Criminal Procedure (Scotland) Act 1975

Procedure prior to TrialE+W+S

Arrest, Judicial Examination, Custody, Bail, Etc.S

12 Petitions for Warrants.S

Petitions for warrant to arrest and commit persons suspected of or charged with crime may set forth the charge in the forms set out in Schedule A to the M1Criminal Procedure (Scotland) Act 1887 or in an Act of Adjournal under this Act or as nearly as may be in such form; and the provisions of sections 43 to 46 and 48 to 55 of this Act shall apply to any such petition as they apply to the indictment.

13 Warrants for arrest of escaped prisoners and mental patients.S

(1)On an application being made to a sheriff or justice alleging that any person is—

(a)an offender unlawfully at large from a prison or other institution to which the Prison Act applies in which he is required to be detained after being convicted of an offence; or

(b)a convicted mental patient liable to be retaken under [F1section 18, 38(7) or 138 of the M2Mental Health Act 1983], [F2section 28, 44 or 121 of the M3Mental Health (Scotland) Act 1984] or section 30 or 108 of the M4Mental Health Act (Northern Ireland) 1961 (retaking of mental patients who are absent without leave or have escaped from custody);

the sheriff or justice may issue a warrant to arrest him and bring him before any sheriff.

(2)Where a person is brought before a sheriff in pursuance of a warrant for his arrest under this section, the sheriff shall, if satisfied that he is the person named in the warrant and if satisfied as to the facts mentioned in paragraph (a) or (b) of the foregoing subsection, order him to be returned to the prison or other institution where he is required or liable to be detained or, in the case of a convicted mental patient, order him to be kept in custody or detained in a place of safety pending his admission to hospital.

(3)[F3Section 137 of the M5Mental Health Act 1983], [F4section 120 of the M6Mental Health (Scotland) Act 1984] and section 107 of the M7Mental Health Act (Northern Ireland) 1961 (custody, conveyance and detention of certain mental patients) shall apply to a convicted mental patient required by this section to be conveyed to any place or to be kept in custody or detained in a place of safety as they apply to a person required by or by virtue of [F3the said Act of 1983], [F41984] or1961, as the case may be, to be so conveyed, kept or detained.

(4)In this section—

• “convicted mental patient” means a person liable after being convicted of an offence to be detained under [F5Part III of the M8Mental Health Act 1983], [F6Part VI of the M9Mental Health (Scotland) Act 1984], Part III of the M10Mental Health Act (Northern Ireland) 1961 or section 25, 175, 177 or 178 of this Act in pursuance of a hospital order or transfer direction together with an order or direction restricting his discharge [F7or a person liable to be detained under][F5section 38 of the said Act of 1983];

• “place of safety” has the same meaning as in [F5Part III of the said Act of 1983] or Part III of the said Act of 1961 or section 462 of this Act, as the case may be;

• “Prison Act” means the M11Prison Act 1952, the M12Prisons (Scotland) Act 1952 or the M13Prison Act (Northern Ireland) 1953, as the case may be.

14 Warrant to search for or remove a child.S

(1)If, on an application to a justice by any person who, in the opinion of the justice, is acting in the interests of a child, it appears to the justice on information on oath that there is reasonable cause to suspect—

(a)that the child has been or is being assaulted, ill-treated, or neglected in any place within the jurisdiction of the justice, in a manner likely to cause him unnecessary suffering or injury to health, or

(b)that any offence mentioned in Schedule 1 to this Act has been or is being committed in respect of the child,

the justice may issue a warrant authorising any constable named therein to search for the child and, if it is found that he has been or is being assaulted, ill-treated or neglected in manner aforesaid, or that any such offence as aforesaid has been or is being committed in respect of him, to take him to and detain him in a place of safety, or authorising any constable to remove him with or without search to a place of safety and detain him there.

(2)A child shall not continue to be detained under the last foregoing subsection—

(a)where the [F8Principal Reporter] considers the child does not require compulsory measures of care, or

(b)after the day on which a children’s hearing first sit to consider his case in pursuance of section 37(4) of the M14Social Work (Scotland) Act 1968, or

(c)for a period exceeding seven days.

F9(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Any constable authorised by warrant under this section to search for or, with or without search, to remove any child may enter (if need be by force) any house, building, or other place specified in the warrant, and may remove him therefrom.

(5)Every warrant issued under this section shall be addressed to and executed by a constable, who shall be accompanied by the person making the application if that person so desires, unless the justice by whom the warrant is issued otherwise directs, and may also, if the justice by whom the warrant is issued so directs, be accompanied by a duly qualified medical practitioner.

(6)It shall not be necessary in any application, information or warrant under this section to name the child.

[F1015 Warrants granted by justice may be executed throughout Scotland.S

Any warrant granted by a justice may, without being backed or endorsed by any other justice, be executed throughout Scotland in the same way as it may be executed within the jurisdiction of the justice who granted it.]

[F1115A Warrants for search and apprehension to be signed by judge.S

Any warrant for search or apprehension granted under this Part of this Act shall be signed by the judge granting it, and execution upon any such warrant may proceed either upon the warrant itself or upon an extract of the warrant issued and signed by the clerk of court.]

16 Backing of certain warrants from the Isle of Man.S

(1)A warrant issued in the Isle of Man for the arrest of a person charged with an offence may, after it has been endorsed by a justice in Scotland, be executed there by the person bringing that warrant, by any person to whom the warrant was originally directed or by any officer of law of the sheriff court district where the warrant has been endorsed as aforesaid in like manner as any such warrant issued in Scotland.

(2)In this section “endorsed” means endorsed in the like manner as a process to which section 4 of the M15Summary Jurisdiction (Process) Act 1881 applies.

17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F12S

18 Power of constable to take offenders into custody.S

(1)Without prejudice to any other powers of arrest, any constable may take into custody, without warrant—

(a)any person who within his view commits any of the offences mentioned in Schedule 1 to this Act, if the constable does not know and cannot ascertain his name and address;

(b)any person who has committed, or whom he has reason to believe to have committed, any of the offences mentioned in Schedule 1 to this Act, if the constable does not know and cannot ascertain his name and address or has reasonable ground for believing that he will abscond.

[F13(2)Where a person has been arrested under this section, the officer in charge of a police station may—

(a)liberate him upon a written undertaking, signed by him and certified by the said officer, in terms of which that person undertakes to appear at a specified court at a specified time; or

(b)liberate him without any such undertaking; or

(c)refuse to liberate him; and such refusal and the detention of that person until his case is tried in the usual form shall not subject the officer to any claim whatsoever.

(3)A person in breach of an undertaking given by him under subsection (2)(a) above without reasonable excuse shall be guilty of an offence and liable to the following penalties—

(a)a fine not exceeding [F14level 3 on the standard scale]; and

(b)imprisonment for a period not exceeding 3 months.

(4)The penalties provided for in subsection (3) above may be imposed in addition to any other penalty which it is competent for the court to impose, notwithstanding that the total of penalties imposed may exceed the maximum penalty which it is competent to impose in respect of the original offence.

(5)In any proceedings relating to an offence under this section, a writing, purporting to be such an undertaking as is mentioned in subsection (2)(a) above and bearing to be signed and certified, shall be sufficient evidence of the terms of the undertaking given by the arrested person.]

19 Prisoners before examination to have access to solicitor.S

(1)Where any person has been arrested on any criminal charge, such person shall be entitled immediately upon such arrest

[F15(a)]to have intimation sent to a solicitor that his professional assistance is required by such person, and informing him

[F16(i)of the place where the person is being detained;

(ii)whether the person is to be liberated; and

(iii)if the person is not to be liberated, the date on which he is to be taken to court and the court to which he is to be taken;]

[F17(b)to be told what rights there are under paragraph (a) above and subsections (2) and (3) below.]

(2)Such solicitor shall be entitled to have a private interview with the person accused before he is examined on declaration, and to be present at such examination.

(3)It shall be in the power of the sheriff or justice to delay such examination for a period not exceeding 48 hours from and after the time of such person’s arrest, in order to allow time for the attendance of such solicitor.

20 Accused at examination need not emit a declaration.S

(1)Where the accused is brought before the sheriff for examination on any charge and he or his solicitor intimates that he does not desire to emit a declaration in regard to such charge, it shall be unnecessary to take a declaration, and [F18subject to section 20A of this Act] the accused may be committed for further examination or until liberated in due course of law without a declaration being taken.

F19(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)The foregoing provisions of this section shall not prejudice the right of the accused subsequently to emit a declaration on intimating to the prosecutor his desire to do so [F20; and that declaration shall be taken in further examination.]

[F21(3A)An accused person may, where subsequent to examination (or further examination) on any charge the prosecutor desires to question him as regards an extrajudicial confession (whether or not a full admission) allegedly made by him, to or in the hearing of an officer of police, which is relevant to the charge and as regards which he has not previously been examined, be brought before the sheriff for further examination.

(3B)Where the accused is brought before the sheriff for further examination it shall be in the power of the sheriff to delay that examination for a period not exceeding 24 hours in order to allow time for the attendance of the accused’s solicitor.

(3C)Any proceedings before the sheriff in examination or further examination shall be conducted in chambers and outwith the presence of any co-accused.]

(4)The provisions of this section shall apply to procedure under indictment, without prejudice to the accused being tried summarily by the sheriff for any offence in respect of which he has been committed until liberated in due course of law.

[F2220A Accused at examination may be questioned by prosecutor.S

(1)Subject to the following provisions of this section, an accused on being brought before the sheriff for examination on any charge (whether that examination is the first examination or a further examination) may be questioned by the prosecutor in so far as such questioning is directed towards eliciting any [F23admission,] denial, explanation, justification or comment which the accused may have as regards—

(a)matters averred in the charge:

(b)the alleged making by the accused, to or in the hearing of an officer of police, of an extrajudicial confession (whether or not a full admission) relevant to the charge:

(c)what is said in any declaration emitted in regard to the charge by the accused at the examination.

(2)The prosecutor shall, in framing questions in exercise of his power under subsection (1) above, have regard to the following principles—

(a)the questions should not be designed to challenge the truth of anything said by the accused;

(b)there should be no reiteration of a question which the accused has refused to answer at the examination; and

(c)there should be no leading questions;

and the sheriff shall ensure that all questions are fairly put to, and understood by, the accused.

(3)The accused, where he is represented by a solicitor at the judicial examination, shall be told by the sheriff that he may consult that solicitor before answering any question.

[F25(3A)The accused shall be told by the sheriff that if he answers any question put to him at the examination under this section in such a way as to disclose an ostensible defence, the prosecutor shall be under the duty imposed by subsection (7) below.]

(4)With the permission of the sheriff, the solicitor for the accused may ask the accused any question the purpose of which is to clarify any ambiguity in an answer given by the accused to the prosecutor at the examination or to give the accused an opportunity to answer any question which he has previously refused to answer.

(5)An accused may decline to answer a question under subsection (1) above; and, where he is subsequently tried on the charge mentioned in that subsection or on any other charge arising out of the circumstances which gave rise to the charge so mentioned, his having so declined may be commented upon by the prosecutor, the judge presiding at the trial, or any co-accused, only where and in so far as the accused (or any witness called on his behalf) in evidence avers something which could have been stated appropriately in answer to that question.

(6)The procedure in relation to examination under this section shall be prescribed by Act of Adjournal under this Act.

[F26(7)Without prejudice to any rule of law, on the conclusion of an examination under this section the prosecutor shall secure the investigation, to such extent as is reasonably practicable, of any ostensible defence disclosed in the course of the examination.

