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PART 2 continued
(10) Section 25 of this Act (which makes provision for an order granting bail to specify the conditions imposed on bail and the accused’s proper domicile of citation) shall apply in relation to an order under subsection (1)(b) above as it applies to an order granting bail, but with the following modifications—
(a) 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;
(b) references to the order granting bail shall be read as if they were references to the order under subsection (1)(b) above;
(c) subsection (3) shall be read as if for the words from “relating” to “offence” in the third place where it occurs there were substituted “at which the witness is to give evidence”.
(11) In this section—
(a) “a movement restriction condition” means, in relation to a witness released on bail under subsection (1)(b) above, a condition imposed under subsection (5) above restricting the witness’s movements, including such a condition requiring the witness to be, or not to be, in any place or description of place for, or during, any period or periods or at any time; and
(b) “a remote monitoring requirement” means, in relation to a movement restriction condition, a requirement that compliance with the condition be remotely monitored.
(1) A witness who, having been released on bail by virtue of an order under subsection (1)(b) of section 90B of this Act, fails without reasonable excuse—
(a) to appear at any diet to which he has been cited; or
(b) to comply with any condition imposed under subsection (5) of that section,
shall be guilty of an offence and liable on conviction on indictment to the penalties specified in subsection (2) below.
(2) Those penalties are—
(a) a fine; and
(b) imprisonment for a period not exceeding two years.
(3) Subsection (4) below applies in proceedings against a witness for an offence under paragraph (b) of subsection (1) above where the condition referred to in that paragraph is—
(a) a movement restriction condition (within the meaning of section 90B(11) of this Act) in respect of which a remote monitoring requirement has been imposed under section 90B(7)(b)(ii) of this Act; or
(b) a requirement imposed under section 24D(3)(b) (as extended by section 90B(9)) of this Act.
(4) In proceedings in which this subsection applies, evidence of—
(a) in the case referred to in subsection (3)(a) above, the presence or absence of the witness at a particular place at a particular time; or
(b) in the case referred to in subsection (3)(b) above, any tampering with or damage to a device worn or carried by the witness for the purpose of remotely monitoring his whereabouts,
may, subject to subsections (7) and (8) below, be given by the production of the document or documents referred to in subsection (5) below.
(5) That document or those documents is or are a document or documents bearing to be—
(a) a statement automatically produced by a device specified in regulations made under section 24D(4) (as extended by section 90B(9)) of this Act by which the witness’s whereabouts were remotely monitored; and
(b) a certificate signed by a person nominated for the purpose of this paragraph by the Scottish Ministers that the statement relates to—
(i) in the case referred to in subsection (3)(a) above, the whereabouts of the witness at the dates and times shown in the statement; or
(ii) in the case referred to in subsection (3)(b) above, any tampering with or damage to the device.
(6) The statement and certificate mentioned in subsection (5) above shall, when produced in the proceedings, be sufficient evidence of the facts set out in them.
(7) Neither the statement nor the certificate mentioned in subsection (5) above shall be admissible in evidence unless a copy of both has been served on the witness prior to the trial.
(8) Without prejudice to subsection (7) above, where it appears to the court that the witness has had insufficient notice of the statement or certificate, it may adjourn the trial or make an order which it thinks appropriate in the circumstances.
(9) In subsections (7) and (8), “the trial” means the trial in the proceedings against the witness referred to in subsection (3) above.
(10) Section 28 of this Act shall apply in respect of a witness who has been released on bail by virtue of an order under section 90B(1)(b) of this Act as it applies to an accused released on bail, but with the following modifications—
(a) references to an accused shall be read as if they were references to the witness;
(b) in subsection (2), the reference to the court to which the accused’s application for bail was first made shall be read as if it were a reference to the court which made the order under section 90B(1)(b) of this Act in respect of the witness; and
(c) in subsection (4)—
(i) references to the order granting bail and original order granting bail shall be read as if they were references to the order under section 90B(1)(b) and the original such order respectively;
(ii) paragraph (a) shall be read as if at the end there were inserted “and make an order under section 90B(1)(a) or (c) of this Act in respect of the witness”; and
(iii) paragraph (c) shall be read as if for the words from “complies” to the end there were substituted “appears at the diet at which the witness is to give evidence”.
