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(1) Section 65 (prevention of delay in trials) of the 1995 Act is amended as follows.
(2) In subsection (1), for the words from “the trial” to “that period” substitute—
“(a) where an indictment has been served on the accused in respect of the High Court, a preliminary hearing is commenced within the period of 11 months; and
(b) in any case, the trial is commenced within the period of 12 months,
of the first appearance of the accused on petition in respect of the offence.
(1A) If the preliminary hearing (where subsection (1)(a) above applies) or the trial is not so commenced,”.
(3) In subsection (2), after “(1)” insert “or (1A)”.
(4) In subsection (3), for the words from “the sheriff” to the end substitute—
“(a) where an indictment has been served on the accused in respect of the High Court, a single judge of that court may, on cause shown, extend either or both of the periods of 11 and 12 months specified in subsection (1) above; or
(b) in any other case, the sheriff may, on cause shown, extend the period of 12 months specified in that subsection.”.
(5) In subsection (4)—
(a) in paragraph (a), for the words “liberated forthwith” substitute “entitled to be admitted to bail”,
(b) after paragraph (a) insert—
“(aa) where an indictment has been served on the accused in respect of the High Court—
(i) 110 days, unless a preliminary hearing in respect of the case is commenced within that period, which failing he shall be entitled to be admitted to bail; or
(ii) 140 days, unless the trial of the case is commenced within that period, which failing he shall be entitled to be admitted to bail;”,
(c) in paragraph (b)—
(i) at the beginning, insert “where an indictment has been served on the accused in respect of the sheriff court,”,
(ii) for the words from “liberated” to the end substitute “entitled to be admitted to bail”.
(6) After subsection (4) insert—
“(4A) Where an indictment has been served on the accused in respect of the High Court, subsections (1)(a) and (4)(aa)(i) above shall not apply if the preliminary hearing has been dispensed with under section 72B(1) of this Act.”.
(7) For subsection (5) substitute—
“(5) On an application made for the purpose—
(a) in a case where, at the time the application is made, an indictment has not been served on the accused, a single judge of the High Court; or
(b) in any other case, the court specified in the notice served under section 66(6) of this Act,
may, on cause shown, extend any period mentioned in subsection (4) above.
(5A) Before determining an application under subsection (3) or (5) above, the judge or, as the case may be, the court shall give the parties an opportunity to be heard.
(5B) However, where all the parties join in the application, the judge or, as the case may be, the court may determine the application without hearing the parties and, accordingly, may dispense with any hearing previously appointed for the purpose of considering the application.”.
(8) Subsections (6) and (7) are repealed.
(9) After subsection (8) insert—
“(8A) Where an accused is, by virtue of subsection (4) above, entitled to be admitted to bail, the accused shall, unless he has been admitted to bail by the Lord Advocate, be brought forthwith before—
(a) in a case where an indictment has not yet been served on the accused, a single judge of the High Court; or
(b) in any other case, the court specified in the notice served under section 66(6) of this Act.
(8B) Where an accused is brought before a judge or court under subsection (8A) above, the judge or, as the case may be, the court shall give the prosecutor an opportunity to make an application under subsection (5) above.
(8C) If the prosecutor does not make such an application or, if such an application is made but is refused, the judge or, as the case may be, the court shall, after giving the prosecutor an opportunity to be heard, admit the accused to bail.
(8D) Where such an application is made but is refused and the prosecutor appeals against the refusal, the accused—
(a) may continue to be detained under the committal warrant for no more than 72 hours from the granting of bail under subsection (8C) above or for such longer period as the High Court may allow; and
(b) on expiry of that period, shall, whether the appeal has been disposed of or not, be released on bail subject to the conditions imposed.”.
(10) In subsection (9), after “section,” insert—
“(a) where the accused is cited in accordance with subsection (4)(b) of section 66 of this Act, the indictment shall be deemed to have been served on the accused;
(b) a preliminary hearing shall be taken to commence when it is called; and
(c)”.
(11) In subsection (10), for “period of” substitute “periods of 11 and”.
(1) Section 66 (service and lodging of indictment, etc.) of the 1995 Act is amended as follows.
