PART 2 continued
(3) The orders are—
(a) an order granting commission and diligence for the recovery of documents;
(b) an order for the production of documents.
(4) An application for the purpose may not be made—
(a) in connection with solemn proceedings, until the indictment has been served on the accused or the accused has been cited under section 66(4)(b) of this Act;
(b) in connection with summary proceedings, until the accused has answered the complaint.
(5) A decision of the sheriff on an application for an order under subsection (1) above may be appealed to the High Court.
(6) In an appeal under subsection (5) above, the High Court may uphold, vary or quash the decision of the sheriff.
(7) The prosecutor is entitled to be heard in any—
(a) application for an order under subsection (1) above;
(b) appeal under subsection (5) above,
even if the prosecutor is not a party to the application or (as the case may be) appeal.
(8) The competence of the High Court to make, in connection with criminal proceedings, the orders mentioned in subsection (3) above is restricted to making them in connection with proceedings in that court.”.
After section 298 of the 1995 Act there is inserted—
(1) This subsection applies where the prosecutor requires to intimate to the respondent—
(a) a bill of advocation;
(b) a petition to the nobile officium; or
(c) an order of the High Court relating to such a bill or (as the case may be) petition.
(2) Where subsection (1) above applies, the requirement may be met by serving on the respondent or the respondent’s solicitor a copy of the bill, petition or (as the case may be) order.
(3) Service under subsection (2) above may (in relation to any proceedings) be effected—
(a) on the respondent, in the same manner as citation under section 141 of this Act;
(b) on the respondent’s solicitor, by post.
(4) This subsection applies where a person requires to intimate to the prosecutor—
(a) a bill of suspension or advocation;
(b) a petition to the nobile officium; or
(c) an order of the High Court relating to such a bill or (as the case may be) petition.
(5) Where subsection (4) above applies, the requirement may be met by serving on the prosecutor a copy of the bill, petition or (as the case may be) order.
(6) Service under subsection (5) above may (in relation to any proceedings) be effected by post.
(7) It is sufficient evidence that service has been effected under subsection (3) or (6) above if there is produced a written execution—
(a) in the form prescribed by Act of Adjournal or as nearly as may be in such form; and
(b) signed by the person who effected service.
(8) In relation to service effected by means of registered post or the recorded delivery service, the relevant post office receipt requires to be produced along with the execution mentioned in subsection (7) above.
(9) A party who has service effected under subsection (3) or (6) above must, as soon as practicable thereafter, lodge with the Clerk of Justiciary a copy of the execution mentioned in subsection (7) above.
(10) For the purpose of subsection (3)(a) above, section 141 of this Act is to be read with such modifications as are necessary for its application in the circumstances.
(11) This section is without prejudice to any rule of law or practice by virtue of which things of the kinds mentioned in subsections (1) and (4) above (including copies) may be intimated or served.”.
(1) After section 75A (adjournment and alteration of diets) of the 1995 Act there is inserted—
(1) This section applies where in any proceedings on indictment any diet has been fixed for a non-sitting day.
(2) The court may at any time before the non-sitting day—
(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.
(3) That is, by acting—
(a) of the court’s own accord; and
(b) without the need for a hearing for the purpose.
(4) In the case of a trial diet—
(a) the prosecutor;
(b) the accused,
shall be entitled to an adjournment of the new diet fixed if the court is satisfied that it is not practicable for that party to proceed with the case on that date.
(5) The power of the court under subsection (1) above is not exercisable for the sole purpose of ensuring compliance with a time limit applying in the proceedings.
(6) In subsections (1) and (2) above, a “non-sitting day” is a day on which the court is under this Act not required to sit.
(7) In subsections (2) to (5) above, “the court” means—
(a) in the case of proceedings in the High Court, a single judge of that Court;
(b) in the case of proceedings in the sheriff court, that court.”.
(2) After section 137 (alteration of diets) of that Act there is inserted—
(1) This section applies where in a summary prosecution any diet has been fixed for a non-sitting day.
(2) The court may at any time before the non-sitting day—
(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.
(3) That is, by acting—
(a) of the court’s own accord; and
(b) without the need for a hearing for the purpose.
(4) In the case of a trial diet—
(a) the prosecutor;
(b) the accused,
shall be entitled to an adjournment of the new diet fixed if the court is satisfied that it is not practicable for that party to proceed with the case on that date.
(5) The power of the court under subsection (1) above is not exercisable for the sole purpose of ensuring compliance with a time limit applying in the proceedings.
(6) In subsections (1) and (2) above, a “non-sitting day” is a day on which the court is under this Act not required to sit.”.
After section 300 of the 1995 Act there is inserted—
(1) Any court may excuse a procedural irregularity—
(a) of a kind described in subsection (5) below; and
(b) which has occurred in relation to proceedings before that court,
if the conditions mentioned in subsection (4) below are met.
(2) In appeal proceedings, the High Court may excuse a procedural irregularity—
(a) of that kind; and
(b) which has occurred in relation to earlier proceedings in the case that is the subject of the appeal,
if those conditions are met.
(3) A court may proceed under subsection (1) or (2) above on the application of the prosecutor or an accused person (having given the other an opportunity to be heard).
(4) The conditions are that—
(a) it appears to the court that the irregularity arose because of—
(i) mistake or oversight; or
(ii) other excusable reason; and
(b) the court is satisfied in the circumstances of the case that it would be in the interests of justice to excuse the irregularity.
