Criminal Justice (Scotland) Act 1980

228

1

Any person convicted on indictment may appeal in accordance with the provisions of this Part of this Act, to the High Court—

a

against such conviction ;

b

against the sentence passed on such conviction ; or

c

against both such conviction and such sentence :

Provided that there shall be no appeal against any sentence fixed by law.

2

By an appeal under subsection (1) of this section, a person may bring under review of the High Court any alleged miscarriage of justice in the proceedings in which he was convicted, including any alleged miscarriage of justice on the basis of the existence and significance of additional evidence which was not heard at the trial and which was not available and could not reasonably have been made available at the trial.

231 Intimation of intention to appeal.

1

Subject to section 236B(2) of this Act, where a person desires to appeal under section 228(1)(a) or (c) to appeal. of this Act, he shall, within two weeks of the final determination of the proceedings, lodge with the Clerk of Justiciary written intimation of intention to appeal and send a copy to the Crown Agent.

2

Such intimation shall identify the proceedings and be in as nearly as may be the form prescribed by Act of Adjournal under this Act.

3

On such intimation being lodged by a person in custody, the Clerk of Justiciary shall give notice thereof to the Secretary of State.

4

For the purposes of subsection (1) above and section 270(2) of this Act, proceedings shall be deemed finally determined on the day on which sentence is passed in open court; except that, where in relation to an appeal under section 228(1)(a) of this Act sentence is deferred under section 219 of this Act, they shall be deemed finally determined on the day on which sentence is first so deferred in open court.

233 Note of appeal.

1

Subject to section 236B(2) of this Act, within six weeks of lodging intimation of intention to appeal or, in the case of an appeal against sentence alone, within two weeks of the passing of the sentence in open court, the convicted person may lodge a written note of appeal with the Clerk of Justiciary who shall send a copy to the judge who presided at the trial and to the Crown Agent :

Provided that the first mentioned period may be extended, before expiry thereof, by the Clerk of Justiciary.

2

Such a note shall identify the proceedings, contain a full statement of all the grounds of appeal and be in as nearly as may be the form prescribed by Act of Adjournal under this Act.

3

Except by leave of the High Court on cause shown it shall not be competent for an appellant to found any aspect of his appeal on a ground not contained in the note of appeal.

4

On a note of appeal against sentence alone being lodged by an appellant in custody the Clerk of Justiciary shall give notice thereof to the Secretary of State.

236A Judge’s report.

1

As soon as is reasonably practicable afterhis receipt of the copy note of appeal sent to him under section 233(1) of this Act, the judge who presided at the trial shall furnish the Clerk of Justiciary with a report in writing giving the judge’s opinion on the case generally and on the grounds contained in the note of appeal ; and the Clerk of Justiciary shall send a copy of the report to the convicted person or his solicitor, to the Crown Agent, and, in a case referred under section 263(1) this Act, to the Secretary of State.

2

Where the judge’s report is not furnished as mentioned in subsection (1) above, the High Court may call for such report to be furnished within such period as it may specify or, if it thinks fit, hear and determine the appeal without such report.

3

Subject to subsection (1) above, the report of the judge shall be available only to the High Court and the parties.

236B Computation of periods.

1

Where the last day of any period mentioned in sections 231(1) and 233(1) of this Act falls on a day which the office of the Clerk of Justiciary is closed, such period shall extend to and include the next day on which such office is open.

2

Any period mentioned in section 231(1) or 233(1) of this Act may be extended at any time by the High Court in respect of any convicted person ;and application for such extension may be made under this subsection and shall be in as nearly as may be the form prescribed by Act of Adjournal under this Act.

236CSigning of Documents

Any intimation of intention to appeal note of appeal or application in terms of section 236B(2) of this Act shall be signed by the convicted person or by his counsel or solicitor.

237 Note of proceedings.

The High Court where hearing an appeal under this Part of this Act may require the judge Who presided at the trial to produce any notes taken by him of the proceedings at the trial.