(8)The duty imposed by subsection (7) above shall not apply as respects any ostensible defence which is not reasonably capable of being investigated.]]

20B Record to be made of proceedings at examination.S

(1)The prosecutor shall provide for averbatimrecord to be made by [F27means of shorthand notes or by mechanical means] of all questions to and answers and declarations by, the accused in examination, or further examination, under sections 20 and 20A of this Act.

[F28(1A)A shorthand writer shall—

(a)sign the shorthand notes taken by him of the questions, answers and declarations mentioned in subsection (1) above and certify the notes as being complete and correct; and

(b)retain the notes.

(1B)A person recording the questions, answers and declarations mentioned in subsection (1) above by mechanical means shall—

(a)certify that the record is true and complete;

(b)specify in the certificate the proceedings to which the record relates; and

(c)retain the record.

(1C)The prosecutor shall require the person who made the record mentioned in subsection (1) above, or such other competent person as he may specify, to make a transcript of the record in legible form; and that person shall—

(a)comply with the requirement;

(b)certify the transcript as being a complete and correct transcript of the record purporting to have been made and certified, and in the case of shorthand notes signed, by the person who made the record; and

(c)send the transcript to the prosecutor.]

[F29(2)A transcript certified under subsection (1C)(b) above shall, subject to subsection (4) below, be deemed for all purposes to be a complete and correct record of the questions, answers and declarations mentioned in subsection (1) above.]

(3)Subject to subsections (5) and (6) below, within 14 days of the date of examination or further examination, the prosecutor shall—

(a)serve a copy of the transcript on the accused examined; and

(b)serve a further such copy on the solicitor (if any) for that accused.

(4)Subject to subsections (5) and (6) below, where notwithstanding the certification mentioned in subsection (2) above the said accused or the prosecutor is of the opinion that a transcript served under paragraph (a) of subsection (3) above contains an error or is incomplete he may—

(a)within 10 days of service under the said paragraph (a), serve notice of such opinion on the prosecutor or as the case may be the said accused; and

(b)within 14 days of service under paragraph (a) of this subsection, apply to the sheriff for the error or incompleteness to berectified;

and the sheriff shall within seven days of the application hear the prosecutor and the said accused in chambers and may authorise rectification:

(5)Where at the time of a further examination a trial diet is already fixed and the interval between the further examination and that diet is not sufficient to allow of the time limits specified in subsections (3) and (4) above, the sheriff shall (either or both)—

(a)direct that those subsections shall apply in the case with such modifications as to time limits as he shall specify;

(b)postpone the trial diet:

(6)Any time limit mentioned in subsections (3) and (4) above (including any such time limit as modified by a direction under subsection (5) above) may be extended, in respect of the case, by the High Court.

(7)In so far as it is reasonably practicable so to arrange, the sheriff who deals with any application made under subsection (4) above shall be the sheriff before whom the examination (or further examination) to which the application relates was conducted.

(8)Any decision of the sheriff, as regards rectification under subsection (4) above, shall be final.

(9)A copy of—

(a)a transcript required by paragraph (a) of subsection (3) above to be served on an accused or by paragraph (b) of that subsection to be served on his solicitor; or

(b)a notice required by paragraph (a) of subsection (4) above to be served on an accused or on the prosecutor,

[F30shall be served in such manner as may be prescribed by Act of Adjournal]; and a written execution purporting to be signed by the person who served such transcript or notice, together with, where appropriate, [F31the relevant post office receipt]shall be sufficient evidence of service of such a copy.

21 Examination of accused on charges arising in different districts.S

Where there are charges against the accused in different sheriff court districts he may be brought before the sheriff of any one of such districts at the instance of the procurator fiscal of such district for examination on all or any of such charges, and may be dealt with in every respect as if such charges had arisen in the district where he is examined, but without prejudice to the power of the Lord Advocate under section 5 of this Act to determine the court before which the accused shall be tried on such charges.

22 Committal until liberation in due course of law.S

(1)All informations shall be signed and no person shall be committed until liberated in due course of law for any crime or offence without a warrant in writing expressing the particular charge in respect of which he is committed.

(2)Any such warrant for imprisonment which either proceeds on an unsigned information or does not express the particular charge shall be null and void.

(3)The accused person shall immediately be given a true copy of the warrant for imprisonment signed by the messenger or executor of the warrant before imprisonment or the warder of the prison receiving the warrant.

23 Remand and committal of persons under 21.S

(1)Where a court remands or commits for trial or for sentence a person under 21 years of age who is charged with or convicted of an offence and is not released on bail, then, except as otherwise expressly provided by this section, the following provisions shall have effect, that is to say—

(a)subject to the following paragraph, if he is under 16 years of age the court shall [F32, instead of committing him to prison, commit him to the local authority in whose area the court is situated to be detained—;

(i)where the court so requires, in secure accommodation within the meaning of the Social Work (Scotland) Act 1968; and

(ii)in any other case, in a suitable place of safety chosen by the authority;]

(b)if he is a person of over 16 years of age, or a child under 16 years of age but over 14 years of age who is certified by the court to be unruly or depraved, and the court has been notified by the Secretary of State that a remand centre is available for the reception from that court of persons of his class or description, he shall be committed to a remand centre instead of being committed to prison.

(2)Where any person is committed to a local authority or to a remand centre under any provision of this Act, that authority or centre shall be specified in the warrant, and he shall be detained by the authority or in the centre for the period for which he is committed or until he is liberated in due course of law.

(3)Where any person has been committed to a local authority under any provision of this Act, the court by which he was committed, if the person so committed is not less than 14 years of age and it appears to the court that he is unruly or depraved, may revoke the commitment and commit the said person—

(a)if the court has been notified that a remand centre is available for the reception from that court of persons of his class or description, to a remand centre; and

(b)if the court has not been so notified, to a prison.

(4)Where, in the case of a person under 16 years of age who has been committed to prison or to a remand centre under this section, the sheriff is satisfied that his detention in prison or a remand centre is no longer necessary, he may revoke the commitment and commit the person to the local authority in whose area the court is situated, [F33to be detained—.

(a)where the court so requires, in secure accommodation within the meaning of the Social Work (Scotland) Act 1968; and

(b)in any other case, in a suitable place of safety chosen by the authority.]

24 Committal of children to custody in place of safety.S

(1)Any court, on remanding or committing for trial a child who is not liberated on bail shall, instead of committing him to prison, commit him to the local authority in whose area the court is situated to be detained in a place of safety chosen by the local authority for the period for which he is remanded or until he is liberated in due course of law.

(2)A commitment under this section may be varied, or, in the case of a child over 14 years of age, who proves to be of so unruly a character that he cannot safely be detained in such custody, or to be of so depraved a character that he is not a fit person to be so detained, revoked, by the court which made the order, or if application cannot conveniently be made to that court, by a sheriff sitting summarily having jurisdiction in the place where the court which made the order sat, and if it is revoked the child may be committed to prison [F35; but a commitment shall not be so revoked unless conditions as the Secretary of State may by order made by statutory instrument prescribe are satisfied in relation to the child.]

25 Power of court to commit to hospital a person suffering from mental disorder.S

(1)Where a court remands or commits for trial a person charged with any offence who appears to the court to be suffering from mental disorder, and the court is satisfied that a hospital is available for his admission and suitable for his detention, the court may, instead of remanding him in custody, commit him to that hospital.

(2)Where any person is committed to a hospital as aforesaid, the hospital shall be specified in the warrant and, if the responsible medical officer is satisfied that he is suffering from mental disorder of a nature or degree which warrants his admission to a hospital under [F36Part V of the M16Mental Health (Scotland) Act 1984], he shall there be detained for the period for which he is remanded or the period of committal, unless before the expiration of that period he is liberated in due course of law.

(3)When the responsible medical officer has examined the person so detained he shall report the result of that examination to the court and, where the report is to the effect that the person is not suffering from mental disorder of such a nature or degree as aforesaid, the court may commit him to any prison or other institution to which he might have been committed had he not been committed to hospital or may otherwise deal with him according to law.

(4)No person shall be committed to a hospital under this section except on the written or oral evidence of a medical practitioner.

[F37(5)Without prejudice to subsection (3) above, the court may review an order under subsection (1) above on the ground that there has been a change of circumstances since the order was made and, on such review—

(a)where the court considers that such an order is no longer required in relation to a person, it shall revoke the order and may deal with him in such way mentioned in subsection (3) above as the court thinks appropriate;

(b)in any other case, the court may—

(i)confirm or vary the order; or

(ii)revoke the order and deal with him in such way mentioned in subsection (3) above as the court considers appropriate.

(6)Subsections (1) to (4) above shall apply to the review of an order under subsection (5) above as they apply to the making of an order under subsection (1) above.]

26 Bail competent before committal.S

(1)All crimes and offences, except murder and treason, shall be bailable.

(2)Any person accused of a crime which is by law bailable shall be entitled [F38, on any occasion on which he is brought before the sheriff prior to his committal until liberated in due course of law, to apply] to the sheriff for [F39bail]:

(3)The sheriff F40. . . shall be entitled in his discretion to refuse such application before the person accused is committed until liberated in due course of law.

(4)Where an accused person is admitted to bail without being committed until liberated in due course of law, it shall not be necessary so to commit him, and it shall be lawful to serve him with an indictment or complaint without his having been previously so committed.

27 Renewal of application for bail after committal.S

Where bail is refused before committal until liberation in due course of law on an application made under the last foregoing section, the application for bail may be renewed after such committal.

28 Admission or refusal of bail after committal.S

(1)Any sheriff having jurisdiction to try the offence or to commit the accused until liberated in due course of law may, at his discretion, on the application of any person who has been committed until liberation in due course of law for any crime or offence, except murder or treason, and after opportunity shall have been given to the prosecutor to be heard thereon, admit or refuse to admit such person to bail.

(2)Such application shall be disposed of within 24 hours after its presentation to the sheriff, failing which the accused shall be forthwith liberated.

[F41(3)For the avoidance of doubt, the provisions of section 26 of this Act and the foregoing provisions of this section apply whether or not the person is in custody at such time as he appears for the disposal of his application.]

[F4228A No bail for persons charged with or convicted of homicide or rape after previous conviction of such offences.S

(1)Notwithstanding sections 26 to 33 and 238 of this Act, a person who in any proceedings has been charged with or convicted of—

(a)attempted murder;

(b)culpable homicide;

(c)rape; or

(d)attempted rape,

in circumstances where this section applies shall not be granted bail in those proceedings.

(2)This section applies where—

(a)the person has previously been convicted by or before a court in any part of the United Kingdom of any offence specified in subsection (1) above or of murder or manslaughter; and

(b)in the case of a previous conviction of culpable homicide or of manslaughter—

(i)he was sentenced to imprisonment or, if he was then a child or young person, to detention under any of the relevant enactments;

(ii)a hospital order was imposed in respect of him;

(iii)an order having the same effect as a hospital order was made in respect of him under section 174ZC(2)(a) of this Act; or

(iv)an order having equivalent effect to an order referred to in sub-paragraph (ii) or (iii) above has been made in respect of him by a court in England and Wales.

(3)This section applies whether or not an appeal is pending against conviction or sentence or both.

