In the Sheriff Court
The sheriff's jurisdiction in solemn matters is the same as in summary matters. In solemn matters the sheriff sits with a jury of 15 persons. A sheriff can try any indictable crime other than those reserved to the High Court. The sheriff is Master of the Law and ultimately is responsible for sentencing of the accused if the accused is found guilty. The jury decides on the innocence or guilt of the accused. Sections 3(3) and (4) CP(S)A 1995 set out the maximum sentencing powers of the sheriff in solemn matters namely three years detention or imprisonment and an unlimited fine. If the offence is a statutory one then the statute will prescribe the maximum available sentence. If it is alleged that the offence was committed while the accused was on bail the sentencing power is increased by a Level 3 fine or six months detention or imprisonment.
In the High Court of Justiciary
This is the supreme criminal court in Scotland and can sit anywhere in Scotland (s.3(2) CP(S)A 1995). The judges of the High Court are also the judges of the court of session. Until recently only advocates could appear in the High Court. Section 301 CP(S)A 1995 now allows for Solicitor Advocates to appear. Decisions by a single High Court judge are binding on all inferior judges unless overruled (Jessop v. Stevenson, (1987) SCCR 655). The High Court's jurisdiction to try all indictable crimes in Scotland can only be excluded by statute. The respective roles of judge and jury are the same as in the sheriff court (see section 3:6.1). The High Court's power of sentence are unlimited unless a statute creating the relevant offence dictates otherwise.
3:6.3 Commencement of proceedings
Solemn proceedings normally commence on the date of whichever the following happens first:
(a) the grant of a petition warrant to arrest and commit the accused;
(b) the intimation of the petition;
(c) the service of an indictment (Hamilton v. H.M.Advocate (1996) SCCR 74).
Solemn procedure always commences in the sheriff court where a petition warrant is sought. It is however competent for an indictment simply to be served on an accused without a petition having been sought (O'Reilly v. H.M.Advocate (1984) SCCR 352).
Most solemn cases start with the presentation of a petition to the sheriff setting out:
(a) the name and brief particulars of the accused;
(b) a brief statement of the charge.
A petition can be presented to the sheriff to grant a warrant prior to the accused being apprehended or alternatively the petition will be presented at the first appearance of the accused before the sheriff from custody. The accused must appear before the sheriff on the 'first lawful day' following upon his arrest.
First Appearance
The first appearance or first examination takes place before the sheriff in private (either in chambers or in a closed court). Unless the accused elects to make a declaration or the procurator fiscal elects to question the accused in terms of s.36 CP(S)A 1995 proceedings are brief and informal and the accused will simply state 'no plea and no declaration'. The prosecution will seek committal for further examination or for trial (full committal) and the sheriff will grant that motion. If the accused is remanded in custody after first appearance it will be for a period of up to eight days. At the first appearance Legal Aid should be applied for before the sheriff. Even if the accused does not qualify financially for Legal Aid he is entitled to the services of the Duty Solicitor free of charge at this stage. If he appears unrepresented he should be told of his rights to have representation by the sheriff. Judicial Examination (JE) can be carried out in terms of ss.35 and 36 CP(S)A 1995 and if a JE is to be held then it is generally held at the first appearance or full committal. It can even be held later. It must be in private and where there are a number of accused they must be examined separately. If a JE is to be held at the first appearance the defence can seek a delay of up to 48 hours to discuss matters with their clients. If it is at the second appearance then they can seek a delay of up to 24 hours. If an accused person fails to answer questions at JE that may be the subject of adverse comment at his or her trial notwithstanding that the accused was advised not to answer the questions by his or her solicitor (McEwan v. H.M.Advocate (1990) SCCR 401). If the accused fails to answer questions at JE and subsequently at trial either he or one of his witnesses avers in evidence something which could have been stated in answer to a question put at JE then that fact may be commented upon by the prosecutor, presiding judge or any co-accused (Alexander v. H.M.Advocate (1988) SCCR 542, Walker v. H.M.Advocate (1985) SCCR 150, Thomson v. H.M.Advocate (1992) SCCR 648). The accused's solicitors role at JE is limited. He may with the permission of the sheriff and after the fiscal has completed his questioning ask the accused questions (a) for the purpose of clarifying any ambiguity in an answer which the accused has given to the procurator fiscal; (b) to give the accused an opportunity to answer a question which he had previously declined to answer. The accused's solicitor may also advise his client if his client seeks his advice before answering any question. The Crown are obliged to investigate to such an extent as is reasonably practicable, any ostensible defence disclosed at the JE.
