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Act of Adjournal (Consolidation) 1988

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PART IPROCEDURE PRIOR TO TRIAL

Forms

Forms of complaint and related notices

87.—(1) The form of complaint referred to in section 311(1) shall be in the form set out in Form 45 of Schedule 1.

(2) The form of notice referred to in section 311(5) shall be in the form set out in Form 46 of Schedule 1.

(3) The form of citation of the accused referred to in section 315(2) shall be in the form set out in Form 47 of Schedule 1.

(4) The form of notice of previous convictions referred to in section 357(1)(a) shall be in the form set out in Form 48 of Schedule 1.

Ancillary forms

88.  The procurator fiscal shall send to the accused person together with the citation—

(a)a reply form for completion and return by him stating whether he pleads guilty or not guilty in the form set out in Form 49 of Schedule 1;

(b)a means form for completion and return by him in the form set out in Form 50 of Schedule 1.

Signature of procurator fiscal

89.  The procurator fiscal shall require to sign the principal complaint and the citation to the accused person only, and any documents sent with the citation, including the copy complaint, and the documents mentioned in rule 88 shall, for the purposes of such signature, be treated as part of the citation.

Validity

90.  The validity of any proceedings against an accused person shall not be affected by reason only of the failure of the procurator fiscal to comply in any respect with the provisions of rule 88.

Service

Proof of service outside Scotland

91.  Where any citation of an accused person is served in England, Wales or Northern Ireland by an officer effecting such service in accordance with the provisions of section 39(3) of the Criminal Law Act 1977, the evidence of either—

(a)that officer on oath; or

(b)written execution of service or citation signed by him,

shall be sufficient evidence of such service.

Bail Order

Application to alter address

92.—(1) An application in writing under section 2(2) of the Bail etc. (Scotland) Act 1980 to alter the address specified in the order granting bail shall—

(a)include the following information:—

(i)identification of the proceedings in which the order was made;

(ii)details of the new address;

(iii)reasons for the proposed change of address; and

(b)be sent to the clerk of court of the court which made the order.

(2) On receipt of the application, the clerk of court shall forthwith send a copy to the prosecutor.

(3) The prosecutor shall, within 7 days of receipt of the copy of the application, notify the clerk of court in writing whether or not he intends to oppose the application.

(4) Where the prosecutor notifies the clerk of court that he does not intend to oppose the application, the court shall proceed to dispose of the application and may do so in the absence of the applicant.

(5) Where the prosecutor notifies the clerk of court that he intends to oppose the appli-cation, the clerk of court shall arrange a hearing before the court in chambers at which the applicant and the prosecutor may appear or be represented.

(6) The clerk of court shall give notice in writing, to the applicant and the prosecutor, of the decision of the court on an application made under paragraph (1) of this rule.

Citation of Defence Witnesses for Precognition

Application for warrant to cite

93.—(1) An application to the sheriff made by an accused under section 9(1) of the 1980 Act for warrant to cite any person to appear before the sheriff in chambers for precognition on oath by the accused or his solicitor shall be made—

(a)to the sheriff in whose sheriffdom the proceedings in respect of which the accused seeks that person’s precognition have been commenced;

(b)by way of petition in the form set out in Form 51 of Schedule 1.

(2) On an application being made to the sheriff under paragraph (1), he shall—

(a)order intimation of the application to be made to the procurator fiscal;

(b)fix a diet for a hearing of the application.

Order for taking precognition

94.  If, after the hearing, the sheriff is satisfied that it is reasonable to require such precognition on oath in the circumstances, he shall—

(a)order the precognition to be taken;

(b)fix a diet for it to be taken;

(c)grant warrant to cite the person from whom it is to be taken.

Citation

95.—(1) Citation of that person to attend the diet fixed for taking his precognition on oath shall be made by way of personal service on him by an officer of law acting on the instructions of the accused or his solicitor, and relative execution of service shall be produced at the diet fixed under rule 94.

(2) If that person fails to appear at that diet and the sheriff issues a warrant for his apprehension under section 9(2) of the 1980 Act, execution of that warrant—

(a)shall be executed by an officer of law instructed by the accused or his solicitor;

(b)may proceed on a copy of the petition and warrant duly certified by the sheriff clerk.

(3) The sheriff clerk shall immediately give notice of that person’s failure to appear at the diet to the procurator fiscal.

Record of proceedings

96.—(1) Where that person appears before the sheriff to have his precognition taken on oath, the proceedings shall be recorded in shorthand by an official shorthand writer instructed by the accused or his solicitor.