(4)In this section—

• “conviction” includes—

(a)a finding that a person is not guilty by reason of insanity;

(b)a finding under section 174ZA(2) of this Act;

(c)a finding under section 4A(3) of the Criminal Procedure (Insanity) Act 1964 (cases of unfitness to plead) that a person did the act or made the omission charged against him; and

(d)a conviction of an offence for which an order is made placing the offender on probation or discharging him absolutely or conditionally;

and “convicted” shall be construed accordingly; and

• “the relevant enactments” means—

(a)as respects Scotland, sections 205 and 206 of this Act;

(b)as respects England and Wales, section 53(2) of the Children and Young Persons Act 1933; and

(c)as respects Northern Ireland, section 73(2) of the Children and Young Persons Act (Northern Ireland) 1968.]

29. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F43S

30 Application for review of court’s decision on bail and caution.S

(1)The following provisions of this section shall apply where a court has refused to admit a person to bail or, where a court has so admitted a person, the bail fixed in his case has not been found.

(2)A court shall, on the application of any such person as aforesaid, have power to review its decision to admit to bail or its decision as to the bail fixed and may, on cause shown, admit the person to bail or, as the case may be, fix bail [F44on different conditions].

(3)An application under this section, where it relates to the original decision of the court, shall not be made before the fifth day after that decision and, where it relates to a subsequent decision, before the fifteenth day thereafter.

(4)Nothing in the provisions of this section shall affect any right of a person to appeal against the decision of a court in relation to admitting to bail or to the bail fixed.

(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F45

[F4630A Application by prosecutor for review of court’s decision to grant bail.S

(1)On an application by the prosecutor at any time after a court has granted bail to a person the court may, where the prosecutor puts before the court material information which was not available to it when it granted bail to that person, review its decision.

(2)On receipt of an application under subsection (1) above the court shall—

(a)intimate the application to the person granted bail;

(b)fix a diet for hearing the application and cite that person to attend the diet; and

(c)where it considers that the interests of justice so require, grant warrant to arrest that person.

(3)On hearing an application under subsection (1) above the court may—

(a)withdraw the grant of bail and remand the person in question in custody; or

(b)grant bail, or continue the grant of bail, either on the same or on different conditions.

(4)Nothing in the foregoing provisions of this section shall affect any right of appeal against the decision of a court in relation to bail.]

31 Appeal in respect of bail.S

(1)Where an application for bail after commitment until liberation in due course of law is refused by any sheriff, or where the applicant is dissatisfied with the amount of bail fixed, he may appeal to the High Court, and the High Court may, in its discretion, order intimation to the Lord Advocate.

(2)Where an application for bail is granted by any sheriff, whether before or after commitment until liberation in due course of law, the public prosecutor, if dissatisfied with the decision allowing bail, or with the amount of bail fixed, may appeal to the High Court, and the applicant shall not be liberated until the appeal by the prosecutor is disposed of, except as provided in section 33 of this Act.

(3)Written notice of appeal shall be immediately given to the opposite party by the party appealing under this section.

(4)An appeal under this section shall be disposed of by the High Court or any Lord Commissioner of Justiciary in court or in chambers after such inquiry and hearing of parties as shall seem just.

[F47(4A)Where an applicant in an appeal under this section is under 21 years of age, section 23 of this Act shall apply to the High Court or, as the case may be, the Lord Commissioner of Justiciary when disposing of the appeal as it applies to a court when remanding or committing a person of the applicant’s age for trial or sentence.]

(5)In the event of the appeal of the public prosecutor under this section being refused, the court may award expenses against him.

32 No fees exigible against accused in respect of application for bail.S

No clerks’ fees, court fees, or other fees or expenses shall be exigible from, or be awarded against, an accused in respect of his application for bail, or of the appeal of such application to the High Court.

33 Liberation of applicant when appeal by public prosecutor.S

(1)When an appeal is taken by the public prosecutor either against the grant of bail or against the amount fixed, the applicant to whom bail has been granted shall, if the bail fixed shall have been found by him, be liberated after 72 hours F48. . . from the granting of the application, whether the appeal be disposed of or not, unless the High Court shall grant an order for his further detention in custody. In computing the aforesaid periods, Sundays and public holidays, whether general or court holidays, shall be excluded.

(2)Notice F49. . . to the governor of the prison of the issue of such an order within the time aforesaid bearing to be sent by the Clerk of Justiciary or the Crown Agent shall be sufficient warrant for the detention of the applicant pending arrival of the order in due course of post.

34. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F50S

35 Right of Lord Advocate and High Court to admit a person to bail.S

Nothing contained in this Act shall affect the right of the Lord Advocate or the High Court to admit to bail any person charged with any crime or offence.

36. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F51S

37 Power to order parent to give security for child’s good behaviour.S

(1)Where a child has been charged with any offence, the court may order his parent or guardian to give security for his co-operation in securing the child’s good behaviour.

(2)An order under this section may be made against a parent or guardian who, having been required to attend, has failed to do so, but, save as aforesaid, no such order shall be made without giving the parent or guardian an opportunity of being heard.

(3)Any sums ordered on forfeiture of any such security as aforesaid to be paid by a parent or guardian may be recovered from him by civil diligence or imprisonment in like manner as if the order had been made on the conviction of the parent or guardian of the offence with which the child was charged.

38 Separation of children from adults at courts, etc.S

Arrangements shall be made for preventing a child while detained in a police station, or while being conveyed to or from any criminal court, or while waiting before or after attendance in any criminal court, from associating with an adult (not being a relative) who is charged with any offence other than an offence with which the child is jointly charged, and for ensuring that a female child shall, while so detained, being conveyed, or waiting, be under the care of a woman.

39 Attendance at court of parent of child charged with an offence, etc.S

(1)Where a child is charged with any offence, his parent or guardian may in any case, and shall, if he can be found and resides within a reasonable distance, be required to attend at the court before which the case is heard or determined during all the stages of the proceedings, unless the court is satisfied that it would be unreasonable to require his attendance.

(2)Where the child is arrested, the constable by whom he is arrested or the officer of police in charge of the police station to which he is brought shall cause the parent or guardian of the child, if he can be found, to be warned to attend at the court before which the child will appear.

(3)For the purpose of enforcing the attendance of a parent or guardian and enabling him to take part in the proceedings and enabling orders to be made against him, rules may be made under section 457 of this Act, for applying, with the necessary adaptations and modifications, such of the provisions of Part II of this Act as appear appropriate for the purpose.

(4)The parent or guardian whose attendance shall be required under this section shall be the parent or guardian having the actual possession and control of the child:

(5)The attendance of the parent of a child shall not be required under this section in any case where the child was before the institution of the proceedings removed from the custody or charge of his parent by an order of a court.

40 Notice to local authority of charge against a child.S

(1)Where a child is to be brought before a court, notification of the day and hour when, and the nature of the charge on which, the child is to be so brought shall be sent by the chief constable of the area in which the offence is alleged to have been committed to the local authority for the area in which the court will sit.

(2)Where a local authority have received a notification under the foregoing subsection they shall make such investigations and render to the court a report which shall contain such information as to the home surroundings of the child as appear to them will assist the court in the disposal of his case, and the report shall contain information, which the appropriate education authority shall have a duty to supply, as to the school record, health and character of the child.

The IndictmentS

41 Indictment forms.S

All prosecutions for the public interest before the High Court or before the sheriff sitting with a jury shall proceed on indictment in name of Her Majesty’s Advocate, and such indictment may be in the forms set out in Schedule A to the M17Criminal Procedure (Scotland) Act 1887 or in an Act of Adjournal under this Act or as nearly as may be in such form and shall be signed by the Lord Advocate or one of his deputes, or by a procurator fiscal, and the words “By Authority of Her Majesty’s Advocate” shall be prefixed to the signature of such procurator fiscal.

[F5242 Resignation, death or demission of office of Lord Advocate.S

(1)All indictments which have been raised by a Lord Advocate shall remain effective notwithstanding his subsequently having died or demitted office and may be taken up and proceeded with by his successor.

(2)During any period when the office of Lord Advocate is vacant it shall be lawful to indict accused persons in the name of the Solicitor General then in office.

(3)The advocates depute shall not demit office when a Lord Advocate dies or demits office but shall continue in office until their successors receive commissions.

(4)The advocates depute and procurators fiscal shall have power, notwithstanding any vacancy in the office of Lord Advocate, to take up and proceed with any indictment which—

(a)by virtue of subsection (1) above, remains effective; or

(b)by virtue of subsection (2) above, is in the name of the Solicitor General.

(5)For the purposes of this Act, where, but for this subsection, demission of office by one Law Officer would result in the offices of both being vacant, he or, where both demit office on the same day, the person demitting the office of Lord Advocate shall be deemed to continue in office until the warrant of appointment of the person succeeding to the office of Lord Advocate is granted.

(6)The Lord Advocate shall enter upon the duties of his office immediately upon the grant of his warrant of appointment; and he shall as soon as is practicable thereafter take the oaths of office before any Secretary of State or any Lord Commissioner of Justiciary.]

43 Naming of accused.S

A person accused may be named and designed in an indictment according to the existing practice, or he may be named by the name given by him and designed as of the place given by him as his residence when he is examined on declaration, or he may be named by the name under which he is committed until liberated in due course of law, and it shall not be necessary to set forth any other name or names by which he may be known, or any other address or designation.

44 Nomen juris unnecessary.S

It shall not be necessary in any indictment to specify by any nomen juris the crime which is charged, but it shall be sufficient that the indictment sets forth facts relevant and sufficient to constitute an indictable crime.

45 Case of two or more persons charged.S

When in any indictment two or more persons are charged together with committing a crime, it shall not be necessary to allege that “both and each or one or other,” or that “all and each or one or more” of them committed the crime, or did or failed to do any particular act, but such alternatives shall be implied in all such indictments.

46“Guilty, actor or art and part” unnecessary.S

It shall not be necessary to state in any indictment that a person accused is “guilty, actor or art and part,” but such charge shall be implied in all indictments.

47“All which or part” implied.S

The customary conclusion of indictments formerly in use, commencing with the words “All which or part thereof,” shall be implied in all indictments though not set forth.

48 Qualifying words to be implied.S

It shall not be necessary in any indictment to allege that any act of commission or omission therein charged was done or omitted to be done “wilfully” or “maliciously,” or “wickedly and feloniously,” or “falsely and fraudulently,” or “knowingly,” or “culpably and recklessly,” or “negligently,” or in “breach of duty,” or to use such words as “knowing the same to be forged,” or “having good reason to know,” or “well knowing the same to have been stolen,” or to use any similar words or expressions qualifying any act charged, but such qualifying allegation shall be implied in every case.

[F5348A Common law and statutory offences in same indictment.S

It shall be competent to include in one indictment both common law and statutory charges.]

[F5448B Description of offence in words of statute or order.S

In an indictment the description of any offence in the words of the statute or order contravened, or in similar words, shall be sufficient.]

49 Quotation of statutes unnecessary.S

It shall not be necessary in an indictment for a crime punishable under any Act of Parliament to quote the Act of Parliament or any part of it, but it shall be sufficient to allege that the crime was committed contrary to such Act of Parliament, and to refer to the Act and any section of the Act founded on without setting forth the enactment at length.

50 Latitude as to time and place.S

(1)The latitude formerly in use to be taken in stating time in indictments at the instance of Her Majesty’s Advocate shall be implied in all statements of time where an exact time is not of the essence of the charge.

(2)The latitude formerly in use to be taken in stating any place in such indictments by adding to the word “at”, or to the word “in”, the words “or near”, or the words “or in the near neighbourhood thereof” or similar words, shall be implied in all statements of place where the actual place is not of the essence of the charge.