Bail
Section 22A CP(S)A 1995 deals with the consideration of bail on first appearance (solemn and summary). The presiding judge must consider whether or not it is appropriate for a person to be admitted to bail even where bail has not been applied for. Section 23A CP(S)A 1995 allows application for bail to be made for an accused person who is either remanded or serving a sentence for a new matter. Section 24 CP(S)A 1995 states that all crimes are bailable.
If the accused is granted bail at the first appearance despite Crown opposition, the Crown have a right to appeal against the grant of bail. If bail is refused at first appearance the defence also has a right of appeal (s.32 CP(S)A 1995). If the Crown are going to oppose bail at the first appearance on petition (or in a summary case) a custody statement will be served along with the petition (or complaint). In solemn matters at the first appearance if the Crown opposes bail then it must be able to show why bail is opposed (Burn petitioner (2000) SCCR 384). If there is no opposition to bail then the motion for bail will be made by the defence (generally on a formal bail petition) and the accused will be admitted to bail on the usual standard conditions which must be imposed on any accused to whom bail is granted (s.24 (5) CP(S)A 1995) namely:
(a) the accused person appears at the appointed time at every diet relating to the offence with which he is charged and of which he is given due notice;
(b) that the accused does not commit any offence while on bail;
(c) that the accused does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.
(d) that the accused makes himself available for the purpose of enabling enquiries for a report to be made for assisting the court in dealing with him for the offence of which he is charged.
In terms of CP(S)A 1995 s.24(4)(b), the Court may impose such further conditions as it considers necessary to secure:
(a) that the standard conditions are observed; and
(b) that the accused makes himself available for the purpose of appearing at an identification parade or enabling any print, impression or sample to be taken from him.
If the Crown does not oppose bail then it should be granted (G. v. Spears (1998) SCCR 517; Spears v. Maxwell (1989) SLT (notes) 282). If the Crown opposes bail (solemn or summary) then the court will have to decide the matter on its merits having heard from both Crown and defence and in line with the HRA 1998 and the decisions of the European Court of Human Rights. In terms of the decisions of the European Court of Human Rights, liberty is a right which should only be taken away under extreme circumstances. Reasoned decisions for the refusal of bail will have to be given and the decisions must be based on objective evidence not on judicial speculation.
Full Committal or Second Appearance
The full committal takes place no more than eight days after the first appearance but is more generally one week after the first appearance. There is no need for the full committal to take place if bail has been granted after the first appearance however it is competent to grant bail with a condition to attend a full committal hearing. The defence will normally intimate (unless they wish to make a judicial declaration) 'no plea and no declaration'. The fiscal will then move to fully commit the accused (unless a JE is to take place). If the fiscal does not move to fully commit then the accused must be liberated (without bail). If the accused is to be fully committed and bail is not opposed then a bail petition will be presented and the accused will be liberated on the standard conditions and any extra conditions that may be imposed. If bail is opposed application can still be made and if bail is refused this is subject to appeal by the defence in terms of s.32(1) CP(S)A 1995. If conditions are imposed which are unreasonable these can be appealed against in the same way. If the Crown wish to appeal against the grant of bail they do so in terms of s.32(2) CP(S)A 1995.
Precognition
A petition warrant is authority for the fiscal to cite witnesses to attend for precognition. Precognition on oath can take place if applied for to the sheriff, if the sheriff is satisfied that it is in the public interest to grant same. Sections 260 and 262(1) CP(S)A 1995 state that a precognition given on oath is evidence of its contents. Section 291 CP(S)A 1995 states that the defence can apply to the sheriff before or after the service of an indictment to grant a warrant to cite personally any person (other than a co-accused) who is alleged to be a witness in relation to any offence with which he is charged on petition to appear for precognition on oath. Failure to attend for precognition on oath, prevarication or failure to provide information are offences liable to summary punishment in terms of s.291(2) and (3) CP(S)A 1995 - fine up to Level 3 and 21 days detention or imprisonment.
Agreement of evidence
Sections 256 - 258 CP(S)A 1995 deal with the agreement of evidence and the duty imposed upon Crown and defence to identify evidence of an uncontroversial nature.