(1) Where a court has made an order under subsection (1)(a) of section 90B of this Act, the court may, on the application of the witness in respect of whom the order was made, on cause shown and after giving the parties and the witness an opportunity to be heard—
(a) recall the order; and
(b) make an order under subsection (1)(b) or (c) of that section in respect of the witness.
(2) Where a court has made an order under subsection (1)(b) of section 90B of this Act, the court may, after giving the parties and the witness an opportunity to be heard—
(a) on the application of the witness in respect of whom the order was made and on cause shown—
(i) review the conditions imposed under subsection (5) of that section at the time the order was made; and
(ii) make a new order under subsection (1)(b) of that section and impose different conditions under subsection (5) of that section;
(b) on the application of the party who made the application under section 90A(1) of this Act in respect of the witness, review the order and the conditions imposed under subsection (5) of that section at the time the order was made, and
(i) recall the order and make an order under subsection (1)(a) of that section in respect of the witness; or
(ii) make a new order under subsection (1)(b) of that section and impose different conditions under subsection (5) of that section.
(3) The court may not review an order by virtue of subsection (2)(b) above unless the party making the application puts before the court material information which was not available to it when it made the order which is the subject of the application.
(4) An application under this section by a witness—
(a) where it relates to the first order made under section 90B(1)(a) or (b) of this Act in respect of the witness, shall not be made before the fifth day after that order is made;
(b) where it relates to any subsequent such order, shall not be made before the fifteenth day after the order is made.
(5) On receipt of an application under subsection (2)(b) above the court shall—
(a) intimate the application to the witness in respect of whom the order which is the subject of the application was made;
(b) fix a diet for hearing the application and cite the witness to attend the diet; and
(c) where it considers that the interests of justice so require, grant warrant to arrest the witness.
(6) Nothing in this section shall affect any right of a person to appeal against an order under section 90B(1).
(1) Any of the parties specified in subsection (2) below may appeal to the High Court against—
(a) any order made under subsection (1)(a) or (c) of section 90B of this Act; or
(b) where an order is made under subsection (1)(b) of that section—
(i) the order;
(ii) any of the conditions imposed under subsection (5) of that section on the making of the order; or
(iii) both the order and any such conditions.
(2) The parties referred to in subsection (1) above are—
(a) the witness in respect of whom the order which is the subject of the appeal was made;
(b) the prosecutor; and
(c) the accused.
(3) A party making an appeal under subsection (1) above shall intimate it to the other parties specified in subsection (2) above and, for that purpose, intimation to the Lord Advocate shall be sufficient intimation to the prosecutor.
(4) An appeal under this section shall be disposed of by the High Court or any Lord Commissioner of Justiciary in court or in chambers after such inquiry and hearing of the parties as shall seem just.
(5) Where the witness in respect of whom the order which is the subject of an appeal under this section was made is under 21 years of age, section 51 of this Act shall apply to the High Court or, as the case may be, the Lord Commissioner of Justiciary when disposing of the appeal as it applies to a court when remanding or committing a person of the witness’s age for trial or sentence.”.
After section 72F of the 1995 Act (as inserted by section 8 of this Act) insert—
(1) In any proceedings on indictment, anything which is to be served on or given, notified or otherwise intimated to, the accused shall be taken to be so served, given, notified or intimated if it is, in such form and manner as may be prescribed by Act of Adjournal, served on or given, notified or intimated to (as the case may be) the solicitor described in subsection (2) below at that solicitor’s place of business.
