Citation and commencement_I1

1.—(1) This Act of Adjournal may be cited as the Act of Adjournal (Criminal Procedure Rules) 1996 and shall come into force on 1st April 1996.

(2) This Act of Adjournal shall be inserted in the Books of Adjournal.

Criminal Procedure Rules

[^F1 2. Schedule 2 to this Act of Adjournal shall have effect for the purpose of providing rules of procedure in the High Court of Justiciary, in the sheriff court in the exercise of its criminal jurisdiction and in a justice of the peace court.^F1]

Revocations_I2

3. The Acts of Adjournal mentioned in Schedule 3 to this Act of Adjournal are revoked to the extent specified in the third column of that Schedule.

Preamble

SCHEDULE 1 POWERS UNDER AND BY VIRTUE OF WHICH THIS ACT OF ADJOURNAL IS MADE _I3

Paragraph 2

SCHEDULE 2 CRIMINAL PROCEDURE RULES 1996

PART I Preliminary and administration

CHAPTER 1 CITATION, INTERPRETATION [^F2ETC.^F2]

Citation of these Rules_I4

1.1. These Rules may be cited as the Criminal Procedure Rules 1996.

Interpretation_I5

1.2.—(1) In these Rules, unless the context otherwise requires—

“the Act of 1995” means the Criminal Procedure (Scotland) Act 1995 ( 2 );

“counsel” means a practising member of the Faculty of Advocates or a solicitor having a right of audience before the High Court by virtue of section 25A of the Solicitors (Scotland) Act 1980 ( 3 );

(2) Unless the context otherwise requires, a reference to a specified Chapter, Part, rule or form is a reference to the Chapter, Part, rule, or form in the appendix to these Rules, so specified in these Rules; and a reference to a specified paragraph, sub-paragraph or head is a reference to that paragraph of the rule or form, that sub-paragraph of the paragraph or that head of the sub-paragraph, in which the reference occurs.

Forms_I6

1.3. Where there is a reference to the use of a form in these Rules, that form in the appendix to these Rules, or a form substantially to the same effect, shall be used with such variation as circumstances may require.

[^F3Direction relating to Advocate General

1.4. The Lord Justice General may, by direction, specify such arrangements as he considers necessary for, or in connection with, the appearance in court of the Advocate General for Scotland.^F3]

CHAPTER 2 SERVICE OF DOCUMENTS

Service on Crown_I7

2.1. Any document that requires to be sent to or served on the Lord Advocate or the prosecutor under any enactment or rule of law shall be sent to or served on, as the case may be—

(a)if it relates to a case set down for trial in the High Court, the Crown Agent;

(b)if it relates to a case set down for trial in the sheriff court or district court, the appropriate procurator fiscal.

Citation in solemn proceedings_I8

2.2.—(1) Subject to rule 2.4 (service on witnesses), this rule applies to the citation of, and service on, an accused under [^F4section 66(4)(a)^F4] of the Act of 1995 (service and lodging of indictment, etc).

(2) Service shall be effected by an officer of law—

(a)delivering the document to the accused personally;

(b)leaving the document in the hands of a member of the family of the accused or other occupier or employee at the proper domicile of citation of the accused;

(c)affixing the document to the door of, or depositing it in, the proper domicile of citation of the accused; or

(d)where the officer of law serving the document has reasonable grounds for believing that the accused, for whom no proper domicile of citation has been specified, is residing at a particular place but is unavailable—

(i)leaving the document in the hands of a member of the family of the accused or other occupier or employee at that place; or

(ii)affixing the document to the door of, or depositing it in, that place.

(3) In this rule,“proper domicile of citation” means the address at which the accused may be cited to appear at any diet relating to the offence with which he is charged or an offence charged in the same proceedings as that offence or to which any other intimation or document may be sent.

[^F5Citation in solemn proceedings by service on solicitor

2.2A. Where the documents mentioned in section 66(6C) of the Act of 1995 (citation by service on solicitor) are to be served on a solicitor under that section, they shall be–

(a)delivered to the solicitor personally at the solicitor’s place of business;

(b)left for the solicitor with an employee or partner of the solicitor at the solicitor’s place of business; or

(c)posted to the solicitor’s place of business by the first class recorded delivery service,

with a notice in Form 2.2A.^F5]

General provisions for service_I9

2.3.—(1) Subject to the following paragraphs of this rule [^F6and to rule 2.3A^F6] , the citation of, or the service of any document on, a person under or by virtue of the Act of 1995, these Rules or any other enactment shall, unless otherwise provided in the relevant enactment, be effected in the same manner, with the necessary modifications, as the citation of an accused in summary proceedings under section 141 of that Act (manner of citation) or under rule 2.2 of these Rules (citation in solemn proceedings).

[^F7 (1A) The citation of a person to appear before the sheriff under an enactment mentioned in paragraph (1B) is to be effected in the same manner, with the necessary modifications, as the citation of an accused in summary proceedings under section 141 of the Act of 1995 (manner of citation), but—

(a)the citation is to be signed by the sheriff clerk instead of the prosecutor;

(b)the forms relating to the citation of an accused do not apply to such a citation.

(1B) The enactments are—

(a)section 256AC(1)(a) of;

(b)section 256C(1)(a) of; and

(c)paragraph 8(1)(a) of schedule 19A of,

the Criminal Justice Act 2003, as applied by paragraph 8(2) or (4) of schedule 1 of the Crime (Sentences) Act 1997.^F7]

^F8(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The citation in Form 29.3 of a person to attend a diet fixed for taking his precognition on oath under section 291 of the Act of 1995 (precognition on oath of defence witnesses) shall be made by personal service on him by an officer of law acting on the instructions of the accused or his solicitor.

[^F9Service etc. on accused through a solicitor

2.3A.—(1) Where ^F11... anything is to be served on, given, notified or intimated to a solicitor under section 72G [^F12 or section 148D^F12] of the Act of 1995 it shall be—

(a)delivered to the solicitor personally;

(b)left for the solicitor with an employee or partner of the solicitor at the solicitor’s place of business; or

(c)posted to the solicitor’s place of business by the first class recorded delivery service,

with a notice in Form 2.3A.

[^F13 (2) Paragraph (3) applies where a party requires to intimate—

(a)a vulnerable witness notice in accordance with section 271A(13) of the Act of 1995 (child and deemed vulnerable witnesses); or

(b)a vulnerable witness application in accordance with section 271C(11) of the Act of 1995 (vulnerable witness application).

(3) Intimation may be given to a solicitor under section 72G or 148D of the Act of 1995 by—

(a)any of the methods specified in paragraph (1); or

(b)sending it to the solicitor via the CJSM system, if that solicitor is a CJSM user.

(4) In this rule—

“CJSM user” means a solicitor who has an active account on the CJSM system;

“CJSM system” means the Criminal Justice Secure eMail system managed by the Ministry of Justice to facilitate the transmission of encrypted sensitive information between criminal justice organisations and practitioners. ^F13,F9]]

Service on witnesses_I10

2.4.—(1) Service of a citation by the prosecution or defence on a witness in any proceedings may, in the first instance, be by post.

(2) Where citation of a witness has been attempted by post but has not been effected, or the witness has not returned Form 8.2-D or Form 16.6-B, as the case may be, within the period prescribed in rule 8.2(3) or 16.6(1), as the case may be, citation of that witness shall be effected by an officer of law delivering the document to the witness personally.

Service by post_I11

2.5.—(1) Subject to any provision in the Act of 1995 [^F14or of these Rules^F14] , service by post shall be by registered post, ordinary first class post or the first class recorded delivery service.

(2) Where the citation of, or service on, any person is effected by post under these Rules, the date of citation shall be deemed to be the day after the date of posting.

Forms of execution of service_{cross-notesI12}

2.6.—(1) The execution of service of a citation and notice to appear of a person accused on indictment referred to in rule 8.2(1) (citation of accused and witnesses) shall be in Form 2.6-A.

[^F15 (1A) The execution of a citation of a person accused on indictment referred to in rule 8.2(1A) (citation of accused by affixing a notice) shall be in Form 2.6-AA.^F15]

(2) The execution of service of a complaint on an accused shall be in Form 2.6-B.

[^F16 (2A) The execution of a citation of an accused referred to in rule 16.1(2A) (citation of accused by affixing a notice) shall be in Form 2.6-BA.^F16]

(3) The execution of personal service of a citation of a witness cited to appear at a trial on indictment shall be in Form 2.6-C.

(4) The execution of personal service of a citation of a witness cited to appear at a trial on summary complaint shall be in Form 2.6-D.

[^F17 (5) The execution of a citation referred to in–

(a)rule 20.3(2) or (3) (supervised release orders: form of citation of offender) shall be in Form 2.6-EA;

^F18(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F18(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F18(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)rule 20.12A(3) or (4) (restriction of liberty orders: forms of citation of offender) shall be in Form 2.6-EE; ^F19...

(f)rule 20.12B(2) or (3) (drug treatment and testing orders: forms of citation of offender) shall be in Form 2.6-EF [^F20 ; and

[^F21 (h)rule 20.22(2) (community payback orders: failure to attend progress review) shall be in Form 2.6-EH;

(i)rule 20.22(4) (community payback orders: breach of community payback order) shall be in Form 2.6-EI.

(j)rule 20.22(5) (community payback orders: hearing of applications to vary, revoke and discharge community payback orders) shall be in Form 2.6-EJ.^F21]

[^F22 (k)rule 20.23(4) (supervision default orders: failure to comply) shall be in Form 2.6–EK;

(l)rule 20.23(5) (supervision default orders: hearing of application to amend or vary) shall be in Form 2.6–EL.^F22,F20]]

(6) The execution of a citation or service under rule 2.3(1) (general provisions for service) shall, with the necessary modifications, be in Form 2.6-F.

[^F23 (7) The execution of service of documents under rule 2.2A (citation in solemn proceedings by service on solicitor) or rule 2.3A (service etc. on accused through a solicitor) shall be in Form 2.6–G.^F23]

Proof of service furth of Scotland _I13

2.7. Where any citation of an accused is served in England, Wales or Northern Ireland by an officer effecting such service in accordance with section 39(3) of the Criminal Law Act 1977(4) (citation of person charged with crime or offence to appear before a court in Scotland), the evidence of—

(a)that officer on oath, or

(b)written execution of service by him,

shall be sufficient evidence of that service.^F17]

CHAPTER 3 COURT RECORDS

Books of Adjournal_I14

3.1.—(1) The Edinburgh Book of Adjournal and the Book of Adjournal for cases heard outwith Edinburgh shall respectively contain—

(a)in the case of a trial in the High Court—

(i)the record copy of the indictment;

[^F24 (ii)the minute of proceedings prepared by the Clerk of Justiciary;^F24]

(iii)the relative printed list of assize;

(b)in the case of a petition to the High Court—

(i)the record copy of the petition;

[^F25 (ii)the minute of proceedings prepared by the Clerk of Justiciary;^F25]

(2) The Edinburgh Book of Adjournal shall contain the Acts of Adjournal.

(3) The [^F26minute^F26] of proceedings referred to in paragraph (1) shall be signed by the Clerk of Justiciary; and, on being so signed, shall have effect and shall be treated for all purposes, including extracts, as a true and sufficient record of the proceedings to which it relates.

Form of minuting in solemn proceedings_I15

3.2. Subject to the provisions of any other enactment, the forms of minuting in solemn proceedings before the sheriff shall be in accordance with the forms used in the High Court.

Interlocutors in High Court to be signed by clerk of court_I16

3.3. In the High Court, an interlocutor shall be distinctly minuted or entered in the record, and that entry shall be signed by the clerk of court.

Record copies of indictments etc. to be inserted in record books_I17

3.4.—(1) The record copies of indictments brought before the High Court, and the record copies of all printed proceedings in that court, shall be inserted in the books of adjournal, either at their proper place in the body of such books, or at the end of the volume in which the relative procedure is recorded (in which case they shall be distinctly referred to as so appended); and the books of adjournal so made up and completed shall be and be taken to be and be used as the books of adjournal of that court.

(2) Where an indictment in solemn proceedings in a sheriff court is either wholly or partly printed, a copy of it, either wholly or partly printed, shall be inserted in the record book of court, either in its proper place in the body of that book or at the end of the volume in which the relative procedure is recorded (in which case it shall be distinctly referred to as so appended).

Form of recording warrants for remission of sentences_I18

3.5. The Clerk of Justiciary shall cause all warrants under the royal sign manual for remission of sentences received by him to be bound in volumes and indexed, and a note of each warrant referring to a High Court sentence shall be entered in the margin of the minute book opposite the case to which it relates.

[^F27Registers kept by High Court

3.5A. Any register kept by the High Court, whether or not under or by virtue of these Rules, may be kept either—

(a)in documentary form; or

(b)in electronic form (that is to say in a form accessible only by electronic means).^F27]

Custody and transmission of records_I19

3.6.—(1) Subject to the following provisions of this rule, the records of the High Court shall, after the Keeper of the Records of Scotland and the Clerk of Justiciary have consulted as to what records or parts of them may first be destroyed as not being considered to have a value for legal purposes or for historical or other research, be transmitted to the Keeper of the Records of Scotland under arrangements to be agreed between him and the Clerk of Justiciary.

(2) The Clerk of Justiciary and the Keeper of the Records of Scotland shall arrange for such transmissions at intervals of not less than five years nor more than 10 years from the date of the immediately preceding transmission and after similar consultation, for such periods as may be deemed by them to be appropriate.

