place of business in the United Kingdom of the organisation.
(3) Where a letter containing a copy of the indictment has been sent by registered post or by the recorded delivery service to any place, an acknowledgement or certificate of the delivery of the letter issued by the postal operator shall be sufficient evidence of the delivery of the letter at that place on the day specified in such acknowledgement or certificate.
(4) An organisation may, for the purpose of—
(a) stating objections to the competency or relevancy of the indictment or proceedings; or
(b) tendering a plea of guilty or not guilty; or
(c) making a statement in mitigation of sentence,
appear by a representative ....
(5) Where at the trial diet the 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; and
(b) if satisfied as to the matters specified in subsection (5A) below,
proceed with the trial and dispose of the case in the absence of the organisation.
(5A) The matters referred to in subsection (5)(b) above are—
(a) that the organisation was cited in accordance with section 66 of this Act as read with subsection (2) above; and
(b) that it is in the interests of justice to proceed as mentioned in subsection (5) above.
(6) Where an organisation is sentenced to a fine, the fine may be recovered in like manner in all respects as if a copy of the sentence certified by the clerk of the court were an extract decree of the Court of Session for the payment of the amount of the fine by the organisation to the Queen’s and Lord Treasurer’s Remembrancer.
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) In subsection (4) above, “representative” means—
(a) in the case of a body corporate (other than a limited liability partnership), the managing director, secretary or other person in charge, or locally in charge, of its affairs;
(b) in the case of a limited liability partnership, a member of the partnership;
(ba) in the case of a partnership (other than a limited liability partnership), a partner or other person in charge, or locally in charge, of the partnership's affairs;
(bb) in the case of an unincorporated association, the secretary or other person in charge, or locally in charge, of the association's affairs;
(c) in the case of any other organisation, an employee, officer or official of the organisation duly appointed by it for the purposes of the proceedings.
(9) For the purposes of subsection (8)(c) 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;
(d) in the case of an unincorporated association, purporting to be signed by an officer of the association;
(e) in the case of a government department or a 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.
(1) This section applies where an indictment is served on an accused.
(2) The accused must lodge a defence statement at least 14 days before the first diet.
(3) The accused must lodge a defence statement at least 14 days before the preliminary hearing.
(4) At least 7 days before the trial diet the accused must—
(a) where there has been no material change in circumstances in relation to the accused's defence since the last defence statement was lodged, lodge a statement stating that fact,
(b) where there has been a material change in circumstances in relation to the accused's defence since the last defence statement was lodged, lodge a defence statement.
(5) If after lodging a statement under subsection (2), (3) or (4) there is a material change in circumstances in relation to the accused's defence, the accused must lodge a defence statement.
(6) Where subsection (5) requires a defence statement to be lodged, it must be lodged before the trial diet begins unless on cause shown the court allows it to be lodged during the trial diet.
(7) The accused may lodge a defence statement—
(a) at any time before the trial diet, or
(b) during the trial diet if the court on cause shown allows it.
(8) As soon as practicable after lodging a defence statement or a statement under subsection (4)(a), the accused must send a copy of the statement to the prosecutor and any co-accused.
(9) In this section, “defence statement” means a statement setting out—
(a) the nature of the accused's defence, including any particular defences on which the accused intends to rely,
(b) any matters of fact on which the accused takes issue with the prosecution and the reason for doing so,
(c) particulars of the matters of fact on which the accused intends to rely for the purposes of the accused's defence,
(d) any point of law which the accused wishes to take and any authority on which the accused intends to rely for that purpose,
(e) by reference to the accused's defence, the nature of any information that the accused requires the prosecutor to disclose, and
(f) the reasons why the accused considers that disclosure by the prosecutor of any such information is necessary.
(1) Where solemn proceedings are brought in respect of an offence alleged to have been committed by a child, the court may sit either in a different building or room from that in which it usually sits or on different days from those on which other courts in the building are engaged in criminal proceedings.
(2) Where solemn proceedings are brought in respect of an offence alleged to have been committed by a child, the court 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, jurors, 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.
(3) A court sitting for the purpose of hearing a charge against, or an application relating to, a person who is believed to be a child may, if it 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) Where solemn 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 court 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.
(A1) At a first diet in proceedings to which subsection (B1) below applies, the court shall, . . . ascertain whether the accused has engaged a solicitor for the purposes of the conduct of his case at any relevant hearing in the course of the proceedings.
(B1) This subsection applies to proceedings—
(a) in which the accused is charged with a sexual offence to which section 288C of this Act applies,
(aa) in respect of an offence to which section 288DC of this Act applies (domestic abuse cases),
(b) to which section 288E of this Act applies, or
(c) in which an order under section 288F(2) of this Act has been made in relation to any hearing in the course of the proceedings.
(1) At a first diet the court shall, so far as is reasonably practicable, ascertain ...—
(a) the state of preparation of the prosecutor and of the accused with respect to their cases; and
(b) the extent to which the prosecutor and the accused have complied with the duty under section 257(1) of this Act.
(1ZA) If a written record has been lodged in accordance with section 71C, the court must have regard to the written record when ascertaining the state of preparation of the parties.
(1A) At a first diet, the court shall also—
(a) ascertain whether subsection (1B) below applies to any person who is to give evidence at or for the purposes of any hearing in the course of the proceedings or to the accused, and
(b) if so, consider whether it should make an order under section 271A(7) or 271D(2) of this Act in relation to the person or, as the case may be, the accused.
(1B) This subsection applies—
(a) to a person who is to give evidence at or for the purposes of any hearing in the course of the proceedings if that person is, or is likely to be, a vulnerable witness,
(b) to the accused if, were he to give evidence at or for the purposes of the trial, he would be, or would be likely to be, a vulnerable witness.
(1C) At a first diet, the court—
(a) shall ascertain which of the witnesses included in the list of witnesses are required by the prosecutor or the accused to attend the trial; and
(b) shall, where the accused has been admitted to bail, review the conditions imposed on his bail and may—
(i) after giving the parties an opportunity to be heard; and
(ii) if it considers it appropriate to do so,
fix bail on different conditions.
(2) In addition to the matters mentioned in subsection (1) , (1A) and (1C) above the court shall, at a first diet, consider any preliminary plea or preliminary issue (within the meanings given to those terms in section 79(2) of this Act) of which a party has, not less than two clear days before the first diet, given notice to the court and to the other parties.
(2XA) At a first diet the court shall also dispose of any vulnerable witness notice under section 271A(2) or vulnerable witness application under section 271C(2) appointed to be disposed of at that diet.
(2YA) At a first diet, the court shall also ascertain whether there is any objection to the admissibility of any evidence which any party wishes to raise despite not having given the notice referred to in subsection (2) above, and—
(a) if so, decide whether to grant leave under section 79(1) of this Act for the objection to be raised; and
(b) if leave is granted, dispose of the objection unless it considers it inappropriate to do so at the first diet.
(2ZA) Where the court, having granted leave for the objection to be raised, decides not to dispose of it at the first diet, the court may—
(a) appoint a further diet to be held before the trial diet for the purpose of disposing of the objection; or
(b) appoint the objection to be disposed of at the trial diet.
(2A) At a first diet the court may consider an application for the purposes of subsection (1) of section 275 of this Act.
(3) At a first diet the court may ask the prosecutor and the accused any question in connection with any matter which it is required to ascertain or consider under subsection (1) , (1A) , (1C) , (2) or (2YA) above or which is relevant to an application for the purposes of subsection (1) of the said section 275.