(2) That solicitor is any solicitor—
(a) who—
(i) has notified the prosecutor under subsection (1) of section 72F of this Act that he is engaged by the accused for the purposes of his defence; and
(ii) has not informed the prosecutor under subsection (3) of that section that he has been dismissed by, or has withdrawn from acting for, the accused; or
(b) who—
(i) has been appointed to act for the purposes of the accused’s defence at the trial under section 92 or 288D of this Act; and
(ii) has not been relieved of the appointment by the court.”.
(1) For section 79 (preliminary pleas) of the 1995 Act, substitute—
(1) Except by leave of the court on cause shown, no preliminary plea or preliminary issue shall be made, raised or submitted in any proceedings on indictment by any party unless his intention to do so has been stated in a notice under section 71(2) or, as the case may be, 72(3) or (6)(b)(i) of this Act.
(2) For the purposes of this section and those sections—
(a) the following are preliminary pleas, namely—
(i) a matter relating to the competency or relevancy of the indictment;
(ii) an objection to the validity of the citation against a party, 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; and
(iii) a plea in bar of trial; and
(b) the following are preliminary issues, namely—
(i) an application for separation or conjunction of charges or trials;
(ii) a preliminary objection under section 27(4A)(a), 255 or 255A of this Act;
(iii) an application under section 278(2) of this Act;
(iv) an objection by a party to the admissibility of any evidence;
(v) an assertion by a party 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; and
(vi) any other point raised by a party, as regards any matter not mentioned in sub-paragraphs (i) to (v) above, which could in his opinion be resolved with advantage before the trial.
(3) No discrepancy, error or deficiency such as is mentioned in subsection (2)(a)(ii) above shall entitle an accused to object to plead to the indictment unless the court is satisfied that the discrepancy, error or deficiency tended substantially to mislead and prejudice the accused.
(4) Where the court, under subsection (1) above, grants leave for a party to make, raise or submit a preliminary plea or preliminary issue (other than an objection to the admissibility of any evidence) without his intention to do so having been stated in a notice as required by that subsection, the court may—
(a) if it considers it appropriate to do so, appoint a diet to be held before the trial diet for the purpose of disposing of the plea or issue; or
(b) appoint the plea or issue to be disposed of at the trial diet.”.
(2) After section 87 of the 1995 Act insert—
Where—
(a) any preliminary plea or issue; or
(b) in a case to be tried in the High Court, any application, notice or other matter referred to in section 72(6)(b)(iii) or (iv) of this Act,
is to be disposed of at the trial diet, it shall be so disposed of before the jury is sworn, unless, where it is a preliminary issue consisting of an objection to the admissibility of any evidence, the court at the trial diet considers it is not capable of being disposed of before then.”.
(1) In section 71 (first diet) of the 1995 Act—
(a) after subsection (2) there is inserted—
“(2YA) At a first diet, the court shall also ascertain whether there is any objection to the admissibility of any evidence which any party wishes to raise despite not having given the notice referred to in subsection (2) above, and—
(a) if so, decide whether to grant leave under section 79(1) of this Act for the objection to be raised; and
(b) if leave is granted, dispose of the objection unless it considers it inappropriate to do so at the first diet.
(2ZA) Where the court, having granted leave for the objection to be raised, decides not to dispose of it at the first diet, the court may—
(a) appoint a further diet to be held before the trial diet for the purpose of disposing of the objection; or
(b) appoint the objection to be disposed of at the trial diet.”,
(b) in subsection (3), for the words “or (2)” substitute “, (2) or (2YA)”.
(2) After section 79 of the 1995 Act (as inserted by section 13 of this Act) insert—
(1) This section applies where a party seeks to raise an objection to the admissibility of any evidence after—
(a) in proceedings in the High Court, the preliminary hearing; or
(b) in proceedings on indictment in the sheriff court, the first diet.