(3)Where the circumstances of the offence charged make it necessary to take an exceptional latitude in regard to time or place it shall not be necessary to set forth such circumstances in the indictment, or to set forth that the particular time or the particular place is to the prosecutor unknown:

[F55(4)Notwithstanding subsection (3) above, nothing in any rule of law shall prohibit the amendment of an indictment to include a time outwith the exceptional latitude if it appears to the court that the amendment would not prejudice the accused.]

51 Latitude as to quantities, persons, things or modes.S

The latitude formerly in use to be taken in indictments in describing quantities by the words “or thereby”, or the words “or part thereof”, or the words “or some other quantity to the prosecutor unknown” or similar words, shall be implied in all statements of quantities; and the latitude formerly in use to be taken in stating details connected with the perpetration of any act regarding persons, things or modes by inserting general alternative statements followed by the words “to the prosecutor unknown” or similar words, shall be implied in every case.

52 Description of buildings, goods, money or other property.S

Where in an indictment, whether raised under statute or at common law, buildings, goods, money or property of any other description are mentioned, it shall not be necessary to allege the property or possession thereof to be in any person, official, corporation or company, or that the same were not the property of the accused, and the allegation that the same were not the property of the accused shall be implied in all cases where it is essential to the criminality of the charge.

53 Description of persons, goods, etc.S

Where in an indictment or any list or inventory relative thereto any person is referred to, it shall be sufficient to describe him by his name and ordinary address, and it shall not be necessary to describe him as “now or lately” residing at such address, but such words shall be implied, and where goods, articles or things require to be described, it shall be sufficient to describe them in general terms without specifying the materials of which they are made, or any particulars which distinguish them from other goods, articles or things of a similar kind except in cases in which such particulars are essential to the constitution of the crime charged.

54“Money” to include coin, bank notes and post office orders.S

The word “money” when used in an indictment shall include [F56cheques, banknotes, postal orders, money orders and foreign currency].

55 Setting forth documents unnecessary.S

Where in an indictment any document requires to be referred to, it shall not be necessary to set forth the document or any part of it in such indictment, but it shall be sufficient to refer to such document by a general description and, where it is to be produced, by the number given to it in the list of productions for the prosecution.

56 Declarations, etc., not averred.S

It shall not be necessary to set forth in an indictment the fact that the accused person emitted a declaration, nor to set forth any productions that are to be used against him, but it shall be sufficient that they be entered in the list of productions to be used at the trial.

57 Indictments, etc., written or printed or partly so.S

The principal record and service copies of indictments and all notices of citation, all lists of witnesses, productions and jurors, and all other official documents required in criminal prosecutions, may be either written or printed, or partly written and partly printed.

58 Authentication of alterations to indictment, etc.S

(1)Any deletion or correction made before service on the principal record or service copy of an indictment shall be sufficiently authenticated by the initials of any person who has signed, or could by law have signed, the same.

(2)Any deletion or correction made on a service copy of an indictment, or on any notice of citation, postponement, adjournment or other notice required to be served on a person accused [F57shall be sufficiently authenticated by the initials of any procurator fiscal or of the person serving the same..

(3)Any deletion or correction made]

59 Reset.S

Criminal resetting of property shall not be limited to the receiving of property taken by theft or robbery, but shall extend to the receiving of property appropriated by breach of trust and embezzlement and by falsehood fraud and wilful imposition; and under any indictment charging the resetting of property dishonestly appropriated by any of these means, it shall not be necessary to set forth any details of the crime by which the dishonest appropriation was accomplished, but it shall be sufficient to set forth that the person accused received such property, it having been dishonestly appropriated by theft or robbery, or by breach of trust and embezzlement, or by falsehood fraud and wilful imposition, as the case may be.

60 Robbery, etc. to include reset, and theft to include breach of trust, etc.S

(1)Under an indictment for robbery, or for theft, or for breach of trust and embezzlement, or for falsehood fraud and wilful imposition, a person accused may be convicted of reset.

(2)Under an indictment for robbery, or for breach of trust and embezzlement, or for falsehood fraud and wilful imposition, a person accused may be convicted of theft.

(3)Under an indictment for theft, a person accused may be convicted of breach of trust and embezzlement, or of falsehood fraud and wilful imposition, or may be convicted of theft, although the circumstances proved may in law amount to robbery.

(4)The power conferred by this section to convict a person of an offence other than that with which he is charged in an indictment shall be exercisable by the sheriff court before which such person is tried notwithstanding that that other offence was committed outside the jurisdiction of that sheriff court.

[F5860A Proceedings under the Merchant Shipping Acts.S

In any proceedings under the Merchant Shipping Acts it shall not be necessary to produce the official register of the ship referred to in the proceedings in order to prove the nationality of the ship, but the nationality of the ship as stated in the indictment shall, in the absence of evidence to the contrary, be presumed.]

61 Procedure where more than one crime charged.S

(1)Where in an indictment two or more crimes or acts of crime are charged cumulatively, it shall be lawful to convict of any one or more of them.

(2)Any part of what is charged in an indictment, constituting in itself an indictable crime, shall be deemed separable to the effect of making it lawful to convict of such crime.

(3)Where any crime is charged in an indictment as having been committed with a particular intent or with particular circumstances of aggravation, it shall be lawful to convict of the crime without such intent or aggravation.

F5962. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

63 Attempt at crime.S

(1)Attempt to commit any indictable crime shall itself be an indictable crime, and under an indictment which charges a completed crime, the accused may be lawfully convicted of an attempt to commit such crime; and under an indictment charging an attempt, the accused may be convicted of such attempt although the evidence be sufficient to prove the completion of the crime said to have been attempted.

(2)Under an indictment which charges a crime which imports personal injury inflicted by the accused, resulting in death or serious injury to the person, the accused may be lawfully convicted of the assault or other injurious act, and may also be lawfully convicted of the aggravation that such assault or other injurious act was committed with intent to commit such crime.

64 Statutory offences which are offences at common law.S

Where any act set forth in an indictment as contrary to any Act of Parliament is also criminal at common law, or where the facts proved under such an indictment do not amount to a contravention of the statute but do amount to a crime at common law, it shall be lawful to convict of the common law crime.

65 Superfluous particulars as to identity.S

When in the trial of any indictment the evidence led shall be sufficient to prove the identity of any person, corporation or company, or of any place, or of any thing, it shall not be a valid objection to the sufficiency of such evidence that any particulars set forth in regard thereto in the indictment have not been proved.

66 Proof of exceptions, qualifications, etc.S

Any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany in the same section the description of the offence in the statute or order creating the offence, may be proved by the accused, but need not be specified or negatived in the indictment, and no proof in relation to such exception, exemption, proviso, excuse, or qualification shall be required on behalf of the prosecution.

67 Offence committed in special capacity.S

Where an offence is alleged to be committed in any special capacity, as by the holder of a licence, master of a vessel, occupier of a house, or the like, the fact that the accused possesses the qualification necessary to the commission of the offence shall, unless challenged by preliminary objection before his plea is recorded, be held as admitted.

Notice of previous convictionsS

68 Notice of previous convictions.S

(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 desires 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 F60. . .set out in an Act of Adjournal under this Act or as nearly as may be in such form, and any conviction set forth in that notice shall be held to apply to the accused unless he gives, in accordance with subsection (3) of this section, written intimation objecting to such conviction on the ground that it does not apply to him or is otherwise inadmissible.

(3) . . . F61, intimation objecting to a conviction under subsection (2) of this section shall be given, at least five clear days before the [F62trial diet], to the Crown Agent, where the accused is cited to the High Court for the [F62trial diet], or to the procurator fiscal of the district to the court of which the accused is cited for the [F62trial diet] where the case is to be tried in the sheriff court; and where the accused pleads guilty at [F63any diet], no objection to any such conviction shall be entertained unless the accused has, at least two clear days before that diet, given intimation to the procurator fiscal of the district to the court of which the accused is cited for that diet.

(4)Where notice is given by the accused under section 102 of this Act of his intention to plead guilty and the prosecutor desires 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 F60. . . set out in an Act of Adjournal under this Act or as nearly as may be in such form, and any conviction set forth in that notice shall be held to apply to the accused unless within two days after service of the notice he gives to the procurator fiscal written intimation objecting to such conviction on the ground that it does not apply to him or is otherwise inadmissible.

Citation of Accused, Witnesses and JurorsS

69 Warrants for citation. S

[F64(1)]When any sitting of the sheriff court or of the High Court has been appointed to be held for the trial of persons accused on indictment, the sheriff clerk of the district in which the [F65trial diet] is to be called, where such trials are to take place in the sheriff court, or the Clerk of Justiciary, where such trials are to take place in the High Court, shall issue a warrant to officers of law to cite persons accused, witnesses, and jurors, [F66in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form]; and the execution of the citation against such accused persons [F67witnesses or jurors]shall be [F66in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form]; F68. . .; and such warrant authenticated by the signature of such clerk, or a duly certified copy thereof, shall be a sufficient warrant to all officers competent.

. . . F69F68. . ..

[F70(2)A witness may be cited by sending the citation to the witness by ordinary or registered post or by the recorded delivery service and a written execution in the form prescribed by Act of Adjournal or as nearly as may be in such form, purporting to be signed by the person who served such citation together with, where appropriate, the relevant post office receipt shall be sufficient evidence of such citation.]

70 Service of indictment and list of witnesses.S

The accused shall be served with a full copy of the indictment and of the list of the names and addresses of the witnesses to be adduced by the prosecution.

71 Manner of service of indictment, etc.S

Service of indictment, list of witnesses and list of productions appended thereto, and all notices or intimations to the accused, and all citations of witnesses, whether for precognition or trial, may be made or given by any [F71officer of law].

72 Officers may cite jurors and witnesses, without witnesses and oath of officer sufficient evidence of citation.S

[F72(1)]It shall be sufficient for the citation of any juror or witness that such citation be given by any officer of law duly authorised, without witnesses; and the oath of such officer in support of the execution shall [F73, subject to subsection (2) below,] be held and received as sufficient evidence of such citation when the same shall be questioned in a court of law.

[F74(2)A court shall not issue a warrant to apprehend a witness who fails to appear at a diet to which he has been duly cited unless the court is satisfied that the witness received the citation or that its contents came to his knowledge.]

73 Execution of citation of indictment.S

(1)It shall be no objection to the service of an indictment, or to the citation of any juror or witness, that the officer who discharged the duty was not at the time in possession of the warrant of citation; and it shall not be necessary to produce the execution of citation of any indictment F75. . .

(2)It shall be no objection to the admissibility of the officer or witness who served such indictment to give evidence respecting such service that his name is not included in the list of witnesses served on the accused.

74 Proceedings against bodies corporate. S

(1)In any proceedings against a body corporate, the indictment may be served by delivery of a copy of the indictment with notice to appear attached thereto at 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 body corporate.

Where a letter containing a copy of the indictment has been sent by registered post or by the recorded delivery service to the registered office or principal place of business of the body corporate, an acknowledgment or certificate of the delivery of the letter issued by the Post Office shall be sufficient evidence of the delivery of the letter at the registered office or place of business on the day specified in such acknowledgment or certificate.

(2)In any such proceedings as aforesaid the body corporate 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 of the body corporate.

(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F76

(4)Where at the [F77trial diet] in any such proceedings as aforesaid the body corporate does not appear in accordance with the provisions of subsection (2) of this section, or by counsel or a solicitor, the court shall, on the motion of the prosecutor, if it is satisfied that the provisions of subsection (1) of this section have been complied with, proceed to hear and dispose of the case in the absence of the body corporate.

