Office of Public Sector Information
(1) The High Court shall hold both during session and during vacation such sittings as are necessary for the disposal of appeals and other proceedings under this Part of this Act.
(2) Subject to subsection (3) below, for the purpose of hearing and determining any appeal or other proceeding under this Part of this Act three of the Lords Commissioners of Justiciary shall be a quorum of the High Court, and the determination of any question under this Part of this Act by the court shall be according to the votes of the majority of the members of the court sitting, including the presiding judge, and each judge so sitting shall be entitled to pronounce a separate opinion.
(3) For the purpose of hearing and determining any appeal under section 106(1)(b) to (e) of this Act, or any proceeding connected therewith, two of the Lords Commissioners of Justiciary shall be a quorum of the High Court, and each judge shall be entitled to pronounce a separate opinion; but where the two Lords Commissioners of Justiciary are unable to reach agreement on the disposal of the appeal, or where they consider it appropriate, the appeal shall be heard and determined in accordance with subsection (1) above.
(4) Subsections (1) and (2) above shall apply to cases certified to the High Court by a single judge of the said court and to appeals by way of advocation in like manner as they apply to appeals under this Part of this Act.
(5) The powers of the High Court under this Part of this Act—
(a) to extend the time within which intimation of intention to appeal and note of appeal may be given;
(b) to allow the appellant to be present at any proceedings in cases where he is not entitled to be present without leave; and
(c) to admit an appellant to bail,
may be exercised by any judge of the High Court, sitting and acting wherever convenient, in the same manner as they may be exercised by the High Court, and subject to the same provisions.
(6) Where a judge acting under subsection (5) above refuses an application by an appellant to exercise under that subsection any power in his favour, the appellant shall be entitled to have the application determined by the High Court.
(7) Subject to subsection (5) above and without prejudice to it, preliminary and interlocutory proceedings incidental to any appeal or application may be disposed of by a single judge.
(8) In all proceedings before a judge under section (5) above, and in all preliminary and interlocutory proceedings and applications except such as are heard before the full court, the parties may be represented and appear by a solicitor alone.
(1) Without prejudice to any existing power of the High Court, it may for the purposes of an appeal under section 106(1) or 108 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.
(2) The evidence of any witnesses ordered to be examined before the High Court or before any judge of the High Court or other person appointed by the High Court shall be taken in accordance with the existing law and practice as to the taking of evidence in criminal trials in Scotland.
(3) The appellant or applicant and the respondent or counsel on their behalf shall be entitled to be present at and take part in any examination of any witness to which this section relates.
(1) When an application or applications have been dealt with by a judge of the High Court, under section 103(5) of this Act, the Clerk of Justiciary shall—
(a) notify to the applicant the decision in the form prescribed by Act of Adjournal or as nearly as may be in such form; and
(b) where all or any of such applications have been refused, forward to the applicant the prescribed form for completion and return forthwith if he desires to have the application or applications determined by the High Court as fully constituted for the hearing of appeals under this Part of this Act.
(2) Where the applicant does not desire a determination as mentioned in subsection (1)(b) above, or does not return within five days to the Clerk the form duly completed by him, the refusal of his application or applications by the judge shall be final.
(3) Where an applicant who desires a determination by the High Court as mentioned in subsection (1)(b) above—
(a) is not legally represented, he may be present at the hearing and determination by the High Court of the application;
(b) is legally represented, he shall not be entitled to be present without leave of the court.
(4) When an applicant duly completes and returns to the Clerk of Justiciary within the prescribed time the form expressing a desire to be present at the hearing and determination by the court of the applications mentioned in this section, the form shall be deemed to be an application by the applicant for leave to be so present, and the Clerk of Justiciary, on receiving the form, shall take the necessary steps for placing the application before the court.
(5) If the application to be present is refused by the court, the Clerk of Justiciary shall notify the applicant; and if the application is granted, he shall notify the applicant and the Governor of the prison where the applicant is in custody and the Secretary of State.
(6) For the purpose of constituting a Court of Appeal, the judge who has refused any application may sit as a member of the court, and take part in determining the application.
(1) Any person convicted on indictment may, with leave granted in accordance with section 107 of this Act, appeal in accordance with this Part of this Act, to the High Court—
(a) against such conviction;
(b) subject to subsection (2) below, against the sentence passed on such conviction;
(c) against his absolute discharge or admonition;
(d) against any probation order or any community service order;
(e) against any order deferring sentence; or
(f) against both such conviction and, subject to subsection (2) below, such sentence or disposal or order.
