Criminal Procedure (Scotland) Act 1995

Pre-trial proceedingsS

71 First diet.S

[F1(A1)At a first diet, the court shall, where the accused is charged with a sexual offence to which section 288C of this Act applies, ascertain whether he has engaged a solicitor for the purposes of his defence at the trial.]

(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 257(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 any of paragraphs (a) to (d) of section 72(1) of this Act of which a party has, not less than two clear days before the first diet, given notice to the court and to the other parties.

[F2(2A)At a first diet the court may consider an application for the purposes of subsection (1) of section 275 of this Act.]

(3)At a first diet the court may ask the prosecutor and the accused any question in connection with any matter which it is required to ascertain or consider under subsection (1) or (2) above [F3or which is relevant to an application for the purposes of subsection (1) of the said section 275] .

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

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

[F4(5A)Where, however—

(a)the accused is charged with a sexual offence to which section 288C of this Act applies; and

(b)the court has not ascertained (whether at that diet or earlier) that he has engaged a solicitor for the purposes of his defence at the trial,

a first diet may not proceed in his absence; and, in such a case, the court shall adjourn the diet and ordain the accused then to attend.]

(6)The accused shall, at the first diet, be required to state how he pleads to the indictment, and section 77 of this Act shall apply where he tenders a plea of guilty.

(7)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.

(8)Subject to subsection (7) above, the court may, if it considers it appropriate to do so, adjourn a first diet.

[F5(8A)Where the court adjourns a first diet under subsection (8) above by reason only that, following inquiries for the purposes of subsection (A1) above, it appears to the court that the accused has not engaged a solicitor for the purposes of his defence at his trial, that adjournment shall be for a period of not more than 48 hours and the accused shall be ordained to then attend.]

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

[F671A Further pre-trial diet: dismissal or withdrawal of solicitor representing accused in case of sexual offenceS

(1)It is the duty of a solicitor who—

(a)was engaged for the purposes of the defence of an accused charged with a sexual offence to which section 288C of this Act applies—

(i)at the time of a first diet,

(ii)at the time of a diet under this section, or

(iii)in the case of a diet which, under subsection (7) below, is dispensed with, at the time when it was so dispensed with; and

(b)after that time but before the trial diet—

(i)is dismissed by the accused; or

(ii)withdraws,

forthwith to inform the court in writing of those facts.

(2)On being so informed, the court shall order that, before the trial diet, there shall be a further pre-trial diet under this section and ordain the accused then to attend.

(3)At a diet under this section, the court shall ascertain whether or not the accused has engaged another solicitor for the purposes of his defence at the trial.

(4)Where, following inquiries for the purposes of subsection (3) above, it appears to the court that the accused has not engaged another solicitor for the purposes of his defence at his trial, it may adjourn the diet under this section for a period of not more than 48 hours and ordain the accused then to attend.

(5)A diet under this section shall be not less than 10 clear days before the trial diet.

(6)A court may, at a diet under this section, postpone the trial diet.

(7)The court may dispense with a diet under this section previously ordered, but only if a solicitor engaged by the accused for the purposes of the defence of the accused at the trial has, in writing—

(a)confirmed his engagement for that purpose; and

(b)requested that the diet be dispensed with.

(8)Where—

(a)a solicitor has requested, under subsection (7) above, that a diet under this section be dispensed with; and

(b)before that diet has been held or dispensed with, the solicitor—

(i)is dismissed by the accused; or

(ii)withdraws,

the solicitor shall forthwith inform the court in writing of those facts.]