244 Abandonment of appeal.

1

An appellant may abandon his appeal by lodging with the Clerk of Justiciary a notice of abandonment in as nearly as may be the form prescribed by Act of Adjournal under this Act; and on such notice being lodged the appeal shall be deemed to have been dismissed by the court.

2

A person who has appealed against both conviction and sentence may abandon the, appeal in so far as it is against conviction and may proceed with it against sentence alone.

252 Powers of High Court.

Without prejudice to any existing power of the High Court, that court may for the purposes of an appeal under section 228(1) of this Act—

a

order the production of any document or other thing connected with the proceedings ;

b

hear any additional evidence relevant to any alleged miscarriage of justice or order such evidence to be heard by a judge of the High Court or by such other person as it may appoint for that purpose ;

c

take account of any circumstances relevant to the case which were not before the trial judge ;

d

remit to any fit person to enquire and report in regard to any matter or circumstance affecting the appeal ;

e

appoint a person with expert knowledge to act as assessor to the High Court in any case where it appears to the court that such expert knowledge is required for the proper determination of the case.

254 Disposal of appeals.

1

The High Court may, subject to subsection (4) below, dispose of an appeal against conviction by—

a

affirming the verdict of the trial court ;

b

setting aside the verdict of the trial court and either quashing the conviction or substituting therefor an amended verdict of guilty :

Provided that an amended verdict of guilty must be one which could have been returned on the indictment before the trial court; or

c

setting aside the verdict of the trial court and granting authority to bring a new prosecution in accordance with section 255 of this Act.

2

In setting aside, under subsection (1) above, a verdict the High Court may quash any sentence imposed on the appellant as respects the indictment, and—

a

in a case where it substitutes an amended verdict of guilty, whether or not the sentence related to the verdict set aside ; or

b

in any other case, where the sentence did not so relate,

may pass another (but not more severe) sentence in substitution for the sentence so quashed.

3

The High Court may, subject to subsection (4) below, dispose of an appeal against sentence by—

a

affirming such sentence ; or

b

if the Court thinks that, having regard to all the circumstances, including any additional evidence such as is mentioned in section 228(2) of this Act, a different sentence should have been passed, quashing the sentence and passing another sentence whether more or less severe in substitution therefor.

4

In relation to any appeal under section 228(1) of this Act, the High Court shall, where it appears to it that the appellant committed the act charged against him but that he was insane when he did so, dispose of the appeal by—

a

setting aside the verdict of the trial court and substituting therefor a verdict of acquittal on the ground of insanity ; and

b

quashing any sentence imposed on the appellant as respects the indictment and ordering that he be detained in a state hospital or such other hospital as for special reasons the court may specify.

5

The provisions of subsection (4) of section 174 of this Act shall apply to an order under subsection (4)(b) above as they apply to an order under that section.

255 Supplementary provisions where High Court authorises new prosecution.

1

Where authority is granted under section 254(1)(c) of this Act, a new prosecution may be brought charging the accused with the same or any similar offence arising out of the same facts ; and the proceedings out of which the appeal arose shall not be a bar to such new prosecution:

Provided that no sentence may be passed on conviction under the new prosecution which could not have been passed on conviction under the earlier proceedings.

2

A new prosecution may be brought under this section, notwithstanding that any time limit (other than the time limit mentioned in subsection (3) below), for the commencement of such proceedings has elapsed.

3

Proceedings in a prosecution under this section shall be commenced within two months of the date on which authority to bring the prosecution was granted; and for the purposes of this subsection proceedings shall, in a case where such warrant is executed without unreasonable delay, be deemed to be commenced on the date on which a warrant to apprehend or to cite the accused is granted, and shall in any other case be deemed to be commenced on the date on which the warrant is executed.