(2) There shall be no appeal against any sentence fixed by law.
(3) By an appeal under subsection (1) above 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.
(4) Any document, production or other thing lodged in connection with the proceedings on the trial of any person who, if convicted, is entitled or may be authorised to appeal under this Part of this Act, shall, in accordance with subsections (5) to (9) below, be kept in the custody of the court in which the conviction took place.
(5) All documents and other productions produced at the trial of a convicted person shall be kept in the custody of the court of trial in such manner as it may direct until any period allowed under or by virtue of this Part of this Act for lodging intimation of intention to appeal has elapsed.
(6) Where no direction is given as mentioned in subsection (5) above, such custody shall be in the hands of the sheriff clerk of the district of the court of the second diet to whom the clerk of court shall hand them over at the close of the trial, unless otherwise ordered by the High Court on an intimation of intention to appeal being lodged, and if within such period there has been such lodgement under this Part of this Act, they shall be so kept until the appeal, if it is proceeded with, is determined.
(7) Notwithstanding subsections (5) and (6) above, the judge of the court in which the conviction took place may, on cause shown, grant an order authorising any of such documents or productions to be released on such conditions as to custody and return as he may deem it proper to prescribe.
(8) All such documents or other productions so retained in custody or released and returned shall, under supervision of the custodian thereof, be made available for inspection and for the purpose of making copies of documents or productions to a person who has lodged an intimation of intention to appeal or as the case may be, to the convicted person’s counsel or agent, and to the Crown Agent and the procurator fiscal or his deputes.
(9) Where no intimation of intention to appeal is lodged within the period mentioned in subsection (6) above, all such documents and productions shall be dealt with as they are dealt with according to the existing law and practice at the conclusion of a trial; and they shall be so dealt with if, there having been such intimation, the appeal is not proceeded with.
(1) The decision whether to grant leave to appeal for the purposes of section 106(1) of this Act shall be made by a judge of the High Court who shall—
(a) if he considers that the documents mentioned in subsection (2) below disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and
(b) in any other case—
(i) refuse leave to appeal and give reasons in writing for the refusal; and
(ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him.
(2) The documents referred to in subsection (1) above are—
(a) the note of appeal lodged under section 110(1)(a) of this Act;
(b) in the case of an appeal against conviction or sentence in a sheriff court, the certified copy or, as the case may be, the record of the proceedings at the trial;
(c) where the judge who presided at the trial furnishes a report under section 113 of this Act, that report; and
(d) where, by virtue of section 94(1) of this Act, a transcript of the charge to the jury of the judge who presided at the trial is delivered to the Clerk of Justiciary, that transcript.
(3) A warrant granted under subsection (1)(b)(ii) above shall not take effect until the expiry of the period of 14 days mentioned in subsection (4) below without an application to the High Court for leave to appeal having been lodged by the appellant under that subsection.
(4) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 days of intimation under subsection (7) below, apply to the High Court for leave to appeal.
(5) In deciding an application under subsection (4) above the High Court shall—
(a) if, after considering the documents mentioned in subsection (2) above and the reasons for the refusal, the court is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as the court considers appropriate; and
(b) in any other case—
(i) refuse leave to appeal and give reasons in writing for the refusal; and
(ii) where the appellant is on bail and the sentence imposed on his conviction is one of imprisonment, grant a warrant to apprehend and imprison him.
(6) Consideration whether to grant leave to appeal under subsection (1) or (5) above shall take place in chambers without the parties being present.
(7) Comments in writing made under subsection (1)(a) or (5)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted.
(8) Where the arguable grounds of appeal are specified by virtue of subsection (7) above it shall not, except by leave of the High Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified.
(9) Any application by the appellant for the leave of the High Court under subsection (8) above—
(a) shall be made not less than seven days before the date fixed for the hearing of the appeal; and
(b) shall, not less that seven days before that date, be intimated by the appellant to the Crown Agent.
(10) The Clerk of Justiciary shall forthwith intimate—
(a) a decision under subsection (1) or (5) above; and
(b) in the case of a refusal of leave to appeal, the reasons for the decision,
to the appellant or his solicitor and to the Crown Agent.