(2) For subsection (1) substitute—
“(1) This Act shall be sufficient warrant for—
(a) the citation of the accused and witnesses to—
(i) any diet of the High Court to be held on any day, and at any place, the Court is sitting;
(ii) any diet of the sheriff court to be held on any day the court is sitting; or
(iii) any adjournment of a diet specified in sub-paragraph (i) or (ii) above; and
(b) the citation of jurors for any trial to be held—
(i) in the High Court; or
(ii) under solemn procedure in the sheriff court.”.
(3) In subsection (4), in paragraph (b)—
(a) at the beginning insert “if the accused, at the time of citation, is not in custody,”, and
(b) for “accused’s dwelling-house or place of business” substitute “relevant premises”.
(4) After subsection (4) insert—
“(4ZA) In subsection (4)(b) above, “the relevant premises” means—
(a) where the accused, at the time of citation, has been admitted to bail, his proper domicile of citation as specified for the purposes of section 25 of this Act; or
(b) in any other case, any premises which the constable reasonably believes to be the accused’s dwelling-house or place of business.”.
(5) After subsection (6B) insert—
“(6C) An accused shall be taken to be served with—
(a) the indictment and lists of witnesses and productions; and
(b) the notice referred to in subsection (6) above,
if they are served on the solicitor specified in subsection (6D) below at that solicitor’s place of business.
(6D) The solicitor referred to in subsection (6C) above is any solicitor who—
(a) has notified in writing the procurator fiscal for the district in which the charge against the accused was being investigated that he is engaged by the accused for the purposes of his defence; and
(b) has not informed that procurator fiscal that he has been dismissed by, or has withdrawn from acting for, the accused.
(6E) It is the duty of a solicitor who has, before service of an indictment, notified a procurator fiscal that he is engaged by the accused for the purposes of his defence to inform that procurator fiscal in writing forthwith if he is dismissed by, or withdraws from acting for, the accused.”.
(6) Subsection (8) is repealed.
After section 72E of the 1995 Act (as inserted by section 2 of this Act), insert—
(1) In any proceedings on indictment, it is the duty of a solicitor who is engaged by the accused for the purposes of his defence at any part of the proceedings to notify the court and the prosecutor of that fact forthwith in writing.
(2) A solicitor is to be taken to have complied with the duty under subsection (1) to notify the prosecutor of his engagement if, before service of the indictment, he—
(a) notified in writing the procurator fiscal for the district in which the charge against the accused was then being investigated that he was then engaged by the accused for the purposes of his defence; and
(b) had not notified that procurator fiscal in writing that he had been dismissed by the accused or had withdrawn from acting.
(3) Where any such solicitor as is referred to in subsection (1) above—
(a) is dismissed by the accused; or
(b) withdraws,
it is the duty of the solicitor to inform the court and the prosecutor of those facts forthwith in writing.
(4) The prosecutor shall, for the purposes of subsections (1) and (3), be taken to be notified or informed of any fact in accordance with those subsections if—
(a) in proceedings in the High Court, the Crown Agent; or
(b) in proceedings on indictment in the sheriff court, the procurator fiscal for the district in which the trial diet is to be held,
is so notified or, as the case may be, informed of the fact.
(5) On being informed in accordance with subsection (3) above of the dismissal or withdrawal of the accused’s solicitor in any case to which subsections (6) and (7) below apply, the court shall order that, before the trial diet, there shall be a further pre-trial diet under this section.
(6) This subsection applies to any case—
(a) where the accused is charged with an offence to which section 288C of this Act applies;
(b) in respect of which section 288E of this Act applies; or
(c) in which an order has been made under section 288F(2) of this Act.
(7) This subsection applies to any case in which—
(a) the solicitor was engaged for the purposes of the defence of the accused—
(i) in the case of proceedings in the High Court, at the time of a preliminary hearing or, if a preliminary hearing was dispensed with under section 72B(1) of this Act, at the time it was so dispensed with;
(ii) in the case of solemn proceedings in the sheriff court, at the time of a first diet;
(iii) at the time of a diet under this section; or
(iv) in the case of a diet which, under subsection (11) below, is dispensed with, at the time when it was so dispensed with; and
(b) the court is informed as mentioned in subsection (3) above after that time but before the trial diet.
(8) 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.
(9) A diet under this section shall be not less than 10 clear days before the trial diet.
