Office of Public Sector Information
PART 2 continued
(5) 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.
(6) 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.
(7) 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.
(8) Section 25 of this Act 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”.
(1) A witness who, having been released on bail by virtue of an order under subsection (1)(b) of section 156A 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 (6) of that section,
shall be guilty of an offence and liable on summary conviction to the penalties specified in subsection (2) below.
(2) Those penalties are—
(a) a fine not exceeding level 3 on the standard scale; and
(b) imprisonment for a period—
(i) where conviction is in the JP court, not exceeding 60 days;
(ii) where conviction is in the sheriff court, not exceeding 12 months.
(3) In any proceedings in relation to an offence under subsection (1) above, the fact that (as the case may be) a person—
(a) was on bail;
(b) was subject to any particular condition of bail;
(c) failed to appear at a diet;
(d) was cited to a diet,
shall, unless challenged by preliminary objection before his plea is recorded, be held as admitted.
(4) 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 156A(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 156A(1)(b) of this Act in respect of the witness;
(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 156A(1)(b) of this Act 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 156A(1)(a) or (c) of this Act in respect of the witness”;
(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 156A of this Act, the court may, on the application of the witness in respect of whom the order was made 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 156A 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—
(i) review the conditions imposed under subsection (6) 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 (6) of that section;
(b) on the application of the party who made the application under section 156(1) of this Act in respect of the witness, review the order and the conditions imposed under subsection (6) of section 156A of this Act 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 (6) of that section.
(3) The court may not review an order by virtue of subsection (1) or (2) above unless—
(a) in the case of an application by the witness, the circumstances of the witness have changed materially; or
(b) in that or any other case, the witness or 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 156A(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 156A(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 156A of this Act;
(b) where an order is made under subsection (1)(b) of that section—
(i) the order;
(ii) any of the conditions imposed under subsection (6) 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 Crown Agent 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 enquiry 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 and sentence.”.
In section 143 (prosecution of companies, etc.) of the 1995 Act, after subsection (3) there is added—
“(4) A partnership, association, body corporate or body of trustees may, for the purpose of—
(a) stating objections to the competency or relevancy of the complaint or proceedings;
(b) tendering a plea of guilty or not guilty;
(c) making a statement in mitigation of sentence,
appear by a representative.
(5) In subsection (4) above, “representative” means—
(a) an individual representative as mentioned in subsection (3) above; or
(b) an employee of the partnership, association, body corporate or body of trustees duly appointed by it for the purpose of the proceedings.
(6) For the purposes of subsection (5)(b) above, a statement—
(a) in the case of a body corporate (other than a limited liability partnership), purporting to be signed by an officer of the body;
(b) in the case of a limited liability partnership, purporting to be signed by a member of the partnership;
(c) in the case of a partnership (other than a limited liability partnership), purporting to be signed by a partner of the partnership;
(d) in the case of an association, purporting to be signed by an officer of the association,
to the effect that the person named in the statement has been appointed as the representative for the purposes of any proceedings to which this section applies is sufficient evidence of such appointment.
(7) Where at a diet (apart from a diet fixed for the first calling of the case) a partnership, association, body corporate or body of trustees does not appear as mentioned in subsection (4) above, or by counsel or a solicitor, the court may—
(a) on the motion of the prosecutor or, in relation to sentencing, of its own accord; and
(b) if satisfied as to the matters specified in subsection (8) below,
proceed to hear and dispose of the case in the absence of the partnership, association, body corporate or (as the case may be) body of trustees.
(8) The matters referred to in subsection (7)(b) above are—
(a) that citation has been effected or other intimation of the diet has been received; and
(b) that it is in the interests of justice to proceed as mentioned in subsection (7) above.
(9) The reference in subsection (7) above to proceeding to hear and dispose of the case includes, in relation to a trial diet, proceeding with the trial.”.
In section 148 (intermediate diet) of the 1995 Act—
(a) after paragraph (b) of subsection (1) there is inserted—
“(ba) how many witnesses are required by—
(i) the prosecutor;
(ii) the accused,
to attend the trial;”,
(b) in paragraph (a) of subsection (2), for the words from the beginning to “so,” there is substituted “may”,
(c) in subsection (3), for the words “Subject to subsection (2) above, the” there is substituted “The”,
(d) for subsection (4) there is substituted—
“(4) At an intermediate diet, the court shall make such enquiry of the parties as is reasonably required for the purposes of subsections (1) and (3A) above.”.
For sections 149 (alibi) and 149A (notice of defence plea of consent) of the 1995 Act there is substituted—
(1) It is not competent for an accused in a summary prosecution to found on a defence to which this subsection applies unless—
(a) notice of the defence has been given to the prosecutor in accordance with subsection (5) below; or
(b) the court, on cause shown, allows the accused to found on the defence despite the failure so to give notice of it.
(2) Subsection (1) above applies—
(a) to a special defence;
(b) to a defence which may be made out by leading evidence calculated to exculpate the accused by incriminating a co-accused;
(c) to a defence of automatism or coercion;
(d) in a prosecution for an offence to which section 288C of this Act applies, to a defence of consent.