(4) The accused shall attend a first diet of which he has been given notice . . .
(5) A first diet may proceed , and a trial diet may be appointed, notwithstanding the absence of the accused.
(5A) Where, however—
(a) the proceedings in which the first diet is being held are proceedings to which subsection (B1) above applies;
(b) the court has not ascertained (whether at that diet or earlier) that he has engaged a solicitor for the purposes of the conduct of his case at any relevant hearing in the course of the proceeding,
a first diet may not proceed in his absence; and, in such a case, the court shall adjourn the diet and ordain the accused then to attend.
(6) Where the accused appears at the first diet, the accused is to be required at that diet to state how he pleads to the indictment, and section 77 of this Act shall apply where he tenders a plea of guilty.
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7A) In subsections (A1) and (5A)(b), “relevant hearing” means—
(a) in relation to proceedings mentioned in paragraph (a) of subsection (B1), any hearing at, or for the purposes of, which a witness is to give evidence,
(b) in relation to proceedings mentioned in paragraph (b) of that subsection, a hearing referred to in section 288E(2A),
(c) in relation to proceedings mentioned in paragraph (c) of that subsection, a hearing in respect of which an order is made under section 288F.
(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9) In this section and section 71B “the court” means the sheriff court.
(1) At a first diet, unless a plea of guilty is tendered and accepted, the court must—
(a) after complying with section 71, and
(b) subject to subsections (3) to (7),
appoint a trial diet.
(2) Where a trial diet is appointed at a first diet, the accused must appear at the trial diet and answer the indictment.
(3) In appointing a trial diet under subsection (1), in any case in which the period specified in section 65(1)(b) applies (whether or not the period specified in section 65(4)(b)(ii) also applies in the case)—
(a) if the court considers that the case would be likely to be ready to proceed to trial within that period, it must, subject to subsections (5) to (7), appoint a trial diet for a date within that period, or
(b) if the court considers that the case would not be likely to be so ready, it must give the prosecutor an opportunity to make an application to the court under section 65(3) for an extension of the period specified in section 65(1)(b).
(4) Where paragraph (b) of subsection (3) applies—
(a) if such an application as is mentioned in that paragraph is made and granted, the court must, subject to subsections (5) to (7), appoint a trial diet for a date within the period specified in section 65(1)(b) as extended, or
(b) if no such application is made or if one is made but is refused by the court—
(i) the court may desert the first diet simpliciter or pro loco et tempore, and
(ii) where the accused is committed until liberated in due course of law, the accused must be liberated forthwith.
(5) Subsection (6) applies in any case in which—
(a) the period specified in section 65(4)(b)(ii) as well as the 12 month period applies, and
(b) the court is required, by virtue of subsection (3)(a) or (4)(a) to appoint a trial diet within the period specified in section 65(1)(b).
(6) In such a case—
(a) if the court considers that the case would be likely to be ready to proceed to trial within the period specified in section 65(4)(b)(ii), it must appoint a trial diet for a date within that period as well as within the period specified in section 65(1)(b), or
(b) if the court considers that the case would not be likely to be so ready, it must give the prosecutor an opportunity to make an application under section 65(5) for an extension of the 140 day period.
(7) Where paragraph (b) of subsection (6) applies—
(a) if such an application as is mentioned in that paragraph is made and granted, the court must appoint a trial diet for a date within the period specified in section 65(4)(b)(ii) as extended as well as within the period specified in section 65(1)(b),
(b) if no such application is made or if one is made but is refused by the court—
(i) the court must proceed under subsection (3)(a) or (as the case may be) (4)(a) to appoint a trial diet for a date within the 12 month period, and
(ii) the accused is then entitled to be admitted to bail.
(8) Where an accused is, by virtue of subsection (7)(b)(ii), entitled to be admitted to bail, the court must, before admitting the accused to bail, give the prosecutor an opportunity to be heard.
(9) On appointing a trial diet under this section in a case where the accused has been admitted to bail (otherwise than by virtue of subsection (7)(b)(ii)), the court, after giving the parties an opportunity to be heard—
(a) must review the conditions imposed on the accused's bail, and
(b) having done so, may, if it considers it appropriate to do so, fix bail on different conditions.
(10) In this section a reference to the period specified in section 65(1)(b) or section 65(4)(b)(ii) is to be construed as including that period as extended.
71C Written record of state of preparation: sheriff court
(1) Subsection (2) applies where—
(a) the accused is indicted to the sheriff court, and
(b) a solicitor—
(i) has notified the court under section 72F(1) that the solicitor has been engaged by the accused for the purposes of conducting the accused's defence, and
(ii) has not subsequently been dismissed by the accused or withdrawn.
(2) The prosecutor and the accused's legal representative must, within the period described in subsection (3), communicate with each other and jointly prepare a written record of their state of preparation with respect to their cases (referred to in this section as “the written record”).
(3) The period referred to in subsection (2) begins on the day the accused is served with an indictment and expires at the end of the day falling 14 days later.
(4) The written record must—
(a) be in such form, or as nearly as may be in such form,
(b) contain such information, and
(c) be lodged in such manner,
as may be prescribed by act of adjournal.
(5) The written record must state the manner in which the communication required by subsection (2) was conducted (for example, by telephone, email or a meeting in person).
(6) In subsection (2), “the accused's legal representative” means—
(a) the solicitor referred to in subsection (1), or
(b) where the solicitor has instructed counsel for the purposes of the conduct of the accused's case, either the solicitor or that counsel, or both of them.
(7) In subsection (6)(b), “counsel” includes a solicitor who has a right of audience in the High Court of Justiciary under section 25A of the Solicitors (Scotland) Act 1980.
72 Preliminary hearing: procedure up to appointment of trial diet
(1) A preliminary hearing shall be conducted in accordance with this section and section 72A.
(2) The court shall—
(a) where the accused is charged with an offence to which section 288C or 288DC of this Act applies; or
(b) in any case—
(i) in respect of which section 288E of this Act applies; or
(ii) in which an order has been made under section 288F(2) of this Act,
before taking any further step under this section, ascertain whether the accused has engaged a solicitor for the purposes of the conduct of his case at or for the purposes of the preliminary hearing.
(3) After complying with subsection (2) above, the court shall dispose of any preliminary pleas (within the meaning of section 79(2)(a) of this Act) of which a party has given notice not less than 7 clear days before the preliminary hearing to the court and to the other parties.
(4) After disposing of any preliminary pleas under subsection (3) above, the court shall require the accused to state how he pleads to the indictment.
(5) If the accused tenders a plea of guilty, section 77 of this Act shall apply.