(10) A court may, at a diet under this section, 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.
(11) 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.”.
For section 81 (procedure where trial diet does not proceed) of the 1995 Act substitute—
(1) The prosecutor shall not raise a fresh libel in a case in which the court has deserted the trial simpliciter unless the court’s decision has been reversed on appeal.
(2) Where a trial diet in any proceedings on indictment is deserted pro loco et tempore the court may appoint a further trial diet for a later date and the accused shall appear and answer the indictment at that diet.
(3) In appointing a further trial diet under subsection (2) above, the court—
(a) shall have regard to the state of preparation of the prosecutor and the accused with respect to their cases and, in particular, to the likelihood of the case being ready to proceed to trial on the date to be appointed for the trial diet; and
(b) may, if it appears to the court that there are any preliminary pleas, preliminary issues or other matters which require to be, or could with advantage be, disposed of or ascertained before the trial diet, appoint a diet to be held before the trial diet for the purpose of disposing of or, as the case may be, ascertaining them.
(4) Subsection (5) below applies where, in any proceedings on indictment in which a trial diet has been appointed—
(a) the diet has been deserted pro loco et tempore for any reason and no further trial diet has been appointed under subsection (2) above; or
(b) the indictment falls or is for any other reason not brought to trial and the diet has not been continued, adjourned or postponed.
(5) Where this subsection applies, the prosecutor may, at any time within the period of two months after the relevant date, give notice to the accused on another copy of the indictment to appear and answer the indictment—
(a) where the trial diet referred to in subsection (4) above was in the High Court—
(i) at a further preliminary hearing in that Court not less than seven clear days after service of the notice; or
(ii) where the charge is one that can lawfully be tried in the sheriff court, at a first diet not less than 15 clear days after service of the notice and not less than 10 clear days before the trial diet and at a trial diet not less than 29 clear days after service of the notice; or
(b) where the trial diet referred to in subsection (4) was in the sheriff court—
(i) at a further trial diet in that court not less than seven clear days after service of the notice; or
(ii) at a preliminary hearing in the High Court not less than 21 clear days after service of the notice.
(6) Where notice is given to the accused under paragraph (a)(ii) or (b)(ii) of subsection (5) above, then for the purposes of section 65(4) of this Act—
(a) the giving of the notice shall be taken to be service of an indictment in respect of—
(i) in the case of a notice under paragraph (a)(ii) of subsection (5) above, the sheriff court; or
(ii) in the case of a notice under paragraph (b)(ii) of that subsection, the High Court; and
(b) the previous service of the indictment in respect of—
(i) in the case of a notice under paragraph (a)(ii) of subsection (5), the High Court; or
(ii) in the case of a notice under paragraph (b)(ii) of that subsection, the sheriff court,
shall be disregarded.
(7) A notice under subsection (5) above shall be in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form.
(8) In subsection (5) above, “the relevant date” means—
(a) where paragraph (a) of subsection (4) applies, the date on which the trial diet was deserted as mentioned in that paragraph; or
(b) where paragraph (b) of that subsection applies, the date of the trial diet referred to in that subsection.”.
(1) In subsection (1) of section 92 (trial in presence of accused) of the 1995 Act, for “subsection (2)” substitute “subsections (2) and (2A)”.
(2) In subsection (2) of that section, the words “counsel or” are repealed.
(3) After subsection (2) of that section insert—
“(2A) If—
(a) after evidence has been led which substantially implicates the accused in respect of the offence charged in the indictment or, where two or more offences are charged in the indictment, any of them, the accused fails to appear at the trial diet; and
(b) the failure to appear occurred at a point in proceedings where the court is satisfied that it is in the interests of justice to do so,
then the court may, on the motion of the prosecutor and after hearing the parties on the motion, proceed with the trial and dispose of the case in the absence of the accused.
(2B) Where a motion is made under subsection (2A) above, the court shall—
(a) if satisfied that there is a solicitor with authority to act for the purposes of—
(i) representing the accused’s interests at the hearing on the motion; and
(ii) if the motion is granted, the accused’s defence at the trial,
allow that solicitor to act for those purposes; or
(b) if there is no such solicitor, at its own hand appoint a solicitor to act for those purposes.