(3) In subsection (2)(d) above, the reference to a defence of consent is a reference to the defence which is stated by reference to the complainer’s consent to the act which is the subject matter of the charge or the accused’s belief as to that consent.
(4) In subsection (3) above, “complainer” has the same meaning as in section 274 of this Act.
(5) Notice of a defence is given in accordance with this subsection if it is given—
(a) where an intermediate diet is to be held, at or before that diet; or
(b) where such a diet is not to be held, no later than 10 clear days before the trial diet,
together with the particulars mentioned in subsection (6) below.
(6) The particulars are—
(a) in relation to a defence of alibi, particulars as to time and place; and
(b) in relation to that or any other defence, particulars of the witnesses who may be called to give evidence in support of the defence.
(7) Where notice of a defence to which subsection (1) above applies is given to the prosecutor, the prosecutor is entitled to an adjournment of the case.
(8) The entitlement to an adjournment under subsection (7) above may be exercised whether or not—
(a) the notice was given in accordance with subsection (5) above;
(b) the entitlement could have been exercised at an earlier diet.”.
(1) In section 257 (duty to seek agreement of evidence) of the 1995 Act, after subsection (4) there is added—
“(5) Without prejudice to subsection (3) above, in relation to summary proceedings, the parties to the proceedings shall, in complying with the duty under subsection (1) above, seek to ensure that the facts to be identified, and the steps to be taken in relation to those facts, are identified and taken before any intermediate diet that is to be held.”.
(2) In section 258 (uncontroversial evidence) of that Act—
(a) in subsection (2), for the words “14 days” there is substituted “the relevant period”,
(b) after subsection (2) there is inserted—
“(2ZA) In subsection (2) above, the “relevant period” means—
(a) where the relevant diet for the purpose of that subsection is an intermediate diet in summary proceedings, 7 days;
(b) in any other case, 14 days.”,
(c) in subsection (2A), after paragraph (a) there is inserted—
“(aa) in summary proceedings in which an intermediate diet is to be held, that diet;”,
(d) in subsection (4A), the words “in any solemn proceedings” are repealed,
(e) in subsection (4B)—
(i) the word “and” immediately following paragraph (a) is repealed,
(ii) in paragraph (b), after the word “in” in the first place where it occurs there is inserted “solemn”,
(iii) after paragraph (b) there is added—
“(c) in summary proceedings—
(i) in which an intermediate diet is to be held, that diet;
(ii) in which such a diet is not to be held, the trial diet.”.
After section 148B of the 1995 Act there is inserted—
(1) In summary proceedings, it is the duty of a solicitor who is engaged by the accused for the purposes of his defence at trial to notify the court and the prosecutor of that fact forthwith in writing.
(2) The duty under subsection (1) above shall be regarded as having been complied with if the solicitor has represented the accused at the first calling of the case—
(a) by submitting a written intimation of the accused’s plea as described in subsection (2)(a) of section 144 of this Act; or
(b) by appearing on behalf of the accused—
(i) as described in subsection (2)(b) of that section; or
(ii) with the accused present,
and has, when acting as described in paragraph (a) or (b) above, notified the court and the prosecutor orally or in writing that the solicitor is also engaged by the accused for the purposes of his defence at trial.
(3) Where a solicitor referred to in subsection (1) above—
(a) is dismissed by the accused; or
(b) withdraws,
it is the duty of the solicitor to notify the court and the prosecutor of that fact forthwith in writing.
(1) In summary proceedings, anything which is to be served on or given, notified or otherwise intimated to, the accused (except service of a complaint) 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 given notice under subsection (1) of section 148C of this Act that that solicitor is engaged by the accused for the purposes of the accused’s defence at the trial; and
(ii) has not given notice under subsection (3) of that section;
(b) who has represented the accused as mentioned in subsection (2) of that section; and—
(i) has given notice as mentioned in that subsection; and
(ii) has not given notice under subsection (3) of that section; or
(c) who—
(i) has been appointed to act for the purposes of the accused’s defence at the trial under section 150A(4)(b) or (7) or 288D of this Act; and
(ii) has not been relieved of the appointment by the court.”.
(1) In section 137A (transfer of sheriff court summary proceedings within sheriffdom) of the 1995 Act—
(a) in subsection (1), for the words “an accused person has been cited to attend a diet of the sheriff court” there is substituted “this subsection applies,”,
(b) after subsection (1) there is inserted—
“(1A) Subsection (1) above applies—
(a) where the accused person has been cited in summary proceedings to attend a diet of the court; or
(b) if the accused person has not been cited to such a diet, where summary proceedings against the accused have been commenced in the court.”.