(2) The court shall not, under section 79(1) of this Act, grant leave for the objection to be raised if the party seeking to raise it has not given written notice of his intention to do so to the other parties.
(3) However, the court may, where the party seeks to raise the objection after the commencement of the trial, dispense with the requirement under subsection (2) above for written notice to be given.
(4) Where the party seeks to raise the objection after the commencement of the trial, the court shall not, under section 79(1) of this Act, grant leave for the objection to be raised unless it considers that it could not reasonably have been raised before that time.
(5) Where the party seeks to raise the objection before the commencement of the trial and the court, under section 79(1), grants leave for it to be raised, the court shall—
(a) if it considers it appropriate to do so, appoint a diet to be held before the commencement of the trial for the purpose of disposing of the objection; or
(b) dispose of the objection at the trial diet.
(6) In appointing a diet under subsection (5)(a) above, the 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.
(7) The accused shall appear at any diet appointed under subsection (5)(a) above.
(8) For the purposes of this section, the trial shall be taken to commence when the jury is sworn.”.
After section 75 of the 1995 Act insert—
(1) This section applies where any diet has been fixed in any proceedings on indictment.
(2) The court may, if it considers it appropriate to do so, adjourn the diet.
(3) However—
(a) in the case of a trial diet, the court may adjourn the diet under subsection (2) above only if the indictment is not brought to trial at the diet;
(b) if the court adjourns any diet under that subsection by reason only that, following enquiries for the purpose of ascertaining whether the accused has engaged a solicitor for the purposes of the conduct of his defence at or for the purposes of a preliminary hearing or at a trial, it appears to the court that he has not done so, the adjournment shall be for a period of not more than 48 hours.
(4) A trial diet in the High Court may be adjourned under subsection (2) above to a diet to be held at a sitting of the Court in another place.
(5) The court may, on the application of any party to the proceedings made at any time before commencement of any diet—
(a) discharge the diet; and
(b) fix a new diet for a date earlier or later than that for which the discharged diet was fixed.
(6) Before determining an application under subsection (5) above, the court shall give the parties an opportunity to be heard.
(7) However, where all the parties join in an application under that subsection, the court may determine the application without hearing the parties and, accordingly, may dispense with any hearing previously appointed for the purpose of subsection (6) above.
(8) Where there is a hearing for the purpose of subsection (6) above, the accused shall attend it unless the court permits the hearing to proceed notwithstanding the absence of the accused.
(9) In appointing a new trial diet under subsection (5)(b) 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, appoint a diet to be held before the trial diet for the purpose of disposing of or, as the case may be, ascertaining them.
(10) A date for a new diet may be fixed under subsection (5)(b) above notwithstanding that the holding of the diet on that date would result in any provision of this Act as to the minimum or maximum period within which the diet is to be held or to commence not being complied with.
(11) In subsections (5) to (9) above, “the court” means—
(a) in the case of proceedings in the High Court, a single judge of that Court; and
(b) in the case of proceedings in the sheriff court, that court.
(12) For the purposes of subsection (5) above—
(a) a diet other than a trial diet shall be taken to commence when it is called; and
(b) a trial diet shall be taken to commence when the jury is sworn.”.
In section 258 (uncontroversial evidence) of the 1995 Act, after subsection (4) insert—
“(4A) Where a notice is served under subsection (3) above in any solemn proceedings, the court may, on the application of any party to the proceedings made not less than 48 hours before the relevant diet, direct that any challenge in the notice to any fact is to be disregarded for the purposes of subsection (4) above if the court considers the challenge to be unjustified.
(4B) In subsection (4A) above, “the relevant diet” means—
(a) in proceedings in the High Court, the preliminary hearing; and
(b) in proceedings in the sheriff court, the first diet.
(4C) In proceedings in the High Court, the Court may, on cause shown, allow an application under subsection (4A) above to be made after the time limit specified in that subsection.”.
Criminal Procedure (Amendment) (Scotland) Act 2004