(2C) It is the duty of a solicitor appointed under subsection (2) or (2B)(b) above to act in the best interests of the accused.
(2D) In all other respects, a solicitor so appointed has, and may be made subject to, the same obligations and has, and may be given, the same authority as if engaged by the accused; and any employment of and instructions given to counsel by the solicitor shall proceed and be treated accordingly.
(2E) Where the court is satisfied that—
(a) a solicitor allowed to act under subsection (2B)(a) above no longer has authority to act; or
(b) a solicitor appointed under subsection (2) or (2B)(b) above is no longer able to act in the best interests of the accused,
the court may relieve that solicitor and appoint another solicitor for the purposes referred to in subsection (2) or, as the case may be, (2B) above.
(2F) Subsections (2B)(b) and (2E) above shall not apply in the case of proceedings—
(a) in respect of a sexual offence to which section 288C of this Act applies; or
(b) in which an order has been made under section 288E(2) of this Act.”.
(4) After subsection (3) of that section insert—
“(4) In this section—
(a) references to a solicitor appointed under subsection (2) or (2B)(b) above include references to a solicitor appointed under subsection (2E) above;
(b) “counsel” includes, in relation to the High Court of Justiciary, a solicitor who has a right of audience in that Court under section 25A of the Solicitors (Scotland) Act 1980 (c. 46).”.
(5) After subsection (6A) of section 66 (service and lodging of indictment etc.) of the 1995 Act insert—
“(6AA) A notice affixed under subsection (4)(b) above or served under subsection (6) above shall, where the accused is a body corporate, also contain intimation to the accused—
(a) where the indictment is in respect of the High Court, that, if it does not appear as mentioned in section 70(4) of this Act or by counsel or a solicitor at the preliminary hearing—
(i) the hearing may proceed; and
(ii) a trial diet may be appointed,
in its absence; and
(b) in any case (whether the indictment is in respect of the High Court or the sheriff court), that if it does not appear as mentioned in paragraph (a) above at the trial diet, the trial may proceed in its absence.”.
(6) In section 70 (proceedings against bodies corporate) of the 1995 Act—
(a) in subsection (5), for the words from “shall” to “hear” substitute “may—
(a) on the motion of the prosecutor; and
(b) if satisfied as to the matters specified in subsection (5A) below,
proceed with the trial”,
(b) after that subsection insert—
“(5A) The matters referred to in subsection (5)(b) above are—
(a) that the body corporate was cited in accordance with section 66 of this Act as read with subsection (2) above; and
(b) that it is in the interests of justice to proceed as mentioned in subsection (5) above.”.
(7) In section 22 (automatic availability of criminal legal aid) of the Legal Aid (Scotland) Act 1986 (c. 47), in subsection (1)(dd), after “person)” insert “or section 92(2), (2B)(b) or (2E) of that Act (appointment of solicitor for accused where the trial is to proceed in his absence)”.
(8) In section 31 of that Act, in subsection (1A) (exceptions to provision entitling a person receiving legal aid or advice and assistance to select a solicitor and counsel), in paragraph (f), for “section” substitute “sections 92(2), (2B)(b), (2D) and (2E) and”.
After section 90 (death or illness of jurors) of the 1995 Act insert—
(1) In any proceedings on indictment, the court may, on the application of any of the parties, issue a warrant for the apprehension of a witness if subsection (2) or (3) below applies in relation to the witness.
(2) This subsection applies if the witness, having been duly cited to any diet in the proceedings, deliberately and obstructively fails to appear at the diet.
(3) This subsection applies if the court is satisfied by evidence on oath that the witness is being deliberately obstructive and is not likely to attend to give evidence at any diet in the proceedings without being compelled to do so.
(4) For the purposes of subsection (2) above, a witness who, having been duly cited to any diet, fails to appear at the diet is to be presumed, in the absence of any evidence to the contrary, to have so failed deliberately and obstructively.
(5) An application under subsection (1) above—
(a) may be made orally or in writing;
(b) if made in writing—
(i) shall be in such form as may be prescribed by Act of Adjournal, or as nearly as may be in such form; and
(ii) may be disposed of in court or in chambers after such inquiry or hearing (if any) as the court considers appropriate.