Section 76 Diets
Section 76 CP(S)A 1995 allows a plea of guilty to be entered early by an accused person in solemn proceedings. A s.76 letter should be signed personally by the accused person. If a s.76 plea is accepted then a shortened form of indictment will be served upon the accused with an induciae of at least four clear days (see McKnight v. H.M.Advocate (1991) SCCR 751 where there was a 10 minute induciae). A list of convictions, if any, for the panel/accused must be served along with the s.76 indictment and the defence have two days from the date when the notice is served to give written notice to the fiscal objecting to any of the convictions otherwise they are held to be admitted. Having signed a s.76 letter there is nothing to prevent the accused from changing his mind about pleading guilty. In that case the indictment can be deserted pro loco et tempore and a further indictment will be served in due course. In this situation the Crown would, if required, get an extension to the normal time limits applying. If the accused pleads guilty then he will be asked to sign a document confirming his plea and the Crown will then move for sentence and tender any previous convictions. The court will then proceed to sentence in the normal way.
Time limits in Solemn Procedure (s.65 CP(S)A 1995)
There is no time limit on the bringing of a prosecution in solemn procedure (except if statute should state otherwise), however Article 6(1) of the ECHR provides that in the determination of any charge against him everyone is entitled to a fair and public hearing within a reasonable time (HMA v. Little (1999) SCCR 625); Robb v. HMA (2000) SCCR 354; HMA v. Hynd (2000) SCCR 644).
Twelve-Month Limit
Section 65(1) states that an accused person shall not be tried on indictment for any offence unless a trial has commenced within a period of 12 months of the first appearance of the accused on petition in respect of the offence. If the trial has not commenced within that period then the accused:
(a) shall be discharged forthwith from any indictment with respect to that offence; and
(b) shall not at any time be proceeded against on indictment in relation to that offence.
Section 65(10) CP(S)A 1995 states that the only matter which will interrupt the running of the 12 month period is if the accused is detained or remanded (as opposed to sentenced) elsewhere in the UK, Channel Islands or Isle of Man.
Forfeiture of 12-Month Protection
Section 65(2) CP(S)A 1995 states that if the accused fails to appear at a diet and a warrant is granted then he forfeits the protection of the 12 month rule ( H.M.Advocate v. Taylor, (1996) SCCR 510).
Time Extensions
Extensions can be applied for to the 12-month period in terms of s.65(3) CP(S)A 1995. Any application must be on cause shown. There is no requirement for a written application to be made but the other side must be informed of the application and are entitled to be heard in opposition (Sandford v. H.M.Advocate (1986) SCCR 573). Every case is looked at on its own facts and circumstances.
Exemptions
The 12-month rule does not apply to cases reduced from petition to summary.
Two Time Limits
Section 65(4) provides two limits for the accused's protection when he is remanded in custody. Custody time limits run from full committal and not first appearance. The indictment must be served within 80 days of full committal. If not the accused must be released however he can still be tried in due course under the 12-month rule.
Extension of 80-Day Limit
Section 65(5) CP(S)A 1995 empowers a single High Court judge to extend the 80 day period 'for any sufficient cause' provided there has been no fault on the part of the prosecutor. The application must go to a High Court judge.
110-Day Rule
The second time limit which applies is the 110 day rule. This states that if the trial of an accused in custody is not started within 110 days of full committal the accused must be liberated forthwith and is forever free from all question or process for that offence.
The 110 day rule and the 80 day rule only operate where the accused's detention is as a direct result of the charges he is facing. A sentence imposed during his remand would interrupt the 110 days and 80 days (e.g. Brown v. H.M.Advocate, (1988) SCCR 577).
Extension of 110-Day Limit
Section 65(7) CP(S)A 1995 sets out the limits for extending the 110 day rule. An extension is only competent before a High Court judge. The reasons for the extension are:
(a) the absence or illness of the accused or the judge;
(b) the absence or illness of any necessary witness;
(c) any other sufficient cause which is not attributable to any fault on the part of the prosecution.