(2) The shorthand writer shall extend his shorthand notes recording the proceedings, sign the transcript, and lodge it with the sheriff clerk.

(3) On the transcript being lodged, the sheriff clerk shall—

(a)send a copy to the solicitor for the accused, or if he is not represented, to the accused;

(b)fix a diet for the person whose precognition has been taken on oath to attend before the sheriff to sign the precognition.

Fees of shorthand writers

97.—(1) The solicitor for the accused, or if he is unrepresented the accused, shall be liable for payment of—

(a)the fees of the shorthand writer;

(b)the expenses of the person precognosced on oath,

and shall tender any such expenses in advance if required by that person to do so.

(2) If the accused is unrepresented, the sheriff may at the hearing of the application, or at any time before the precognition is taken, order the accused to consign in court such sum as he may be required to pay under paragraph (1) in respect of fees and expenses on or before such date as the sheriff may specify in the order.

(3) If the sheriff orders the accused to consign a sum in court under paragraph (2) and that sum is not consigned by the date specified in the order, the application shall be treated as abandoned.

Identification Parades on Application of Accused

Application

98.—(1) An application to the sheriff made by an accused under section 10(1) of the 1980 Act for an order that the prosecutor shall hold an identification parade in which the accused shall be one of those constituting the parade shall be made—

(a)to the sheriff in whose sheriffdom the proceedings in relation to which the order is sought have been commenced;

(b)by way of petition in the form set out in Form 52 of Schedule 1.

(2) On an application being made to the sheriff under paragraph (1), he shall—

(a)order intimation of the application to be made to the prosecutor;

(b)fix a diet for a hearing of the application on the earliest practicable date;

(c)after giving the prosecutor an opportunity to be heard at the hearing and allowing such further procedure as he thinks fit, make an order granting or refusing the application.

(3) If—

(a)the prosecutor is not present at the hearing of the application; and

(b)the sheriff makes an order granting the application,

the sheriff clerk shall issue a certified copy of the order to the applicant or his solicitor.

(4) The sheriff clerk shall record the order made by the sheriff under paragraph 2(c) in the minute of proceedings, and shall keep the petition and relative documents in his custody.

Alteration of Diet

Joint application

99.—(1) Where the prosecutor and the accused propose to make a joint application orally to the court under section 314(4)(1) for postponement of a diet that has been fixed, they may only do so at a diet which has been duly assigned and which has been regularly called.

(2) An application by an accused under section 314(6) shall be made in the form set out in Form 53 of Schedule 1.

Appeal against Extension of 40 Day Period

Form and service

100.—(1) A note of appeal presented to the High Court under section 331A(3)(2) shall be made in the form set out in Form 54 of Schedule 1.

(2) A note of appeal under section 331A(3) shall be served by the appellant on—

(a)the respondent, and

(b)the clerk of the court against whose decision the appeal is taken.

(3) The appellant in a note of appeal under that section shall lodge with the Clerk of Justiciary—

(a)the note of appeal, and

(b)the execution of service in respect of the persons mentioned in paragraph (2).

(4) The clerk of the court against whose decision the appeal is taken shall, as soon as practicable after being served with the note of appeal, transmit to the Clerk of Justiciary the original application and all the relative documents; and the Clerk of Justiciary shall on receipt thereof assign the appeal to the roll and intimate the date of the diet to the appellant and the respondent.

Letters of Request

Application

101.—(1) An application to the court by the prosecutor or the defence under section 32(1)(a) of the 1980 Act for the issue of a letter of request shall be made by way of petition in the form set out in Form 55 of Schedule 1.

(2) An application so made shall be lodged with the sheriff clerk and shall be accompanied by a proposed letter of request including the matters set out in Form 27 of Schedule 1.

Powers of sheriff

102.—(1) The sheriff shall on the application being placed before him—

(a)order intimation on the other party or parties to the proceedings;

(b)subject to paragraph (2), allow such time for lodging answers as appears appropriate;

(c)fix a diet for hearing the application and answers (if any).

(2) The sheriff may dispense with answers to an application under this rule on cause shown.

(3) The sheriff may, after considering the application and answers (if any), either grant the application with or without modifications, or refuse it.

(4) On granting an application under this rule, the sheriff shall—

(a)allow interrogatories to be adjusted summarily;

(b)pronounce a deliverance approving the terms—

(i)of the letter of request to be sent;

(ii)of the interrogatories and cross-interrogatories (if any) to be sent;

(c)If English is not an official language of the body to whom the letter of request is addressed, specify a period within which a translation of the letter and of the interrogatories and cross-interrogatories and of any productions is to be lodged.