Where a person has been convicted on indictment, the Lord Advocate may appeal against the sentence passed on conviction or against any probation order or any community service order or against the person’s absolute discharge or admonition or against any order deferring sentence—
(a) if it appears to the Lord Advocate that, as the case may be—
(i) the sentence is unduly lenient;
(ii) the making of the probation order or community service order is unduly lenient or its terms are unduly lenient;
(iii) to dismiss with an admonition or to discharge absolutely is unduly lenient; or
(iv) the deferment of sentence is inappropriate or on unduly lenient conditions; or
(b) on a point of law.
(1) Subject to section 111(2) of this Act and to section 10 of the [1995 c. 43.] Proceeds of Crime (Scotland) Act 1995 (postponed confiscation orders), where a person desires to appeal under section 106(1)(a) or (f) 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 which shall identify the proceedings and be in as nearly as may be the form prescribed by Act of Adjournal.
(2) A copy of intimation given under subsection (1) above shall be sent to the Crown Agent.
(3) On intimation under subsection (1) above being lodged by a person in custody, the Clerk of Justiciary shall give notice of the intimation to the Secretary of State.
(4) Subject to subsection (5) below, for the purposes of subsection (1) above and section 106(5) to (7) of this Act, proceedings shall be deemed finally determined on the day on which sentence is passed in open court.
(5) Where in relation to an appeal under section 106(1)(a) of this Act sentence is deferred under section 202 of this Act, the proceedings shall be deemed finally determined on the day on which sentence is first so deferred in open court.
(6) Without prejudice to section 10 of the said Act of 1995, the reference in subsection (4) above to “the day on which sentence is passed in open court” shall, in relation to any case in which, under subsection (1) of that section, a decision has been postponed for a period, be construed as a reference to the day on which that decision is made, whether or not a confiscation order is then made or any other sentence is then passed.
(1) Subject to section 111(2) of this Act—
(a) within six weeks of lodging intimation of intention to appeal or, in the case of an appeal under section 106(1)(b) to (e) of this Act, within two weeks of the passing of the sentence (or, as the case may be, of the making of the order disposing of the case or deferring 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; or, as the case may be,
(b) within four weeks of the passing of the sentence in open court, the Lord Advocate may lodge such a note with the Clerk of Justiciary, who shall send a copy to the said judge and to the convicted person or that person’s solicitor.
(2) The period of six weeks mentioned in paragraph (a) of subsection (1) above may be extended, before it expires, by the Clerk of Justiciary.
(3) A note of appeal shall—
(a) identify the proceedings;
(b) contain a full statement of all the grounds of appeal; and
(c) be in as nearly as may be the form prescribed by Act of Adjournal.
(4) 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.
(5) Subsection (4) above shall not apply as respects any ground of appeal specified as an arguable ground of appeal by virtue of subsection (7) of section 107 of this Act.
(6) On a note of appeal under section 106(1)(b) to (e) of this Act being lodged by an appellant in custody the Clerk of Justiciary shall give notice of that fact to the Secretary of State.
(1) Where the last day of any period mentioned in sections 109(1) and 110(1) of this Act falls on a day on 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 109(1) or 110(1)(a) of this Act may be extended at any time by the High Court in respect of any convicted person; and an 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.
(1) Subject to subsection (2) below, the High Court may, if it thinks fit, on the application of a convicted person, admit him to bail pending the determination of—
(a) his appeal; or
(b) any relevant appeal by the Lord Advocate under section 108 of this Act.
(2) The High Court shall not admit a convicted person to bail under subsection (1) above unless—
(a) where he is the appellant and has not lodged a note of appeal in accordance with section 110(1)(a) of this Act, the application for bail states reasons why it should be granted and sets out the proposed grounds of appeal; or
(b) where the Lord Advocate is the appellant, the application for bail states reasons why it should be granted,
and, in either case, the High Court considers there to be exceptional circumstances justifying admitting the convicted person to bail.
(3) A person who is admitted to bail under subsection (1) above shall, unless the High Court otherwise directs, appear personally in court on the day or days fixed for the hearing of the appeal.
(4) Where an appellant fails to appear personally in court as mentioned in subsection (3) above, the court may—
(a) if he is the appellant—
(i) decline to consider the appeal; and
(ii) dismiss it summarily; or
(b) whether or not he is the appellant—
(i) consider and determine the appeal; or
(ii) without prejudice to section 27 of this Act, make such other order as the court thinks fit.
(5) For the purposes of subsections (1), (3) and (4) above, “appellant” includes not only a person who has lodged a note of appeal but also one who has lodged an intimation of intention to appeal.