4

Where the two months mentioned in subsection (3) above elapse and no new prosecution has been brought under this section, the order under section 254(1)(c) of this Act setting aside the verdict shall have the effect, for all purposes, of an acquittal.

442 Right of appeal.

1

Without prejudice to any right of appeal under section 453A of this Act—

a

any person convicted in summary proceedings may appeal under this section to the High Court—

i

against such conviction ;

ii

against the sentence passed on such conviction ; or

iii

against both such conviction and such sentence ;

b

the prosecutor in such proceedings may so appeal on a point of law—

i

against an acquittal in such proceedings ; or

ii

against a sentence passed in such proceedings.

2

By an appeal under subsection (1)(a) of this section or, as the case may be, against acquittal under subsection (1)(b) of this section, an appellant may bring under review of the High Court any alleged miscarriage of justice in the proceedings, including, in the case of an appeal under the said subsection (1)(a), any alleged miscarriage of justice on the basis of the existence and significance of additional evidence which was not heard at the trial and which was not available and would not reasonably have been made available at the trial.

442A Method of appeal against conviction or conviction and sentence.

1

Where a person desires to appeal under appeal section 442(1)(a)(i) or (iii) or (b) of this Act, he shall pursue such appeal in accordance with the provisions of sections 444 to 453, 453D and 453E of this Act.

2

A person who has appealed against both conviction and sentence, may abandon the appeal in so far as it is against conviction and may proceed with it against sentence alone, subject to such procedure as may be prescribed by Act of Adjournal under this Act.

442B

Where a person desires to appeal against sentence alone, under section 442(1)(a)(ii) of this Act, he shall pursue such appeal in accordance with the provisions of sections 453B to 453E of this Act:

Provided that nothing in this section shall prevent a convicted person from proceeding by way of a bill of suspension in respect of any alleged fundamental irregularity relating to the imposition of the sentence..

1

If an appellant under section 444 of this Act is in custody, the court may;—

a

grant bail ;

b

grant a sist of execution ;

c

make any other interim order.

1

Within three weeks of the final determination of proceedings in respect of which an application for a stated case is made under section 444 of this Act—

a

where the appeal is taken from the district court and the trial was presided over by a justice of the peace or justices of the peace, the justice, or justices, with such assistance from the clerk of court as may be required; or

b

in any other case the judge who presided at the trial,

shall prepare a draft stated case, and the clerk of the court concerned shall forthwith issue the draft to the appellant or his solicitor and a duplicate thereof to the respondent or his solicitor.

451 Computation of time.

1

If any period of time specified in any provision of this Part of this Act relating to appeals expires on a Saturday, Sunday or court holiday prescribed for the relevant court, the period shall be extended to expire on the next day which is not a Saturday, Sunday or such court holiday.

2

Where a judge against whose judgment an appeal is taken is temporarily absent from duty for any cause, the sheriff principal of the sheriffdom in which the court at which the judgment was pronounced is situated may extend any period specified in sections 447(1) and 448(2A) and (2D) of this Act for such period as he considers reasonable.

3

For the purposes of sections 444(1)(a) and 447(1) of this Act, summary proceedings shall be deemed to be finally determined on the day on which sentence is passed in open court; except that, where in relation to an appeal under section 442(1)(a)(i) or (b)(i) of this Act sentence is deferred under section 432 of this Act, they shall be deemed finally determined on the day on which sentence is first so deferred in open court.

452 Hearing of appeal.

1

A stated case under this Part of this Act shall be heard by the High Court on such date as it may fix.

2

For the avoidance of doubt, where an appellant, in his application under section 444(1) of this Act (or in a duly made amendment or addition to that application), refers to an alleged miscarriage of justice, but in stating a case under section 448(2D) of this Act the inferior court is unable to take the allegation into account, the High Court may nevertheless have regard to the allegation at a hearing under subsection (1) above.

3

Except by leave of the High Court on cause shown, it shall not be competent for an appellant to found any aspect of his appeal on a matter not contained in his application under section 444(1) of this Act (or in a duly made amendment or addition to that application).