(3) The Lord Justice General or Lord Justice-Clerk may make a direction from time to time in relation to the retention, disposal, transmission or destruction by the Clerk of Justiciary of any document or category of document in the records of the High Court.

PART II General

[^F28CHAPTER A4 EXCUSAL OF PROCEDURAL IRREGULARITIES

Application to court to excuse procedural irregularity

A4.1.—(1) An application made in writing under section 300A of the Act of 1995 (power of court to excuse procedural irregularities) shall be in Form A4.1 and shall be served on the other parties to the proceedings.

(2) On an application referred to in paragraph (1) being made, the court may appoint a diet for a hearing and intimate the diet to the other parties.^F28]

CHAPTER 4 BAIL

Application to alter address in bail order_I20

4.1.—(1) An application under section 25(2) of the Act of 1995 (alteration of address specified in the order granting bail) shall—

(a)include the following information:—

(i)identification of the proceedings in which the order was made;

(ii)details of the new address;and

(iii)reasons for the proposed change of address; and

(b)be served on—

(i)the clerk of the court which made the order; and

(ii)the prosecutor.

(2) The prosecutor shall, within seven days of receipt of the copy of the application, notify the clerk of court in writing whether or not he intends to oppose the application.

(3) Where the prosecutor notifies the clerk of court that he does not intend to oppose the application, the court shall proceed to dispose of the application and may do so in the absence of the applicant.

(4) Where the prosecutor notifies the clerk of court that he intends to oppose the application, the clerk of court shall arrange a hearing before the court in chambers at which the applicant and the prosecutor may appear or be represented.

(5) The clerk of court shall give notice in writing of the decision of the court on an application referred to in paragraph (1) to—

(a)the applicant;

(b)the prosecutor; and

(c)any co-accused.

[^F29 (6) Where–

(a)the application is made by a witness who has been granted bail under section 90B(1)(b) of the Act of 1995; and

(b)the warrant to apprehend the witness under section 90A(1) of the Act of 1995 was issued on the application of a party other than the prosecutor,

paragraphs (1) to (5) shall also apply to that party as they apply to the prosecutor.^F29]

[^F30Attendance of accused at Crown bail appeals

4.2.—(1) Where an appeal is made under section 32(2) of the Act of 1995 the accused may attend the hearing of the appeal.

(2) Where the accused wishes to attend the hearing of the appeal, he shall inform the [^F31 clerk of the appropriate Appeal Court^F31] not later than 24 hours before the hearing is due to take place.

[^F32 (3) In this rule, “clerk of the appropriate Appeal Court” has the meaning given by section 32(11) of the Act of 1995. ^F32,F30]]

CHAPTER 5 JUDICIAL EXAMINATION

Procedure in examination_I21

5.1. Subject to the following provisions of this Chapter, the procedure to be followed in relation to examination of the accused under [^F33sections 35 and 39^F33] of the Act of 1995 (which relate to judicial examination) on any charge shall be in accordance with existing law and practice.

Record of examination_I22

5.2.—(1) The record of all proceedings under the sections of the Act of 1995 mentioned in rule 5.1 (procedure in examination) shall be kept by the sheriff clerk in Form 5.2, and shall be kept by him with the petition containing the charge or charges in respect of which the accused is brought before the sheriff for examination.

(2) The sheriff clerk shall transmit to the prosecutor a certified copy of the petition under section 34 of the Act of 1995 (petition for warrant) and the record of proceedings—

(a)in relation to proceedings at which the accused is liberated in due course of law, on the conclusion of those proceedings; and

(b)in relation to any further examination, on the conclusion of that examination.

Verbatim record

^F345.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Use of tape recorders

^F345.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Questions by prosecutor

^F345.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Rectification of errors in transcript

^F345.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Alteration of time limits by sheriff

^F345.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Postponement of trial diet by sheriff

^F345.8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Postponement of trial diet by High Court

^F345.9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Alteration of time limits by High Court

^F345.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 6 PROCEEDINGS INVOLVING CHILDREN

Interpretation of this Chapter_I23

6.1. In this Chapter—

“the Act of 1937” means the Children and Young Persons (Scotland) Act 1937 ( 5 );

“court” means the sheriff sitting as a court of summary jurisdiction.

[^F35 “UNCRC requirements” have the meaning given by section 1(2) of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 . ^F35]

[^F36Keeping a child participant in proceedings informed

6.1A. Where a child is participating in proceedings, the court shall keep the child informed as to what is happening in simple language suitable to the child’s age and understanding.^F36]

Application of summary procedure_I24

6.2. The procedure in summary proceedings shall apply, in relation to proceedings against a child as it applies to proceedings against an adult, subject to the provisions of the Act of 1937, the Act of 1995 and this Chapter.

Assistance for unrepresented child_I25

6.3.—(1) Where a child is unrepresented in any proceedings, the parent or guardian of the child may assist him in conducting his defence.

(2) Where the parent or guardian of the child cannot be found, or cannot in the opinion of the court reasonably be required to attend, the court may allow a relative or other responsible person to assist the child in conducting his defence.

Procedure in summary proceedings_I26

6.4. In a case where a child is brought before a court on a complaint, the sheriff—

(a)shall explain to the child the substance of the charge in simple language suitable to his age and understanding, and shall then ask the child whether he admits the charge;

(b)if satisfied, after trial or otherwise, that the child has committed an offence, shall so inform the child and—

(i)the child and his parent, guardian, relative or other responsible person assisting the child, or the person representing the child, shall be given an opportunity to make a statement, and

(ii)shall obtain such information as to the general conduct, home surroundings, school record, health and character of the child as may enable the sheriff to deal with the case in the best interests of the child and may remand the child for such enquiry as may be necessary; and

(c)if the sheriff considers it necessary in the interests of the child while considering disposal after conviction, may require the parent, guardian, relative or other responsible person assisting the child, or the person representing the child, or the child, as the case may be, to withdraw from the court.

Failure to comply with probation order

^F376.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Separation of children at sittings_I27

6.6.—(1) The court shall take steps, so far as possible, to prevent children attending sittings of the court from mixing with one another.

(2) If this cannot be achieved by holding separate sittings or fixing different hours for the different cases and types of cases coming before it, the court may order additional waiting rooms to be brought into use or may provide for an attendant in the waiting room.

Restrictions on reports of proceedings involving children_I28

6.7.—(1) Any direction made by a court under subsection (3)(a) (person under 16 is a witness only) of section 47 (restriction on report of proceedings involving children) of the Act of 1995 shall specify the person in respect of whom the direction is made.

(2) Any direction made by a court under subsection (3)(b) of section 47 of the Act of 1995 (restrictions dispensed with) shall specify the person in respect of whom the direction is made and the extent to which the provisions of the section are dispensed with in relation to that person.

(3) Any such direction shall be pronounced in open court and its terms shall be recorded in the record of proceedings; and the direction as so recorded shall be authenticated by the signature of the clerk of court.

[^F38CHAPTER 7 MENTAL DISORDER

Application for assessment orders

7.1.—(1) A written application under—

(a)section 52B(1) of the Act of 1995 (assessment order: prosecutor); or

(b)section 52C(1) of the Act of 1995 (assessment order: Scottish Ministers),

shall be in Form 7.1.

(2) Where an application is made under paragraph (1)—

(a)the court shall appoint a diet for hearing the application; and

(b)the clerk of court shall intimate the diet to the applicant, the person in respect of whom the application is made or the solicitor for that person, the governor of any institution in which the person in respect of whom the application is made is detained and, where the application is by the Scottish Ministers, the prosecutor.

Assessment orders ex proprio motu

7.2. Where the court considers making an assessment order under section 52E of the Act of 1995 (assessment order: ex proprio motu) and considers it appropriate to do so—

(a)the court shall appoint a diet for parties to be heard; and

(b)the clerk of court shall intimate the diet to the prosecutor, the person in respect of whom the order may be made or the solicitor for that person, and the governor of any institution in which the person in respect of whom the application is made is detained.

Applications for treatment orders

7.3.—(1) A written application under—

(a)section 52K(1) of the Act of 1995 (treatment order: prosecutor); or

(b)section 52L(1) of the Act of 1995 (treatment order: Scottish Ministers),

shall be in Form 7.3.

(2) Where an application is made under paragraph (1)—

(a)the court shall appoint a diet for hearing the application; and

(b)the clerk of court shall intimate the diet to the applicant, the person in respect of whom the application is made or the solicitor for that person, the governor of any institution in which the person in respect of whom the application is made is detained, and where the application is by the Scottish Ministers, the prosecutor.

Treatment orders ex proprio motu

7.4. Where the court considers making a treatment order under section 52N of the Act of 1995 (treatment order: ex proprio motu) and considers it appropriate to do so—

(a)the court shall appoint a diet for parties to be heard; and

(b)the clerk of court shall intimate the diet to the prosecutor, the person in respect of whom the order may be made or the solicitor for that person, and the governor of any institution in which the person in respect of whom the application is made is detained.

Variation of assessment orders or review of treatment orders

7.5. Where the court receives a report under section 52G(9) (report for variation of assessment order) or section 52Q(1) (report for review of treatment order) of the Act of 1995—

(a)the court shall, by interlocutor in Form 7.5, appoint a hearing for parties to be heard and where appropriate, grant warrant to authorised officers of the hospital or officers of law, to bring the offender from the hospital to the court for that diet; and

(b)the clerk of court shall intimate the diet to the prosecutor, the person in respect of whom the order has been made or the solicitor for that person.

Interim compulsion order

7.6.—(1) Subject to paragraph (2), where the court receives a report under section 53B(1) of the Act of 1995 (interim compulsion order) —

(a)the court shall—

(i)by interlocutor in Form 7.6, appoint a hearing for parties to be heard and where appropriate, grant warrant to authorised officers of the hospital or officers of law, to bring the offender from the hospital to the court for that diet;

(ii)discharge the diet already fixed; and

(b)the clerk of court shall intimate the diet to the prosecutor, the person in respect of whom the order has been made or the solicitor for that person.

(2) Where the report referred to in paragraph (1) is received within 14 days before the diet already fixed, paragraph (1) shall not apply.

Assessment, treatment and interim compulsion orders: specified hospital

7.7. Where the court makes a direction under section 52F(1)(b) (assessment order: specified hospital), section 52P(1)(b) (treatment order: specified hospital) or section 53A(1) (interim compulsion order: specified hospital) of the Act of 1995 the court shall send a copy of the direction to the person in respect of whom the order has been made, the solicitor for that person, the prosecutor and Scottish Ministers.

Compulsion orders and hospital directions: specified hospital

7.8. Where the court makes a direction under 57D(1) (compulsion order: specified hospital) or specifies another hospital in a direction under section 59C(1) (hospital direction: specified hospital) of the Act of 1995 the court shall send a copy of the direction or specification, as the case may be, to the person in respect of whom the order has been made and the solicitor for that person.

[^F39Appeals

7.9.—(1) An appeal under–

(a)section 62 of the Act of 1995 (appeal by accused in case involving insanity); or

(b)section 63 of the Act of 1995 (appeal by prosecutor in case involving insanity),

shall be made by lodging a note of appeal in Form 7.9.

(2) At the same time as lodging a note of appeal under paragraph (1), the applicant shall send a copy to the other parties.

(3) As soon as possible after the lodging of a note of appeal under paragraph (1), the [^F40 clerk of the appropriate Appeal Court^F40] shall request a report from the judge who made the finding, order or acquittal which is the subject of the appeal.

[^F41 (4) In this rule, “clerk of the appropriate Appeal Court” means—

(a)in a case where the High Court is the appropriate Appeal Court, the Clerk of Justiciary;

(b)in a case where the Sheriff Appeal Court is the appropriate Appeal Court, the Clerk of the Sheriff Appeal Court.^F41,F39,F38]]]

[^F42CHAPTER 7A DISCLOSURE

Interpretation

7A.1. In this Chapter–

“the 2010 Act ” means the Criminal Justice and Licensing (Scotland) Act 2010 ;

“classified” means has a status under any scheme operated by the United Kingdom Government for the protection of information which limits those who may see the information to those with a special security clearance;

“appropriate security clearance” means the special security clearance required under the scheme concerned;

“appropriate security conditions” means the security conditions for the storage of the information required under the scheme concerned.

Defence statements

7A.2.—(1) A defence statement lodged under section 70A of the Act of 1995, or section 125 or section 126 of _dfnthe 2010 Act, shall be in Form 7A.2-A.

(2) A statement lodged before the trial diet under section 70A(4)(a) of the Act of 1995, or section 126(2)(a) of _dfnthe 2010 Act, shall be in Form 7A.2-B.

Applications for ruling on disclosure

7A.3.—(1) An application under section 128(2), section 139(2) or section 140E(2) of the 2010 Act shall be in Form 7A.3.^F43]

(2) Not less than 48 hours before lodging the application the applicant shall send a copy of the application to the prosecutor.

(3) Where the court appoints a hearing on an application the clerk of court shall intimate the date and time of the hearing to the parties.

Review of ruling on disclosure

7A.4.—(1) An application under section 129(2), section 140(2) or section 140F(2) of the 2010 Act shall be in Form 7A.4.^F44]

(2) Not less than 48 hours before lodging the application the applicant shall send a copy of the application to the prosecutor.

(3) Where the court appoints a hearing on an application the clerk of court shall intimate the date and time of the hearing to the parties.

