The procedure followed in the sheriff court when no jury is sitting and in the district court is known as summary procedure (Part IX CP(S)A 1995
The territorial jurisdiction of the sheriff and his or her sentencing powers are set out in ss.4 and 5 of the CP(S)A 1995. There are six sheriffdoms in Scotland and these are divided into sheriff court districts.
The sheriff court will only usually try cases committed within its district. Sections 9-11 of the CP(S)A 1995 provide certain exceptions to the rule, e.g. a continuing offence such as dangerous driving committed between two jurisdictions could be tried in either court. Section 4(2) of the CP(S)A 1995 allows for the trying of offences in another court in the same sheriffdom (e.g. McLeod v. H.M.Advocate (1997) SCCR 423).
The sheriff in the summary court is master of fact and law and is ultimately responsible for sentencing. He or she is a solicitor or an advocate of at least ten years standing and can try all offences competent in a summary court unless jurisdiction is restricted by statute. A maximum fine of £5,000 and up to three months imprisonment or detention may be imposed. Section 5(3) of the CP(S)A 1995 increases the power of sentencing up to six months for a second or subsequent offence inferring dishonesty or a second or subsequent offence inferring personal violence. In crimes of violence, violence must actually be used (Hemphill v. Donnelly (1992) SCCR 770). In the case of Sproull and Baker v. McGlennan (1999) SCCR 63 the conviction was for a breach of the peace with a libel referring to punching and kicking. It was held that this was a subsequent offence inferring violence and thus the sentence could be increased if appropriate.
In the case of statutory offences the statute will lay down the maximum penalty to be imposed, e.g. s.5(2) of the MDA 1971 allows up to one year's imprisonment or detention for possession of a Class A drug.
If it is alleged that the accused person is subject to a bail order at the time of commission of an offence then in terms of s.27 CP(S)A 1995 the maximum penalty in respect of a fine can be increased to the equivalent of Level 3 and in the case of imprisonment by six months notwithstanding that the total sentence imposed exceeds the maximum sentence which would otherwise have been competent. When sentencing the judge should specify how much of the total sentence relates to the breach of the bail order.
The sheriff's powers in respect of road traffic matters are that in certain situations which might otherwise have only been dealt with by the imposition of penalty points the sheriff can disqualify for the offence itself for such period as he thinks fit (see individual road traffic law statutes for discretionary powers). The sheriff can also find that special reasons exist for non disqualification or that mitigating circumstances exist for non disqualification or a lesser period of disqualification in 'totting up' cases (s.35 RTOA 1988) (see section 3:7 Sentencing).
There is no time limit on the bringing of a summary prosecution for a common law offence, 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 (H.M.Advocate v. Little (1999) SCCR 625, Robb v. HMA (2000) SCCR 354, HMA v. Hynd (2000) SCCR 644). Where offences are statutory and triable only summarily s.136 CP(S)A 1995 provides that unless the statute creating the offence provides otherwise summary proceedings must commence within six months of the commission of the offence. Section 136(3) CP(S)A 1995 states that proceedings shall be deemed to be commenced on the date on which a warrant to apprehend or to cite the accused is granted if the warrant is executed without undue delay (e.g. Singh v. Vannet (1998) SCCR 679; McLeod v. Hingston (1999) SCCR 717)
When an accused person is at liberty there is no specific time laid down from the date of pleading not guilty to the date of the trial in which the trial diet should take place. It is accepted that all parties should make all efforts to ensure that the matter comes to trial as quickly as possible. An accused person when at liberty will generally be ordained to appear at intermediate diet and trial diet. If an accused person appears from custody then in general terms they will be admitted to bail pending eventual appearance at court. (See solemn procedure for discussion on bail conditions, section 3:6). When an accused person is remanded in custody for trial in respect of summary proceedings then that trial must commence within 40 days of the not guilty plea being tendered (s.147 CP(S)A 1995). If the trial is not commenced within that period the accused is liberated immediately and is forever free from all question of process for the offence. The 40 day time limit can be extended in certain circumstances and the grant or refusal of any extension is appealable to the High Court. A trial is deemed to commence when the first witness is sworn for the purposes of this section.