(6) After the accused has stated how he pleads to the indictment, the court shall, unless a plea of guilty is tendered and accepted—
(a) in any case—
(i) where the accused is charged with an offence to which section 288C or 288DC of this Act applies;
(ii) in respect of which section 288E of this Act applies; or
(iii) in which an order has been made under section 288F(2) of this Act,
ascertain whether the accused has engaged a solicitor for the purposes of his defence at the trial;
(b) unless it considers it inappropriate to do so at the preliminary hearing, dispose of—
(i) any preliminary issues (within the meaning of section 79(2)(b) of this Act) of which a party has given notice not less than 7 clear days before the preliminary hearing to the court and to the other parties;
(ii) any vulnerable witness notice under section 271A(2) or vulnerable witness application under section 271C(2) appointed to be disposed of at the preliminary hearing;
(iii) subject to subsection (8) below, any application under section 275(1) or 288F(2) of this Act made before the preliminary hearing (to the extent that the application has not already been disposed of); and
(iv) any other matter which, in the opinion of the court, could be disposed of with advantage before the trial;
(c) ascertain whether there is any objection to the admissibility of any evidence which any party wishes to raise despite not having given the notice referred to in paragraph (b)(i) above, and—
(i) if so, decide whether to grant leave under section 79(1) of this Act for the objection to be raised; and
(ii) if leave is granted, dispose of the objection unless it considers it inappropriate to do so at the preliminary hearing;
(d) ascertain which of the witnesses included in the list of witnesses are required by the prosecutor or the accused to attend the trial;
(e) ascertain whether subsection (7) 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
(f) ascertain, so far as is reasonably practicable—
(i) the state of preparation of the prosecutor and the accused with respect to their cases; and
(ii) the extent to which the prosecutor and the accused have complied with the duty under section 257(1) of this Act.
(7) 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.
(8) Where any application or notice such as is mentioned in subsection (6)(b)(iii) above is required by the provision under which it is made or lodged, or by any other provision of this Act, to be made or lodged by a certain time, the court—
(a) shall not be required under that subsection to dispose of it unless it has been made or lodged by that time; but
(b) shall have power to dispose of it to the extent that the provision under which it was made, or any other provision of this Act, allows it to be disposed of notwithstanding that it was not made or lodged in time.
(9) Where the court decides not to dispose of any preliminary issue, application, notice, objection or other matter referred to in subsection (6)(b) or (c) above at the preliminary hearing, it may—
(a) appoint a further diet, to be held before the trial diet appointed under section 72A of this Act, for the purpose of disposing of the issue, application, notice, objection or matter; or
(b) appoint the issue, application, notice, objection or other matter to be disposed of at the trial diet.
72A Preliminary hearing: appointment of trial diet
(1) In any case in which subsection (6) of section 72 applies, the court shall, at the preliminary hearing—
(a) after complying with that subsection;
(b) having regard to earlier proceedings at the preliminary hearing; and
(c) subject to subsections (3) to (7) below,
appoint a trial diet.
(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) In appointing a trial diet under subsection (1) above, the court may, if satisfied that it is appropriate to do so, indicate that the diet is to be a floating diet for the purposes of section 83A of this Act.
(3) In any case in which the period specified in section 65(1)(b) applies (whether or not the period specified in section 65(4)(aa)(ii) also applies in the case)—
(a) if the court considers that the case would be likely to be ready to proceed to trial within that period, it shall, subject to subsections (5) to (7) below, appoint a trial diet for a date within that period; or
(b) if the court considers that the case would not be likely to be so ready, it shall give the prosecutor an opportunity to make an application to the court under section 65(3) of this Act for an extension of the period specified in section 65(1)(b).
(4) Where paragraph (b) of subsection (3) above applies—
(a) if such an application as is mentioned in that paragraph is made and granted, the court shall, subject to subsections (5) to (7) below, appoint a trial diet for a date within the period specified in section 65(1)(b) as extended; or
(b) if no such application is made or if one is made but is refused by the court—
(i) the court may desert the preliminary hearing simpliciter or pro loco et tempore; and
(ii) where the accused is committed until liberated in due course of law, he shall be liberated forthwith.
(5) Subsection (6) below applies in any case in which—
(a) the period specified in section 65(4)(aa)(ii) as well as the period specified in section 65(1)(b) applies; and
(b) the court is required, by virtue of subsection (3)(a) or (4)(a) above, to appoint a trial diet within the period specified in section 65(1)(b).
(6) In such a case—
(a) if the court considers that the case would be likely to be ready to proceed to trial within the period specified in section 65(4)(aa)(ii), it shall appoint a trial diet for a date within that period as well as within the period specified in section 65(1)(b); or
(b) if the court considers that the case would not be likely to be so ready, it shall give the prosecutor an opportunity to make an application under section 65(5) of this Act for an extension of the 140 day period.
(7) Where paragraph (b) of subsection (6) above applies—
(a) if such an application as is mentioned in that paragraph is made and granted, the court shall appoint a trial diet for a date within the period specified in section 65(4)(aa)(ii) as extended as well as within the period specified in section 65(1)(b);
(b) if no such application is made or if one is made but is refused by the court—
(i) the court shall proceed under subsection (3)(a) or, as the case may be, (4)(a) above to appoint a trial diet for a date within the period specified in section 65(1)(b); and
(ii) the accused shall then be entitled to be admitted to bail.
(8) Where an accused is, by virtue of subsection (7)(b)(ii) above, entitled to be admitted to bail, the court shall, before admitting him to bail, give the prosecutor an opportunity to be heard.
(9) On appointing a trial diet under this section in a case where the accused has been admitted to bail (otherwise than by virtue of subsection (7)(b)(ii) above), the court, after giving the parties an opportunity to be heard—
(a) shall review the conditions imposed on his bail; and
(b) having done so, may, if it considers it appropriate to do so, fix bail on different conditions.
(10) In this section a reference to the period specified in section 65(1)(b) or section 65(4)(aa)(ii) is to be construed as including that period as extended.
(1) The court may, on an application made to it jointly by the parties, dispense with a preliminary hearing and appoint a trial diet if the court is satisfied on the basis of the application that—
(a) the state of preparation of the prosecutor and the accused with respect to their cases is such that the case is likely to be ready to proceed to trial on the date to be appointed for the trial diet;
(b) there are no preliminary pleas, preliminary issues or other matters which require to be, or could with advantage be, disposed of before the trial; and
(c) there are no persons to whom section 72(7) of this Act applies.
(2) An application under subsection (1) above shall identify which (if any) of the witnesses included in the list of witnesses are required by the prosecutor or the accused to attend the trial.
(3) Where a trial diet is to be appointed under subsection (1) above, it shall be appointed in accordance with such procedure as may be prescribed by Act of Adjournal.
(4) Where a trial diet is appointed under subsection (1) above, the accused shall appear at the diet and answer the indictment.
(5) The fact that a preliminary hearing in any case has been dispensed with under subsection (1) above shall not affect the calculation in that case of any time limit for the giving of any notice or the doing of any other thing under this Act, being a time limit fixed by reference to the preliminary hearing.
(6) Accordingly, any such time limit shall have effect in any such case as if it were fixed by reference to the date on which the preliminary hearing would have been held if it had not been dispensed with.
72C Procedure where preliminary hearing does not proceed
(1) The prosecutor shall not raise a fresh libel in any case in which the court has deserted a preliminary hearing simpliciter unless the court’s decision has been reversed on appeal.
(2) Where a preliminary hearing is deserted pro loco et tempore, the court may appoint a further preliminary hearing for a later date and the accused shall appear and answer the indictment at that hearing.
(3) Subsection (4) below applies where, at a preliminary hearing—
(a) the hearing has been deserted pro loco et tempore for any reason and no further preliminary hearing has been appointed under subsection (2) above; or
(b) the indictment is for any reason not proceeded with and the hearing has not been adjourned or postponed.
(4) Where this subsection applies, the prosecutor may, at any time within the period of two months after the relevant date, give notice to the accused on another copy of the indictment to appear and answer the indictment—
(a) at a further preliminary hearing in the High Court not less than seven clear days after the date of service of the notice; or
(b) at—
(i) a first diet not less than 15 clear days after the service of the notice and not less than 10 clear days before the trial diet; and
(ii) a trial diet not less than 29 clear days after the service of the notice,
in the sheriff court where the charge is one that can lawfully be tried in that court.