72 Preliminary diet: noticeS

(1)Subject to subsections (4) and (5) below, where a party to a case which is to be tried in the High Court within the appropriate period gives written notice to the court and to the other parties—

(a)that he intends to raise—

(i)a matter relating to the competency or relevancy of the indictment; or

(ii)an objection 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;

(b)that he intends—

(i)to submit a plea in bar of trial;

(ii)to apply for separation or conjunction of charges or trials;

(iii)to raise a preliminary objection under section 255 of this Act; or

(iv)to make an application under section 278(2) of this Act;

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

(d)that there is some point, as regards any matter not mentioned in paragraph (a) to (c) 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 shall in a case to which paragraph (a) above applies, and in any other case may, order that there be a diet before the trial diet, and a diet ordered under this subsection [F7or subsection (2A) below] is in this Act referred to as a “preliminary diet”.

(2)A party giving notice under subsection (1) above 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.

[F8(2A)The court may order that there shall be a diet before the trial diet for the purpose of considering an application for the purposes of subsection (1) of section 275 of this Act.]

(3)The fact that a preliminary diet has been ordered [F9under subsection (2A) above or] on a particular notice under subsection (1) above shall not preclude the court’s consideration at that diet of [F10any, or any other,] such notice as is mentioned in [F11subsection (1) above], 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)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) or (d) of that subsection, the period from service of the indictment to the trial diet.

[F1272A Pre-trial diet: inquiry about legal representation of accused in cases of sexual offencesS

(1)Where a case to be tried in the High Court is in respect of a sexual offence to which section 288C of this Act applies, the court shall order that, before the trial diet, there shall be a diet under this section and ordain the accused then to attend.

(2)At a diet under this section, the court shall ascertain whether or not the accused has engaged a solicitor for the purposes of his defence at the trial.

(3)Where, following inquiries for the purposes of subsection (2) above, it appears to the court that the accused has not engaged a solicitor for the purposes of his defence at his trial, it may adjourn the diet under this section for a period of not more than 48 hours and ordain the accused then to attend.

(4)A diet under this section shall be not less than 15 clear days after the service of the indictment and not less than 10 clear days before the trial diet.

(5)A diet under this section may be conjoined with a preliminary diet.

(6)A court may, at a diet under this section, postpone the trial diet.

(7)The court may dispense with a diet under this section previously ordered, but only if a solicitor engaged by the accused for the purposes of the defence of the accused at the trial has, in writing—

(a)confirmed his engagement for that purpose; and

(b)requested that the diet be dispensed with.

(8)Where—

(a)a solicitor has requested, under subsection (7) above, that a diet under this section be dispensed with; and

(b)before that diet has been held or dispensed with, the solicitor—

(i)is dismissed by the accused; or

(ii)withdraws,

the solicitor shall forthwith inform the court in writing of those facts.

(9)It is the duty of a solicitor who—

(a)was engaged for the purposes of the defence of the accused at the trial—

(i)at the time of a diet under this section; or

(ii)in the case of a diet which, under subsection (7) above, is dispensed with, at the time when it was so dispensed with; and

(b)after that time but before the trial diet—

(i)is dismissed by the accused; or

(ii)withdraws,

forthwith to inform the court in writing of those facts.

(10)On being so informed, the court shall order a further diet under this section.]

72DPreliminary hearing: further provisionS

(1)The court may, on cause shown, allow a preliminary hearing to proceed notwithstanding the absence of the accused.

(2)Where—

(a)the accused is a body corporate;

(b)it fails to appear at a preliminary hearing;

(c)the court allows the hearing to proceed in its absence under subsection (1) above; and

(d)no plea is entered on its behalf at the hearing,

it shall be treated for the purposes of proceedings at the preliminary hearing as having pled not guilty.

(3)Where, at a preliminary hearing, a trial diet is appointed, the accused shall appear at the trial diet and answer the indictment.

(4)At a preliminary hearing, the court—

(a)shall take into account any written record lodged under section 72E of this Act; and

(b)may ask the prosecutor and the accused any question in connection with any matter which it is required to dispose of or ascertain under section 72 of this Act.

(5)The proceedings at a preliminary hearing shall be recorded by means of shorthand notes or by mechanical means.