Appeal against ruling

7A.5.—(1) An appeal under section 130(1) of _dfnthe 2010 Act shall be made by lodging a note of appeal in Form 7A.5.

(2) At the same time as lodging a note of appeal the appellant shall send a copy of the note of appeal to the other parties.

(3) Where the court appoints a hearing on the appeal the clerk of court shall intimate the date and time of the hearing to the parties.

Applications for orders preventing or restricting disclosure: prosecutor

7A.6.—(1) An application by the prosecutor for a non-notification order and an exclusion order under section 142(2)(a) of _dfnthe 2010 Act shall be in Form 7A.6-A.

(2) An application by the prosecutor for an exclusion order under section 142(2)(b) [^F45 or section 142(3)^F45] of _dfnthe 2010 Act shall be in Form 7A.6-B.

(3) An application by the prosecutor for a section 145 order under section 141(5) of _dfnthe 2010 Act shall be in Form 7A.6-C.

(4) On an application being lodged the clerk of court shall—

(a)appoint a hearing on the application;

(b)intimate the date and time of the hearing to those parties who are entitled to be heard or represented at the hearing.

Applications for orders preventing or restricting disclosure: Secretary of State

7A.7.—(1) An application by the Secretary of State for a section 146 order under section 146(1) of _dfnthe 2010 Act shall be in Form 7A.7-A.

(2) An application by the Secretary of State for a restricted notification order and a non-attendance order under section 147(2)(a) of _dfnthe 2010 Act shall be in Form 7A.7-B.

(3) An application by the Secretary of State for a non-attendance order under section 147(2)(b) [^F46 or section 147(3)^F46] of _dfnthe 2010 Act shall be in Form 7A.7-C.

(4) On an application being lodged the clerk of court shall—

(a)appoint a hearing on the application;

(b)intimate the date and time of the hearing to those parties who are entitled to be heard or represented at the hearing.

Special Counsel

7A.8.—(1) This rule applies to the appointment of special counsel under section 150(2) of _dfnthe 2010 Act.

(2) Special counsel shall be appointed from a list of persons who have been nominated for that purpose by the Lord Justice General.

(3) Where the information which is the subject of the application or appeal concerned is classified, the person appointed must have appropriate security clearance.

Appeals

7A.9.—(1) Any appeal mentioned in section 153 of _dfnthe 2010 Act shall be made by lodging a note of appeal in Form 7A.9.

(2) At the same time as lodging a note of appeal the appellant shall send a copy of the note of appeal to those parties who are entitled to be heard in the appeal.

(3) On an appeal being lodged the clerk of court shall—

(a)appoint a hearing on the appeal;

(b)intimate the date and time of the hearing to those parties who are entitled to be heard in the appeal.

Review of section 145 and 146 orders

7A.10.—(1) This rule applies to the review of—

(a)a section 145 order under section 155(2) of _dfnthe 2010 Act;

(b)a section 146 order under section 156(2) of _dfnthe 2010 Act.

(2) An application shall be in Form 7A.10.

(3) On an application being lodged the clerk of court shall—

(a)appoint a hearing on the application;

(b)intimate the date and time of the hearing to those parties who are entitled to be heard on the application.

Review by court of section 145 and 156 orders

7A.11.—(1) This rule applies where the court appoints a hearing under section 157(3) of _dfnthe 2010 Act.

(2) The clerk of court shall intimate the date and time of the hearing to those parties who would be entitled to be heard on an application mentioned in Rule 7A.10.

Applications during trials etc.

7A.12.—(1) This rule applies where a case has called for its trial diet, or any other hearing.

(2) During the diet or hearing, an application for—

(a)any of the orders mentioned in Rule 7A.6 or Rule 7A.7;

(b)any of the reviews mentioned in Rule 7A.10,

may be made verbally (that is without the need for a form).

Storage of sensitive information

7A.13.—(1) This rule applies where the court, in considering any application or appeal mentioned in this Chapter, receives or has had disclosed to it information which is classified.

(2) The record of the hearing and any retained documents shall be stored by the court in appropriate security conditions.^F42]

PART III Solemn proceedings

CHAPTER 8 THE INDICTMENT

Appeals in relation to extension of time for trial_I29

8.1.—(1) A note of appeal under section 65(8) of the Act of 1995 (appeal to High Court against grant or refusal of extension of time) in respect of an appeal from a decision under section 65(3) of that Act[^F47 (extension of periods for commencement of preliminary hearing or trial diet)^F47] shall be in Form 8.1-A.

^F48(2) A note of appeal under section 65(8) of the Act of 1995 in respect of an appeal from a decision under section 65(5) ... of that Act [^F49(extension of 80, 110 or 140 days period of committal)^F49] shall be in Form 8.1-B.

(3) A note of appeal mentioned in paragraph (1) or (2) shall be served by the appellant on—

(a)the respondent;

(b)any co-accused; and

(c)the clerk of the court against the decision of which the appeal is taken.

(4) The appellant shall lodge with the Clerk of Justiciary—

(a)the note of appeal; and

(b)the execution of service in respect of the persons mentioned in paragraph (3).

(5) The clerk of the court against the decision of which the appeal is taken shall, as soon as practicable after being served with the note of appeal, transmit to the Clerk of Justiciary the original application and all the relative documents; and the Clerk of Justiciary shall, on receiving them, assign the appeal to the roll and intimate the date of the diet to the appellant and the respondent.

[^F50 (6) Where the judge’s or sheriff’s report is not included in the documents mentioned in paragraph (5) the Clerk of Justiciary shall request the report from the clerk of the court against the decision of which the appeal is taken.^F50]

Further provision as respects extension of twelve months period for commencement of trial on indictment

^F518.1A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Fresh indictment as alternative to serving notice fixing new trial diet

^F528.1B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[^F53Citation of accused and witnesses

8.2.—(1) Subject to paragraph (5), the notice to be affixed to the door of the relevant premises for the purposes of section 66(4)(b) of the Act of 1995 shall be in Form 8.2–A.

(2) Subject to paragraph (5), the notice for the purposes of section 66(6) of the Act of 1995 to be served on a person accused on indictment shall be in Form 8.2–B or, where the charge is of committing a sexual offence to which section 288C of that Act applies, [^F54 or, where it is known by the prosecutor that the offence is one to which section 288E of that Act (prohibition of personal conduct of defence where a child witness is under the age of 12) applies,^F54] Form 8.2–C.

(3) The form of postal citation of a witness under section 66(1) of the Act of 1995 shall be in Form 8.2–D; and the witness shall return Form 8.2–E to the procurator fiscal, or the accused person or his solicitor, as the case may be, in the pre-paid envelope provided, within 14 days after the date of citation.

(4) The form of personal citation of a witness under section 66(1) of the Act of 1995 shall be in Form 8.2–F.

(5) Where the accused is [^F55 an organisation^F55] ,

(a)the notice to be affixed to the door of the relevant premises for the purposes of section 66(4)(b) of the Act of 1995 shall be in Form 8.2–G;

(b)the notice for the purposes of section 66(6) of the Act of 1995 shall be in Form 8.2–H.^F53]

Notice of previous convictions_I30

8.3. Any notice to be served on an accused under section 69(2) of the Act of 1995 (notice of previous convictions) shall be in Form 8.3.

[^F56CHAPTER 8A ENGAGEMENT, DISMISSAL AND WITHDRAWAL OF SOLICITORS IN SOLEMN PROCEEDINGS

Notification

8A.1.—(1) The notification to the court in writing under section 72F(1) of the Act of 1995 that a solicitor has been engaged by the accused for the purposes of his defence in any part of proceedings on indictment shall be in Form 8A.1–A.

(2) The notification to the court in writing under section 72F(2) of the Act of 1995 that a solicitor has been dismissed by the accused or has withdrawn from acting shall be in Form 8A.1–B.

Further pre–trial diet

8A.2.—(1) An order for a further pre–trial diet under section [^F57 72F(5)^F57] of the Act of 1995 may be signed by the clerk of court.

(2) An order mentioned in paragraph (1) shall be intimated by the clerk of court to all parties and to the governor of any institution in which the accused is detained.^F56]

[^F58CHAPTER 8B FAILURE OF ACCUSED TO APPEAR

Failure of accused to appear: form of warrant

8B.1. A warrant for the apprehension of an accused under section 102A of the Act of 1995 (failure of accused to appear in solemn proceedings) shall be in Form 8B.1.^F58]

[^F59CHAPTER 8C TRANSFER OF PROCEEDINGS (SHERIFF COURT)

Transfer of solemn proceedings outwith sheriffdom

8C.1. A written application by the prosecutor under section 34A of the Act of 1995 (initiating proceedings outwith sheriffdom: exceptional circumstances) shall be in Form 8C.1.^F59]

[^F60CHAPTER 9 FIRST DIETS (SHERIFF COURT)

Minute giving notice of preliminary pleas or preliminary issues

9.1.—(1) Any notice given under section 71(2) of the Act of 1995 (notice of preliminary pleas or preliminary issues before first diet) shall be by minute in Form 9.1.

(2) That minute shall be lodged with the sheriff clerk and served on every other party by the minuter.

Procedure on lodging minute

9.2. On the lodging of a minute under rule 9.1 (minute giving notice of preliminary pleas or preliminary issues) with a certificate of execution of service, the sheriff clerk shall endorse on the minute the time and date on which it was received.

Orders for further diets under section 71 of the Act of 1995

9.3.—(1) An order for a further diet under section 71(2ZA) of the Act of 1995 (further diet to consider objection to the admissibility of evidence) may be signed by the sheriff clerk.

(2) Intimation of the terms of an order–

(a)mentioned in paragraph (1); or

(b)for an adjourned diet under section 71(5A) of the Act of 1995 (adjournment of first diet),

shall be given by the sheriff clerk to the governor of any institution in which the accused is detained.

[^F61Written record of state of preparation

9.3A.—(1) A written record referred to in section 71C of the Act of 1995 (written record of state of preparation: sheriff court) shall be in Form 9.3A.

(2) A written record under paragraph (1) must be lodged no later than two court days before the first diet and may be lodged by electronic means.^F61]

Procedure at first diet

9.4.—(1) A first diet shall commence on the diet being called.

(2) A record of the proceedings at the first diet, including–

(a)a note of the decision made by the court in respect of any notice placed before it;

(b)any adjournment ^F62...

(c)the plea stated under section 71(6) of the Act of 1995 (plea at first diet), [^F63 and

(d)the date appointed for the trial diet,^F63]

shall be kept in accordance with existing law and practice.

Applications for leave to appeal

9.5.—(1) An application for leave to appeal to the High Court under section 74(1) of the Act of 1995 (appeal against a decision of the sheriff at a first diet) shall be made by motion to the sheriff at that diet immediately following the making of the decision in question, and shall be granted or refused at that time.

(2) A decision under this rule shall be recorded in the minute of proceedings.

Note of appeal

9.6.—(1) An appeal under section 74(1) of the Act of 1995 against a decision of the sheriff at a first diet shall be made by lodging a note of appeal in Form 9.6.

(2) The note of appeal shall be lodged with the sheriff clerk not later than [^F64 seven^F64] days after the making of the decision in question.

Procedure on lodging note of appeal

9.7.—(1) On the lodging of a note of appeal with the sheriff clerk, he shall [^F65 , in those cases where leave to appeal is required,^F65] endorse on it a certificate that leave to appeal has been granted and the date and time of lodging.

(2) As soon as possible after the lodging of a note of appeal with the sheriff clerk, he shall–

(a)send a copy of the note of appeal to the other parties or their solicitors;

(b)request a report on the circumstances relating to the decision from the sheriff; and

(c)transmit the note of appeal to the Clerk of Justiciary with a certified copy of–

(i)the indictment;

(ii)the record of proceedings; and

(iii)any other relevant document.

Report of sheriff

9.8.—(1) The sheriff, on receiving a request for a report under rule 9.7(2)(b) (report on circumstances relating to decision) shall, as soon as possible, send his report to the Clerk of Justiciary.

(2) The Clerk of Justiciary shall, on receiving the report of the sheriff–

(a)send a copy of the report to the parties or their solicitors;

(b)arrange for a hearing of the appeal as soon as possible; and

(c)cause to be copied any documents necessary for the appeal.

Intimation of order postponing trial diet

9.9.—(1) Where, in relation to an appeal under section 74(1) of the Act of 1995 (appeal in connection with first diet) in a case set down for trial in the sheriff court, the High Court makes an order under section 74(3) of that Act (postponement of trial diet), the Clerk of Justiciary shall send a copy of the order to–

(a)the sheriff clerk;

(b)all parties to the proceedings; and

(c)the governor of any institution in which any accused is detained.

(2) If, in relation to any case a trial diet has been postponed by virtue of an order mentioned in paragraph (1), any requirement to call that diet shall have effect only in relation to the date to which the diet has been postponed.

Orders of appeal court

9.10. The Clerk of Justiciary shall intimate to the sheriff clerk the decision of the High Court disposing of an appeal under section 74(1) of the Act of 1995 in relation to a first diet.

Abandonment of appeal

9.11.—(1) An appellant who has taken an appeal under section 74(1) of the Act of 1995 (appeal in connections with first diet) may abandon the appeal at any time before the hearing of the appeal.

(2) An abandonment of such an appeal shall be made by lodging a minute of abandonment in Form 9.11 with the Clerk of Justiciary.