(b) where the charge is one that can lawfully be tried in the sheriff court, at a first diet in that court not less than 29 clear days after the service of the notice.
(5) Where notice is given to the accused under subsection (4)(b) above, then for the purposes of section 65(4) of this Act—
(a) the giving of the notice shall be taken to be service of an indictment in respect of the sheriff court; and
(b) the previous service of the indictment in respect of the High Court shall be disregarded.
(6) In subsection (4) above, “the relevant date” means—
(a) where paragraph (a) of subsection (3) above applies, the date on which the diet was deserted as mentioned in that paragraph; or
(b) where paragraph (b) of that subsection applies, the date of the preliminary hearing referred to in that paragraph.
(7) A notice referred to in subsection (4) above shall be in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form.
(1) The court may, on cause shown, allow a preliminary hearing to proceed notwithstanding the absence of the accused.
(2) Where—
(a) the accused is a body corporate;
(b) it fails to appear at a preliminary hearing;
(c) the court allows the hearing to proceed in its absence under subsection (1) above; and
(d) no plea is entered on its behalf at the hearing,
it shall be treated for the purposes of proceedings at the preliminary hearing as having pled not guilty.
(3) Where, at a preliminary hearing, a trial diet is appointed, the accused shall appear at the trial diet and answer the indictment.
(4) At a preliminary hearing, the court—
(a) shall take into account any written record lodged under section 72E of this Act; and
(b) may ask the prosecutor and the accused any question in connection with any matter which it is required to dispose of or ascertain under section 72 of this Act.
(5) The proceedings at a preliminary hearing shall be recorded by means of shorthand notes or by mechanical means.
(6) Subsections (2) to (4) of section 93 of this Act shall apply for the purposes of the recording of proceedings at a preliminary hearing in accordance with subsection (5) above as they apply for the purposes of the recording of proceedings at the trial in accordance with subsection (1) of that section.
(7) The Clerk of Justiciary shall prepare, in such form and manner as may be prescribed by Act of Adjournal, a minute of proceedings at a preliminary hearing, which shall record, in particular, whether any preliminary pleas or issues were disposed of and, if so, how they were disposed of.
(8) In this section, references to a preliminary hearing include an adjourned preliminary hearing.
(9) In this section and sections 72 to 72C, “the court” means the High Court.
72E Written record of state of preparation in certain cases
(1) This section applies where, in any proceedings in the High Court, a solicitor has notified the Court under section 72F(1) of this Act that he has been engaged by the accused for the purposes of the conduct of his case at the preliminary hearing.
(2) The prosecutor and the accused’s legal representative shall, not less than two days before the preliminary hearing—
(a) communicate with each other with a view to jointly preparing a written record of their state of preparation with respect to their cases (referred to in this section as “the written record”); and
(b) lodge the written record with the Clerk of Justiciary.
(3) The High Court may, on cause shown, allow the written record to be lodged after the time referred to in subsection (2) above.
(4) The written record shall—
(a) be in such form, or as nearly as may be in such form;
(b) contain such information; and
(c) be lodged in such manner,
as may be prescribed by Act of Adjournal.
(5) The written record may contain, in addition to the information required by virtue of subsection (4)(b) above, such other information as the prosecutor and the accused’s legal representative consider appropriate.
(6) In this section—
“the accused’s legal representative” means—
the solicitor referred to in subsection (1) above; or
where the solicitor has instructed counsel for the purposes of the conduct of the accused’s case at the preliminary hearing, either the solicitor or that counsel, or both of them; and
“counsel” includes a solicitor who has a right of audience in the High Court of Justiciary under section 25A (rights of audience in various courts including the High Court of Justiciary) of the Solicitors (Scotland) Act 1980 (c. 46).
72F Engagement, dismissal and withdrawal of solicitor representing accused
(1) In any solemn proceedings , it is the duty of a solicitor who is engaged by the accused for the purposes of his defence at any part of the proceedings to notify the court and the prosecutor of that fact forthwith in writing.
(2) A solicitor is to be taken to have complied with the duty under subsection (1) to notify the prosecutor of his engagement if, before service of the indictment, he—
(a) notified in writing the procurator fiscal for the district in which the charge against the accused was then being investigated that he was then engaged by the accused for the purposes of his defence; and
(b) had not notified that procurator fiscal in writing that he had been dismissed by the accused or had withdrawn from acting.
(3) Where any such solicitor as is referred to in subsection (1) above—
(a) is dismissed by the accused; or
(b) withdraws,
it is the duty of the solicitor to inform the court and the prosecutor of those facts forthwith in writing.
(4) The prosecutor shall, for the purposes of subsections (1) and (3), be taken to be notified or informed of any fact in accordance with those subsections if—
(a) in proceedings in the High Court, the Crown Agent; or
(b) in solemn proceedings in the sheriff court, the procurator fiscal for the district in which the trial diet is to be held,
is so notified or, as the case may be, informed of the fact.
(5) On being informed in accordance with subsection (3) above of the dismissal or withdrawal of the accused’s solicitor in any case to which subsections (6) and (7) below apply, the court shall order that, before the trial diet, there shall be a further pre-trial diet under this section.
(6) This subsection applies to any case—
(a) where the accused is charged with an offence to which section 288C or 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.
(7) This subsection applies to any case in which—
(a) the solicitor was engaged for the purposes of the defence of the accused—
(i) in the case of proceedings in the High Court, at the time of a preliminary hearing or, if a preliminary hearing was dispensed with under section 72B(1) of this Act, at the time it was so dispensed with;
(ii) in the case of solemn proceedings in the sheriff court, at the time of a first diet;
(iii) at the time of a diet under this section; or
(iv) in the case of a diet which, under subsection (11) below, is dispensed with, at the time when it was so dispensed with; and
(b) the court is informed as mentioned in subsection (3) above after that time but before the trial diet.
(8) At a diet under this section, the court shall ascertain whether or not the accused has engaged another solicitor for the purposes of his defence at the trial.
(9) A diet under this section shall be not less than 10 clear days before the trial diet.
(10) A court may, at a diet under this section, postpone the trial diet 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.
(11) 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.
(1) Where a preliminary diet is ordered, subject to subsection (2) below, the accused shall attend it, and he shall be required at the conclusion of the diet to state how he pleads to the indictment.
(2) The court may permit the diet to proceed notwithstanding the absence of an accused.
(3) At a preliminary diet the court shall, in addition to disposing of any matter specified in a notice given under subsection (1) of section 72 of this Act or referred to in subsection (3) of that section or to considering an application for the purposes of subsection (1) of section 275 of this Act, ascertain, so far as is reasonably practicable, whether the case is likely to proceed to trial on the date assigned as the trial diet and, in particular—
(a) the state of preparation of the prosecutor and of the accused with respect to their cases; and
(b) the extent to which the prosecutor and the accused have complied with the duty under section 257(1) of this Act.
(4) At a preliminary diet the court may ask the prosecutor and the accused any question in connection with any matter specified in a notice under subsection (1) of the said section 72 or referred to in subsection (3) of that section or which is relevant to an application for the purposes of subsection (1) of the said section 275 or which it is required to ascertain under subsection (3) above.