(5)Where in any such proceedings as aforesaid a body corporate 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 body corporate to the Queen’s and Lord Treasurer’s Remembrancer.

(6)Nothing contained in section 103 or 105 of this Act shall require a plea tendered by or on behalf of a company to be signed.

(7)If on the application of the procurator fiscal, a sheriff is satisfied that there is reasonable ground for suspecting that an offence has been or is being committed by a body corporate, the sheriff shall have the like power to grant warrant for the citation of witnesses and the production of documents and articles as he would have if a petition charging an individual with the commission of the offence were presented to him.

(8)In this section, the expression “representative”, in relation to a body corporate against which such proceedings as aforesaid are brought, means an officer or servant of the body corporate duly appointed by it for the purpose of those proceedings. Such appointment need not be under the seal of the body corporate, and a statement in writing purporting to be signed by the managing director of, or by any person having or being one of the persons having the management of the affairs of the body corporate, to the effect that the person named in the statement has been appointed the representative of the body corporate for the purpose of the said proceedings shall be admissible without further proof as evidence that the person has been appointed.

Fixing the DietsS

[F7875 Notice of trial diet.S

Except where the indictment is served under section 102(1) of this Act, the notice served on the accused with the indictment shall call upon him to appear and answer to such indictment at

[F79(a)where the case is to be tried in the sheriff court, a first diet not less than 15 clear days after the service of the indictment and not less than 10 clear days before the trial diet; and

(b)]a trial diet (either in the High Court or in the sheriff court) not less than 29 clear days after the service of such indictment and notice.]

[F8075A First diet.S

(1)At a first diet the court shall, so far as is reasonably practicable, ascertain 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 84A(1) of this Act.

(2)In addition to the matters mentioned in subsection (1) above the court shall, at a first diet, consider any matter mentioned in subsection (3) below 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.

(3)The matters referred to in subsection (2) above are—

(a)that the party intends to raise a matter relating to the competency or relevancy of the indictment or to raise an objection such as is mentioned in section 108(1) of this Act;

(b)that he intends to submit a plea in bar of trial or to apply for separation or conjunction of charges or trials or to raise a preliminary objection under section 67 of this Act or to make an application under section 151(2) of this Act;

(c)that there are documents the truth of the contents of which ought in his view to be admitted, or that there is any other matter which in his view ought to be agreed; and

(d)that there is some other matter which could in his opinion be resolved with advantage before the trial.

(4)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) or (2) above.

(5)The accused shall attend a first diet of which he has been given notice and the court may, if he fails to do so, grant a warrant to apprehend him.

(6)A first diet may proceed notwithstanding the absence of the accused.

(7)The accused shall, at the first diet, be required to state how he pleads to the indictment, and section 103 of this Act shall apply where he tenders a plea of guilty.

(8)Where at a first 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 first diet.

(9)Subject to subsection (8) above, the court may, if it considers it appropriate to do so, adjourn a first diet.

(10)In this section “the court” means the sheriff court.]

[F8176 Preliminary diet.S

(1)Subject to section 20B(2) of this Act and to subsections (4) and (5) below, where a party [F82to a case which is to be tried in the High Court]within the appropriate period gives written notice to the [F83High Court] and to the other parties—

(a)that he intends to raise a matter relating to the competency or relevancy of the indictment or to raise an objection such as is mentioned in section 108(1) of this Act, the court shall order that there be a diet before the trial diet;

(b)that he intends to submit a plea in bar of trial or to apply for separation or conjunction of charges or trials [F84or to raise a preliminary objection under section 67 of this Act] or to make an application under section 151(2) of this Act, the court may make such order as is mentioned in paragraph (a) above;

[F85(bb)that there are documents the truth of the contents of which ought in his view to be admitted, or that there is any other matter which in his view ought to be agreed, the court may make such order as is mentioned in paragraph (a) above;]

(c)that there is some point, as regards any matter not mentioned in paragraph (a) [F86, (b) or (bb)] above, which could in his opinion be resolved with advantage before the trial and that he therefore applies for a diet to be held before the trial diet, the court may make such order as is mentioned in paragraph (a) above.

A party giving notice under this subsection shall specify in the notice the matter (or, as the case may be, the grounds of submission or the point) to which the notice relates.

(2)A diet ordered under subsection (1) above is in this Act referred to as a “preliminary diet”.

(3)The fact that a preliminary diet has been ordered on a particular notice under subsection (1) above shall not preclude the court’s consideration at that diet of any other such notice as is mentioned in that subsection, which has been intimated to the court and to the other parties at least 24 hours before that diet.

(4)Subject to subsection (5) below, the cou.rt may on ordering a preliminary diet postpone the trial diet for a period not exceeding 21 days; and any such postponement (including postponement for a period which by virtue of the said subsection (5) exceeds 21 days) shall not count towards any time limit applying in respect of the case.

(5)Any period mentioned in subsection (4) above may be extended by the High Court in respect of the case.

(6)Where a preliminary diet is ordered the accused (or all the accused as the case may be) shall attend it; and he (or they as the case may be) shall be required at the conclusion thereof to state how he pleads (or they plead) to the indictment:

[F87(6A)At a preliminary diet the court shall, in addition to disposing of any matter specified in a notice given under subsection (1) above or referred to in subsection (3) above, 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 84A(1) of this Act.

(6B)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) above or referred to in subsection (3) above or which it is required to ascertain under subsection (6A) above.

(6C)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.

(6D)Subject to subsection (6C) above, the court may, if it considers it appropriate to do so, adjourn a preliminary diet.]

(7)In subsection (1) above, “appropriate period” means as regards notice—

(a)under paragraph (a) of that subsection, the period of 15 clear days after service of the indictment;

(b)under paragraph (b) of that subsection, the period from service of the indictment to 10 clear days before the trial diet; and

(c)under paragraph [F88(bb) or](c) of that subsection, the period from service of the indictment to the trial diet.]

76A Appeal in connection with preliminary diet.S

(1)Without prejudice to any right of appeal under section 228 or 280A of this Act, a party may, with the leave of the court of first instance (granted either on the motion of that party or ex proprio motu) and in accordance with such procedure as may be prescribed by Act of Adjournal under this Act, appeal to the High Court against a decision at a [F89first diet or a preliminary diet, other than a decision to adjourn the diet or to postpone the trial diet]; but any such appeal must be taken not later than 2 days after such decision.

(2)Where an appeal is taken under subsection (1) above, the High Court may postpone the trial diet for such period as appears to them to be appropriate and may, if they think fit, direct that such period (or some part of it) shall not count towards any time limit applying in respect of the case.

(3)In disposing of an appeal under subsection (1) above the High Court may affirm the decision of the court of first instance or may remit the case to it with such directions in the matter as they think fit; and 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 a trial diet (if it has not already fixed one as regards so much of the indictment as it has not dismissed).

[F9077 Alteration of trial diet.S

Where an indictment is not brought to trial at the trial diet and a warrant for a subsequent sitting of the court, on a day within [F91two months] after the date of the aforesaid trial diet has been issued under section 69 of this Act by the clerk of court it shall be lawful for the court to adjourn the trial diet to the subsequent sitting; and the warrant shall have effect as if the trial diet had originally been fixed for the date of the subsequent sitting.]

[F9277A Application for postponement of trial diet.S

(1)At any time before the trial diet, a party may apply to the court before which the trial is to take place for postponement of the trial diet.

(2)Subject to subsection (3) below, after hearing all the parties, the court may discharge the trial diet and either fix a new trial diet or give leave to the prosecutor to serve a notice fixing a new trial diet.

(3)Where all the parties join in an application to postpone the trial diet, the court may proceed under subsection (2) above without hearing the parties.

(4)Where there is a hearing under this section the accused (or all the accused as the case may be) shall attend it;

Lodging of List of Witnesses, Productions, Special Defence, Etc.S

[F9378 Record copy of indictment and list of witnesses.S

(1)Except in a case to which section 102 of this Act applies, the [F94prosecutor shall on or before the date of service of the indictment lodge the record copy of the indictment with the clerk of court before which the trial is to take place, together with a copy of the list of witnesses and a copy of the list of productions.]

(2)The list of productions shall include the record, made under section 20B of this Act (with any rectification, authorised under subsection (4) of that section, incorporated), of proceedings at the examination of the accused.]

79 Description of witnesses.S

(1)The list of witnesses shall consist of the names of the witnesses, [F95together with an address at which they can be contacted for the purposes of precognition.]

(2)It shall not be necessary to insert in the list of witnesses the names of any witnesses to the declaration of the accused or the names of any witnesses to prove that an extract conviction applies to the accused, but witnesses may be examined in regard to these matters without previous notice.

[F9680 Objection to witness.S

(1)Any objection in respect of misnomer or misdescription of—

(a)any person named in the indictment; or

(b)any witness in the list of witnesses,

shall be intimated in writing to the court before which the trial is to take place, to the prosecutor and to any other accused [F97, where the case is to be tried in the sheriff court, at or before the first diet and, where the case is to be tried in the High Court,] not less than 10 clear days before the trial diet; and, except on cause shown, no such objection shall be admitted at the trial diet unless so intimated.

(2)Where such intimation has been given or cause is shown and the court is satisfied that the accused making the objection has not been supplied with sufficient information to enable him to identify the person named in the indictment or to find such witness in sufficient time to precognose him before the trial, the court may grant such remedy by postponement, adjournment or otherwise as appears to it to be appropriate.]

F9881 Examination by prosecutor of witnesses, etc., not included in lists lodged.S

[F99Without prejudice to section 82A of this Act] In any trial it shall be competent with the leave of the court for the prosecutor to examine any witness or to put in evidence any production not included in the lists lodged by him, provided that written notice containing, in the case of a witness, his name and address [F100as mentioned in section 79(1) above,] shall have been given to the accused not less than two clear days before the day on which the jury is sworn to try the case.

82 Written notice of special defence and examination of witnesses and productions not included in lists lodged.S

[F101(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 [F102, where the case is to be tried in the sheriff court, at or before the first diet and, where the case is to be tried in the High Court,] not less than 10 clear days before the trial diet; or

[F103(b)the court, on cause shown, otherwise directs.]]

[F104(1A)Subsection (1) above shall apply to a defence of automatism or coercion as if it were a special defence.]

(2)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—.

[F105(a)written notice of the names and addresses of such witnesses and of such productions shall have 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 ten clear days before the day on which the jury is sworn; or

(b)the court, on cause shown, otherwise directs, in which case it] shall give such remedy to the prosecutor by adjournment or postponement of the trial or otherwise as shall seem just.

(3)A copy of every written notice required by the last foregoing subsection shall be lodged by the accused with the sheriff clerk of the district in which the [F106trial diet] is to be held, or in any case the [F106trial diet] of which is to be held in the High Court in Edinburgh with the Clerk of Justiciary, at or before the [F106trial diet], for the use of the court.

[F10782A Parties may examine each other’s witnesses etc.S

It shall be competent for the prosecutor to examine any witness or put in evidence any production included in any list or notice lodged by the accused, and it shall be competent for an accused to examine any witness or put in evidence any production included in any list or notice lodged by the prosecutor or by a co-accused.]

83 Accused entitled to see productions.S

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 [F108trial diet] is situated or, where the [F108trial diet] is to be in the High Court in Edinburgh, in the Justiciary Office.