Pre-Trial Preparation
The indictment and notice citing the accused to appear at court on the date of trial must be served not less than 29 clear days before the trial (s.66(6) CP(S)A 1995). Rule 2.2 of the AA(CPR) 1996 sets out the methods of service:
(a) delivering the indictment personally to the accused;
(b) leaving it in the hands of a member of the accused's family or other occupier or employee at the accused's domicile of citation;
(c) affixing the indictment to the door of the domicile of citation or depositing it in the domicile, i.e. putting it through the letterbox (McAllister v. H.M.Advocate (1985) SCCR 36).
A list of previous of convictions, if any, must be served on the accused along with the indictment (s.69(2) CP(S)A). If the accused denies any of the convictions notice of that fact must be given to the Crown at least five clear days before the first day of the sitting otherwise the convictions in terms of the s.69(3) CP(S)A 1995 are held to be admitted.
The indictment sets out the charges and provides a list of witnesses and productions for the Crown to use at the trial. The indictment must run in the name of the Lord Advocate. If after the indictment is served the Crown discover that they need extra witnesses or productions then they cannot lead the witnesses or lay the productions before the court unless a notice has been served under the s.67(5) CP(S)A 1995 specifying the witnesses and/or the productions. The notice must be given to the Accused not later than two clear days before the jury is sworn. The defence are entitled to assume that all witnesses and productions on the Crown Lists will be available to them. An indictment has to be competent and relevant if it is to proceed. Competency deals with the right to prosecute, (issues of jurisdiction, expiry of time limits, the title of the Prosecutor and so on) relevancy looks at the terms of the indictment (is the charge a crime known to the Law of Scotland and is the crime properly specified). Competency pleas if successful bring to an end the proceedings in their entirety, relevancy pleas may be dealt with by amendment by the prosecutor. However, in the absence of amendment a successful relevancy plea will put an end to an indictment (although it may be possible to serve a new indictment). If an indictment is competent and relevant it may still be unable to proceed if a successful Plea in Bar of Trial is made. If the plea is successful it stops further procedure on the indictment although it may be possible to raise a fresh indictment at some future point.
Notices by the Accused (s.78 CP(S)A 1995)
If the accused wishes to rely on what is known as a special defence (alibi, insanity at the time of the defence, incrimination, self defence) this must be lodged and intimated in accordance with the terms of s.78(3) CP(S)A.
Section 78(4) CP(S)A 1995 states that it is not competent for the defence to examine any witness or put in evidence any productions not included in the Crown Lists unless written notice of the witnesses or productions have been given to the clerk of the appropriate court and to the prosecution in the same way as special defences, etc, and within the same time limits.
Section 84(4)(b) CP(S)A 1995 states that the court can on cause shown allow late lists of witnesses and productions to be lodged.
If a devolution issue is to be raised then in terms of Chapter 40.2 AA(CPR) 1996 then notice of that has to be given within seven days after service of the indictment and the notice must be intimated to the other parties. It can be raised later on cause shown.
Preliminary Diets and First Diets
Pre-trial issues in solemn cases are resolved at preliminary diets in the High Court and first diets in the sheriff court. If there are no preliminary matters to be dealt with in High Court cases then the only diet that will call is the trial diet. In sheriff court cases the first diet is mandatory. Preliminary diets are held in the High Court in terms of ss.72-74 CP(S)A 1995 and the first diet in sheriff court cases is assigned in terms of s.66(6) CP(S)A 1995. The first diet must be held not less than 15 clear days after the service of the indictment and not less than ten clear days before the trial. The purpose of the first diet in the sheriff court is (in terms of s.71(1)) CP(S)A 1995 to enable the court so far as is reasonably practicable to ascertain whether the case is likely to proceed to trial on the assigned date. If any preliminary issue is required to be raised in terms of s.72(1), the party raising the issue must give written notice to the court and the other parties not less than two clear days before the first diet. Section 71(1) states that at the first diet the court may ask the prosecutor and the accused any question in connection with their state of preparation and whether any evidence can be agreed or not. The accused must tender a plea at the first diet. Section 71(7)(b) states that more than one first diet can be fixed and s.71(8) states that a first diet may be adjourned.
The Jury Sitting
The Courts generally operate 'sittings'. That means that a number of trials will be assigned for the one short period of time. The indictment must call at some point in that sitting and if it does not then it falls and it must be re-raised before any further procedure can take place.