(5) Where at a preliminary diet the court concludes that the case is unlikely to proceed to trial on the date assigned for the trial diet, the court—
(a) shall, unless having regard to previous proceedings in the case it considers it inappropriate to do so, postpone the trial diet; and
(b) may fix a further preliminary diet.
(6) Subject to subsection (5) above, the court may, if it considers it appropriate to do so, adjourn a preliminary diet.
(7) Where an objection is taken to the relevancy of the indictment under subsection (1)(a)(i) of the said section 72, the clerk of court shall minute whether the objection is sustained or repelled and sign the minute.
(8) In subsection (1) above, the reference to the accused shall, without prejudice to section 6(c) of the Interpretation Act 1978, in any case where there is more than one accused include a reference to all of them.
(1) Without prejudice to any right of appeal under section 106 or 108 a party may, in accordance with such procedure as may be prescribed by Act of Adjournal, appeal to the High Court against a decision at a first diet or a preliminary hearing.
(2) An appeal under subsection (1) above—
(a) may not be taken against a decision to adjourn the first diet or, as the case may be, preliminary hearing or to accelerate or postpone the trial diet;
(aza) may not be taken against a decision taken by virtue of section 35 of the Criminal Justice (Scotland) Act 2016;
(aa) may not be taken against a decision taken by virtue of—
(i) in the case of a first diet, section 71(1A),
(ii) in the case of a preliminary hearing, section 72(6)(e),
of this Act;
(ab) may not be taken against a decision at a preliminary hearing, in appointing a trial diet, to appoint or not to appoint it as a floating diet for the purposes of section 83A(2) of this Act;
(b) must be taken not later than seven days after the decision.
(2A) An appeal under subsection (1) may be taken—
(a) in the case of a decision to dismiss the indictment 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).
(3) Where an appeal is taken under subsection (1) above, the High Court may postpone any trial diet that has been appointed 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.
(3A) Where an appeal is taken under subsection (1) above against a decision at a preliminary hearing, the High Court may adjourn, or further adjourn, the preliminary hearing 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.
(4) In disposing of an appeal under subsection (1) above the High Court—
(a) 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; . . .
(b) where the court of first instance has dismissed the indictment or any part of it, may reverse that decision and direct that the court of first instance fix
(i) where the indictment is in respect of the High Court, a further preliminary hearing; or
(ii) where the indictment is in respect of the sheriff court,
a trial diet, if it has not already fixed one as regards so much of the indictment as it has not dismissed.
(c) may on cause shown extend the period mentioned in section 65(1) of this Act.
Where the last day of any period mentioned in section 66(6), 67(3), 71C(3) . . . or 74 of this Act falls on a Saturday, Sunday or court holiday, such period shall extend to and include the next day which is not a Saturday, Sunday or court holiday.
(1) This section applies where any diet has been fixed in any proceedings on indictment.
(2) The court may, if it considers it appropriate to do so, adjourn the diet.
(3) However—
(a) in the case of a trial diet, the court may adjourn the diet under subsection (2) above only if the indictment is not brought to trial at the diet;
(b) if the court adjourns any diet under that subsection by reason only that, following enquiries for the purpose of ascertaining whether the accused has engaged a solicitor for the purposes of the conduct of his defence at or for the purposes of a preliminary hearing or at a trial, it appears to the court that he has not done so, the adjournment shall be for a period of not more than 48 hours.
(4) A trial diet in the High Court may be adjourned under subsection (2) above to a diet to be held at a sitting of the Court in another place.
(5) The court may, on the application of any party to the proceedings made at any time before commencement of any diet—
(a) discharge the diet; and
(b) fix a new diet for a date earlier or later than that for which the discharged diet was fixed.
(6) Before determining an application under subsection (5) above, the court shall give the parties an opportunity to be heard.
(7) However, where all the parties join in an application under that subsection, the court may determine the application without hearing the parties and, accordingly, may dispense with any hearing previously appointed for the purpose of subsection (6) above.
(8) Where there is a hearing for the purpose of subsection (6) above, the accused shall attend it unless the court permits the hearing to proceed notwithstanding the absence of the accused.
(9) In appointing a new trial diet under subsection (5)(b) above, the court—
(a) shall have regard to the state of preparation of the prosecutor and the accused with respect to their cases and, in particular, to the likelihood of the case being ready to proceed to trial on the date to be appointed for the trial diet; and
(b) may, if it appears to the court that there are any preliminary pleas, preliminary issues or other matters which require to be, or could with advantage be, disposed of or ascertained before the trial, appoint a diet to be held before the trial diet for the purpose of disposing of or, as the case may be, ascertaining them.
(10) A date for a new diet may be fixed under subsection (5)(b) above notwithstanding that the holding of the diet on that date would result in any provision of this Act as to the minimum or maximum period within which the diet is to be held or to commence not being complied with.
(11) In subsections (5) to (9) above, “the court” means—
(a) in the case of proceedings in the High Court, a single judge of that Court; and
(b) in the case of proceedings in the sheriff court, that court.
(12) For the purposes of subsection (5) above—
(a) a diet other than a trial diet shall be taken to commence when it is called; and
(b) a trial diet shall be taken to commence when the jury is sworn.
(1) This section applies where in any proceedings on indictment any diet has been fixed for a non-sitting day.
(2) The court may at any time before the non-sitting day—
(a) discharge the diet; and
(b) fix a new diet for a date earlier or later than that for which the discharged diet was fixed.
(3) That is, by acting—
(a) of the court's own accord; and
(b) without the need for a hearing for the purpose.
(4) In the case of a trial diet—
(a) the prosecutor;
(b) the accused,
shall be entitled to an adjournment of the new diet fixed if the court is satisfied that it is not practicable for that party to proceed with the case on that date.
(5) The power of the court under subsection (1) above is not exercisable for the sole purpose of ensuring compliance with a time limit applying in the proceedings.
(6) In subsections (1) and (2) above, a “non-sitting day” is a day on which the court is under this Act not required to sit.
(7) In subsections (2) to (5) above, “the court” means—
(a) in the case of proceedings in the High Court, a single judge of that Court;
(b) in the case of proceedings in the sheriff court, that court.
(1) Where in any proceedings on indictment any diet has been fixed for a day which is no longer suitable to the court, it may, of its own accord, at any time before that diet—
(a) discharge the diet; and
(b) fix a new diet for a date earlier or later than that for which the discharged diet was fixed.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) In subsection (1), “the court” means—
(a) in the case of proceedings in the High Court, a single judge of that Court;
(b) in the case of proceedings in the sheriff court, that court.
76 Procedure where accused desires to plead guilty.
(1) Where an accused intimates in writing to the Crown Agent that he intends to plead guilty and desires to have his case disposed of at once, the accused may be served with an indictment (unless one has already been served) and a notice to appear at a diet of the appropriate court not less than four clear days after the date of the notice; and it shall not be necessary to lodge or give notice of any list of witnesses or productions.
(2) In subsection (1) above, “appropriate court” means—
(a) in a case where at the time of the intimation mentioned in that subsection an indictment had not been served, either the High Court or the sheriff court; and
(b) in any other case, the court specified in the notice served under section 66(6) of this Act on the accused.
(3) If at any such diet the accused pleads not guilty to the charge or pleads guilty only to a part of the charge, and the prosecutor declines to accept such restricted plea, the diet shall be desertedpro loco et tempore and thereafter the cause may proceed in accordance with the other provisions of this Part of this Act; except that in a case mentioned in paragraph (b) of subsection (2) above the court may postpone the trial diet or, where the accused has been indicted to the High Court, , the first diet or (as the case may be) the preliminary hearing and the period of such postponement shall not count towards any time limit applying in respect of the case.