84 Proof as to productions.S

Where a person who has examined a production is adduced to give evidence with regard thereto and the production has been lodged at least eight days before the [F109trial diet], it shall not be necessary to prove

[F110(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[F111 ; or

(b)that the production examined by him is that taken possession of by the procurator fiscal or the police,]

unless the accused, at least four days before the [F109trial diet], gives to the Crown Agent, where he is cited to the High Court for the [F109trial diet], or to the procurator fiscal of the district to the court of which he is cited for the [F109trial diet], where the case is to be tried in the sheriff court, written notice that he does not admit that the production was received or returned as aforesaid.[F112or, as the case may be, that it is that taken possession of as aforesaid]

[F11384A Agreement of evidence.S

(1)Subject to subsection (2) below, the prosecutor and the accused (or each accused if more than one) shall each identify any facts which are facts—

(a)which he would, apart from this section, be seeking to prove;

(b)which he considers unlikely to be disputed by the other party (or by any of the other parties); and

(c)in proof of which he does not wish to lead oral evidence,

and shall (without prejudice to section 16 of the Criminal Justice (Scotland) Act 1995 (procedure for proving uncontroversial evidence)) take all reasonable steps to secure the agreement of the other party (or each of the other parties) to them; and the other party (or each of the other parties) shall take all reasonable steps to reach such agreement.

(2)Subsection (1) above shall not apply in relation to proceedings as respects which the accused (or any of the accused if more than one) is not legally represented.

(3)The duty under subsection (1) above applies from the date of service of the indictment until the swearing of the jury or, where intimation is given under section 102 of this Act, the date of that intimation.]

Preparation of Jury List, etc.S

[F11485 Number of jurors to be returned for trial.S

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.]

86 Jurors for High Court at Edinburgh.S

[F115(1)][F116The 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 [F117to 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.

[F118(2)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 general jury roll of the sheriff court district in which the town is situated.]

87, 88.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F119S

89 Jurors in inferior courts.S

For the purpose of a trial in any inferior court the clerk of court shall be furnished with a list of names from the [F120lists of potential jurors] of the sheriff court district in which the court is held, containing the number of persons required.

90 Order in which names of jurors are to be taken.S

The sheriffs principal, in any return of jurors made by them to a court, shall take the names in regular order, beginning at the top of the [F121lists of potential jurors], in each of the sheriff court districts, as required; and as often as any juror shall be returned to them, they shall mark or cause to be marked, in the [F121lists of potential jurors] of their respective sheriff court districts the date when any such juror shall have been returned to serve; and in any such return they 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 shall have been entered, as herein directed, and so to the end of the lists respectively.

91 Names of jurors dying or becoming disqualified to be passed over in making returns of jurors.S

Where a person whose name has been entered in the [F122lists of potential jurors] dies, or [F123ceases to be qualified to serve as a juror], the sheriff principal, in making returns of jurors in accordance with the provisions of this Act, shall pass over the name of that person, but the date at which his name shall have been so passed over, and the reason therefor, shall be entered at the time in the [F122lists of potential jurors].

92 Jurors as returned to serve on trials.S

The lists returned in accordance with the provisions of this Act by the sheriffs principal to the clerks of court, and none other, shall be used for the several trials for which the same shall have been required.

93 Names of jurors to be inserted in one roll.S

The persons to serve upon assizes in the High Court shall be listed and their names and [F124addresses] shall be inserted in one roll to be signed by the judge.

94 One list of assize sufficient for all trials at the same diet in High Court.S

When in the High Court more than one case shall be set down for trial at one and the same diet, it shall not be necessary to prepare more than one list of assize, and such list shall be authenticated by the signature of a judge of the said court, and shall be the list of assize for the trial of all parties cited to that particular diet; and the persons included in such list shall be summoned to serve generally upon the assize of all the accused cited to such diet, and one general execution of citation only shall be returned against them; and a copy of such list, certified by one of the clerks of court, shall have the like effect, for all purposes for which such list may be required, as the principal list of assize authenticated as aforesaid.

95 No irregularity in lists, etc., to be an objection to jurors.S

No irregularity in making up the lists in accordance with the provisions of this Act, or in transmitting the same, or in the warrant of citation, or in summoning jurors, or in returning any execution of citation, shall constitute an objection to jurors whose names shall be included in the jury list, reserving always to the court to judge of the effect of an objection founded on any felonious act by which jurors may be returned to serve in any case contrary to the provisions of this Act or the M18Jurors (Scotland) Act 1825.

96 Note of jury list. S

(1)It shall not be necessary to serve any list of jurors upon the accused, but on and after the date of the service of an indictment a list of jurors, prepared under the directions of the [F125clerk of the court before which the trial is to take place,] shall be kept in the office of the sheriff clerk of the district in which the court of the [F125trial diet] is situated, and the accused shall be entitled to have a copy supplied to him on application free of charge.

(2)Such list shall contain not less than 30 names, and shall be headed “List of Assize for the Sitting of the High Court of Justiciary (or, the Sheriff Court of at ) on the of 19”

97 Sufficient jurors only to be summoned.S

It shall not be necessary to summon all the jurors contained in any list of jurors under this Part of 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 shall 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 second diet is to be called, or in any case in the High Court by the Clerk of Justiciary, and where jurors are not summoned, from the whole jurors in any list not being required, such jurors shall be placed upon the next list issued, until they have attended to serve.

98 Jurors to be cited by registered letter or recorded delivery.S

The sheriff clerk of the sheriffdom in which a sitting of the High Court is to be held, or his depute, or the sheriff clerk of the sheriff court district in which any juror is to be cited, or his depute, where the citation is for a trial before a sheriff, shall fill up and sign a proper citation addressed to each such 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 [F126lists of potential] jurors by registered post or recorded delivery [F127or to be served on him by an officer of law]; and a certificate under the hand of such sheriff clerk, or his depute, of the citation of any jurors or juror in manner herein provided, shall be deemed a legal citation:

99 Fining of jurors for non-attendance.S

(1)Persons cited to attend as jurors may [F128, unless they have been excused in respect thereof under section 1 of the M19Law Reform (Miscellaneous Provisions) (Scotland) Act 1980,] be fined [F128up to £200] if they fail to attend [F128in compliance with the citation].

[F129(2)A fine imposed under subsection (1) above may, on application, be remitted—

(a)by a Lord Commissioner of Justiciary where imposed in the High Court;

(b)by the sheriff where imposed in the sheriff court;

and no court fees or expenses shall be exigible in respect of any such application.]

100 No exemptions by sex or marriage from liability to serve as juror.S

(1)A person shall not be exempted by sex or marriage from the liability to serve as a juror F130. . ..

F131(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F131(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Delay in trialS

[F132101 Prevention of delay in trials.S

(1)An accused shall not be tried on indictment for any offence unless such trial is commenced within a period of 12 months of the first appearance of that accused on petition in respect of that offence; and, failing such commencement within that period, the accused shall be discharged forthwith and thereafter he shall be for ever free from all question or process for that offence:

[F133(1A)In calculating the period of 12 months specified in subsection (1) above there shall be left out of account any period during which the accused is detained, other than while serving a sentence of imprisonment or detention, in any other part of the United Kingdom or in any of the Channel Islands or the Isle of Man in any prison or other institution or place mentioned in subsection (1) or (1A) of section 29 of the Criminal Justice Act 1961 (transfer of prisoners for certain judicial purposes).]

(2)Subject to subsections (3), (4) and (5) below, an accused who is committed for any offence until liberated in due course of law shall not be detained by virtue of that committal for a total period of more than—

(a)80 days, unless within that period the indictment is served on him, which failing he shall be liberated forthwith; or

(b)110 days, unless the trial of the case is commenced within that period, which failing he shall be liberated forthwith and thereafter he shall be for ever free from all question or process for that offence.

(3)A single judge of the High Court may, on application made to him for the purpose, for any sufficient cause extend the period mentioned in subsection (2)(a) above:

(4)A single judge of the High Court may, on application made to him for the purpose, extend the period mentioned in subsection (2)(b) above where he is satisfied that delay in the commencement of the trial is due to—

(a)the illness of the accused or of a judge;

(b)the absence or illness of any necessary witness; or

(c)any other sufficient cause which is not attributable to any fault on the part of the prosecutor.

(5)The grant or refusal of any application to extend the periods mentioned in this section may be appealed against by note of appeal presented to the High Court; and that Court may affirm, reverse or amend the determination made on such application.

(6)For the purposes of this section, a trial shall be taken to commence when the oath is administered to the jury.]

Accelerated TrialS

[F134102 Procedure where accused desires to plead guilty.S

(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 75 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 deserted pro 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 and the period of such postponement shall not count towards any time limit applying in respect of the case.]

First DietS

[F135103 Pleas of guilty.S

(1)Where at any diet the accused tenders a plea of guilty to the indictment or any part thereof he [F136shall do so in open court and] shall be required to sign a written copy of the plea (if he is able to do so); and the judge shall countersign such copy.

(2)Where the plea is to part only of the charge and the prosecutor does not accept such plea, such non-acceptance shall be recorded.

(3)Where a person 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 such indictment, and that plea is accepted by the prosecutor, it shall be competent to convict such person of the offence to which he has so pled guilty and to sentence him accordingly.

(4)Nothing in subsection (1) above shall require a plea by or on behalf of a company to be signed.]

[F137104 Remit to High Court for sentence.S

(1)Where at any diet in proceedings on indictment in the sheriff court, sentence falls to be imposed but the sheriff holds that any competent sentence which he can impose is inadequate so that the question of sentence is appropriate for the High Court, he shall—

(a)endorse upon the record copy of the indictment a certificate of the plea or the verdict (as the case may be);

(b)by interlocutor written on such record copy remit the convicted person to the High Court for sentence; and

(c)append to such interlocutor a note of his reasons for such remit;

and such remit shall be sufficient warrant to bring the accused before the High Court for sentence and shall remain in force until the convicted person is sentenced.

[F138(1A)Where under any enactment an offence is punishable on conviction on indictment by imprisonment for a term exceeding three years but the enactment either expressly or impliedly restricts the power of the sheriff to impose a sentence of imprisonment for a term exceeding three years, it shall be competent for the sheriff to remit the convicted person to the High Court for sentence under subsection (1) above; and it shall be competent for the High Court to pass any sentence which it could have passed if the person had been convicted before it.]

(2)When the Clerk of Justiciary receives the record copy of the indictment he shall send a copy of the note of reasons to the convicted person or his solicitor and to the Crown Agent.

(3)Subject to subsection (2) above, the note of reasons shall be available only to the High Court and the parties.]

105—107.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F139S

108 Certain objections competent only at first diet.S

[F140(1)]No objection by the accused to the validity of the citation against him, 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, shall be competent [F141except by leave of the court on cause shown, unless his intention to raise the objection is stated in a notice under section [F14275A(2) or] 76(1)(a) of this Act], and no such discrepancy, error or deficiency shall entitle the accused to object to plead to such indictment unless the [F143court] shall be satisfied that the same tended substantially to mislead and prejudice the accused.

[F144(2)Except by leave of the court on cause shown—

(a)no matter relating to the competency or relevancy of the indictment shall be raised;

(b)no plea in bar of trial shall be submitted; F145. . .

(c)no application for separation or conjunction of charges or trials shall be submitted, [F146; and

(d)no preliminary objection under section 67 of this Act shall be raised,]

unless the intention to do so has been stated in a notice under section [F14775A(2) or] 76(1) of this Act.]