(2) In section 137B (transfer of sheriff court summary proceedings outwith sheriffdom) of that Act—
(a) for subsection (1) there is substituted—
“(1) Where the sheriff clerk informs the prosecutor that, because of exceptional circumstances which could not reasonably have been foreseen, it is not practicable for the sheriff court or any other sheriff court in the sheriffdom to proceed with some or all of the summary cases due to call at a diet, the prosecutor shall as soon as practicable apply to the sheriff principal for an order for—
(a) the transfer of the proceedings to a sheriff court in another sheriffdom; and
(b) adjournment to a diet of that court.”,
(b) after subsection (1) there is inserted—
“(1A) Where this subsection applies, the prosecutor may apply to the sheriff for an order for—
(a) the transfer of the proceedings to a sheriff court in another sheriffdom; and
(b) adjournment to a diet of that court,
if there are also summary proceedings against the accused person in that court in the other sheriffdom.
(1B) Subsection (1A) above applies—
(a) where the accused person has been cited in summary proceedings to attend a diet of the court; or
(b) if the accused person has not been cited to such a diet, where summary proceedings against the accused have been commenced in the court.
(1C) Where the prosecutor intends to take summary proceedings against an accused person in the sheriff court, the prosecutor may apply to the sheriff for an order for authority for the proceedings to be taken at a sheriff court in another sheriffdom if there are also summary proceedings against the accused person in that court in the other sheriffdom.”,
(c) after subsection (2) there is inserted—
“(2A) On an application under subsection (1A) or (1C) above, the sheriff is to make the order sought if—
(a) the sheriff considers that it would be expedient for the different cases involved to be dealt with by the same court; and
(b) a sheriff of the other sheriffdom consents.”,
(d) after subsection (3) there is added—
“(4) On the application of the prosecutor, a sheriff who has made an order under subsection (2A) above may, if a sheriff of the other sheriffdom mentioned in paragraph (b) of that subsection consents—
(a) revoke; or
(b) vary so as to restrict the effect of,
that order.”.
(3) After section 137B of that Act there is inserted—
(1) Where the prosecutor believes—
(a) that, because of exceptional circumstances (and without an order under subsection (3) below), it is likely that there would be an unusually high number of accused persons appearing from custody for the first calling of cases in summary prosecutions in the sheriff courts in the sheriffdom; and
(b) that it would not be practicable for those courts to deal with all the cases involved,
the prosecutor may apply to the sheriff principal for the order referred to in subsection (2) below.
(2) For the purposes of subsection (1) above, the order is for authority for summary proceedings against some or all of the accused persons to be—
(a) taken at a sheriff court in another sheriffdom; and
(b) maintained—
(i) there; or
(ii) at any of the sheriff courts referred to in subsection (1) above as may at the first calling of the case be appointed for further proceedings.
(3) On an application under subsection (1) above, the sheriff principal may make the order sought with the consent of the sheriff principal of the other sheriffdom.
(4) An order under subsection (3) above may be made by reference to a particular period or particular circumstances.
(1) Where an accused person is due to be sentenced at a sheriff court for an offence, the prosecutor may apply to the sheriff for an order for—
(a) the transfer to the sheriff court of any case against the accused in respect of which sentencing is pending at any JP court in the sheriffdom; and
(b) the case to call at a diet of the sheriff court.
(2) On an application under subsection (1) above, the sheriff is to make the order sought if the sheriff considers that it would be expedient for the different cases to be disposed of at the same court at the same time.
(3) If, in a case transferred under subsection (1) above, the finding of guilt was before a justice of the peace, the sentencing powers of the sheriff in the case are restricted to those of the justice.”.
After section 136 of the 1995 Act there is inserted—
(1) This section applies where the prosecutor recommences proceedings by complaint containing both—
(a) a charge to which proceedings—
(i) transferred to a court by authority of an order made in pursuance of section 137A(1) of this Act; or
(ii) transferred to, or taken at, a court by authority of an order made in pursuance of section 137B(1), (1A) or (1C) of this Act,
relate; and
(b) a charge to which previous proceedings at that court relate.
(2) Where this section applies, proceedings for an offence charged in that complaint are, for the purposes of—
(a) section 136 of this Act (so far as applying to the offence);
(b) any provision of any other enactment for a time limit within which proceedings are to be commenced (so far as applying to the offence); and
(c) any rule of law relating to delay in bringing proceedings (so far as applying to the offence),
to be regarded as having been commenced when any previous proceedings for the offence were first commenced.”.
In section 203 (reports) of the 1995 Act, after subsection (1) there is inserted—
“(1A) However, if there is available to the court a report from a local authority—
(a) of the kind described in subsection (1)(b) above; and
(b) which was prepared in relation to the person not more than 3 months before the person was convicted of the offence,
the court need not obtain another report of that kind before disposing of the case unless it considers, following representations made by or on behalf of the person as to the person’s circumstances, that it is appropriate to obtain another report.
(1B) Nothing in subsection (1) or (1A) above requires the court to obtain a report if the court is satisfied, having regard to its likely method of dealing with the case before it for disposal, that the report would not be of any material assistance.”.
Criminal Proceedings etc (Reform) (Scotland) Act 2007