(1) Where at any diet the accused tenders a plea of guilty to the indictment or any part thereof he shall do so in open court ....
(2) Where the plea is to part only of the charge and the prosecutor does not accept the plea, such non-acceptance shall be recorded.
(3) Where an accused charged on indictment with any offence tenders a plea of guilty to any other offence of which he could competently be found guilty on the trial of the indictment, and that plea is accepted by the prosecutor, it shall be competent to convict the accused of the offence to which he has so pled guilty and to sentence him accordingly.
78 Special defences, incrimination and notice of witnesses, etc.
(1) It shall not be competent for an accused to state a special defence or to lead evidence calculated to exculpate the accused by incriminating a co-accused unless—
(a) a plea of special defence or, as the case may be, notice of intention to lead such evidence has been lodged and intimated in writing in accordance with subsection (3) below. . .
(b) the court, on cause shown, otherwise directs.
(1A) Subsection (1) does not apply where—
(a) the accused lodges a defence statement under section 70A, and
(b) the accused's defence consists of or includes a special defence.
(2) Subsection (1) above shall apply to a plea of diminished responsibility or to a defence of automatism , coercion or, in a prosecution for an offence to which section 288C of this Act applies, consent as if it were a special defence.
(2A) In subsection (2) 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.
(2B) In subsection (2A) above, “complainer” has the same meaning as in section 274 of this Act.
(3) A plea or notice is lodged and intimated in accordance with this subsection—
(a) where the case is to be tried in the High Court , by lodging the plea or notice with the Clerk of Justiciary and by intimating the plea or notice to the Crown Agent and to any co-accused not less than seven clear days before the preliminary hearing ;
(b) where the case is to be tried in the sheriff court , by lodging the plea or notice with the sheriff clerk and by intimating it to the procurator fiscal and to any co-accused at or before the first diet.
(4) It shall not be competent for the accused to examine any witnesses or to put in evidence any productions not included in the lists lodged by the prosecutor unless—
(a) written notice of the names and addresses of such witnesses and of such productions has been given—
(i) where the case is to be tried in the sheriff court, to the procurator fiscal of the district of the trial diet at or before the first diet; and
(ii) where the case is to be tried in the High Court, to the Crown Agent at least seven clear days before the preliminary hearing
(b) the court, on cause shown, otherwise directs.
(5) A copy of every written notice required by subsection (4) above shall be lodged by the accused with the sheriff clerk of the district in which the trial diet is to be held, or in any case the trial diet of which is to be held in the High Court in Edinburgh with the Clerk of Justiciary, at or before
(a) where the case is to be tried in the High Court, the preliminary hearing;
(b) where the case is to be tried in the sheriff court, the trial diet,
for the use of the court. .
(1) Except by leave of the court on cause shown, no preliminary plea or preliminary issue shall be made, raised or submitted in any proceedings on indictment by any party unless his intention to do so has been stated in a notice under section 71(2) or, as the case may be, 72(3) or (6)(b)(i) of this Act.
(1A) Subsection (1) is subject to section 271Q(8).
(2) For the purposes of this section and those sections—
(a) the following are preliminary pleas, namely—
(i) a matter relating to the competency or relevancy of the indictment;
(ii) an objection to the validity of the citation against a party, on the ground of any discrepancy between the record copy of the indictment and the copy served on him, or on account of any error or deficiency in such service copy or in the notice of citation; and
(iii) a plea in bar of trial; and
(b) the following are preliminary issues, namely—
(i) an application for separation or conjunction of charges or trials;
(ii) a preliminary objection under any of the provisions listed in subsection (3A);
(iia) an application for a witness anonymity order under section 271P of this Act;
(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(iv) an objection by a party to the admissibility of any evidence;
(v) an assertion by a party that there are documents the truth of the contents of which ought to be admitted, or that there is any other matter which in his view ought to be agreed; and
(vi) any other point raised by a party, as regards any matter not mentioned in sub-paragraphs (i) to (v) above, which could in his opinion be resolved with advantage before the trial.
(3) No discrepancy, error or deficiency such as is mentioned in subsection (2)(a)(ii) above shall entitle an accused to object to plead to the indictment unless the court is satisfied that the discrepancy, error or deficiency tended substantially to mislead and prejudice the accused.
(3A) For the purpose of subsection (2)(b)(ii), the provisions are—
(a) section 27(4A)(a) or (4B), 90C(2A), 255 or 255A of this Act,
(b) section 9(6) of the Antisocial Behaviour etc. (Scotland) Act 2004 or that section as applied by section 234AA(11) of this Act,
(c) paragraph 6(5)(b) of schedule 1 to the Criminal Justice (Scotland) Act 2016.
(d) section 1A(2)(b) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 or section 7(2)(b) of the Domestic Abuse (Scotland) Act 2018.
(4) Where the court, under subsection (1) above, grants leave for a party to make, raise or submit a preliminary plea or preliminary issue (other than an objection to the admissibility of any evidence) without his intention to do so having been stated in a notice as required by that subsection, the court may—
(a) if it considers it appropriate to do so, appoint a diet to be held before the trial diet for the purpose of disposing of the plea or issue; or
(b) appoint the plea or issue to be disposed of at the trial diet.
79A Objections to admissibility of evidence raised after first diet or preliminary hearing
(1) This section applies where a party seeks to raise an objection to the admissibility of any evidence after—
(a) in proceedings in the High Court, the preliminary hearing; or
(b) in proceedings on indictment in the sheriff court, the first diet.
(2) The court shall not, under section 79(1) of this Act, grant leave for the objection to be raised if the party seeking to raise it has not given written notice of his intention to do so to the other parties.
(3) However, the court may, where the party seeks to raise the objection after the commencement of the trial, dispense with the requirement under subsection (2) above for written notice to be given.
(4) Where the party seeks to raise the objection after the commencement of the trial, the court shall not, under section 79(1) of this Act, grant leave for the objection to be raised unless it considers that it could not reasonably have been raised before that time.
(5) Where the party seeks to raise the objection before the commencement of the trial and the court, under section 79(1), grants leave for it to be raised, the court shall—
(a) if it considers it appropriate to do so, appoint a diet to be held before the commencement of the trial for the purpose of disposing of the objection; or
(b) dispose of the objection at the trial diet.
(6) In appointing a diet under subsection (5)(a) above, the court may postpone the trial diet 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.
(7) The accused shall appear at any diet appointed under subsection (5)(a) above.
(8) For the purposes of this section, the trial shall be taken to commence when the jury is sworn.
(1) The prosecutor shall not raise a fresh libel in a case in which the court has deserted the trial simpliciter unless the court’s decision has been reversed on appeal.
(2) Where a trial diet in any proceedings on indictment is deserted pro loco et tempore the court may appoint a further trial diet for a later date and the accused shall appear and answer the indictment at that diet.
(3) In appointing a further trial diet under subsection (2) above, the court—
(a) shall have regard to the state of preparation of the prosecutor and the accused with respect to their cases and, in particular, to the likelihood of the case being ready to proceed to trial on the date to be appointed for the trial diet; and
(b) may, if it appears to the court that there are any preliminary pleas, preliminary issues or other matters which require to be, or could with advantage be, disposed of or ascertained before the trial diet, appoint a diet to be held before the trial diet for the purpose of disposing of or, as the case may be, ascertaining them.