4

Without prejudice to any existing power of the High Court, that court may in hearing a stated case—

a

order the production of any document or other thing connected with the proceedings ;

b

hear any additional evidence relevant to any alleged miscarriage of justice or order such evidence to be heard by a judge of the High Court or by such other person as it may appoint for that purpose ;

c

take account of any circumstances relevant to the case which were not before the trial judge ;

d

remit to any fit person to enquire and report in regard to any matter or circumstance affecting the appeal ;

e

appoint a person with expert knowledge to act as assessor to the High Court in any case where it appears to the court that such expert know ledge is required for the proper determination of the case ;

f

take account of any matter proposed in any adjustment rejected by the trial judge and of the reasons for such rejection ;

g

take account of any evidence contained in a note of evidence such as is mentioned in section 448(2D) of this Act.

5

The High Court may at the hearing remit the stated case back to the inferior court to be amended and returned.

452A Disposal of stated case appeal.

1

The High Court may, subject to section 453D(1) of this Act, dispose of a stated case by—

a

remitting the cause to the inferior court with their opinion and any direction thereon ;

b

affirming the verdict of the inferior court ;

c

setting aside the verdict of the inferior court and either quashing the conviction or substituting therefor an amended verdict of guilty :

Provided that an amended verdict of guilty must be one which could have been returned on the complaint before the inferior court , or

d

setting aside the verdict of the inferior court and grainting authority to bring a new prosecution in accordance with section 452B of this Act.

2

In an appeal against both conviction and sentence the High Court shall, subject to section 453D(1) of this Act, dispose of the appeal against sentence by exercise of the power mentioned in section 453C(1) of this Act.

3

In setting aside, under subsection (1) above, a verdict the High Court may quash any sentence imposed on the appellant as respects the complaint, and—

a

in a case where it substitutes an amended verdict of guilty, whether or not the sentence related to the verdict set aside , or

b

in any other case, where the sentence did not so relate,

may pass another (but not more severe) sentence in substitution for the sentence so quashed.

4

Where an appeal against acquittal is sustained, the High Court may—

a

convict and sentence the respondent ;

b

remit the case to the inferior court with instructions to convict and sentence the respondent, who shall be bound to attend any diet fixed by the inferior court for such purpose; or

c

remit the case to the inferior court with their opinion thereon :

Provided that the High Court shall not in any case increase the sentence beyond the maximum sentence which could have been passed by the inferior court.

5

The High Court shall have power in an appeal under this Part of this Act to award such expenses both in the High Court and in the inferior court as it may think fit.

6

Where, following an appeal (other than an appeal under section 442(1)(a)(ii) or 442(1)(b) of this Act), the appellant remains liable to imprisonment or detention under the sentence of the inferior court, or is so liable under a sentence passed in the appeal proceedings the High Court shall have power where at the time of disposal of the appeal the appellant—

a

was at liberty on bail, to grant warrant to apprehend and imprison (or detain) the appellant for a term, to run from the date of such apprehension, not longer than that part of the term or terms of imprisonment (or detention) specified in the sentence brought under review which remained unexpired at the date of liberation ;

b

is serving a term or terms of imprisonment (or detention) imposed in relation to a conviction subsequent to the conviction appealed against, to exercise the like powers in regard to him as may be exercised, in relation to an appeal which has been abandoned, by a court of summary jurisdiction in pursuance of section 446(5) of this Act.

452B Supplementary provisions where High Court authorises new prosecution.

1

Where authority is granted under section 452A(1)(d) of this Act, a new prosecution may be brought charging the accused with the same or any similar offence arising out of the same facts ; and the proceedings out of which the stated case arose shall not be a bar to such prosecution :

Provided that no sentence may be passed on conviction under the new prosecution which could not have been passed on conviction under the earlier proceedings.