109 Interlocutor of relevancy unnecessary.S

It shall not be necessary to enter upon the record an interlocutor finding the indictment relevant and, when objections are taken to the relevancy, it shall not be necessary to enter on the record copy of the indictment or in the record any other minute setting forth how such objections were disposed of, except that such objections were sustained or repelled, and such minute shall be signed by the clerk of court.

F148110. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

111 Postponement on old warrant where diet deserted.S

Where a diet is desertedpro loco et tempore, or where a diet is postponed or adjourned, or an order issued for the trial to take place at a different place from that first given notice of, it shall not be necessary that a new warrant should be granted for the incarceration of the accused, but the warrant of commitment on which he is at the time in custody till liberated in due course of law shall continue in force.

[F149111A Computation of period.S

Where the last day of any period mentioned in section 75, 76, 76A or 80 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.]

Sittings of High CourtS

[F150112 Place of High Court Sittings.S

Any crime or offence which is triable on indictment may be tried by the High Court sitting at any place in Scotland.]

113 Judges in High Court.S

(1)Every person who shall be appointed to the office of one of the senators of the College of Justice in Scotland shall, by virtue of such appointment, be a Lord Commissioner of Justiciary in Scotland.

(2)If any difference shall arise as to the rotation of judges in the High Court, the same shall be determined by the Lord Justice General [F151whom failing by the Lord Justice Clerk].

(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F152

(4)The Lord Justice General, Lord Justice Clerk, or any Lord Commissioner of Justiciary may preside alone at the trial of any panel before the High Court, and when so presiding shall constitute a quorum of the High Court:

[F155114 Fixing of High Court sittings.S

(1)The High Court shall sit at such times and places as the Lord Justice General, whom failing the Lord Justice Clerk, may, after consultation with the Lord Advocate, determine.

(2)Without prejudice to subsection (1) above, the High Court shall hold such additional sittings as the Lord Advocate may require.

(3)Where an accused person has been cited to attend a sitting of the High Court, the prosecutor may, at any time before the commencement of his trial, apply to the Court to transfer the case to another sitting of the High Court; and a single judge of the High Court may,—

(a)after giving the accused or his counsel an opportunity to be heard; or

(b)on the joint application of all parties,

make an order for the transfer of the case.

(4)Where no cases have been indicted for a sitting of the High Court or if it is no longer expedient that a sitting should take place, it shall not be necessary for the sitting to take place.

(5)If any case remains indicted for a sitting which does not take place in pursuance of subsection (4) above, subsection (3) above shall apply in relation to the transfer of any such case to another sitting.]

[F156114A Transfer of sheriff court solemn proceedings.S

(1)Where an accused person has been cited to attend a sitting of the sheriff court the prosecutor may, at any time before the commencement of his trial, apply to the sheriff to transfer the case to a sheriff court in any other district in that sheriffdom.

(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 an order for the transfer of the case.]

115—119.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F157S

120. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F158S

Procedure at TrialS

121, 122.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F159S

123 Amendment of indictment.S

(1)No trial shall fail or the ends of justice be allowed to be defeated by reason of any discrepancy or variance between the indictment and the evidence.

(2)It shall be competent at any time prior to the determination of the case, unless the court see just cause to the contrary, to amend the indictment by deletion, alteration or addition, so as to cure any error or defect therein, or to meet any objection thereto, or to cure any discrepancy or variance between the indictment and the evidence.

(3)Nothing in this section shall authorise an amendment which changes the character of the offence charged, and, if the court shall be of opinion that the accused may in any way be prejudiced in his defence on the merits of the case by any amendment made under this section, the court shall grant such remedy to the accused by adjournment or otherwise as to the court may seem just.

(4)An amendment made under this section shall be sufficiently authenticated by the initials of the clerk of court.

124 On plea of guilty, jury to be dispensed with and sentence pronounced.S

When a person indicted shall plead guilty to the crime or crimes of which he is accused, it shall not be necessary to name a jury for the trial of the case, but the court before which the accused shall be tried shall have power forthwith to pronounce sentence in like manner as if a verdict of guilty had been returned.

[F161125 On plea of not guilty, plea to be recorded and jury balloted.S

Where the accused pleads not guilty, the clerk of court shall record that fact and proceed to ballot the jury.]

126 On plea of not guilty, the indictment need not be read over.S

When the accused, on being brought to the bar, shall say that he means to plead not guilty, and does not desire that the indictment should be read over, it shall not be necessary to read it over before proceeding with the trial.

127 Procedure where trial does not take place.S

(1)Where at the [trial diet]—

(a)the diet has been desertedpro loco et temporefor any [F162cause], or

(b)an indictment is for any cause not brought to trial and no order has been given by the court postponing such trial or appointing it to be held at a subsequent date at some other sitting of the court,

it shall be lawful at any time within nine clear days after the [F163last day of the sitting in which the trial diet was to be held]to give notice to the accused on another copy of theindictment to appear to answer such indictment at a further diet either in the High Court or in the sheriff court when the charge is one that can be lawfully tried in that court, notwithstanding that the original citation to a [F164trial diet] was to a different court.

[F165(1ZA)Without prejudice to subsection (1) above, where a trial diet has been deserted pro loco et tempore and the court has appointed a further trial diet to be held on a subsequent date at the same sitting the accused shall require to appear and answer the indictment at that further diet.]

[F166(1A)The prosecutor shall not raise a fresh libel in a case where the court has deserted the trial dietsimpliciter(and its decision in that regard has not been reversed on appeal).]

(2)The notice referred to in subsection (1) of this section shall be in the form set out in F167. . . an Act of Adjournal under this Act or as nearly as may be in such form.

(3)The further diet specified in the notice referred to in subsection (1) of this section shall be not earlier than nine clear days from the giving of such notice.

(4)On or before the day on which such notice is given, a list of jurors shall be prepared, signed and kept by the sheriff clerk of the district to which such notice applies in the manner provided in section 96 of this Act.

[F168(5)The warrant issued under section 69 of this Act shall be sufficient warrant for the citation of the accused and witnesses to any further diet appointed under this section.]

128 Provision for death or illness of judge.S

[F169(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 that sitting 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 sitting 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 that sitting 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.

(1A)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.

(1B)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.]

(2)Where a diet is deserted in pursuance of subsection [F170(1)(b)(ii) or (1B)(b)]of this section the Lord Advocate may raise and insist in a new indictment, and in any such case where the accused is in custody it shall not be necessary that a new warrant for his incarceration be granted, and the warrant of commitment on which he is at the time in custody till liberation in due course of law shall continue in force, and in any such case where the accused is at liberty on bail his bail shall continue in force.

129 Jury to be chosen by ballot in open court.S

The jurors for the trial of any case shall be chosen in open court by ballot from the list of persons summoned [F171in such manner as shall be prescribed by Act of Adjournal, and the persons so chosen shall be the jury to try the accused, and their names shall be recorded in the minutes of the proceedings.].

130 Challenges and objections to jurors.S

F172(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F172(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F172(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F173(3A)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.]

(4)Nothing in this section shall affect the right of the accused or the prosecutor to object to any juror on cause shown.

(5)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 [F1741(1) of the M20Law Reform (Miscellaneous Provisions) (Scotland) Act 1980], such objection shall be proved only by the oath of the juror objected to.

(6)No objection to a juror shall be competent after he has been sworn to serve.

131 Juror without citation not to be objected to.S

It shall not be competent for the accused or the prosecutor to object to a juror on the ground that such juror has appeared without citation or without having been duly cited to attend.

132 Jurors chosen for one trial may continue to serve.S

(1)The jurors chosen for any particular trial may, when that trial is disposed of, without any new ballot, serve on the trials of other persons accused, provided that—

(a)such persons and the prosecutor consent thereto,

(b)the names of such jurors are contained in the list of assize, and

(c)such jurors are duly sworn to serve on each successive trial.

F175(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

133 Jurors may be excused.S

The court shall have power to excuse any juror from serving on any trial, the grounds of such excuse being stated in open court.

134 Provision for death or illness of jurors.S

Where in the course of any trial any juror dies, or the court is satisfied that [F176it is for any reason inappropriate for any juror] to continue to serve as a juror, the court may in its discretion, on application made by [F177the prosecutor] or an accused, direct that the trial shall proceed before the remaining jurors (if they shall be not less than twelve in number), and where any such direction is given the remaining jurors shall be deemed in all respects to be a properly constituted jury for the purpose of the trial and shall have power to return a verdict accordingly whether unanimous or by majority:

F178135.(1.) Clerk to state charge, and swear jury.S

When a jury has been balloted, the clerk of court shall inform the jury of the charge against the accused either by reading the same in the words of the indictment (with the substitution of the third person for the second) or, if the presiding judge shall, because of the length or complexity of the indictment, so direct, by reading to the jury a summary of the charge approved by the judge; and the clerk of court shall thereafter administer the oath in common form; and [F179copies of the indictment shall be provided for each member of the jury without lists of witnesses or productions].

[F180(2)Subject to subsection (3) below, where the accused has lodged a plea of special defence, the clerk of court shall, after informing the jury, in accordance with subsection (1) above, of the charge against the accused, and before administering the oath, read to the jury the plea of special defence.

(3)Where the presiding judge on cause shown so directs, the plea of special defence shall not be read over to the jury in accordance with subsection (2) above; and in any such case the judge shall inform the jury of the lodging of the plea and of the general nature of the special defence.

(4)Copies of a plea of special defence shall be provided for each member of the jury.]

136 Trial to be continuous.S

Every trial shall proceed from day to day till concluded unless the court shall see cause to adjourn over a day or days.

137 Seclusion of jury.S

It shall not be necessary, when for any cause a trial which is proceeding is adjourned from one day to another, that the jury shall be secluded during the adjournment, except in cases where the court shall see fit, whetherex proprio motuor on the motion of the prosecutor or the accused, to order that the jury be kept secluded.

[F181137A Verdict by judge alone.S

(1)Where, at any time after the jury has been sworn to serve in any trial, the prosecutor intimates to the court that he does not intend to proceed in respect of an offence charged in the indictment, the judge shall acquit the accused of that offence and the trial shall proceed only in respect of any other offence charged in the indictment.

(2)Where, at any time after the jury has been sworn to serve in any trial, the accused intimates to the court that he is prepared to tender a plea of guilty as libelled, or such other plea as the Crown is prepared to accept, in respect of any offence charged in the indictment, the judge shall accept the plea tendered and shall convict the accused accordingly.

(3)Where an accused is convicted under subsection (2) above of an offence—

(a)the trial shall proceed only in respect of any other offence charged in the indictment; and

(b)without prejudice to any other power of the court to adjourn the case or to defer sentence, the judge shall not sentence him or make any other order competent following a conviction until a verdict has been returned in respect of every offence mentioned in paragraph (a) above.]

138 Witnesses not to be excluded by reason of conviction, interest, etc.S

(1)No person adduced as a witness shall be excluded from giving evidence by reason of having been convicted of or having suffered punishment for crime, or by reason of interest, or by reason of agency or of partial counsel, or by reason of having appeared without citation or without having been duly cited to attend, or by reason of having been precognosced subsequently to the date of citation.

(2)Every person so adduced, who is not otherwise by law disqualified from giving evidence, shall be admissible as a witness, notwithstanding any objection offered on any of the above-mentioned grounds.

(3)Nothing in this section shall prevent such witness from being examined on any point tending to affect his credibility.

(4)Where any person who is or has been an agent of the accused shall be adduced and examined as a witness for the accused, it shall not be competent to the accused to object, on the ground of confidentiality, to any question proposed to be put to such witness on matter pertinent to the issue of the guilt of the accused.