(4) Subsection (5) below applies where, in any proceedings on indictment in which a trial diet has been appointed ...—
(a) the diet has been deserted pro loco et tempore for any reason and no further trial diet has been appointed under subsection (2) above; or
(b) the indictment falls or is for any other reason not brought to trial and the diet has not been continued, adjourned or postponed.
(5) Where this subsection applies, the prosecutor may, at any time within the period of two months after the relevant date, give notice to the accused on another copy of the indictment to appear and answer the indictment—
(a) where the trial diet referred to in subsection (4) above was in the High Court—
(i) at a further preliminary hearing in that Court not less than seven clear days after service of the notice; or
(ii) where the charge is one that can lawfully be tried in the sheriff court, at a first diet in that court not less than 21 clear days after service of the notice; or
(b) where the trial diet referred to in subsection (4) was in the sheriff court—
(i) at a first diet in that court not less than seven clear days after service of the notice; or
(ii) at a preliminary hearing in the High Court not less than 21 clear days after service of the notice.
(6) Where notice is given to the accused under paragraph (a)(ii) or (b)(ii) of subsection (5) above, then for the purposes of section 65(4) of this Act—
(a) the giving of the notice shall be taken to be service of an indictment in respect of—
(i) in the case of a notice under paragraph (a)(ii) of subsection (5) above, the sheriff court; or
(ii) in the case of a notice under paragraph (b)(ii) of that subsection, the High Court; and
(b) the previous service of the indictment in respect of—
(i) in the case of a notice under paragraph (a)(ii) of subsection (5), the High Court; or
(ii) in the case of a notice under paragraph (b)(ii) of that subsection, the sheriff court,
shall be disregarded.
(7) A notice under subsection (5) above shall be in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form.
(8) In subsection (5) above, “the relevant date” means—
(a) where paragraph (a) of subsection (4) applies, the date on which the trial diet was deserted as mentioned in that paragraph; or
(b) where paragraph (b) of that subsection applies, the date of the trial diet referred to in that subsection.
82 Desertion or postponement where accused in custody.
Where—
(a) a diet is deserted pro loco et tempore;
(b) a diet is continued, accelerated, postponed or adjourned; or
(c) an order is issued changing the place at which the trial is to take place,
the warrant of committal on which the accused is at the time in custody till liberated in due course of law shall continue in force.
(1) Where an accused person has been cited to attend a diet of the sheriff court the prosecutor may apply to the sheriff for an order for the transfer of the proceedings to a sheriff court in another district in that sheriffdom . . . and for adjournment to a diet of that court .
(1A) Where—
(a) an accused person has been cited to attend a diet of the sheriff court; or
(b) paragraph (a) above does not apply but it is competent so to cite an accused person,
and the prosecutor is informed by the sheriff clerk that, because of exceptional circumstances which could not reasonably have been foreseen, it is not practicable for that court (in subsection (2A)(b)(i) below referred to as the “relevant court”) or any other sheriff court in that sheriffdom to proceed with the case, the prosecutor—
(i) may, where paragraph (b) above applies, so cite the accused; and
(ii) shall, where paragraph (a) above applies or the accused is so cited by virtue of paragraph (i) above, as soon as practicable apply to the sheriff principal for an order for the transfer of the proceedings to a sheriff court in another sheriffdom . . . and for adjournment to a diet of that court.
(2) On an application under subsection (1) above the sheriff may—
(a) after giving the accused or his counsel or solicitor an opportunity to be heard; or
(b) on the joint application of the parties,
make such order as is mentioned in that subsection.
(2A) On an application under subsection (1A) above the sheriff principal may make the order sought—
(a) provided that the sheriff principal of the other sheriffdom consents; but
(b) in a case where the trial (or part of the trial) would be transferred, shall do so only—
(i) if the sheriff of the relevant court, after giving the accused or his counsel an opportunity to be heard, consents to the transfer; or
(ii) on the joint application of the parties.
(2B) On the application of the prosecutor, a sheriff principal who has made an order under subsection (2A) above may, if the sheriff principal of the other sheriffdom mentioned in that subsection consents—
(a) revoke; or
(ii) vary so as to restrict the effect of,
that order.
(2C) The sheriff may proceed under subsection (2) above on a joint application of the parties without hearing the parties and, accordingly, he may dispense with any hearing previously appointed for the purposes of considering the application.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
83ZA Transfer of sheriff court solemn 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 proceedings on indictment 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.
(1) Where, in any case which is to be tried in the High Court, the trial diet does not commence on the day appointed for the holding of the diet, the indictment shall fall.
(2) However, where, in appointing a day for the holding of the trial diet, the Court has indicated that the diet is to be a floating diet, the diet and, if it is adjourned, the adjourned diet may, without having been commenced, be continued from sitting day to sitting day—
(a) by minute, in such form as may be prescribed by Act of Adjournal, signed by the Clerk of Justiciary; and
(b) up to such maximum number of sitting days after the day originally appointed for the trial diet as may be so prescribed.
(3) If such a trial diet or adjourned diet is not commenced by the end of the last sitting day to which it may be continued by virtue of subsection (2)(b) above, the indictment shall fall.
(4) For the purposes of this section, a trial diet or adjourned trial diet shall be taken to commence when it is called.
(5) In this section, “sitting day” means any day on which the court is sitting, but does not include any Saturday or Sunday or any day which is a court holiday.
83B Continuation of trial diet in the sheriff court
(1) In the sheriff court a trial diet and, if it is adjourned, the adjourned diet, may, without having been commenced, be continued from sitting day to sitting day—
(a) by minute, in such form as may be prescribed by act of adjournal, signed by the sheriff clerk,
(b) up to such maximum number of sitting days after the day originally appointed for the trial diet as may be so prescribed.
(2) The indictment falls if a trial diet, or adjourned diet, is not commenced by the end of the last sitting day to which it may be continued by virtue of subsection (1).
(3) For the purposes of this section, a trial diet or adjourned trial diet is to be taken to commence when it is called.
(4) In this section, “sitting day” means any day on which the court is sitting but does not include any Saturday or Sunday or any day which is a court holiday.
84 Juries: returns of jurors and preparation of lists.
(1) For the purposes of a trial, the sheriff principal shall return such number of jurors as he thinks fit or, in relation to a trial in the High Court, such other number as the Lord Justice Clerk or any Lord Commissioner of Justiciary may direct.
(2) The Lord Justice General, whom failing the Lord Justice Clerk, may give directions as to the areas from which and the proportions in which jurors are to be summoned for trials to be held in the High Court, and for any such trial the sheriff principal of the sheriffdom in which the trial is to take place shall requisition the required number of jurors from the areas and in the proportions so specified.
(3) Where a sitting of the High Court is to be held at a town in which the High Court does not usually sit, the jury summoned to try any case in such a sitting shall be summoned from the lists of potential jurors of the sheriff court district in which the town is situated.
(4) For the purpose of a trial in the sheriff court, the sheriff principal must furnish the clerk of court with a list of names, containing the number of persons required, from lists of potential jurors of—
(a) the sheriff court district in which the trial is to be held (the “local district”), and
(b) if the sheriff principal considers it appropriate, any other sheriff court district or districts in the sheriffdom in which the trial is to be held (“other districts”).
(4A) Where the sheriff principal furnishes a list containing names of potential jurors of other districts, the sheriff principal may determine the proportion as between the local district and the other districts in which jurors are to be summoned.