(6)Subsections (2) to (4) of section 93 of this Act shall apply for the purposes of the recording of proceedings at a preliminary hearing in accordance with subsection (5) above as they apply for the purposes of the recording of proceedings at the trial in accordance with subsection (1) of that section.

(7)The Clerk of Justiciary shall prepare, in such form and manner as may be prescribed by Act of Adjournal, a minute of proceedings at a preliminary hearing, which shall record, in particular, whether any preliminary pleas or issues were disposed of and, if so, how they were disposed of.

(8)In this section, references to a preliminary hearing include an adjourned preliminary hearing.

(9)In this section and sections 72 to 72C, “the court” means the High Court.]

F1773 Preliminary diet: procedure.S

(1)Where a preliminary diet is ordered, subject to subsection (2) below, the accused shall attend it, and he shall be required at the conclusion of the diet to state how he pleads to the indictment.

(2)The court may permit the diet to proceed notwithstanding the absence of an accused.

(3)At a preliminary diet the court shall, in addition to disposing of any matter specified in a notice given under subsection (1) of section 72 of this Act or referred to in subsection (3) of that section [F18or to considering an application for the purposes of subsection (1) of section 275 of this Act], ascertain, so far as is reasonably practicable, whether the case is likely to proceed to trial on the date assigned as the trial diet and, in particular—

(a)the state of preparation of the prosecutor and of the accused with respect to their cases; and

(b)the extent to which the prosecutor and the accused have complied with the duty under section 257(1) of this Act.

(4)At a preliminary diet the court may ask the prosecutor and the accused any question in connection with any matter specified in a notice under subsection (1) of the said section 72 or referred to in subsection (3) of that section [F19or which is relevant to an application for the purposes of subsection (1) of the said section 275] or which it is required to ascertain under subsection (3) above.

(5)Where at a preliminary diet the court concludes that the case is unlikely to proceed to trial on the date assigned for the trial diet, the court—

(a)shall, unless having regard to previous proceedings in the case it considers it inappropriate to do so, postpone the trial diet; and

(b)may fix a further preliminary diet.

(6)Subject to subsection (5) above, the court may, if it considers it appropriate to do so, adjourn a preliminary diet.

(7)Where an objection is taken to the relevancy of the indictment under subsection (1)(a)(i) of the said section 72, the clerk of court shall minute whether the objection is sustained or repelled and sign the minute.

(8)In subsection (1) above, the reference to the accused shall, without prejudice to section 6(c) of the M1Interpretation Act 1978, in any case where there is more than one accused include a reference to all of them.

74 Appeals in connection with preliminary diets.S

(1)Without prejudice to—

(a)any right of appeal under section 106 or 108 of this Act; and

(b)section 131 of this Act,

and subject to subsection (2) below, a party may with the leave of the court of first instance (granted either on the motion of the party or ex proprio motu) in accordance with such procedure as may be prescribed by Act of Adjournal, appeal to the High Court against a decision at a first diet or a preliminary diet.

(2)An appeal under subsection (1) above—

(a)may not be taken against a decision to adjourn the first or, as the case may be, preliminary diet or to postpone the trial diet;

(b)must be taken not later than 2 days after the decision.

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

(4)In disposing of an appeal under subsection (1) above the High Court—

(a)may affirm the decision of the court of first instance or may remit the case to it with such directions in the matter as it thinks fit; F20. . .

(b)where the court of first instance has dismissed the indictment or any part of it, may reverse that decision and direct that the court of first instance fix a trial diet, if it has not already fixed one as regards so much of the indictment as it has not dismissed.

[F21(c)may on cause shown extend the period mentioned in section 65(1) of this Act.]

75 Computation of certain periods.S

Where the last day of any period mentioned in section 66(6), 67(3), 72 or 74 of this Act falls on a Saturday, Sunday or court holiday, such period shall extend to and include the next day which is not a Saturday, Sunday or court holiday.