(6) A warrant issued under this section shall be in such form as may be prescribed by Act of Adjournal or as nearly as may be in such form.
(7) A warrant issued under this section in the form mentioned in subsection (6) above shall imply warrant to officers of law—
(a) to search for and apprehend the witness in respect of whom it is issued;
(b) to bring the witness before the court;
(c) in the meantime, to detain the witness in a police station, police cell or other convenient place; and
(d) so far as is necessary for the execution of the warrant, to break open shut and lockfast places.
(8) It shall not be competent, in any proceedings on indictment, for a court to issue a warrant for the apprehension of a witness otherwise than in accordance with this section.
(9) A person apprehended under a warrant issued under this section shall wherever practicable be brought before the court not later than in the course of the first day on which—
(a) in the case of a warrant issued by a single judge of the High Court, that Court;
(b) in any other case, the court,
is sitting after he is taken into custody.
(10) In this section and section 90B, “the court” means, except where the context requires otherwise—
(a) where the witness is to give evidence in proceedings in the High Court, a single judge of that Court; or
(b) where the witness is to give evidence in proceedings on indictment in the sheriff court, any sheriff court with jurisdiction in relation to the proceedings.
(1) Where a witness is brought before the court in pursuance of a warrant issued under section 90A of this Act, the court shall, after giving the parties and the witness an opportunity to be heard, make an order—
(a) detaining the witness until the conclusion of the diet at which the witness is to give evidence;
(b) releasing the witness on bail; or
(c) liberating the witness.
(2) The court may make an order under subsection (1)(a) or (b) above only if it is satisfied that—
(a) the order is necessary with a view to securing that the witness appears at the diet at which the witness is to give evidence; and
(b) it is appropriate in all the circumstances to make the order.
(3) Subsection (1) above is without prejudice to any power of the court to—
(a) make a finding of contempt of court in respect of any failure of a witness to appear at a diet to which he has been duly cited; and
(b) dispose of the case accordingly.
(4) Where—
(a) an order under subsection (1)(a) above has been made in respect of a witness; and
(b) at, but before the conclusion of, the diet at which the witness is to give evidence, the court in which the diet is being held excuses the witness,
that court, on excusing the witness, may recall the order under subsection (1)(a) above and liberate the witness.
(5) On making an order under subsection (1)(b) above in respect of a witness, the court shall impose such conditions as it considers necessary with a view to securing that the witness appears at the diet at which he is to give evidence.
(6) However, the court may not impose as such a condition a requirement that the witness or a cautioner on his behalf deposit a sum of money in court.
(7) Where the court makes an order under subsection (1)(a) above in respect of a witness, the court shall, on the application of the witness—
(a) consider whether the imposition of a remote monitoring requirement would enable it to make an order under subsection (1)(b) above releasing the witness on bail subject to a movement restriction condition; and
(b) if so—
(i) make an order under subsection (1)(b) above releasing the witness on bail subject to such a condition (as well as such other conditions required to be imposed under subsection (5) above); and
(ii) in the order, impose, as a further condition under subsection (5) above, a remote monitoring requirement.
(8) Subsections (7) to (19) of section 24A of this Act apply in relation to remote monitoring requirements imposed under subsection (7)(b)(ii) above and to the imposing of such requirements as they apply to remote monitoring requirements imposed under section 24A(1) or (2) of this Act and the imposing of such requirements, but with the following modifications—
(a) references to a remote monitoring requirement imposed under section 24A(1) or (2) of this Act shall be read as if they included references to a remote monitoring requirement imposed under subsection (7)(b)(ii) above;
(b) references to the accused shall be read as if they were references to the witness in respect of whom the order under subsection (1)(b) above is made.
(9) The powers conferred and duties imposed by sections 24B to 24D of this Act are exercisable in relation to remote monitoring requirements imposed under subsection (7)(b)(ii) above as they are exercisable in relation to remote monitoring requirements imposed under subsection (1) or (2) of section 24A of this Act; and—
(a) references in those sections to remote monitoring requirements shall be read accordingly; and
(b) references to the imposition of any requirement as a further condition of bail shall be read as if they were references to the imposition of the requirement as a further condition under subsection (5) above.
Criminal Procedure (Amendment) (Scotland) Act 2004