The document which sets out the charge and commences the formal part of summary procedure is the complaint (s.138 CP(S)A 1995). The form for the summary complaint and related documents is regulated by Chapter 16 of the AA(CPR) 1996. It runs in the name of the procurator fiscal and names the accused and sets out the charge against him. CP(S)A 1995, Schedules 2 and 5 give specimen charges. Schedule 3 makes provision for various words, phrases and alternative verdicts (for example if charged with theft a competent alternative verdict would be reset) and the like to be applied. If the accused has any previous convictions these will be attached to the complaint (s.166(2) CP(S)A 1995). These must be served prior to the accused being called upon to plead. If this does not happen then the previous convictions cannot be placed before the court at the time of sentencing. If there is any dispute about the previous convictions libelled then notice should be given to the Crown of intention to challenge the previous convictions (although the defence are not obliged to give prior notice). The principal complaint must be signed by the procurator fiscal or one of his deputies and if any page is not signed then that page will be treated as pro non scripto (Milne v. Normand (1993) SCCR 1058).
The complaint must be served on the accused either personally by the police or by registered mail/recorded delivery (s.141(3) CP(S)A 1995). If the Accused is at liberty 48 hours notice must be given of his requirement to appear (s.140(2) CP(S)A 1995). Where an accused person appears personally or is represented by a solicitor in answer to the complaint any defect in service is cured (s.144(8) CP(S)A 1995; Scott v. Annan (1991) SCCR 172; Kirkcudbright Scallop Gear Limited v. Walkingshaw (1994) SCCR 372).
CP(S)A 1995 ss.144-146 regulate the first calling of a summary complaint. The accused may appear personally (and if he does he must state his plea personally) or be represented. He can also respond in writing to the complaint. He can: plead guilty to the complaint (or part thereof) and the court can proceed to call for background reports or to sentence having heard from the Crown and the accused as it considers fit; plead not guilty and a trial and intermediate diet will be assigned; seek a continuation without plea or take a plea to the competency or relevancy of the complaint. Any plea to the competency of relevancy of a complaint or the proceedings thereon or any denial that the accused is the person charged by the police with the offence must be stated before the accused pleads to the charge (s.144(4) CP(S)A 1995). Later objection can only be taken on cause shown (s.144(5) CP(S)A 1995). In terms of s.145 CP(S)A 1995 a first calling can be continued for up to 28 days at a time to allow for further enquiries. If the accused is in custody for the subject matter of the complaint then the case can only be continued for a maximum of seven days at a time up to a maximum of 28 days. If a plea to competency or relevancy is taken a debate will be assigned generally three weeks off. If you wish to appeal a debate decision then leave to appeal must be obtained from the sheriff or the Justice of the Peace and the appeal marked within two days.
If an accused person is charged in a special capacity, e.g. that he committed the offence while on bail, then in terms of s.255 CP(S)A 1995 he must challenge that special capacity before the plea is recorded.
Devolution Issues: In terms of rule 40.3 of the Act of Adjournal (Criminal Procedure Rules) 1996 if a devolution issue is to be raised then notice of intention to raise such an issue must be given before the accused is called upon to plead (it can be taken later on cause shown).
If an accused person fails to appear in answer to the complaint then the judge can grant a warrant for his apprehension (s.139 CP(S)A 1995 - Generally).
Where the accused pleads not guilty he or she will be given two dates upon which to return to court, the intermediate diet and the trial diet. The court may when fixing a trial diet fix an intermediate diet no matter how many times a trial is adjourned. The court, if it considers it appropriate, can on joint application by the prosecutor and the accused, dispense with the need for an intermediate diet. There are certain rural courts which are exempt from the requirement of fixing an intermediate diet.
The purpose of the intermediate diet is to find out the following:
(a) the state of preparation of the prosecutor and of the accused with respect to their cases;
(b) whether the accused is still pleading not guilty;
(c)the extent to which the prosecutor and the accused have complied with their duty under s.257(1) CP(S)A 1995 (duty to agree evidence of a non controversial nature). CP(S)A 1995 s.258 sets out the mechanics for service of notice on other parties of evidence capable of agreement. The court has the power to ask questions to ascertain the state of preparedness of the parties at the intermediate diet. The intermediate diet is a peremptory diet and if the complaint does not call by midnight on the date assigned then the instance falls (McDonald v. Knight (1990) SCCR 641).
On the date of trial there will generally be a number of trials set down for the same date for the same court. Generally, there will be a 'call over' of trials to see which accused are present and which trials are proceeding. There will generally be an adjournment after the call over to allow both prosecution and defence to check the attendance of witnesses and to discuss any last minute matters or pleas, although local court custom should always be checked before assuming that this is the case. A summary trial diet is a peremptory diet. If the accused is not present a warrant can be granted for his apprehension. If an accused person fails to appear without a reasonable excuse at any peremptory diet of which he has been given due notice he is liable to a fine not exceeding Level 3 and in the district court 60 days detention or imprisonment and in the sheriff court three months detention or imprisonment. A fresh complaint would generally be served in terms of CP(S)A 1995 s.150(8). If a fresh complaint is not served then the judge can find the accused in contempt of court if no reasonable excuse is proffered for their failure to appear.