(3) The Clerk of Justiciary, on receiving such a minute of abandonment, shall inform the sheriff clerk and the other parties or their solicitors.

(4) The sheriff, on the sheriff clerk being so informed, may proceed as accords with the case.

CHAPTER 9A PRELIMINARY HEARINGS (HIGH COURT OF JUSTICIARY)

Notice of preliminary pleas and preliminary issues

9A.1.—(1) Any notice given under section 72(3) (notice of preliminary pleas) or section 72(6)(b)(i) (notice of preliminary issues) of the Act of 1995 shall be by minute in Form 9A.1.

(2) A minute under paragraph (1) shall be lodged with the Clerk of Justiciary and served on every other party by the minuter.

Applications to dispense with preliminary hearings

9A.2.—(1) An application to dispense with a preliminary hearing shall made in Form 9A.2.

(2) Prior to making an application under paragraph (1), the parties shall consult with the Clerk of Justiciary as to a suitable date for a trial diet.

(3) An application under paragraph (1) shall indicate whether or not a date for a trial diet has been agreed by the parties with the Clerk of Justiciary and shall give details of any applicable time limits under section 65 of the Act of 1995.

(4) On the lodging of an application under paragraph (1), the Clerk of Justiciary shall attach it to the record copy of the indictment and place it before a judge in chambers.

(5) The order made by the judge in chambers in respect of the application shall be–

(a)recorded by endorsation on the record copy of the indictment;

(b)signed by the Clerk of Justiciary;

(c)entered in the record of proceedings; and

(d)intimated by the Clerk of Justiciary to the applicants or their solicitors.

(6) The Clerk of Justiciary shall send to the governor of any institution in which any accused is detained a copy of any order of the court dispensing with a preliminary hearing.

Notice to appear where preliminary hearing deserted

9A.3. A notice referred to in section 72C(4) of the Act of 1995 (notice to appear at further preliminary hearing) shall be in Form 8.2–B or, where the charge is of committing a sexual offence to which section 288C of the Act of 1995 (prohibition of personal conduct of defence in cases of certain sexual offences) applies, Form 8.2–C.

[^F66Instruction of representation

9A.3A.—(1) This rule applies apply where—

(a)the accused has been cited to answer an indictment at a preliminary hearing in the High Court; and

(b)a solicitor has given notification under section 72F(1) of the Act of 1995 of having been engaged by the accused.

(2) Where the accused is charged with murder, before the preliminary hearing the accused’s solicitor must,—

(a)take reasonable steps to identify a selection of Queen’s Counsel who appear to be available to accept instructions to represent the accused;

(b)inform the accused of the accused’s right to be represented by Queen’s Counsel;

(c)give the accused a copy of Form 9A.3A-A; and

(d)give the accused a summary of the selection referred to in subparagraph (a).

(3) In any other case, before the preliminary hearing the accused’s solicitor must—

(a)take reasonable steps to identify a selection of counsel who appear to be available to accept instructions to represent the accused;

(b)give the accused a copy of Form 9A.3A-B; and

(c)give the accused a summary of the selection referred to in subparagraph (a).

(4) In this rule “Queen’s Counsel” means counsel holding the rank of Queen’s Counsel or Queen’s Counsel, Solicitor Advocate. ^F66]

Written record of state of preparation

9A.4.—(1) A written record referred to in section 72E of the Act of 1995 (written record of the state of preparation in certain cases) shall be in Form 9A.4 and shall contain the information indicated in that form.

(2) A written record under paragraph (1) may be lodged by sending a copy by facsimile or other electronic means followed by the lodging of the principal and the time and date of lodging shall be the date and time on which the copy was received by the Clerk of Justiciary.

(3) A written record under paragraph (1) which is lodged after 2pm on the last date for lodging under section 72E of that Act shall be deemed to have been lodged on the next day after that date.

Proceedings at preliminary hearing

9A.5.—(1) Any order under section 72(9)(a) (appointment of further diet) of the Act of 1995 shall be intimated by the Clerk of Justiciary to the parties or their solicitors.

(2) On the making of an order mentioned in paragraph (1), the Clerk of Justiciary shall send a copy of the order to the governor of any institution in which the accused is detained.

(3) On the appointment of a trial diet, the Clerk of Justiciary shall intimate the date of that diet to the governor of any institution in which the accused is detained.

Applications for leave to appeal

9A.6.—(1) An application for leave to appeal to the High Court under section 74(1) of the Act of 1995 against a decision of the High Court at a preliminary hearing shall be made by motion to the court at that hearing immediately following the making of the decision in question, and shall be granted or refused at that time.

(2) A decision made under this rule shall be recorded in the record of proceedings.

Note of appeal

9A.7.—(1) An appeal under section 74(1) of the Act of 1995 against a decision of the High Court at a preliminary hearing shall be made by lodging a note of appeal in Form 9A.7 with the Clerk of Justiciary.

(2) The appellant shall send a copy of a note of appeal under paragraph (1) to the other parties.

Abandonment of appeal

9A.8.—(1) An appellant who has taken an appeal under section 74(1) of the Act of 1995 (appeals against decision at a preliminary hearing) may abandon the appeal at any time before the hearing of the appeal.

(2) An abandonment of such appeal shall be made by lodging a minute of abandonment in Form 9A.8.

CHAPTER 9B OBJECTIONS TO THE ADMISSIBILITY OF EVIDENCE RAISED AFTER FIRST DIET OR PRELIMINARY HEARING

Notice etc. of objections raised after first diet or preliminary hearing

9B.1.—(1) Any notice given under section 79A(2) of the Act of 1995(objections to the admissibility of evidence after first diet or preliminary hearing) shall be by minute in Form 9B.1 and shall be served on the other parties by the minuter.

(2) On the lodging of a minute under paragraph (1), the Clerk of Justiciary or the sheriff clerk, as the case may be, shall place the minute before a judge in chambers.

(3) On considering the minute in the absence of the parties or of any person acting on their behalf, the judge shall appoint–

(a)a further diet to be held before the trial diet for the purpose of hearing the parties on whether leave should be granted for the objection to be raised; or

(b)the question of whether leave should be granted under section 79A(2) of the Act of 1995 for the objection to be disposed of at the trial diet.

(4) The Clerk of Justiciary or the sheriff clerk, as the case may be, shall intimate the order under paragraph (3) to the parties and to the governor of any institution in which the accused is detained.^F60]

CHAPTER 10 PLEA OF GUILTY

Procedure for plea of guilty_I31

10.1.—(1) A notice to appear at a diet of the appropriate court served on an accused under section 76(1) of the Act of 1995 (procedure where accused desires to plead guilty) shall—

(a)if an indictment has not already been served, be in Form 10.1-A;

(b)if an indictment has already been served, be in Form 10.1-B.

(2) In any case set down for trial in the High Court, any diet fixed by virtue of section 76(1) of the Act of 1995 may be called before the High Court sitting in Edinburgh whether or not—

(a)^F67the case has already been set down for trial ... elsewhere, or

(b)any notice has already been served on the accused under section 66(6) of that Act[^F68 (notice of first diet and trial diet or preliminary hearing)^F68] .

(3) In the application of subsection (3) of section 76 of the Act of 1995, the court may postpone the trial diet under that section if, but only if—

(a)all the accused have been served with a notice in accordance with subsection (1) of that section;

(b)all the accused are present at the diet called by virtue of subsection (1) of that section; and

(c)a motion to postpone the trial diet is made to the court at that diet.

(4) Where the court grants that motion, the order granting it shall—

(a)be endorsed on the record copy of the indictment;

(b)be signed by the presiding judge;

(c)be entered in the record of proceedings; and

^F69(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) A copy of the order shall be sent by the clerk of court to the governor of any institution in which any accused is detained.

(6) Any requirement to call the diet in any case where such an order has been made shall have effect only in relation to the postponed trial diet.

CHAPTER 11 NOTICES BY ACCUSED IN RELATION TO DEFENCE

Notices of special defence etc._I32

11.1. Where a notice under section 78(1) of the Act of 1995 (plea of special defence etc.) is to be served on a co-accused, that notice may be served on his solicitor.

Notices by accused of witnesses and productions_I33

11.2. Any notice given by an accused under section 78(4) of the Act of 1995 (notice of witnesses and productions) shall be served on any co-accused [^F70or his solicitor^F70] .

[^F71CHAPTER 12 ADJOURNMENT AND ALTERATION OF DIETS IN SOLEMN PROCEEDINGS

Adjournment

12.1.—(1) Where circumstances arise in which the court may adjourn a diet under section 75A(2) of the Act of 1995 (adjournment and alteration of diets), and the prosecutor proposes such an adjournment, he may for that purpose require the diet to be called on the date for which it was originally fixed at such time as he thinks appropriate.

(2) The presence of the accused in court when the diet was so called and adjourned shall be sufficient intimation to him of the adjourned diet.

(3) If the diet was so called and adjourned in the absence of the accused, the prosecutor shall forthwith serve on the accused an intimation of adjournment in Form 12.1.

(4) The calling and the adjournment of the diet including a record as to the presence or absence of the accused, as the case may be, shall be endorsed by the clerk of court on the record copy indictment and entered in the record of proceedings in accordance with existing law and practice.

(5) A copy of the order of the court adjourning the diet under section 75A(2) of the Act of 1995 shall be sent by the clerk of court to the governor of any institution in which the accused is detained.

Applications for alteration of diet

12.2.—(1) Subject to paragraph (2), an application under section 75A(5) of the Act of 1995 (application for alteration of diet) shall be made by minute in Form 12.2–A.

(2) Where all parties join in the application, the application shall be made by joint minute in Form 12.2–B.

(3) A minute under this rule shall be lodged–

(a)in the case of proceedings in the High Court, with the Clerk of Justiciary,

(b)in the case of proceedings in the sheriff court, with the sheriff clerk.

Orders fixing diet for hearing application to alter diet

12.3. Where a minute referred to in rule 12.2 (applications for alteration of diet) has been lodged, the court shall, or, in a case in which all parties join in the application, may, make an order endorsed on the minute–

(a)fixing a diet for a hearing of the application; and

(b)for service of the minute with the date of the diet on all parties.

Calling of diet for hearing application

12.4. A diet fixed under rule 12.3 (orders fixing diet for hearing application to alter diet) shall be held in open court in the presence of all parties unless the court permits the hearing to proceed in the absence of the accused under section 75A(8) of the Act of 1995, and shall be commenced by the calling of the diet.

Joint applications without hearing

12.5.—(1) Where, in the case of a joint application under subsection (5) of section 75A of the Act of 1995 (application for alteration of diet), the court proposes to proceed without hearing the parties by virtue of subsection (7) of that section (joint application for alteration of diet), the clerk of court shall on the lodging of the minute attach it to the record copy of the indictment and place it before a judge in chambers.

(2) The order made by the judge in chambers in respect of the joint application shall be–

(a)recorded by endorsation on the record copy of the indictment;

(b)signed by the clerk of court;

(c)entered in the record of proceedings; and

(d)intimated by the clerk of court to the applicants or their solicitors.

(3) The clerk of court shall send to the governor of any institution in which the accused is detained a copy of the following orders of the court–

(a)an order under rule 12.3 (order fixing diet for hearing of application to alter diet);

(b)an order under section 65(3) or (5) of the Act of 1995 (extension of time limits); and

(c)an order under section 75A(5) of the Act of 1995( discharging a diet and fixing a new diet).

Form of notice where trial diet does not take place

12.6. A notice referred to in section 81(5) of the Act of 1995 (notice to appear where trial diet has not taken place) shall be in Form 8.2–B or, where the charge is of committing a sexual offence to which section 288C of that Act (prohibition of personal conduct of defence in cases of certain sexual offences) applies, Form 8.2–C.

Floating diets in the High Court of Justiciary [^F72and continued diets in the sheriff court^F72]

12.7.—(1) A minute referred to in section 83A(2)(a) of the Act of 1995 (minute of continuation of floating trial diet) shall be in Form 12.7.

[^F73 (1A) A minute referred to in section 83B of the Act of 1995 (continuation of trial diet in the sheriff court) shall be in Form 12.7.^F73]

(2) The maximum number of days for which a floating diet [^F74 in the High Court or continued diet in the sheriff court^F74] may be continued from sitting day to sitting day shall be four days after the day originally appointed for the trial diet.^F71]

CHAPTER 13 SUMMONING OF JURORS

[^F75List of jurors

13.1.—(1) A list of jurors shall–

(a)contain not less than [^F76 40^F76] names;

(b)be prepared under the directions of the clerk of court before which the trial is to take place;

(c)be kept at the office of the sheriff clerk of the district in which the court of the trial diet is situated; and

(d) be headed “List of Assize for the sitting of the High Court of Justiciary (or the sheriff court of.at.) on the.of.”.

(2) The clerk of the court before which the trial is to take place, in preparing a list of jurors for the trial diet, shall have regard, in determining the number of jurors to be listed, to the powers of altering the date of or adjourning any trial diet exercisable under the following provisions of the Act of 1995:–

• section 74(3) (postponement of trial diet in appeals in connection with first diets or preliminary hearings),

• section 75A (adjournment and alteration of diets),

• section 76(3) (postponement where not guilty plea accepted).^F75]

Citation of jurors_I34

13.2.—(1) The citation under section 85(4) of the Act of 1995 of a person summoned to serve as a juror shall be served on that person in Form 13.2-A.