Expenses

103.—(1) The solicitor for the applicant, or if he is unrepresented the applicant, shall be liable for the expenses of the application.

(2) The sheriff may order the solicitor for the applicant, or the applicant, to consign in court such sum in respect of those expenses as he may specify on or before such date as he may specify.

(3) In the event of the sum so specified not being consigned in court on or before the date so specified, the application shall be treated as having been abandoned.

Transmission

104.—(1) On the sheriff pronouncing a deliverance under rule 102(4), or in a case where a translation requires to be lodged, on the lodging of the translation, the sheriff clerk shall send the letter of request and relative documents to the Secretary of State for Foreign and Commonwealth Affairs for onward transmission to the body to whom the letter of request is addressed.

(2) On sending the letter of request and relative documents to the Secretary of State, the sheriff clerk shall note the documents sent, to whom they were sent, and the date on which they were sent, on the application or in the minutes of proceedings.

(3) On the relative documents being returned to him the sheriff clerk shall—

(a)note the documents returned, by whom they were returned and the date on which they were returned, on the application or in the minutes of proceedings; and

(b)intimate those facts to all parties concerned.

Custody of documents

105.—(1) The sheriff clerk shall keep the documents mentioned in rule 104(3) in his custody.

(2) In any case where the record of the evidence of a witness is in the custody of a sheriff clerk under this rule and where intimation has been given to that effect to all the parties concerned in the proceedings under rule 104(3), the name and address of that witness and the record of his evidence shall be treated as being within the knowledge of those parties.

Prohibition of reference to evidence without leave

106.—(1) No reference shall be made either directly or indirectly in any proceedings to the evidence, or any part of the evidence, of a witness whose evidence has been taken under rule 102 unless the party seeking to make such reference has made a motion to the court to that effect and that motion has been granted.

(2) The terms of any motion made under paragraph (1) and the grant or refusal of that motion by the court shall be noted by the clerk of court in the minutes of proceedings.

Evidence on Commission

Application

107.—(1) An application to the court by the prosecutor or the defence under section 32(1)(b) of the 1980 Act for the appointment of a commissioner to examine a witness to whom that section applies shall be made by way of petition in the form set out in Form 56 of Schedule 1.

(2) An application so made shall be lodged with the sheriff clerk.

Appointment of Commissioner

108.—(1) On making an order granting an application under rule 107, the sheriff shall appoint a commissioner to examine the witness or witnesses to whom the order applies and a clerk to assist the commissioner in the carrying out of his duties; and shall dispense with interrogatories.

(2) On the sheriff making an order under paragraph (1), the sheriff clerk shall send the order to either the commissioner or his clerk together with the other relative documents.

(3) On the sending of the relative order and documents to the commissioner or his clerk under paragraph (2), the sheriff clerk shall note the order and documents sent, to whom they were sent, and the date on which they were sent, on the application, or in the minutes of proceedings.

Commission

109.—(1) The Commissioner shall, on receiving the order and documents mentioned in rule 108, determine the place and the date and time of the diet or diets for the examination of the witness or witnesses to whom the order of the court relates and shall give reasonable notice of those matters to all the parties concerned.

(2) The commissioner may vary or revoke his determination or adjourn the examination of any witness to such other place, at such other date and time as he may determine.

(3) If in the course of the examination of a witness under this rule any question arises as to the admissibility of any evidence, the commissioner shall not determine any such question, but shall allow the evidence subject to all questions of competency and relevancy.

Commissioner’s report

110.  On the carrying out of his commission in accordance with the terms of the order appointing him, or otherwise on concluding his commission, the commissioner shall complete a written report of his commission and he or his clerk shall return the report and relative documents to the sheriff clerk.

Application of other provisions

111.  The following rules shall apply to an application under rule 107 as they apply to an application under rule 101:—

  • rule 102(1) to (3);

  • rule 103;

  • rule 104(3);

  • rule 105;

  • rule 106.

Interim Hospital Order

Application

112.—(1) Where the court has made or renewed an interim hospital order under section 375A(3) and the responsible medical officer has intimated to the prosecutor either—

(a)that he seeks a continuation of the order, or

(b)that he seeks termination of the order before the date on which it would otherwise cease to have effect,

the prosecutor shall make an application in the form set out in Form 29 of Schedule 1 to the court which made the order, to renew or terminate the order, as the case may be.

(2) Where an application is made under paragraph (1)—

(a)the court shall, by interlocutor in the form set out in Form 30 of Schedule 1 appoint a diet for hearing the application and, where appropriate, grant warrant to authorised officers of the hospital, or officers of law, for conveyance of the offender from the hospital to the court for that diet; and

(b)the clerk of court shall intimate the application and the diet to the offender or his solicitor.