(5) The sheriff principal, in any return of jurors made by him to a court, shall take the names in regular order, beginning at the top of the lists of potential jurors in each of the sheriff court districts, as required; and as often as a juror is returned to him, he shall mark or cause to be marked, in the lists of potential jurors of the respective sheriff court districts the date when any such juror was returned to serve; and in any such return he shall commence with the name immediately after the last in the preceding return, without regard to the court to which the return was last made, and taking the subsequent names in the order in which they are entered, as directed by this subsection, and so to the end of the lists respectively.
(6) Where a person whose name has been entered in the lists of potential jurors dies, or ceases to be qualified to serve as a juror, the sheriff principal, in making returns of jurors in accordance with the Jurors (Scotland) Act 1825, shall pass over the name of that person, but the date at which his name has been so passed over, and the reason therefor, shall be entered at the time in the lists of potential jurors.
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) The persons to serve as jurors at trials in the High Court sitting at a particular place on a particular day shall be listed and their names and addresses shall be inserted in one roll . . . , and the list made up under this section shall be known as the “list of assize”.
(9) When more than one case is set down for trial in the High Court sitting at a particular place on a particular day , it shall not be necessary to prepare more than one list of assize, and such list . . . shall be the list of assize for all trials to be held in the High Court sitting in that particular place on that particular day ; and the persons included in such list shall be summoned to serve generally for all such trials , and only one general execution of citation shall be returned against them; and a copy of the list of assize, certified by one of the clerks of court, shall have the like effect, for all purposes for which the list may be required, as the principal list of assize authenticated as aforesaid.
(10) No irregularity in—
(a) making up the lists in accordance with the provisions of this Act;
(b) transmitting the lists;
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) summoning jurors; or
(e) in returning any execution of citation,
shall constitute an objection to jurors whose names are included in the jury list, subject to the ruling of the court in relation to the effect of an objection as to any criminal act by which jurors may be returned to serve in any case contrary to this Act or the Jurors (Scotland) Act l825.
(1) It shall not be necessary to serve any list of jurors upon the accused, . . ..
(2) A list of jurors shall—
(a) be prepared and kept in such form and manner; and
(b) contain such minimum number of names,
as may be prescribed by Act of Adjournal.
(2A) The clerk of the court before which the trial is take place shall, on an application made to him by or on behalf of an accused, supply the accused, free of charge, on the day on which the trial diet is called, and before the oath has been administered to the jurors for the trial of the accused, with a copy of a list of jurors prepared under subsection (2) above.
(2B) Where an accused has been supplied under subsection (2A) above with a list of jurors—
(a) neither he nor any person acting on his behalf shall make a copy of that list, or any part thereof; and
(b) he or his representative shall return the list to the clerk of the court after the oath has been administered to the jurors for his trial.
(2C) A person who fails to comply with subsection (2B) above shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale.
(3) It shall not be necessary to summon all the jurors contained in any list of jurors under this Act, but it shall be competent to summon such jurors only, commencing from the top of the list, as may be necessary to ensure a sufficient number for the trial of the cases which remain for trial at the date of the citation of the jurors, and such number shall be fixed by the clerk of the court in which the trial diet is to be called, or in any case in the High Court by the Clerk of Justiciary, and the jurors who are not so summoned shall be placed upon the next list issued, until they have attended to serve.
(4) The sheriff clerk of—
(a) the sheriffdom in which the High Court is to sit, or
(b) the sheriff court district in which a trial in the sheriff court is to be held,
shall fill up and sign a proper citation addressed to each . . . juror, and shall cause the same to be transmitted to him by letter, sent to him at his place of residence as stated in the lists of potential jurors ... or to be served on him by an officer of law; and a certificate under the hand of such sheriff clerk of the citation of any jurors or juror in the manner provided in this subsection shall be a legal citation.
(4A) Citation of a juror may also be effected by an electronic citation which is sent—
(a) by or on behalf of the sheriff clerk; and
(b) by means of electronic communication,
to the home or business email address of the juror.
(4B) Citation under subsection (4A) above is a legal citation if the sheriff clerk possesses 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 juror being cited.
(4C) In subsection (4A) above, 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 by or on behalf of the sheriff clerk.
(5) The sheriff clerk of the sheriffdom in which the High Court is to sit on any particular day shall issue citations to the whole jurors required for trials to be held in the High Court sitting in the sheriffdom on that day , whether the jurors reside in that or in any other sheriffdom.
(6) Persons cited to attend as jurors may, unless they have been excused in respect thereof under section 1 or 1A of the Law Reform (Miscellaneous Provisions) (Scotland) Act l980, be fined up to level 3 on the standard scale if they fail to attend in compliance with the citation.
(7) A fine imposed under subsection (6) above may, on application, be remitted—
(a) by a Lord Commissioner of Justiciary where imposed in the High Court;
(b) by the sheriff court where imposed in the sheriff court,
and no court fees or expenses shall be exigible in respect of any such application.
(8) A person shall not be exempted by sex or marriage from the liability to serve as a juror.
(1) Where, before a juror is sworn to serve, the parties jointly apply for him to be excused the court shall, notwithstanding that no reason is given in the application, excuse that juror from service.
(2) Nothing in subsection (1) above shall affect the right of the accused or the prosecutor to object to any juror on cause shown.
(3) If any objection is taken to a juror on cause shown and such objection is founded on the want of sufficient qualification as provided by section 1(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980, such objection shall be proved only by the oath of the juror objected to.
(4) No objection to a juror shall be competent after he has been sworn to serve.
(1) Where the court is unable to proceed owing to the death, illness or absence of the presiding judge, the clerk of court may convene the court (if necessary) and—
(a) in a case where no evidence has been led, adjourn the diet and any other diet appointed for the same day to—
(i) a time later the same day, or a date not more than seven days later, when he believes a judge will be available; or
(ii) a later date not more than two months after the date of the adjournment; or
(b) in a case where evidence has been led—
(i) adjourn the diet and any other diet appointed for the same day to a time later the same day, or a date not more than seven days later, when he believes a judge will be available; or
(ii) with the consent of the parties, desert the diet pro loco et tempore.
(2) Where a diet has been adjourned under sub-paragraph (i) of either paragraph (a) or paragraph (b) of subsection (1) above the clerk of court may, where the conditions of that subsection continue to be satisfied, further adjourn the diet under that sub-paragraph; but the total period of such adjournments shall not exceed seven days.
(3) Where a diet has been adjourned under subsection (1)(b)(i) above the court may, at the adjourned diet—
(a) further adjourn the diet; or
(b) desert the diet pro loco et tempore.
(4) Where a diet is deserted in pursuance of subsection (1)(b)(ii) or (3)(b) above, the Lord Advocate may raise and insist in a new indictment, and—
(a) where the accused is in custody it shall not be necessary to grant a new warrant for his incarceration, and the warrant or commitment on which he is at the time in custody till liberation in due course of law shall continue in force; and
(b) where the accused is at liberty on bail, his bail shall continue in force.
Where—
(a) any preliminary plea or issue; or
(b) in a case to be tried in the High Court, any application, notice or other matter referred to in section 72(6)(b)(iii) or (iv) of this Act,
is to be disposed of at the trial diet, it shall be so disposed of before the jury is sworn, unless, where it is a preliminary issue consisting of an objection to the admissibility of any evidence, the court at the trial diet considers it is not capable of being disposed of before then.