(1) As soon as is reasonably practicable after receiving the copy note of appeal sent to him under section 110(1) of this Act, the judge who presided at the trial shall furnish the Clerk of Justiciary with a written report giving the judge’s opinion on the case generally and on the grounds contained in the note of appeal.
(2) The Clerk of Justiciary shall send a copy of the judge’s report—
(a) to the convicted person or his solicitor;
(b) to the Crown Agent; and
(c) in a case referred under section 124(3) of this Act, to the Secretary of State.
(3) Where the judge’s report is not furnished as mentioned in subsection (1) above, the High Court may call for the report to be furnished within such period as it may specify or, if it thinks fit, hear and determine the appeal without the report.
(4) Subject to subsection (2) above, the report of the judge shall be available only to the High Court, the parties and, on such conditions as may be prescribed by Act of Adjournal, such other persons or classes of persons as may be so prescribed.
Subject to any provision of this Part of this Act to the contrary, any application to the High Court may be made by the appellant or respondent as the case may be or by counsel on his behalf, orally or in writing.
(1) If an appellant, other than the Lord Advocate, desires to present his case and his argument in writing instead of orally he shall, at least four days before the diet fixed for the hearing of the appeal—
(a) intimate this desire to the Clerk of Justiciary;
(b) lodge with the Clerk of Justiciary three copies of his case and argument; and
(c) send a copy of the intimation, case and argument to the Crown Agent.
(2) Any case or argument presented as mentioned in subsection (1) above shall be considered by the High Court.
(3) Unless the High Court otherwise directs, the respondent shall not make a written reply to a case and argument presented as mentioned in subsection (1) above, but shall reply orally at the diet fixed for the hearing of the appeal.
(4) Unless the High Court otherwise allows, an appellant who has presented his case and argument in writing shall not be entitled to submit in addition an oral argument to the court in support of the 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; 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 (or, as the case may be, against both conviction and disposal or order) may abandon the appeal in so far as it is against conviction and may proceed with it against sentence (or disposal or order) alone.
(1) Where an appellant or applicant is in custody the Clerk of Justiciary shall notify—
(a) the appellant or applicant;
(b) the Governor of the prison in which the appellant or applicant then is; and
(c) the Secretary of State,
of the probable day on which the appeal or application will be heard.
(2) The Secretary of State shall take steps to transfer the appellant or applicant to a prison convenient for his appearance before the High Court at such reasonable time before the hearing as shall enable him to consult his legal adviser, if any.
(3) A convicted appellant, notwithstanding that he is in custody, shall be entitled to be present if he desires it, at the hearing of his appeal.
(4) When an appellant or applicant is to be present at any diet—
(a) before the High Court or any judge of that court; or
(b) for the taking of additional evidence before a person appointed for that purpose under section 104(1)(b) of this Act, or
(c) for an examination or investigation by a special commissioner in terms of section 104(1)(d) of this Act,
the Clerk of Justiciary shall give timeous notice to the Secretary of State, in the form prescribed by Act of Adjournal or as nearly as may be in such form.
(5) A notice under subsection (4) above shall be sufficient warrant to the Secretary of State for transmitting the appellant or applicant in custody from prison to the place where the diet mentioned in that subsection or any subsequent diet is to be held and for reconveying him to prison at the conclusion of such diet.
(6) The appellant or applicant shall appear at any diet mentioned in subsection (4) above in ordinary civilian clothes.
(7) Where the Lord Advocate is the appellant, subsections (1) to (6) above shall apply in respect of the convicted person, if in custody, as they apply to an appellant or applicant in custody.
(8) The Secretary of State shall, on notice under subsection (4) above from the Clerk of Justiciary, ensure that sufficient male and female prison officers attend each sitting of the court, having regard to the list of appeals for the sitting.
(9) When the High Court fixes the date for the hearing of an appeal, or of an application under section 111(2) of this Act, the Clerk of Justiciary shall give notice to the Crown Agent and to the solicitor of the convicted person, or to the convicted person himself if he has no known solicitor.
(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, subject to subsection (2) below, substituting therefor an amended verdict of guilty; or
(c) setting aside the verdict of the trial court and quashing the conviction and granting authority to bring a new prosecution in accordance with section 119 of this Act.
(2) An amended verdict of guilty substituted under subsection (1) above must be one which could have been returned on the indictment before the trial court.