No proceedings can take place in the absence of the prosecutor. Furthermore the court should not proceed to trial in the absence of the defence solicitor if it seems likely he will be available later on in the day (Fraser v. McKinnon (1981) SCCR 91). It should also be noted that summary trials can be, and quite often are, adjourned part heard, i.e. after hearing part of the evidence (in terms of s.146(7) CP(S)A 1995 the court has the power to grant such adjournment as may be necessary for the proper conduct of the case).
At the calling of the trial diet the accused can tender a plea of guilty to part or all of the charges against him, adhere to his plea of not guilty and proceed to trial, or a motion can be made by Crown or defence to adjourn the trial. The Crown may even decide not to proceed any further with the case by either accepting a not guilty plea, deserting the case pro loco et tempore or deserting the case simplicities. If the sheriff refuses a motion to adjourn and the Crown are not in a position to proceed then the judge ex proprio motu should desert the case simpliciter. The trial can also be adjourned on the basis of there being insufficient time available to the court to deal with the case and if an adjournment is on that basis then it will be ex proprio motu due to lack of court time.
Once the prosecutor has accepted a plea of guilty the accused has tholed his assize and no further proceedings are competent (Milne v. Guild (1995) SCCR 464). It should be noted that a plea of guilty to one charge in a complaint may be relied on as evidence in proof of another charge in that complaint if it constitutes a relevant admission (McColl v. Skene (1980) SLT Notes 53).
The only defence requiring prior notice to the court in summary procedure is alibi (see 6.11). Section 149 CP(S)A 1995 provides that the accused must give notice to the prosecutor prior to the examination of the first witness for the prosecution of any alibi. The notice, which may be given orally or in writing, must specify details as to time and place and the witnesses to be led in support of the alibi. The prosecutor upon such notice being given is entitled if he so desires to an adjournment of the case. Insanity in Bar of Trial (not a special defence but a Plea in Bar of Trial) in terms of CP(S)A 1995 s.54(7) must be intimated to the prosecutor before the first witness is sworn.
A summary trial is deemed to have commenced when an accused has been called upon to plead at a trial diet and has pled not guilty (Mitchell v. Vannet (1999) SCCR 547. See also bill of advocation by P.F. Linlithgow v. Borland, Appeal No. 2699/99). The Crown will proceed to lead evidence and call witnesses after a plea of not guilty has been tendered. After questioning by the Crown the defence has a chance to cross examine the witness and the Crown may then re-examine any matters arising from the defence cross-examination. Any objection to the admissibility of evidence must be timeously stated and if this is not done an appeal cannot be founded on the fact that the evidence in question was wrongly admitted. The objections must be made in clear and in unambiguous terms and the objector should ask for the objection to be recorded in the minutes in terms of s.157 CP(S)A 1995 if he wishes to found an appeal upon the objection (McAulay v. Wilson (1995) SCCR 133).
What is particularly clear is that the judge should not question witnesses more than is necessary to clarify evidence. He should not try to elicit new evidence and should not intervene excessively. However just because no objection has been taken to a line of evidence or question does not mean that the judge is not entitled to query its relevance.
After the close of the Crown case the defence can make a submission of 'No Case to Answer' where there is insufficient evidence in law to justify conviction (Williamson v. Wither (1981) SCCR 214). If the submissions are made on a number of grounds the judge must come to a decision on all of them even if he holds that one of them is sufficient to entitle him to acquit the accused. Even if no submissions have been made the judge must consider whether or not there is a legal sufficiency of evidence. Where any such submission is upheld the verdict is not guilty.
The defence have to decide next whether or not to lead evidence if the submission of 'No Case to Answer' is repelled or if there was no submission capable of being made. The burden of proof is on the Crown and the defence has nothing to prove, having no obligation to give evidence at any point.
If no evidence at this point is led by the defence then the Crown and the defence address the court on the evidence that the court has heard. The defence are entitled to speak last. The judge will then deliver his verdict.
If the defence decide to lead evidence then the witnesses are led by the defence, cross examined by the Crown and re-examined if necessary by the defence.
When the defence case has been closed the Crown and defence will make submissions on the evidence to the judge. Sections 268 and 269 of the CP(S)A 1995 allow for the leading of evidence in replication and additional evidence under certain circumstances after the defence case and the Crown case have both closed.
If the verdict is one of not guilty or not proven then the accused is free from all time for further prosecution for those charges. If the accused is found guilty and has any previous convictions they will be laid before the court and the accused has to admit or deny those. The court will then proceed to sentencing
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