When the case calls for trial the accused can either tender a plea of guilty or not guilty. If the accused enters a plea of guilty then the matter is dealt with without the necessity of trial. It is up to the Crown whether or not a plea tendered is acceptable or not. If the accused pleads not guilty or the Crown do not accept any offered plea a jury requires to be empanelled. Prior to the jury being balloted any outstanding preliminary motions will be dealt with and if the Crown were to make a motion to desert pro loco et tempore or simpliciter this would be made at this time. An assize of jurors must contain at least 30 potential jurors. Balloting is done in open court and a juror will only be excused without cause being shown on joint application of the parties. There are 15 jurors in a Scottish criminal jury trial. Once a juror has been sworn to serve no objection to him or her is competent. (See sections 85, 86 and 88 CP(S)A 1995). If jurors drop out the court has a discretion to allow the trial to continue providing the number of jurors does not drop below 12. In these circumstances there requires to be eight out of 12/13/14 for a guilty verdict. The indictment is then read to the jurors and the jury are sworn in. Any special defences are then read out.
The Crown Case
There are no opening speeches in jury cases in Scotland. The judge will sometimes give the jury a short address explaining the procedures. The Crown case is first and crown witnesses are called, cross examined and re-examined if necessary. The judge can question witnesses but that right should be used sparingly and under no circumstances should a judge give the impression that he has formed a personal view of the case or of the credibility of the witnesses. The Crown are not obliged to call all the witnesses on their list or to lead all the productions on their list. If objections are to be heard about the evidence then these should be heard outwith the presence of the jury and where there is a factual issue in dispute and the judge has to decide on the facts before deciding whether or not evidence is admissible then a trial can take place within a trial (Thompson v. Crowe (1999) SCCR 1003).
Important evidential provisions concerning conduct of a criminal trial are contained within Part XII ss.256-286 CP(S)A 1995.
Once the evidence has been led by the Crown the Judicial Examination if any will be read and any minutes of admissions will also be read to the jury. The prosecutor will then close his or her case and unless the prosecutor can invoke the terms of ss.268 or 269 CP(S)A 1995 he cannot lead further evidence. In terms of s.96(2) CP(S)A 1995 the prosecutor has the power to amend the indictment at any time prior to the determination of the case to cure any defect in the indictment or any discrepancy or variation between it and the evidence. The court has a discretion to refuse leave to amend if there is just cause to the contrary. Any amendment must not change the character of the offence.
No Case to Answer
Section 97 CP(S)A 1995 allows the defence to make a submission of 'No Case to Answer' at the end of the Crown case. This is in relation to the charge or any other crime of which the accused could be convicted on the same charge on the indictment. The submission is on the basis that there is insufficient evidence in law against the accused to justify the case being remitted to a jury for a verdict. If a submission of 'No Case to Answer' is upheld then the judge will return a not guilty verdict on the accused. If it is rejected then the defence have to decide whether or not to lead evidence.
The Defence Case
If the defence decide not to lead evidence then what follows are speeches, charge and verdict. If evidence is led by the defence it is led in the same way as by the Crown namely examination in chief followed by cross examination followed by any re-examination which may be required. Prior to speeches being made or after the Crown have made their speech to the jury what is known as a common law submission can be made to the judge outwith the presence of the jury. That common law submission can be made by either party and would be to ask the judge to give a particular direction to the jury to the effect that part of a charge had not been proved or that no reasonable jury properly instructed could convict an accused on the evidence which has been presented to them. The judge can withdraw from the jury any part of the charge or any special defence in these circumstances.
Speeches and Charge to the Jury
The Crown will be first to deliver its speech to the jury, then the defence will deliver its speech. The jury speech should be restricted to the evidence heard. After speeches have been given the judge will deliver his charge to the jury, he directs the jury on the law and if he looks at the evidence he must do so in a balanced way and take the greatest care that he does not persuade the jury to a particular point of view (Hamilton v. H.M.Advocate (1938) JC 134: Gilmour v. H.M.Advocate, (1982) SCCR 590).
The Verdict
After the charge the jury retire to consider their verdict. The judge will have directed them that three verdicts are open to them, guilty, not guilty and not proven. If the verdict is not guilty or not proven the accused is discharged and forever free from prosecution thereafter in respect of the charges on the indictment of which he has been acquitted. If the verdict is guilty the Crown must move for sentence. If the Crown does not move for sentence then no sentence shall be passed. The previous convictions (if any) are then put up to the judge after the Crown have moved for sentence
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