2

A new prosecution may be brought under this section, notwithstanding that any time limit (other than the time limit mentioned in subsection (3) below) for the commencement of such proceedings has elapsed.

3

Proceedings in a prosecution under this section shall be commenced within two months of the date on which authority to bring the prosecution was granted ; and for the purposes of this subsection proceedings shall, in a case where such warrant is executed without unreasonable delay, be deemed to be commenced on the date on which a warrant to apprehend or to cite the accused is granted, and shall in any other case be deemed to be commenced on the date on which the warrant is executed.

4

Where the two months mentioned in subsection (3) above elapse and no new prosecution has been brought under this section, the order under section 452A(1)(d) of this Act setting aside the verdict shall ha-,ie the effect, for all purposes, of an acquittal.

453A Appeal by bill of suspension or advocation on ground of miscarriage of justice.

1

Notwithstanding section 449(2) of this Act, a party to a summary prosecution may, where an appeal under -Section 442 of this Act would be incompetent or would in the circumstances be inappropriate, appeal to the High Court, by bill of suspension against a conviction, or as the case may be by advocation against an acquittal, on the ground of an alleged miscarriage of justice in the proceedings :

Provided that where the alleged miscarriage of justice is referred to in an application, under section 444(1) of this Act, for a stated case as regards the proceedings (or in a duly made amendment or addition to that application) an appeal under subsection (1) above shall not proceed without the leave of the High Court until the appeal to which the application relates has been finally disposed of or abandoned.

2

Sections 452(4)(a) to (e), 452A(1)(d), 452A(3) and 452B of this Act shall apply to appeals under this section as they apply to appeals such as are mentioned in section 444(1) of this Act.

3

The foregoing provisions of this section shall be without prejudice to any rule of law relating to bills of suspension or advocation in so far as such rule of law is not inconsistent with those provisions.

453B Appeals against sentence only.

1

An appeal under section 442(1)(a)(ii) of this Act shall be by note of appeal, which shall state the ground of appeal.

2

The note of appeal shall, within one week of the passing of the sentence, be lodged with the clerk of the court from which the appeal is to be taken.

3

The clerk of court on receipt of the note of appeal shall—

a

send a copy of the note to the respondent or his solicitor ; and

b

obtain a report from the judge who sentenced the convicted person.

4

The clerk of court shall within two weeks of the passing of the sentence against which the appeal is taken—

a

send to the Clerk of Justiciary the note of appeal, together with the report mentioned in subsection (3)(b) above, a certified copy of the complaint, the minute of proceedings and any other relevant documents ; and

b

send copies of that report to the appellant and respondent or their solicitors :

Provided that the sheriff principal of the sheriffdom in which the judgment was pronounced may, where a judge is temporarily absent from duty for any cause, extend the peiod of two weeks specified in this subsection for such period as the sheriff principal considers reasonable.

5

Where the judge’s report is not furnished within the period mentioned in subsection (4) above, the High Court may extend such period or, if it thinks fit, hear and determine the appeal without such report.

6

Subsections (3), (4) and (5) of section 444 of this Act shall apply where an appellant fails to comply with the requirement of subsection (2) above as they apply where an applicant fails to comply with any of the requirements of subsection (1) of that section.

7

An appellant under section 442(1)(a)(ii) of this Act may at any time prior to the hearing of the appeal abandon his appeal by minute, signed by himself or his solicitor, lodged—

a

in a case where the note of appeal has not yet been sent under subsection (4)(a) above to the Clerk of Justiciary, with the clerk of court ;

b

in any other case, with the Clerk of Justiciary,

and intimated to the respondent.

8

Sections 446, 450 and 452(4)(a) to (e) of this Act shall apply to appeals under section 442(1)(a)(ii) of this Act as they apply to appeals under section 442(1)(a)(i) or (iii) of this Act.

453C Disposal of appeal by note of appeal.