(3) Where, in an application under paragraph (1)(a), the court renews an interim hospital order before the date on which the order would otherwise cease to have effect, the period of renewal shall commence from the date on which the order would otherwise cease to have effect.

(4) Where the court makes an order to renew or terminate an interim hospital order before the date on which it would otherwise cease to have effect, the adjourned diet fixed when the previous order of the court was made shall be treated as being discharged.

Reference to European Court

Interpretation

113.  In this rule and in rules 114 to 118, unless the context otherwise requires—

“the European Court” means the Court of Justice of the European Communities;

“question” means a question within the meaning of Article 177 of the Treaty establishing the European Economic Community, Article 150 of the Treaty establishing the European Atomic Energy Community or Article 41 of the Treaty establishing the European Coal and Steel Community;

“reference” means a request to the European Court for a preliminary ruling on a question.

Notice

114.—(1) If a question is to be raised in any summary proceedings (other than proceedings on appeal) notice of intention to do so shall be given before the accused is called on to plead to the complaint.

(2) Where notice is given it shall be entered in the minute of proceedings and the court shall not then call on the accused to plead to the complaint.

(3) The court may hear parties on the question forthwith or may adjourn the case to a specified date for such hearing.

(4) After hearing parties the court may determine the question or may decide that a preliminary ruling should be sought.

(5) If the court determines the question the accused shall then (where appropriate) be called on to plead to the complaint.

Proceedings on appeal, etc.

115.—(1) If a question is raised in the High Court in any proceedings on appeal or on a petition for the exercise of the Court’s nobile officium the court shall proceed to make a reference.

(2) In this rule references to proceedings on appeal are references to proceedings on appeal under the 1975 Act and on appeal by bill of suspension, bill of advocation or otherwise.

Reference

116.—(1) If the court decides that a preliminary ruling should be sought the court shall—

(a)give its reasons and cause those reasons to be recorded in the minute of proceedings;

(b)continue the proceedings from time to time as necessary for the purposes of the reference.

(2) The reference—

(a)shall be drafted in the form set out in Form 31 of Schedule 1 and the court may give directions to the parties as to the manner in which and by whom the case is to be drafted and adjusted;

(b)shall thereafter be adjusted at the sight of the court in such manner as may be so directed;

(c)after approval and the making of an appropriate order by the court, shall (after the expiry of the period of appeal) be transmitted by the clerk of the court to the Registrar of the European Court, along with a certified copy of the relative minute of proceedings and, where applicable, a certified copy of the relative complaint.

Preliminary ruling

117.  When a preliminary ruling has been given by the European Court on a question referred to it and the ruling has been received by the clerk of the court which made the reference, it shall be laid by the clerk before the court, and the court shall then give directions as to further procedure, which directions shall be intimated by the clerk along with a copy of the ruling to each of the parties to the proceedings.

Appeal against reference

118.—(1) Where an order making a reference is made under rule 116, any party to the proceedings who is aggrieved by the order may within 14 days thereafter appeal against the order to the High Court sitting as a court of appeal, but this rule does not apply to such an order made in proceedings in the High Court sitting as a court of appeal and proceedings on petitions to that Court for the exercise of its nobile officium.

(2) Any appeal under this rule shall be taken by lodging with the clerk of the court that made the order a note of appeal in the form set out in Form 32 of Schedule 1 and signed by the appellant or his solicitor; and a copy of the note shall be served by the appellant on each other party to the proceedings.

(3) The clerk shall record the lodging of the note in the minute of proceedings and shall forthwith transmit the note to the Clerk of Justiciary, together with the minute and a certified copy of the relative complaint.

(4) In disposing of an appeal under this rule the High Court (sitting as a court of appeal) may—

(a)either sustain or dismiss the appeal and in either case remit the proceedings to the court of first instance with instructions to proceed as accords;

(b)give such directions for other procedure as it thinks fit.

(5) Unless the court making the order otherwise directs, a reference shall not be transmitted to the Registrar of the European Court before the time allowed by this rule for appealing against the order has expired or before the appeal has been disposed of or withdrawn.

(1)

Paragraphs (4) to (6) of section 314 were added by the 1980 Act, section 11(c).

(2)

Section 331A was inserted by the 1980 Act, section 14(2).

(3)

Section 375A was inserted by the Mental Health (Amendment) (Scotland) Act 1983 (c. 39), section 34(c), and amended by the Mental Health (Scotland) Act 1984 (c. 36), Schedule 3, paragraph 32.

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