(5) A procedural irregularity is an irregularity arising at any stage of proceedings—
(a) from—
(i) failure to call or discharge a diet properly;
(ii) improper adjournment or continuation of a case;
(iii) a diet being fixed for a non-sitting day;
(b) from failure of—
(i) the court; or
(ii) the prosecutor or the accused,
to do something within a particular period or otherwise comply with a time limit;
(c) from failure of the prosecutor to serve properly a notice or other thing;
(d) from failure of the accused to—
(i) intimate properly a preliminary objection;
(ii) intimate properly a plea or defence;
(iii) serve properly a notice or other thing;
(e) from failure of—
(i) the court; or
(ii) the prosecutor or the accused,
to fulfil any other procedural requirement.
(6) Subsection (1) above does not authorise a court to excuse an irregularity arising by reason of the detention in custody of an accused person for a period exceeding that fixed by this Act.
(7) Subsection (1) above does not apply in relation to any requirement as to proof including, in particular, any matter relating to—
(a) admissibility of evidence;
(b) sufficiency of evidence; or
(c) any other evidential factor.
(8) Where a court excuses an irregularity under subsection (1) above, it may make such order as is necessary or expedient for the purpose of—
(a) restoring the proceedings as if the irregularity had never occurred;
(b) facilitating the continuation of the proceedings as if it had never occurred, for example—
(i) altering a diet;
(ii) extending any time limit;
(iii) appointing a diet for further procedure or granting an adjournment or continuation of a diet;
(c) protecting the rights of the parties.
(9) For the purposes of this section—
(a) a reference to an accused person, except the reference in subsection (6) above, includes reference to a person who has been convicted of an offence;
(b) something is done properly if it is done in accordance with a requirement of an enactment or any rule of law.
(10) In subsection (5)(a)(iii) above, a “non-sitting day” is a day on which the court is under this Act not required to sit.
(11) This section is without prejudice to any provision of this Act under which a court may—
(a) alter a diet; or
(b) extend—
(i) a period within which something requires to be done; or
(ii) any other time limit.
(12) This section is without prejudice to any rule of law by virtue of which it may be determined by a court that breach, in relation to criminal proceedings—
(a) of a requirement of an enactment; or
(b) of a rule of law,
does not render the proceedings, or anything done (or purported to have been done) for the purposes of or in connection with proceedings, invalid.”.
(1) After section 303A of the 1995 Act there is inserted—
(1) For the purposes of section 138(1) of this Act—
(a) institution of proceedings may be effected by electronic complaint;
(b) the requirement for signing is satisfied in relation to an electronic complaint by an electronic signature;
(c) the requirement for signing may be satisfied in relation to any other complaint by an electronic signature.
(2) The references in the other provisions of this Act to a complaint include an electronic complaint unless the context otherwise requires.
(3) Where proceedings are instituted by electronic complaint, in the event of any conflict between—
(a) the principal electronic complaint kept by the clerk of court for the purposes of the proceedings; and
(b) any other document (whether in electronic or other form) purporting to be the complaint,
the principal electronic complaint prevails.
(4) The requirement in section 85(4) of this Act for signing may be satisfied by electronic signature.
(5) The requirement in section 136B(2) of this Act for signing may be satisfied by electronic signature.
(6) The requirement in section 141(3)(a) of this Act for signing may be satisfied by electronic signature.
(7) The requirement in section 159(3) of this Act for authentication by initials is satisfied in relation to an electronic complaint by authentication by electronic signature.
(8) The requirements in section 172(2) of this Act for signing by the clerk of court may be satisfied by electronic signature.
(9) The requirements in section 258(2) and (9) of this Act for signing may be satisfied in relation to summary proceedings by electronic signature.
(10) The requirement in section 299(5) of this Act for authentication by signature is satisfied in relation to—
(a) proceedings which are recorded in electronic form;
(b) any extract of sentence, or order made, which is recorded in electronic form,
by authentication by electronic signature.”.
(2) After section 308 of the 1995 Act there is inserted—
(1) In this Act, an “electronic complaint” is a complaint in electronic form which is capable of being—
(a) transmitted by means of electronic communication;
(b) kept in legible form.
(2) In this Act, unless the context otherwise requires—
“electronic communication” is to be construed in accordance with section 15(1) of the Electronic Communications Act 2000 (c. 7);
“electronic signature” is to be construed in accordance with section 7(2) of the Electronic Communications Act 2000, but includes a version of an electronic signature which is reproduced on a paper document.
(3) The Scottish Ministers may by order modify the meaning of “electronic signature” provided for in subsection (2) above for the purpose of such provisions of this Act as are specified in the order.
(4) An order under subsection (3) above shall be made by statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament.”.
(1) The Scottish Ministers may, in relation to summary criminal proceedings, by order make provision for the purposes of or in connection with—
(a) using electronic complaints and other documents in electronic form,
(b) keeping, in electronic form, records of proceedings,
(c) allowing requirements as to formality (and validity) of documents to be satisfied by electronic means,
(d) using electronic communication.
(2) Provision in an order under subsection (1) may, in particular, relate to—
(a) the availability of documents and records in electronic or other form to specified persons or classes of person,
(b) the authentication of—
(i) documents and records,
(ii) information contained in documents and records,
(c) the use of electronic signatures in documents and records.
(3) An order under subsection (1) may make provision by amending the 1995 Act or otherwise.
(4) In subsection (1), the expressions “electronic complaint” and “electronic communication” are to be construed by reference to section 308A (expressions relating to electronic proceedings) of the 1995 Act.