(2) The execution of citation under section 85(4) of the Act of 1995 of persons summoned to serve as jurors shall be in Form 13.2-B.

[^F77CHAPTER 13A WITNESSES

Citation of witnesses for precognition

13A.1. The form of citation of a witness for precognition under section 267A [^F78 of the Act^F78] of 1995 shall be in Form 13A.1.

[^F79Warrants for apprehension

13A.2.—(1) An application made in writing for a warrant for the apprehension of a witness under section 90A or 90D of the Act of 1995 shall be in Form 13A.2–A.

(2) On receipt of an application under paragraph (1), the Clerk of Justiciary or sheriff clerk, as the case may be, shall fix a diet for the hearing of the application and intimate the date of that hearing to the parties.

(3) A warrant for the apprehension of a witness under section 90A of the Act of 1995 shall be in Form 13A.2–B.

Review of orders

13A.3. An application for review under section 90D of the Act of 1995 of an order under section 90A(1)(a) or (b) of that Act shall be in Form 13A.3.

Appeals

13A.4. An appeal under section 90E(1) of the Act of 1995 (appeal in respect of an order under section 90B(1) of the Act of 1995) shall be made by lodging a note of appeal in Form 13A.4 with the Clerk of Justiciary.^F79,F77]]

CHAPTER 14 PROCEDURE AT TRIAL IN SOLEMN PROCEEDINGS

Recording of not guilty plea_I35

14.1. Where the accused pleads not guilty, the clerk of court shall [^F80, subject to rule 14.1A,^F80] make an entry in the record of proceedings for the purposes of section 88(1) of the Act of 1995 (recording plea of not guilty and balloting jury) that, in respect that the accused pleaded not guilty, the accused was remitted to an assize and that the jurors were balloted for and duly sworn to try the libel.

[^F81Minimum number of jurors for balloting jury

14.1A.—(1) Notwithstanding section 88(1) of the Act of 1995 (plea of not guilty, balloting and swearing of jury, etc.), where there are fewer than 30 of those named on the list of jurors [^F82 available for balloting^F82] , it shall not be competent to proceed to ballot the jury.

(2) Where it is not competent to proceed to ballot the jury the court shall make such order or orders as it thinks fit in the interests of justice.^F81]

Balloting of jurors_I36

14.2.—(1) The clerk of court shall cause the name and address of each juror to be written on a separate piece of paper, all the pieces being of the same size, and shall cause the pieces to be folded up, as nearly as may be in the same shape, and to be put into a box or glass and mixed, and the clerk shall draw out the pieces of paper one by one from the box or glass.

[^F83 (2) After 15 such names have been drawn (“the first list”), the clerk of court must draw a further 5 names (“the reserve list”) and where any person on the first list—

(a)does not appear;

(b)is challenged and is set aside; or

(c)before any evidence is led, is excused,

the persons on the reserve list will, in the order in which their names were drawn, replace on the first list each such absent, challenged or excused juror until the number required for the trial is attained.

(3) Paragraph (4) applies where the court considers that a reserve list of 5 jurors may be insufficient to ensure the number required for the trial will be attained.

(4) The court may, of its own accord or on the application of a party, after hearing parties, direct that the reserve list be increased to a maximum of 10 jurors.^F83]

Form of oath or affirmation to jurors_I37

14.3.—(1) Where the clerk of court administers the oath to the jury in terms of section 88(6) of the Act of 1995 (administration of oath in common form), he shall do so in accordance with the form in Form 14.3-A.

(2) In the case of any juror who elects to affirm, the clerk of court shall administer the affirmation in accordance with the form in Form 14.3-B.

(3) The oath or the affirmation administered in accordance with paragraph (1) or (2), as the case may be, shall be treated as having been administered for the purposes of section 88(6) of the Act of 1995.

Jurors chosen for one trial may continue to serve_I38

14.4.—(1) Where the conditions in section 88(4) of the Act of 1995 (circumstances in which jurors for one trial may serve on another) are met, and subject to paragraph (2) of this rule, the clerk of court shall at the commencement of the first trial engross the names and addresses of the jurors in the record of proceedings; and in the record of proceedings of the subsequent trial it shall be sufficient to mention—

(a)that the jurors who served on the preceding trial also served on the assize of the accused then under trial; and

(b)that no objection was made to the contrary.

(2) The jurors referred to in paragraph (1) shall be sworn together in the presence of the accused in the subsequent trial.

Form of oath or affirmation to witnesses_I39

14.5.—(1) Where the judge administers the oath to a witness, he shall do so in accordance with the form in Form 14.5-A.

(2) In the case of any witness who elects to affirm, the judge shall administer the affirmation in accordance with the form in Form 14.5-B.

(3) The oath or affirmation administered in accordance with paragraph (1) or (2), as the case may be, shall be treated as having been administered in common form.

Sheriff’s notes of evidence_I40

14.6. The sheriff who has presided at a trial on solemn procedure shall duly authenticate and preserve the notes of the evidence taken by him in the trial and, if called upon to do so by the High Court, shall produce them, or a certified copy of them, to the High Court.

Form of record of proceedings_I41

14.7. Where the proceedings at a trial are recorded, the entry in the record of proceedings shall be signed by the clerk of court and shall be in the form in Form 14.7.

Interruption of trial for other proceedings_I42

14.8.—(1) Where a trial is interrupted under section 102 of the Act of 1995 (interruption of trial for other proceedings), a minute of continuation of the diet of the interrupted trial shall be entered in the record of proceedings.

(2) Where a trial is interrupted under section 102 of the Act of 1995, the trial shall be continued to a time later on the same day or to such other time as may be specified in the minute of proceedings.

[^F84Interruption of proceedings for the tendering of pleas

14.8A.—(1) Where a case has called the presiding judge may, on a motion made jointly, without adjourning those proceedings interrupt them by calling other proceedings.

(2) Such a motion is competent only where in making the motion parties inform the court that—

(a)one or more of the accused in the proceedings is also an accused in other proceedings;

(b)none of the proceedings are going to trial, because (either or both)—

(i)the accused persons are intending to plead guilty as libelled;

(ii)the accused persons are intending to tender pleas which the Crown intends to accept; and

(c)in the interests of justice it is appropriate that the other proceedings be called in order that they be dealt with simultaneously.

(3) Where the judge has interrupted any proceedings under paragraph (1), the proceedings are to be regarded as being before the court simultaneously and pleas shall be recorded in this way.

(4) Where pleas have been recorded in accordance with paragraph (3) the clerk of court may on any subsequent occasion call the proceedings together and they shall be regarded as being before the court simultaneously.^F84]

Interruption of proceedings for conviction or sentence_I43

14.9.—(1) On conviction of an accused in solemn proceedings, the presiding judge may, without adjourning those proceedings, interrupt them by—

(a)considering a conviction against that accused in other proceedings pending before that court for which he has not been sentenced; or

(b)passing sentence on that accused in respect of the conviction in those other proceedings.

(2) Where the judge has interrupted any proceedings under paragraph (1), he may, in passing sentence on an accused person in respect of a conviction in those proceedings, at the same time pass sentence on that person in respect of any other conviction he has considered.

(3) No interruption of any proceedings under paragraph (1) shall cause the instance to fall in respect of any person accused in those proceedings or shall otherwise affect the validity of those proceedings.

Issue of extract convictions_I44

14.10.—(1) Subject to the following paragraphs, no extract of a conviction shall be issued during the period of four weeks after the day on which the conviction took place.

(2) An extract of a conviction may be issued at any time where it is required as a warrant for the detention of the person convicted under any sentence which shall have been pronounced against him.

(3) In the event of—

(a)an appeal under section 108 (Lord Advocate’s appeal against sentence)[^F85 or section 210F(3) (prosecutor’s appeal against refusal to make an order for lifelong restriction)^F85] ,

(b)an intimation of intention to appeal under section 109(1), or

(c)a note of appeal under section 110 in respect of an appeal under section 106(1)(b) (appeal against sentence passed on conviction),

of the Act of 1995 being lodged, no extract of a conviction shall be issued until such appeal, if it is proceeded with, is determined.

(4) Where an accused is convicted on indictment in the sheriff court of any crime or offence and an extract of that conviction is subsequently required in evidence, such extract shall be issued at any time by the clerk of the court having the custody of the record copy of the indictment although the plea of the accused may have been taken and the sentence on him pronounced in another court.

CHAPTER 15 APPEALS FROM SOLEMN PROCEEDINGS

Register and lists of appeals_I45

15.1.—(1) The Clerk of Justiciary shall keep a register, in such form as he thinks fit, of all cases in which he receives intimation of intention to appeal or, in the case of an appeal under section 106 (right of appeal)[^F86 , section 108 (Lord Advocate’s appeal against sentence) or section 210F(3) (prosecutor’s appeal against refusal to make an order for lifelong restriction)^F86] of the Act of 1995, a note of appeal under section 110 of that Act.

(2) The register kept under paragraph (1) shall be open for public inspection at such place and at such hours as the Clerk of Justiciary, subject to the approval of the Lord Justice General, considers convenient.

(3) The Clerk of Justiciary shall—

(a)prepare from time to time, a list of appeals to be dealt with by the High Court; and

(b)cause such list to be published in such manner as, subject to the approval of the Lord Justice General, he considers convenient for giving due notice to persons having an interest in the hearing of such appeals by the High Court.

[^F87 (4) Subject to paragraph (5), the Clerk of Justiciary shall give the respective solicitors representing parties to an appeal so listed at least 14 days notice of the date fixed for the hearing of the appeal.

(5) In an appeal under sections 106(1)(b) to (e) [^F88 , 108(1) or 210F(3)^F88] of the Act of 1995, the period of notice mentioned in paragraph (4) shall be [^F89 28^F89] days.^F87]

Forms of appeal_I46

15.2.—(1) Any intimation under section 109(1) of the Act of 1995 (written intimation of intention to appeal) shall be in Form 15.2-A.

(2) A note under section 110(1) of the Act of 1995 (written note of appeal) shall be in Form 15.2-B.

(3) An application under section 111(2) of the Act of 1995 (application to extend time) shall be made in Form 15.2-C.

(4) An application under section 112(1) of the Act of 1995 (application of appellant for bail) shall be made in Form 15.2-D.

(5) The following documents shall be signed by the appellant or by his counsel or solicitor:—

(a)an intimation of intention to appeal under section 109(1) of the Act of 1995 except where the appellant is the Lord Advocate; [^F90or^F90]

(b)^F91an application under section 111(2) of the Act of 1995 (application to extend time); ...

^F92(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[^F93 (5A) The note of appeal shall be signed by—

(a)the counsel or solicitor advocate who has drafted it; or

(b)the appellant where the appellant has drafted it and intends to conduct the appeal himself.^F93]

(6) An appeal under section 19 of the Prisoners and Criminal Proceedings (Scotland) Act 1993(6) (appeals in respect of decisions relating to supervised release orders) shall be in Form 15.2-B.

Appeals against refusal of applications heard by single judge_I47

15.3.—(1) Where an application has been dealt with by a single judge of the High Court by virtue of section 103(5) of the Act of 1995 (powers exercisable by single judge), the Clerk of Justiciary shall notify the decision to the applicant in Form 15.3-A.

(2) In the event of such judge refusing any such application, the Clerk of Justiciary on notifying such refusal to the applicant shall forward to him a form in Form 15.3-B to complete and return forthwith if he desires to have his application determined by the High Court as constituted for the hearing of appeals under Part VIII of the Act of 1995 (appeals from solemn proceedings).

Extension of time by Clerk of Justiciary_I48

15.4. Where, under section 110(2) of the Act of 1995, the Clerk of Justiciary extends the period for lodging a note of appeal, the period of any such extension shall be recorded on the completed form of intimation of intention to appeal.

Intimation of appeal against sentence of death_I49

15.5. The Clerk of Justiciary shall intimate an appeal against a conviction in respect of which sentence of death has been pronounced, and the determination in any such appeal, immediately on such intimation or determination, as the case may be, to—

(a)the Secretary of State for Scotland; and

(b)the governor of the prison in which the appellant is detained.

[^F94Procedural hearing

15.5A—(1) In any appeal ^F95... the Clerk of Justiciary may fix a procedural hearing for the purposes of determining whether the parties are ready to proceed to a hearing of the appeal.

(2) The procedural hearing shall be heard by a judge of the High Court and, where the appellant is an individual and is represented, may be held in his absence.

(3) The Clerk of Justiciary shall intimate to the parties in Form 15.5A-A the date of the procedural hearing fixed under paragraph (1), not later than twenty-one days before that date.

(4) Not later than seven days before the date of the procedural hearing, the appellant shall complete and lodge a notice in Form 15.5A-B with the Clerk of Justiciary and send a copy to the respondent. The said notice shall be signed by the counsel or solicitor advocate representing the appellant in the appeal, or by the appellant where the appellant intends to conduct the appeal himself.

(5) Where the appellant has lodged a notice in accordance with paragraph (4), the Clerk of Justiciary, having considered the terms of the said notice and any representations made to him by the respondent, may determine that it is unnecessary to proceed with the procedural hearing and, if he so determines, shall intimate this to the parties not less than forty-eight hours before the date of the procedural hearing.

(6) Not later than seven days after the last day of the appeal court sitting during which

(a)the procedural hearing at which it has been determined that the appeal is ready to proceed has been heard; or

(b)the procedural hearing was due to be heard but in respect of which the Clerk of Justiciary has made a determination in terms of paragraph (5),

the Clerk of Justiciary shall fix and intimate to the parties the date when the appeal is to be heard.