139 Witnesses admissible notwithstanding relationship to parties.S

It shall be no objection to the admissibility of any witness that he or she is the father, mother, son, daughter, brother or sister, by consanguinity or affinity, or uncle, aunt, nephew or niece, by consanguinity of any party adducing such witness in any trial; nor shall it be competent to any witness to decline to be examined and give evidence on the ground of any such relationship.

[F182139A Power to permit witness to be in court during trial.S

The court may, on an application by any party to the proceedings, permit a witness to be in court during the proceedings or any part of the proceedings before he has given evidence if it appears to the court that the presence of the witness would not be contrary to the interests of justice.]

140 Presence in court not to disqualify witnesses in certain cases.S

In any trial the court need not reject any witness against whom it is objected that he has, without the permission of the court, and without the consent of the party objecting, been present in court during the proceedings; but the court may, in its discretion, admit the witness, where it appears to the court that the presence of the witness was not the result of culpable negligence or criminal intent, and that the witness has not been unduly instructed or influenced by what took place during his presence, or that injustice will not be done by his examination.

[F183140A No case to answer.S

(1)Immediately after the close of the evidence for the prosecution, the accused may intimate to the court his desire to make a submission that he has no case to answer both—

(a)on an offence charged in the indictment; and

(b)on any other offence of which he could be convicted under the indictment F184. . ..

(2)Such a submission shall be heard by the judge in the absence of the jury.

(3)If, after hearing both parties, the judge is satisfied that the evidence led by the prosecution is insufficient in law to justify the accused being convicted of the offence charged in respect of which the submission has been made or of such other offence as is mentioned, in relation to that offence, in paragraph (b) of subsection (1) above, he shall acquit him of the offence charged in respect of which the submission has been made and the trial shall proceed only in respect of any other offence charged in the indictment.

(4)If, after hearing both parties, the judge is not satisfied as is mentioned in subsection (3) above, he shall reject the submission and the trial shall proceed, with the accused entitled to give evidence and call witnesses, as if such submission had not been made.]

141 Accused and spouse competent witnesses for defence.S

[F185(1)]The accused . . . F186 shall be [F187a competent witness] for the defence at every stage of the case, whether the accused is on trial alone or along with a co-accused:

(a)the accused shall not be called as a witness in pursuance of this section except upon his own application [F188or in accordance with subsection (2) or (3) below];

F189(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c),- (d) . . . F190

(e)the accused who gives evidence on his own behalf in pursuance of this section may be asked any question in cross-examination notwithstanding that it would tend to incriminate him as to the offence charged;

(f)the accused who gives evidence on his own behalf in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed, or been convicted of, or been charged with, any offence other than that with which he is then charged, or is of bad character, unless—

(i)the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence with which he is then charged; or

(ii)the accused or his counsel or solicitor has asked questions of the witnesses for the prosecution with a view to establish the accused’s good character [F191or impugning the character of the complainer], or the accused has given evidence of his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of the witnesses for the prosecution [F191or of the complainer]; or

(iii)the accused has given evidence against any other person charged [F192in the same proceedings];

(g)every person called as a witness in pursuance of this section . . . F186 shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses give their evidence.

[F193(1A)In a case to which sub-paragraph (ii) of paragraph (f) of the proviso to subsection (1) above applies, the prosecutor shall be entitled to ask the accused a question of a kind specified in that paragraph only if the court, on the application of the prosecutor, permits him to do so.

(1B)An application under subsection (1A) above shall be made in the course of the trial but in the absence of the jury.

(1C)In subsection (1) above, references to the complainer include references to a victim who is deceased.]

[F194(2)The accused may—

(a)with the consent of a co-accused, call that other accused as a witness on the accused’s behalf; or

(b)ask a co-accused any question in cross-examination if that co-accused gives evidence,

but he may not do both in relation to the same co-accused.

(3)The prosecutor or the accused may call as a witness a co-accused who has pleaded guilty to [F195or been acquitted of] all charges against him which remain before the court (whether or not [F196in a case where the co-accused has pleaded guilty to any charge,] he has been sentenced) [F197or in respect of whom the diet has been deserted]; and the party calling such co-accused as a witness shall not require to give notice thereof, but the court may grant any other party such adjournment or postponement of the trial as may seem just.]

[F198141ZA Evidence of criminal record and character of accused.S

(1)This section applies where—

(a)evidence is led by the defence, or the defence asks questions of a witness for the prosecution, with a view to establishing the accused’s good character or impugning the character of the prosecutor, of any witness for the prosecution or of the complainer; or

(b)the nature or conduct of the defence is such as to tend to establish the accused’s good character or to involve imputations on the character of the prosecutor, of any witness for the prosecution or of the complainer.

(2)Where this section applies the court may, without prejudice to section 149 of this Act, on the application of the prosecutor, permit the prosecutor to lead evidence that the accused has committed, or has been convicted of, or has been charged with, offences other than that for which he is being tried, or is of bad character, notwithstanding that a witness or production concerned is not included in any list lodged by the prosecutor and that the notice required by sections 81 and 82(2) of this Act has not been given.

(3)An application under subsection (2) above shall be made in the course of the trial but in the absence of the jury.

(4)In subsection (1) above, references to the complainer include references to a victim who is deceased.]

[F199141A Evidence in relation to sexual offences.S

(1)In any trial of a person on any charge to which this section applies, subject to section 141B, the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer—

(a)is not of good character in relation to sexual matters;

(b)is a prostitute or an associate of prostitutes; or

(c)has at any time engaged with any person in sexual behaviour not forming part of the subject matter of the charge.

(2)This section applies to a charge of committing or attempting to commit any of the following offences, that is to say

(a)rape;

(b)sodomy;

[F200(ba)clandestine injury to women;]

(c)assault with intent to rape;

(d)indecent assault;

(e)indecent behaviour (including any lewd, indecent or libidinous practice or behaviour);

(f)an offence under section 106(1)(a) or 107 of the M21Mental Health (Scotland) Act 1984 (unlawful sexual intercourse with mentally handicapped female or with patient);

(g)an offence under any of the following provisions of the M22Sexual Offences (Scotland) Act 1976—

(i)section 2 (procuring by threats etc.);

[F201(ia)section 2A (incest);

(ib)section 2B (unlawful sexual intercourse with stepchild);

(ic)section 2C (unlawful sexual intercourse of person in position of trust with child under 16);]

(ii)section 3 (unlawful sexual inter course with girl under 13);

(iii)section 4 (unlawful sexual intercourse with girl under 16);

(iv)section 5 (indecent behaviour towards girl between 12 and 16);

[F202(iva)section 7 (gross indecency between males)]

(v)section 8 (abduction of girl under 18);

(vi)section 9 (unlawful detention of female); or

(h)an offence under section 80(7) of the M23Criminal Justice (Scotland) Act 1980 (homosexual offences).

(3)In this section “complainer” means the person against whom the offence referred to in subsection (2) above is alleged to have been committed.

(4)This section does not apply to questioning, or evidence being adduced, by the Crown.]

141B Exceptions to prohibition.S

(1)Notwithstanding the terms of section 141A, in any trial of a person on any charge to which that section applies, where the court is satisfied on an application by that person—

(a)that the questioning or evidence referred to in section 141A(1) above is designed to explain or rebut evidence adduced, or to be adduced, otherwise that by or on behalf of that person,

(b)that the questioning or evidence referred to in section 141A(1)(c) above—

(i)is questioning or evidence as to sexual behaviour which took place on the same occasion as the sexual behaviour forming the subject-matter of the charge, or

(ii)is relevant to the defence of incrimination, or

(c)that it would be contrary to the interests of justice to exclude the questioning or evidence referred to in section 141A(1) above,

the court shall allow such questioning or, as the case may be, admit such evidence.

(2)Where questioning or evidence is or has been allowed or admitted under this section, the court may at any time limit as it thinks fit the extent of that questioning or evidence.

(3)Any application under this section shall be made in the course of the trial but in the absence of the jury, the complainer, any person cited as a witness and the public.

[F203142

Where, in any trial, the accused is to be called as a witness he shall be so called as the first witness for the defence unless the court, on cause shown, otherwise directs.]

[F204143 Spouse to be competent witness.S

(1)The spouse of a person charged with an offence may be called as a witness—

(a)by that person;

(b)by a co-accused or by the prosecutor without the consent of that person.

(2)Nothing in this section shall—

(a)make the spouse of an accused a compellable witness for a co-accused or for the prosecutor in a case where such spouse would not be so compellable at common law;

(b)compel a spouse to disclose any communication made between the spouses during the marriage.

(3)The failure of the spouse of an accused to give evidence shall not be commented on by the defence or the prosecutor.]

F205144. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

145 Trial in open court.S

(1)Without prejudice to section 174 of this Act, no part of a trial shall take place outwith the presence of the accused

(2)Where a debate has taken place on the relevance of an indictment, the judge shall give his decision as to relevance in open court in the presence of the accused.

(3)From the commencement of the leading of evidence in a trial for rape or the like the judge may, if he thinks fit, cause all persons other than the accused and counsel and solicitors to be removed from the court-room.

F207(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F208146. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

147 Witness may be examined, etc., as to having previously made a different statement.S

In any trial, any witness may be examined as to whether he has on any specified occasion made a statement on any matter pertinent to the issue at the trial different from the evidence given by him in such trial; and in such trial evidence may be led to prove that such witness has made such different statement on the occasion specified.

148 Examination of witness.S

F209(1)In any trial, it shall be competent for the party against whom a witness is produced and sworn in causa to examine such witness, not in cross only, but also in causa.

[F210(2)The judge may, on the motion of either party, on cause shown order that the examination of a witness for that party (“the first witness”) shall be interrupted to permit the examination of another witness for that party.

(3)Where the judge makes an order under subsection (2) above he shall, after the examination of the other witness, permit the recall of the first witness.]

[F211148A Recall of witnesses.S

In any trial, on the motion of either party, the presiding judge may permit a witness who has been examined to be recalled.]

[F212149 Additional evidence.S

(1)The judge may, on a motion of the prosecutor or defence made [F213at any time] before the commencement of the speeches to the jury, permit him to lead additional evidence; but such permission shall only be granted where the judge—

(a)considers that the additional evidence isprima faciematerial; and

(b)accepts that at the time the [F214jury was sworn] either—

(i)the additional evidence was not available and could not reasonably have been made available; or

(ii)the materiality of such additional evidence could not reasonably have been foreseen by the party.

(2)The judge may permit the additional evidence to be led notwithstanding that—

(a)a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 81 and 82(2) of this Act has not been given; or

(b)a witness must be recalled.

(3)The judge may, when granting a motion in terms of this section, adjourn or postpone the trial before permitting the additional evidence to be led.]

149A Evidence in replication.S

(1)The judge may, on a motion of the prosecutor made after the close of the defence evidence and before the commencement of the speeches to the jury, permit the prosecutor to lead additional evidence for the purpose of—

(a)contradicting evidence, [F215given by any defence witness], which could not reasonably have been anticipated by the prosecutor; or

(b)providing such proof as is mentioned in section 147 of this Act.

(2)The judge may permit the additional evidence to be led notwithstanding that—

(a)a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 81 and 82(2) of this Act has not been given; or

(b)a witness must be recalled.

(3)The judge may when granting a motion in terms of this section, adjourn or postpone the trial before permitting the additional evidence to be led.