(3) In setting aside, under subsection (1) above, a verdict the High Court may quash any sentence imposed on the appellant (or, as the case may be, any disposal or order made) as respects the indictment, and—
(a) in a case where it substitutes an amended verdict of guilty, whether or not the sentence (or disposal or order) related to the verdict set aside; or
(b) in any other case, where the sentence (or disposal or order) did not so relate,
may pass another (but not more severe) sentence or make another (but not more severe) disposal or order in substitution for the sentence, disposal or order so quashed.
(4) The High Court may, subject to subsection (5) 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 106(3) 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,
and, in this subsection, “appeal against sentence” shall, without prejudice to the generality of the expression, be construed as including an appeal under section 106(1)(c) to (e), and any appeal under section 108, of this Act; and other references to sentence shall be construed accordingly.
(5) In relation to any appeal under section 106(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 (or disposal or order made) as respects the indictment and—
(i) making, in respect of the appellant, any order mentioned in section 57(2)(a) to (d) of this Act; or
(ii) making no order.
(6) Subsections (3) and (4) of section 57 of this Act shall apply to an order made under subsection (5)(b)(i) above as they apply to an order made under subsection (2) of that section.
(7) In disposing of an appeal under section 106(1)(b) to (f) or 108 of this Act the High Court may, without prejudice to any other power in that regard, pronounce an opinion on the sentence or other disposal or order which is appropriate in any similar case.
(8) No conviction, sentence, judgment, order of court or other proceeding whatsoever in or for the purposes of solemn proceedings under this Act—
(a) shall be quashed for want of form; or
(b) where the accused had legal assistance in his defence, shall be suspended or set aside in respect of any objections to—
(i) the relevancy of the indictment, or the want of specification therein; or
(ii) the competency or admission or rejection of evidence at the trial in the inferior court,
unless such objections were timeously stated.
(1) Subject to subsection (2) below, where authority is granted under section 118(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.
(2) In a new prosecution under this section the accused shall not be charged with an offence more serious than that of which he was convicted in the earlier proceedings.
(3) No sentence may be passed on conviction under the new prosecution which could not have been passed on conviction under the earlier proceedings.
(4) A new prosecution may be brought under this section, notwithstanding that any time limit, other than the time limit mentioned in subsection (5) below, for the commencement of such proceedings has elapsed.
(5) 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.
(6) In proceedings in a new prosecution under this section it shall, subject to subsection (7) below, be competent for either party to lead any evidence which it was competent for him to lead in the earlier proceedings.
(7) The indictment in a new prosecution under this section shall identify any matters as respects which the prosecutor intends to lead evidence by virtue of subsection (6) above which would not have been competent but for that subsection.
(8) For the purposes of subsection (5) above, proceedings shall be deemed to be commenced—
(a) in a case where a warrant to apprehend or to cite the accused is executed without unreasonable delay, on the date on which the warrant is granted; and
(b) in any other case, on the date on which the warrant is executed.
(9) Where the two months mentioned in subsection (5) above elapse and no new prosecution has been brought under this section, the order under section 118(1)(c) of this Act setting aside the verdict shall have the effect, for all purposes, of an acquittal.
(10) On granting authority under section 118(1)(c) of this Act to bring a new prosecution, the High Court shall, after giving the parties an opportunity of being heard, order the detention of the accused person in custody or admit him to bail.
(11) Subsections (4)(b) and (7) to (9) of section 65 of this Act (prevention of delay in trials) shall apply to an accused person who is detained under subsection (10) above as they apply to an accused person detained by virtue of being committed until liberated in due course of law.
(1) Where—
(a) intimation of the diet appointed for the hearing of the appeal has been made to the appellant;
(b) no appearance is made by or on behalf of an appellant at the diet; and
(c) no case or argument in writing has been timeously lodged,
the High Court shall dispose of the appeal as if it had been abandoned.
(2) The power of the High Court to pass any sentence under this Part of this Act may be exercised notwithstanding that the appellant (or, where the Lord Advocate is the appellant, the convicted person) is for any reason not present.
(3) When the High Court has heard and dealt with any application under this Part of this Act, the Clerk of Justiciary shall (unless it appears to him unnecessary so to do) give to the applicant if he is in custody and has not been present at the hearing of such application notice of the decision of the court in relation to the said application.
(4) On the final determination of any appeal under this Part of this Act or of any matter under section 103(5) of this Act, the Clerk of Justiciary shall give notice of such determination—
(a) to the appellant or applicant if he is in custody and has not been present at such final determination;
(b) to the clerk of the court in which the conviction took place; and
(c) to the Secretary of State.
Criminal Procedure (Scotland) Act 1995