^F96(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .^F94]

Abandonment of appeals_I50

15.6. A notice of abandonment under section 116(1) of the Act of 1995 (abandonment of appeal) shall be in Form 15.6.

Note of proceedings at trial_I51

15.7. In an appeal under section 106(1) of the Act of 1995 (right of appeal), the High Court may require the judge who presided at the trial to produce any notes taken by him of the proceedings at the trial.

Clerk to give notice of date of hearing_I52

15.8.—(1) Where the High Court fixes the date for the hearing of an appeal [^F97, or fixes the date for a hearing in chambers of an application under section 111(2) of the Act of 1995 (application to extend time) and makes a direction under section 111(4) of the Act of 1995 (parties to be present)^F97] , 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; and the appellant or applicant shall, within seven days before the hearing, lodge three copies (typed or printed) of the appeal or application for the use of the court.

(2) Where the powers of the court are to be exercised by a single judge under section 103(5) of the Act of 1995 (powers exerciseable by single judge), a copy of the application to be determined shall be lodged for the use of the judge.

(3) A notice by the Clerk of Justiciary to the Secretary of State for the purposes of section 117(4) of the Act of 1995 (notice that appellant or applicant be present at a diet) shall be in Form 15.8.

Continuation of hearings_I53

15.9.—(1) The High Court, or any single judge exercising the powers of the High Court under section 103(5) of the Act of 1995 (powers exerciseable by single judge), may continue the hearing of any appeal or application to a date, fixed or not fixed.

(2) Any judge of the High Court, or the person appointed by the court to take additional evidence, may fix any diet or proof necessary for that purpose.

Note to be kept of appeal_I54

15.10.—(1) The Clerk of Justiciary shall, in all cases of appeal from a conviction obtained or sentence pronounced in the High Court, note on the margin of the record of the trial the fact of an appeal having been taken and the result of the appeal.

(2) In the case of an appeal taken against any conviction obtained or sentence pronounced in the sheriff court on indictment, the Clerk of Justiciary shall notify the clerk of that court of the result of the appeal; and it shall be the duty of the clerk of that court to enter on the margin of the record of the trial a note of such result.

Suspension of disqualification from driving pending appeal_I55

15.11.—(1) Where a person who has been disqualified from holding or obtaining a driving licence following a conviction on indictment appeals against that disqualification to the High Court, any application to suspend that disqualification pending the hearing of the appeal shall be made—

(a)if the sentencing court was the sheriff, by application to the sheriff; or

(b)if the sentencing court was the High Court, or if an application to the sheriff under sub-paragraph (a) has been refused, by petition to the High Court.

(2) An application to the sheriff under paragraph (1)(a) shall be—

(a)in Form 15.11-A, and

(b)lodged with the sheriff clerk with a copy of the note of appeal endorsed with the receipt of the Clerk of Justiciary;

and the sheriff clerk shall record the order made by the sheriff on the application in the minute of proceedings.

(3) A petition to the High Court under paragraph (1)(b) shall be—

(a)in Form 15.11-B; and

(b)lodged with the Clerk of Justiciary.

Provisions supplemental to rule 15.11(3)_I56

15.12.—(1) The petitioner or his solicitor shall, on lodging a petition under rule 15.11(3), send a copy of it to—

(a)the Crown Agent; and

(b)if the sentencing court was the sheriff, the clerk of that court.

(2) The High Court may order such further intimation (including intimation to the Lord Advocate) as it thinks fit, and may dispose of the application in open court or in chambers.

(3) An order made by a single judge under paragraph (2) shall not be subject to review.

(4) On an order being made on a petition under rule 15.11(3), the Clerk of Justiciary shall, if the sentencing court was the sheriff, send a certified copy of the order to the clerk of that court.

(5) Where the order referred to in paragraph (4) suspends a disqualification from driving, the Clerk of Justiciary shall also send a certified copy of the order to the Secretary of State with such further information as the Secretary of State may require.

(6) The Clerk of Justiciary shall, on determination of the appeal against a disqualification from driving—

(a)if the sentencing court was the sheriff, send the clerk of that court a certified copy of the order determining the appeal and the clerk of that court shall, if appropriate, make the appropriate endorsement on the appellant’s driving licence and intimate the disqualification to the persons concerned; or

(b)if the appeal against the disqualification is refused, make the appropriate endorsement on the appellant’s driving licence and intimate the disqualification to the persons concerned.

(7) Where leave to appeal has been refused under section 107 of the Act of 1995,“determination” in paragraph (6) of this rule means—

(a)the fifteenth day after the date of intimation to the appellant or his solicitor of refusal of leave under subsection (1)(b) of that section, unless the appellant applies to the High Court for leave to appeal; or

(b)the day two days after the date of intimation to the appellant or his solicitor of the refusal of leave by the High Court under subsection (5)(b) of that section.

[^F98Suspension of sentence under s.121A of the Act of 1995

15.12A –

(1) Where under section 109(1) of the Act of 1995 a person lodges intimation of intention to appeal, any application for suspension of a relevant sentence under section 121A of that Act shall be made by petition to the High Court in Form 15.12A-A.

(2) Where a convicted person or the prosecutor lodges a note of appeal in respect of an appeal under section 106(1)(b) to (e) or 108 of the Act of 1995, as the case may be, any application for suspension of a relevant sentence under section 121A of that Act shall be made by petition to the High Court in Form 15.12A-B.

(3) A petition to the High Court under paragraph (1) or (2) shall be lodged with the Clerk of Justiciary.

(4) The court shall grant or refuse any application under paragraph (1) or (2) within 7 days of the petition having been lodged as mentioned in paragraph (3).

(5) Where the court grants an application under paragraph (1) or (2) the Clerk of Justiciary shall, if the sentencing court was the sheriff, send a certified copy of the order to the clerk of that court.

(6) In any case where—

(a)intimation of intention to appeal is lodged under section 109(1) of the Act of 1995; and

(b)a relevant sentence is suspended under section 121A of that Act,

but no note of appeal is lodged under section 110 of that Act, the order suspending ad interim the relevant sentence shall be recalled with effect from the seventh day after the date on which the Clerk of Justiciary intimates that the appeal is deemed to have been abandoned.

(7) In the application of section 121A of the Act of 1995 (suspension of certain sentences pending appeal) to a case in which leave to appeal has been refused under section 107 of that Act , the word “determined” in subsection (1) of the said section 121A shall be construed as meaning—

(a)the fifteenth day after the date of intimation to the appellant or his solicitor and to the Crown Agent of refusal of leave under subsection (1)(b) of section 107 of that Act, unless the appellant applies to the High Court for leave to appeal; or

(b)the seventh day after the date of intimation to the appellant or his solicitor and to the Crown Agent of the refusal of leave by the High Court under subsection (5)(b) of section 107 of that Act.^F98]

Suspension of disqualification etc. under section 121 of the Act of 1995_I57

15.13. In the application of section 121 of the Act of 1995 (suspension of disqualification, forfeiture, etc.) to a case in which leave to appeal has been refused under section 107 of the Act of 1995, the word“determined” in subsections (1) and (2) of section 121 of that Act shall be construed as meaning—

(a)the fifteenth day after the date of intimation to the appellant or his solicitor of refusal of leave under subsection (1)(b) of section 107 of that Act, unless the appellant applies to the High Court for leave to appeal; or

(b)the day [^F99seven^F99] days after the date of intimation to the appellant or his solicitor of the refusal of leave by the High Court under subsection (5)(b) of section 107 of that Act.

[^F100Remits in applications for leave to appeal

15.14. The judge of the High Court considering an application for leave to appeal under section 107 of the Act of 1995 may, before deciding to grant or refuse leave, remit the case to the judge who presided at the trial for a supplementary report to be produced to him as soon as is reasonably practicable on any matter with respect to the grounds of appeal.^F100]

[^F101Amended grounds of appeal

15.15.—(1) On cause shown, the High Court may grant leave to an appellant to amend the grounds of appeal contained in the note of appeal.

(2) Where the High Court has granted leave to amend the grounds of appeal under paragraph (1), it may order—

(a)that the Clerk of Justiciary shall send a copy of the amended note of appeal to the judge who presided at the trial; and

(b)that as soon as is reasonably practicable after receiving a copy of the amended note of appeal, the judge who presided at the trial shall provide the Clerk of Justiciary with a written report on the amended grounds of appeal.

(3) Section 113(2) to (4) of the Act of 1995 (judge’s report) shall apply to a report on the amended grounds of appeal ordered under paragraph (2) as it applies to a report under subsection (1) of that section.

(4) Where the High Court grants leave to amend under paragraph (1), section 107 of the Act of 1995 shall apply, unless the Court otherwise directs, for the purposes of obtaining leave to appeal for the amended grounds of appeal as it applied for the purposes of the original grounds of appeal and, for the references in subsection (2)(a) and (c) of that section to the note of appeal and the trial judge’s report, there shall be substituted references to the amended grounds of appeal contained in the amended note of appeal and the trial judge’s report, if any, on the amended grounds of appeal, respectively.

[^F102 (5) This rule does not apply to appeals on reference to the High Court under section 194B of the Act of 1995.^F102,F101]]

[^F103Requirement for case and argument

15.15A.—(1) Subject to paragraphs (2) and (3), this rule applies to an appeal under section 106(1)(a) or (f) of the Act of 1995.

(2) The court may, of its own motion or on the application of the appellant, order that this rule is not to apply in a particular appeal or to a particular aspect of an appeal.

(3) Where in relation to any ground of appeal an appellant seeks to lead evidence this rule shall apply to that ground of appeal only in relation to the question of whether that evidence should be led; but the court may nevertheless make an order containing provision similar to this rule in relation to the presentation of submissions following the hearing of that evidence.

(4) The appellant must, within 42 days of the granting of leave to appeal in accordance with section 107 of the Act of 1995, lodge a case and argument.

(5) A case and argument must—

(a)set out, for each ground of appeal, a succinct and articulate statement of the facts founded upon and the propositions of law being advanced;

(b)contain an estimate of how long will be required for the hearing of the appeal; and

(c)be signed by counsel or the solicitor advocate instructed to represent the party concerned in the conduct of the appeal, or by the appellant where the appellant intends to conduct the appeal himself.

(6) A case and argument must, when lodged, be accompanied by—

(a)all documents, or a copy thereof, referred to or founded upon in the case and argument and not already lodged in the appeal process; and

(b)all authorities, or a copy thereof, listed in the case and argument and not contained within a publication specified by the Lord Justice General by direction.

(7) The Crown—

(a)must, if the court, considering that the circumstances of the case require it, orders it to do so; and

(b)may, if it considers it appropriate to do so,

lodge a case and argument in response to the appellant’s case and argument.

(8) Where the court makes an order under paragraph (7)(a), the Crown must lodge the case and argument within 21 days of the making of that order.

(9) At the same time as a case and argument is lodged, a copy of it and of all the documents accompanying it must be sent to the other party to the appeal.

(10) Where the Deputy Principal Clerk of Justiciary considers a case and argument to be unduly lengthy he shall refer the matter to a judge of the High Court who shall give such directions as he considers appropriate.

(11) Where a case and argument is not lodged timeously, the Deputy Principal Clerk of Justiciary shall refer the matter to the Lord Justice General, whom failing the Lord Justice Clerk, for such action as he considers appropriate.

(12) The court may, on the application of the relevant party and on cause shown, extend the period for lodging a case and argument.

Hearing of appeal

15.15B.—(1) This Rule applies to the hearing of an appeal in so far as a case and argument has been lodged by the appellant in terms of rule 15.15A(4).

(2) At the hearing of the appeal—

(a)the appellant’s case and argument and supporting documents shall constitute the principal submissions of the appellant;

(b)unless it otherwise directs, the court will expect the appellant to rely on the case and argument without reading it over to the court;

(c)the appellant may, subject to the control of the court, make supplementary comment to the case and argument;

(d)the appellant may respond to any case and argument lodged by the Crown; and

(e)the appellant shall answer any points raised by the court.

(3) Where the Crown lodges a case and argument paragraph (2) applies, with the necessary modifications, to the Crown as it applies to the appellant.

(4) The appellant and Crown have a duty to co-operate with each other and the court to ensure the completion of the hearing of the appeal within the time allocated by the court;

(5) The court may, at any point during the hearing, set a timetable for the completion by a party of any submissions permitted in terms of paragraph (2)(b), (c), (d) or (e).

(6) On cause shown, the court may permit the appellant to introduce new information that has come to light in the period since the case and argument was lodged.

(7) Where the court permits the introduction of new information, it may at its discretion permit the lodging of additional documents in support of the new information.

(8) An appellant who wishes to introduce new information and lodge additional documents shall send a copy of the information and documents to the Clerk of Justiciary and to the Crown as soon as the information and documents come into the appellant’s possession.

(9) An appellant who has sent new information and documents to the Clerk of Justiciary shall apply at the bar to allow it to be introduced or lodged, as the case may be.^F103]

[^F104Presentation of solem sentence appeal in writing.

15.16.—(1) This rule applies to an appeal under sections 106(1)(b) to (e) [^F105 , 108(1) or 210F(3)^F105] of the Act of 1995 listed in terms of rule 15.1(3) (register and lists of appeals).

(2) In an appeal to which paragraph (1) applies, the appellant shall present his case in writing.