1

An appeal against sentence by note of appeal shall be heard by the High Court on such date as it may fix, and the High Court may, subject to section 453D(1) of this Act, dispose of such appeal by—

a

affirming the sentence ; or

b

if the Court thinks that, having regard to all the circumstances, including any additional evidence such as is mentioned in section 442(2) of this Act, a different sentence should have been passed, quashing the sentence and passing another sentence, whether more or less severe, in substitution therefor :

Provided that the Court shall not in any case increase the sentence beyond the maximum sentence which could have been passed by the inferior court.

2

The High Court shall have power in an appeal by note of appeal to award such expenses both in the High Court and in the inferior court as it may think fit.

3

Where, following an appeal under section 442(1) (a)(ii) of this Act, the appellant remains liable to imprisonment or detention under the sentence of the inferior court or is so liable under a sentence passed in the appeal proceedings, the High Court shall have power where at the time of disposal of the appeal the appellant—

a

was at liberty on bail, to grant warrant to apprehend and imprison (or detain) the appellant for a term, to run from the date of such apprehension, not longer than that part of the term or terms of imprisonment (or detention) specified in the sentence brought under review which remained unexpired at the date of liberation ; or

b

is serving a term or terms of imprisonment (or detention) imposed in relation to a conviction subsequent to the conviction in respect of which the sentence appealed against was imposed, to exercise the like powers in regard to him as may be exercised, in relation to an appeal which has been abandoned, by a court of summary jurisdiction in pursuance of section 446(5) of this Act.

453D Disposal of appeal where appellant insane.

1

In relation to any appeal under section 442(1)(a) of this Act, the High Court shall, where it appears to it that the appellant committed the act charged against him but that he was insane when he did so, dispose of the appeal by—

a

setting aside the verdict of the inferior court and substituting therefor a verdict of acquittal on the ground of insanity ; and

b

quashing any sentence imposed on the appellant as respects the complaint and ordering that he be detained in a state hospital or such other hospital as for special reasons the court may specify.

2

The provisions of subsection (4) of section 174 of this Act shall apply to an order under subsection (1)(b) above as they apply to an order under that section.

453E Failure of appellant who has been granted bail to appear personally.

Where an appellant has been granted bail, whether his appeal is under this Part of this Act or otherwise, he shall appear personally in court at the diet appointed for the hearing of the appeal. If he does not appear the High Court shall either—

a

dispose of the appeal as if it had been abandoned (in which case subsection (4) of section 446 of this Act shall apply accordingly) ; or

b

on cause shown permit the appeal to be heard in his absence.

75 Notice of trial diet.

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 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.

76 Preliminary diet.

1

Subject to section 2OB(2) of this Act and to subsections (4) and (5) below, where a party within the appropriate period gives written notice to the court before which the trial is to take place 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 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 ;

c

that there is some point, as regards any matter not mentioned in paragraph (a) or (b) 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 court 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:

Provided that if the court so permits the diet may proceed notwithstanding the absence of an accused.

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 (c) of that subsection, the period from service of the indictment to the trial diet.

76A Appeal in connection with preliminary diet.

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 preliminary 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).

77 Alteration of trial diet.

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—

a

in the case of the High Court, two months ; or

b

in the case of the sheriff court, one month,

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.

77A Application for postponement of trial diet.

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 :

Provided that if the court so permits the hearing may proceed notwithstanding his (or their) absence.

78 Record copy of indictment and list of witnesses.

1

Except in a case to which section 102 of this copy of Act applies, the record copy of the indictment shall on or before the date of service of the indictment be lodged with the clerk of the court before which the trial is to take place ; and a copy of the list of witnesses and a copy of the list of productions shall be lodged with him not less than 10 clear days before the trial diet.

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.

80 Objection to witness.

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 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.

103 Pleas of guilty.

1

Where at any diet the accused tenders a plea of guilty to the indictment or any part thereof he 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.

104 Remit to High Court for sentence.

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.

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.