(3) The solicitor for the appellant or, if unrepresented, the appellant shall—

(a)not later than [^F106 14^F106] days before the date assigned for the appeal court hearing, lodge a case and argument in Form 15.16;

(b)lodge with the case and argument all documents, or a copy thereof, referred to or founded upon in the case and argument and not already lodged; and

(c)at the same time as he lodges the case and argument referred to in sub-paragraph (a) and the supporting documents referred to in sub-paragraph (b), send a copy to the Crown or, where the Crown is the appellant, to the respondent.

(4) The case and argument referred to in paragraph (3) shall be signed by counsel or the solicitor advocate representing the appellant in the appeal, or by the appellant where the appellant intends to conduct the appeal himself.

(5) At the hearing of the appeal—

(a)the case and argument and supporting documents referred to in paragraph (3) shall constitute the submissions of the appellant;

(b)unless it otherwise directs, the Court will expect the appellant to rely upon the case and argument without reading it over to the Court; and

(c)the appellant may make supplementary comments to the case and argument; and shall answer any points raised by the Court.

(6) On cause shown, the Court may permit the appellant to introduce new information that has come to light in the period since the case and argument was lodged.

(7) Where the Court permits the introduction of new information, it may at its discretion permit the lodging of additional documents in support of the new information.

(8) A party who wishes to introduce new information and lodge additional documents shall send a copy of the information and documents to the Clerk of Justiciary as soon as the information and documents come into the appellant’s possession.

(9) A party who has sent new information and documents to the Clerk of Justiciary shall make application at the bar to allow it to be introduced or lodged, as the case may be.

(10) Where the documents referred to in paragraph (3) are not lodged timeously, the Deputy Principal Clerk of Justiciary shall refer the matter to the Lord Justice-General, whom failing the Lord Justice-Clerk, for such action as the Lord Justice-General or Lord Justice-Clerk, as the case may be, considers appropriate.^F104]

[^F107Copying of transcripts to other parties

15.16A.—(1) Where the prosecutor receives a transcript under section 94(2) of the Act of 1995, the prosecutor shall forthwith send a copy to the other parties and to the clerk of court.

(2) Where a person receives a transcript under section 94(2A) of the Act of 1995, that person shall forthwith send a copy to the other parties and to the clerk of court.^F107]

[^F108Lodging and intimation of transcripts

15.17.—(1) This rule applies where a party intends to rely upon a transcript of a record made under section 93(1) of the Act of 1995 (record of trial) in any appeal under section 106 or 108 of that Act.

(2) The party shall lodge 4 copies of the transcript or any relevant part thereof with the Clerk of Justiciary in accordance with paragraphs (3) and (4) and shall at the same time [^F109 intimate to the other parties that the transcript or the relevant part thereof has been so lodged^F109] .

(3) Where a procedural hearing has been fixed the party shall lodge the copies not later than 7 days before the date of that hearing.

(4) Where no procedural hearing has been fixed the party shall lodge the copies not later than [^F110 28^F110] days before the date of the hearing at which he intends to rely upon the transcript.

(5) Where a party has not complied with the requirements of paragraphs (3) and (4) he shall not, except by leave of the court on cause shown, be permitted to refer to such transcript in the course of any hearing.^F108]

PART IV Summary proceedings

CHAPTER 16 COMPLAINTS

Form of complaints and related notices and forms_I58

16.1.—(1) The form of complaint referred to in section 138(1) of the Act of 1995 shall be in Form 16.1-A.

(2) The form of citation of an accused referred to in section 140(2) [^F111and (2A)^F111] of the Act of 1995 shall be in Form 16.1-B.

[^F112 (2A) The notice to be affixed to the door of the dwelling-house or place of business of an accused for the purposes of section 141(2A) of the Act of 1995 (citation of accused by affixing a notice) shall be in Form 16.1-BB.^F112]

(3) The procurator fiscal shall send to the accused with the citation in Form 16.1-B—

(a)a reply form in Form 16.1-C for completion and return by him stating whether he pleads guilty or not guilty; and

(b)a means form in Form 16.1-D for completion and return by him.

[^F113 (3A) The form of notice referred to in section 146(3A) of the Act of 1995 shall be in Form 16.1-BA.^F113]

(4) The form of notice of previous convictions to be served on an accused under section 166(2) of the Act of 1995 shall be in Form 16.1-E.

Signature of prosecutor_I59

16.2.—(1) The prosecutor shall sign the principal complaint and the citation to the accused.

(2) Any document sent with the citation to the accused including the copy complaint shall, for the purposes of such signature, be treated as part of the citation.

Effect of failure by prosecutor to comply with certain requirements_I60

16.3. The validity of any proceedings against an accused shall not be affected by reason only of the failure of the prosecutor to comply in any respect with a requirement of rule 16.1(3) (reply and means forms).

Further procedural forms_I61

16.4.—(1) The form of incidental application referred to in section 134 of the Act of 1995 (incidental applications) shall be in Form 16.4-A.

(2) The form of assignation of a diet shall be in Form 16.4-B.

(3) The form of minutes in the record of proceedings in summary proceedings shall be in Form 16.4-C.

[^F114Incidental applications out of hours

16.4A.—(1) Where the prosecutor makes an incidental application in Form 16.4–A when the office of the prosecutor is closed, the application shall not require to be signed by the prosecutor but shall state the name of the prosecutor.

(2) The oath of a police officer shall be sufficient to authenticate the application as being an application by the prosecutor named on the application.^F114]

Form of certain warrants_I62

16.5.—(1) The form of warrant referred to in section 135 of the Act of 1995 (warrants of apprehension and search)—

(a)to apprehend an accused shall be in Form 16.5-A;

(b)to search the person, dwelling house and repositories of the accused shall be in Form 16.5-B.

(2) The form of order adjourning a diet and granting warrant to detain an accused shall be in Form 16.5-C.

Citation of witnesses_I63

16.6.—(1) The form of postal citation of a person to appear as a witness at a trial on a summary complaint shall be in Form 16.6-A; and the witness shall complete and return Form 16.6-B to the procurator fiscal, or the accused or his solicitor, as the case may be, in the pre-paid envelope provided within 14 days after the date of citation.

(2) The form of personal citation of a witness at a trial on a summary complaint shall be in Form 16.6-C.

[^F115 (2A) The form of electronic citation of a person to appear as a witness at a trial on summary complaint shall be in Form 16.6-D; and the witness shall complete and return Form 16.6-B to the procurator fiscal, or the accused or his solicitor as the case may be, by electronic mail or by post within 14 days after the date of citation.^F115]

[^F116 (3) In the case of a postal citation in Form 16.6-A by the prosecutor under section 141 of the Act of 1995, the citation may be signed by the prosecutor by use of an official stamp of his signature or by mechanical or electronic means.^F116]

Applications for alteration of diets_I64

16.7.—(1) Where the prosecutor and the accused propose to make a joint application orally to the court under section 137(2) of the Act of 1995 (application for alteration of diet) for postponement of a diet that has been fixed, they may do so only at a diet which has been duly assigned and which has been called.

(2) An application by an accused under section 137(5) of the Act of 1995 (application to postpone or accelerate diet) shall be made in Form 16.7.

[^F117CHAPTER 16A ENGAGEMENT, DISMISSAL AND WITHDRAWAL OF SOLICITORS IN SUMMARY PROCEEDINGS

Notification

16A.1.—(1) The notification to the court in writing under section 148C(1) of the Act of 1995 (engagement, dismissal and withdrawal of solicitor representing accused) that a solicitor has been engaged by the accused for the purposes of his defence at trial shall be in Form 16A.1–A.

(2) The notification to the court in writing under section 148C(3) of the Act of 1995 that a solicitor has been dismissed by the accused or has withdrawn from acting shall be in Form 16A.1–B.^F117]

CHAPTER 17 SUMMARY PRE-TRIAL PROCEDURE

[^F118Applications for extension of period of detention

17.A1. An application made in writing for extension of time under section 147 of the Act of 1995 (prevention of delay in trials) shall be in Form 17.A1 and shall be intimated to the other parties by the applicant.^F118]

Appeals against extension of period of detention_I65

17.1.—(1) A note of appeal presented to the [^F119Sheriff Appeal Court^F119] under section 147(3) of the Act of 1995 (appeal against grant or refusal of extension of 40 days detention) shall be made in Form 17.1.

(2) Such a note of appeal shall be served by the appellant on—

(a)the respondent; and

(b)the clerk of the court against the decision of which the appeal is taken.

(3) The appellant in such a note of appeal shall lodge with the [^F120Clerk of the Sheriff Appeal Court^F120] —

(a)the note of appeal; and

(b)the certificate of execution of service in respect of the persons mentioned in paragraph (2).

(4) The clerk of the court against the decision of which the appeal is taken shall, as soon as practicable after being served with the note of appeal, transmit to the [^F121Clerk of the Sheriff Appeal Court^F121] the original application and all the relative documents; and the [^F121Clerk of the Sheriff Appeal Court^F121] shall, on receipt of those documents, assign the appeal to the roll and intimate the date of the diet to the appellant and the respondent.

[^F122 (4A) Where the sheriff’s report is not included in the documents mentioned in paragraph (4) the [^F123 Clerk of the Sheriff Appeal Court^F123] shall request the report from the clerk of the court against the decision of which the appeal is taken.^F122]

(5) The [^F124Clerk of the Sheriff Appeal Court^F124] shall intimate the result of the appeal to the court against the decision of which the appeal was taken and to the governor of the institution in which the appellant is detained.

[^F125Notice of defences

17.2.—(1) Notification to the prosecutor of a defence under section 149B of the Act of 1995 (notice of defences) shall be in Form 17.2.

(2) At the same time as giving notification under paragraph (1) the accused shall serve a copy of the notification on any co-accused.^F125]

[^F126CHAPTER 17A TRANSFER OF SUMMARY PROCEEDINGS

Transfer of summary proceedings

17A.1.—(1) A written application by the procurator fiscal under—

(a)section 137A(1) [^F127 or section 137CA(2)^F127] of the Act of 1995 (transfer within sheriffdom) shall be in Form 17A.1-A;

(b)section 137B(1) [^F128 or section 137CB(2)^F128] of the Act of 1995 (transfer outwith sheriffdom due to exceptional circumstances) shall be in Form 17A.1-B;

(c)section 137B(1A) [^F129 or section 137CB(4)^F129] of the Act of 1995 (transfer outwith sheriffdom where accused cited to attend diet in other summary proceedings or other summary proceedings commenced) shall be in Form 17A.1-C;

(d)section 137B(1C) [^F130 or section 137CB(6)^F130] of the Act of 1995 (transfer outwith sheriffdom: intention to take summary proceedings where other summary proceedings commenced) shall be in Form 17A.1-D;

(e)section 137B(3) [^F131 or section 137CB(9)^F131] of the Act of 1995 (transfer outwith sheriffdom due to exceptional circumstances: revocation or variation of order) shall be in Form 17A.1-E;

(f)section 137B(4) [^F132 or section 137CB(10)^F132] of the Act of 1995 (transfer outwith sheriffdom where other summary proceedings commenced or intended: revocation or variation of order) shall be in Form 17A.1-F;

(g)section 137C(1) [^F133 or section 137CC(2)^F133] of the Act of 1995 (initiating custody cases outwith sheriffdom: exceptional circumstances) shall be in Form 17A.1-G;

(h)section 137D(1) of the Act of 1995 (transfer of justice of the peace court proceedings where accused person to be sentenced in sheriff court) shall be in Form 17A.1-H.

(2) Where the sheriff principal consents to an application under paragraph (1)(b), (e) or (g), he shall docquet his consent to the application.

(3) Where a sheriff consents to an application under paragraph (1)(c), (d) or (f), he shall docquet his consent to the application.^F126]

CHAPTER 18 PROCEDURE AT TRIAL IN SUMMARY PROCEEDINGS

Accused to plead personally and to receive intimation of diets_I66

18.1.—(1) Subject to paragraph (2), in any summary proceedings where a person accused in those proceedings is present in court, that person shall personally plead to the charge against him whether or not he is represented.

(2) Where the judge is satisfied that the accused is not capable for any reason of pleading personally to the charge against him, it shall be sufficient if the plea is tendered by a solicitor or by counsel on his behalf.

(3) Where an accused is not represented or not personally present and a court continues a diet without taking a plea from the accused, the prosecutor shall intimate the continuation and the date of the adjourned diet to the accused.

(4) Subject to section 150(2) of the Act of 1995 (adjournment to another diet), where an accused is not represented or not personally present, on the fixing of—

(a)a diet of trial,

(b)a diet after conviction, or

(c)any diet after a plea from the accused has been recorded,

the sheriff clerk or clerk of the [^F134justice of the peace court^F134] shall intimate the diet to the accused.

(5) Where the accused pleads guilty to the charge or to any part of it, and his plea is accepted by the prosecutor, the plea shall be recorded and signed by the judge or clerk of court, and the court shall thereafter dispose of the case at the same or any adjourned diet.

(6) The plea referred to in paragraph (5) and any sentence may be combined, in which case one signature shall be sufficient to authenticate both.

Form of oath or affirmation to witnesses_I67

18.2.—(1) Where the judge administers the oath to a witness in summary proceedings, he shall do so in accordance with the form in Form 14.5-A.

(2) In the case of any witness who elects to affirm, the judge shall administer the affirmation in accordance with the form in Form 14.5-B.

(3) The oath or the affirmation administered in accordance with paragraph (1) or (2), as the case may be, shall be treated as having been administered in common form.

[^F135Warrants for apprehension of witnesses

18.3.—(1) An application made in writing for a warrant for the apprehension of a witness under section 156 or 156C of the Act of 1995 (apprehension of witnesses) shall be in Form 18.3-A.

(2) On receipt of an application under paragraph (1), the clerk of court shall fix a diet for the hearing of the application and intimate the date of the hearing to the parties.

(3) A warrant for the apprehension of a witness under section 156(1) of the Act of 1995 shall be in Form 18.3-B.

Review by witnesses of orders made under section 156A

18.3A. An application under section 156C(2)(a) of the Act of 1995 (application by party for review of order under section 156A(1)(b)) shall be in Form 18.3A.

Citation of witnesses under section 156C(5)

18.3B. The citation of a witness under section 156C(5)(b) shall be in Form 18.3B.

Appeals in respect of orders made under section 156A(1)

18.3C. An appeal under section 156D(1) of the 1995 Act (appeals in respect of orders under section 156A(1)) shall be in Form 18.3C.^F135]

Record of proceedings to be written or printed_I68

18.4.—(1) The record of proceedings in summary proceedings may be in writing or printed, or may be partly written and partly printed.

(2) All forms of minute of proceedings or orders of the court may be on the same sheet of paper as the complaint or on a separate sheet attached to it.

[^F136 (3) Where the record of proceedings or minute of proceedings or orders of the Court referred to in paragraph (1) or (2) are for whatever reason unavailable to the Court, it shall be competent for the Court to proceed with a copy certified as a true copy by the clerk of court.^F136]

Interruption of proceedings after conviction_I69

18.5.—(1) On conviction of an accused in summary proceedings, the judge may, without adjourning those proceedings, interrupt them by—

(a)considering a conviction against that person in other proceedings pending before that court for which he has not been sentenced; or

(b)passing sentence on that person in respect of the conviction in those other proceedings.

(2) When the judge has interrupted any proceedings under paragraph (1), he may, in passing sentence on an accused person in respect of a conviction in those proceedings, at the same time pass sentence on that person in respect of any other conviction he has considered.

(3) No interruption of any proceedings under paragraph (1) shall cause the instance to fall in respect of any person accused in those proceedings or shall otherwise affect the validity of those proceedings.

Detention in precincts of court

^F13718.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 19 APPEALS FROM SUMMARY PROCEEDINGS

Appeals relating to preliminary pleas_I70

19.1.—(1) If—

(a)an accused states an objection to the competency or relevancy of a complaint or the proceedings, and

(b)that objection is repelled,

he may apply for leave to appeal against that decision under section 174(1) of the Act of 1995 (appeals relating to preliminary pleas) only after stating how he pleads to the charge or charges set out in the complaint.

(2) Subject to paragraph (1), the accused shall apply for leave to appeal against any decision to which that paragraph applies; and the court which made the decision shall determine that application immediately following the decision in question.

(3) Where the court grants the application, the clerk of court shall enter in the minute of proceedings—

(a)details of the decision in question; and

(b)the granting of leave to appeal against it.

(4) An appeal to which this rule applies shall be made by note of appeal in Form 19.1-A.

(5) The note of appeal shall be lodged with the clerk of the court which granted leave to appeal not later than [^F138seven^F138] days after the decision appealed against.

(6) The clerk of court shall, on the lodging of the note of appeal with him—

(a)send a copy to the respondent or his solicitor;

(b)request a report from the presiding judge; and

(c)transmit—

(i)the note of appeal,

(ii)two certified copies of the complaint and the minutes of proceedings, and

(iii)any other relevant documents,

to the [^F139Clerk of the Sheriff Appeal Court^F139] .

(7) The presiding judge shall, as soon as possible after receiving a request for a report, send his report to the [^F140Clerk of the Sheriff Appeal Court^F140] who shall send a copy to the appellant and respondent or their solicitors.

(8) The [^F141Clerk of the Sheriff Appeal Court^F141] shall arrange for the [^F142Sheriff Appeal Court^F142] to hear the appeal as soon as possible, and shall cause to be copied any documents necessary for the [^F142Sheriff Appeal Court^F142] .

(9) Where the [^F143Sheriff Appeal Court^F143] makes any order postponing the trial diet under section 174(2) of the Act of 1995, or makes any such order and gives a direction under that section, the [^F144Clerk of the Sheriff Appeal Court^F144] shall send a copy of that order and any direction to—

(a)the appropriate clerk of court;

(b)any accused who are not parties to the appeal or to their solicitors; and

(c)the governor of any institution in which any accused is detained.

(10) Any such appeal may be abandoned at any time prior to the hearing of the appeal.

(11) Where an appeal is abandoned, a minute of abandonment in Form 19.1-B shall be lodged with the [^F145Clerk of the Sheriff Appeal Court^F145] .

(12) On the lodging of a minute of abandonment under paragraph (11), the [^F146Clerk of the Sheriff Appeal Court^F146] shall inform the appropriate clerk of court and the respondent or his solicitor that the appeal has been abandoned.

Forms for appeals by stated case_I71

19.2.—(1) An application under section 176(1) of the Act of 1995 (stated case: manner and time of appeal) shall be in Form 19.2-A.

(2) A stated case shall be in Form 19.2-B.

(3) The form of minutes of procedure in an appeal by stated case shall be in Form 19.2-C.

Forms for appeals against sentence only_I72

19.3.—(1) A note of appeal under section 186(1) of the Act of 1995 (appeals against sentence only) shall be in Form 19.3-A.

(2) The form of minutes of procedure in an appeal under section 186(1) of the Act of 1995 shall be in Form 19.3-B.

Extension of time for appeals_I73

19.4.—(1) An extension of time by the sheriff principal under section 186(5) (extension of time in appeal against sentence only), or section 194(2) (extension of time for stated case), of the Act of 1995 shall be in Form 19.4.

(2) Where, by virtue of subsection (8) of section 186 of the Act of 1995 (application of section 181 where appellant in appeal against sentence only fails to comply with a requirement), the court makes an order extending the period within which the note of appeal shall be lodged under subsection (2) of that section, the periods mentioned in subsections (2) and (4) of that section shall run from the date which is two days after the date on which the court makes that order and not from the date of the passing of the sentence.

Abandonment of appeals by stated case_I74

19.5. A minute of abandonment of an appeal under section 184(1) of the Act of 1995 (abandonment of stated case before lodging it with the [^F147Clerk of the Sheriff Appeal Court^F147] ) shall be in Form 19.5.

Abandoning appeals against conviction only_I75

19.6.—(1) This rule applies for the purpose of section 175(8) of the Act of 1995 (abandoning appeal against conviction and proceeding with appeal against sentence alone).

(2) An application to abandon an appeal under section 175(8) of the Act of 1995 shall be made by minute in Form 19.6 and intimated by the appellant to the respondent.

(3) Subject to paragraph (4), the minute shall be lodged with the clerk of the court which imposed the sentence being appealed against.

(4) Where, before the lodging of the minute, the stated case has been lodged with the [^F148Clerk of the Sheriff Appeal Court^F148] , the minute shall be lodged with the [^F148Clerk of the Sheriff Appeal Court^F148] who shall send a copy of the minute to the clerk of the court which imposed the sentence appealed against.

(5) Where, before the lodging of the minute, copies of the stated case and relative proceedings have been lodged with the [^F149Clerk of the Sheriff Appeal Court^F149] , those copies shall be used for the purposes of the hearing of the appeal against sentence.

(6) On the lodging of the minute, section 186(3) to (9) of the Act of 1995 (provisions relating to appeal against sentence only) shall apply to the stated case as they apply to a note of appeal.

Abandonment of appeals against sentence only_I76

19.7. A minute of abandonment under section 186(9) of the Act of 1995 (abandonment of appeal against sentence only) shall be in Form 19.7.

Intimation of abandonment_I77

19.8. The [^F150Clerk of the Sheriff Appeal Court^F150] or clerk of court, as the case may be, on the lodging with him of—

(a)a minute abandoning an appeal under section 184(1) of the Act of 1995 (abandonment of appeal by stated case before lodging of case with the [^F150Clerk of the Sheriff Appeal Court^F150] ), or

(b)a minute abandoning an appeal under section 186(9) of the Act of 1995 (abandonment of appeal against sentence only),

shall immediately notify the Crown Agent or the prosecutor, as the case may be, of the lodging of the minute; and the [^F150Clerk of the Sheriff Appeal Court^F150] shall, where the minute is lodged with him, notify immediately the clerk of the appropriate court.

Applications for suspension of disqualification from driving in appeals_I78

19.9.—(1) Where a person who has been disqualified from holding or obtaining a driving licence appeals against that disqualification under section 176(1) of the Act of 1995 by stated case, any application to suspend the disqualification shall be made with the application to the court to state a case for the opinion of the [^F151Sheriff Appeal Court^F151] .

(2) On an application being made under paragraph (1) to suspend a disqualification, the court shall grant or refuse to grant the application within seven days of it being made.

(3) Where the court refuses to grant the application and the appellant applies to the [^F152Sheriff Appeal Court^F152] to suspend the disqualification, any such application shall be made by note in Form 19.9.

(4) The note shall be lodged by the appellant or his solicitor with the [^F153Clerk of the Sheriff Appeal Court^F153] .

(5) The appellant or his solicitor shall intimate the lodging of the note to the respondent and the clerk of the court which imposed the disqualification.

(6) The clerk shall, on receiving such intimation, forthwith send to the [^F154Clerk of the Sheriff Appeal Court^F154] —

(a)a certified copy of the complaint; and

(b)a certified copy of the minute of proceedings.

(7) The [^F155Sheriff Appeal Court^F155] may order such further intimation (including intimation to the Lord Advocate) as it thinks fit, and may dispose of the application in open court or in chambers after such hearing as it thinks fit.

(8) On the [^F156Sheriff Appeal Court^F156] making an order on the note, the [^F157Clerk of the Sheriff Appeal Court^F157] shall send a certified copy of the order to the clerk of the court which imposed the disqualification.

(9) Where the order suspends the disqualification, the [^F158Clerk of the Sheriff Appeal Court^F158] shall also send a certified copy of the order to the Secretary of State with such further information as the Secretary of State may require.

(10) An order made by a single [^F159Appeal Sheriff^F159] under this rule shall not be subject to appeal or review.

Applications for suspension of disqualification from driving in bills of suspension_I79

19.10.—(1) Where a person who has been disqualified from holding or obtaining a driving licence appeals against that disqualification by bill of suspension, an application to suspend the disqualification shall be made by requesting interim suspension of the disqualification in the prayer of the bill.

(2) Where the court orders interim suspension, that order shall not have effect until—

(a)the bill has been served on the respondent; and

(b)the principal bill and first deliverance on the bill with an execution, or acceptance, of service—

(i)have been shown to the clerk of the sentencing court and he has endorsed a certificate of exhibition; and

(ii)they have been returned to the [^F160Clerk of the Sheriff Appeal Court^F160] by the complainer or his solicitor.

(3) On certifying the bill under paragraph (2), the clerk of the court which imposed the disqualification shall send a certified copy of the complaint and the relative minute of proceedings to the [^F161Clerk of the Sheriff Appeal Court^F161] .

(4) Paragraphs (2), (8), (9) and (10) of rule 19.9 (applications for suspension of disqualification from driving in appeals) apply to this rule as they apply to that rule.

[^F162Suspension of sentence under s.193A of the Act of 1995

19.10A.—(1) Where a convicted person or the prosecutor appeals to the [^F163 Sheriff Appeal Court^F163] under section 175 of the Act of 1995, any application to suspend a relevant sentence shall be made with—

(a)the application to the court to state a case for the opinion of the [^F163 Sheriff Appeal Court^F163] ; or

(b)the note of appeal, as the case may be.

(2) On an application being made under paragraph (1) to suspend a sentence the court shall grant or refuse to grant the application within seven days of its being made.

(3) In the application of section 193A of the Act of 1995 (suspension of certain sentences pending appeal) to a case in which leave to appeal has been refused under section 180 or 187 of that Act, the word “determined” in subsection (1) of the said section 193A shall be construed as meaning—

(a)the fifteenth day after the date of intimation to the appellant or his solicitor and to the [^F164 prosecutor^F164] of refusal of leave under subsection (1)(b) of section 180 or 187 of that Act, as the case may be, unless the appellant applies to the [^F165 Sheriff Appeal Court^F165] for leave to appeal; or

(b)the seventh day after the date of intimation to the appellant or his solicitor and to the [^F166 prosecutor^F166] of the refusal of leave by the [^F167 Sheriff Appeal Court^F167] under subsection (5)(b) of section 180 or subsection (4)(b) of section 187 of that Act, as the case may be.^F162]

[^F168Solicitor entering appearance etc.

19.11.—(1) The solicitor for the appellant or the appellant, if unrepresented, must enter appearance—

(a)at the same time as lodging a stated case in accordance with section 179(9) of the Act of 1995; or

(b)within 7 days after the Clerk of the Sheriff Appeal Court intimates that leave to appeal has been granted in accordance with section 187(9)(a) of the Act of 1995.

(2) Appearance is entered by lodging Form 19.11–A with the Clerk of the Sheriff Appeal Court.

(3) Where an appellant is represented by a solicitor who does not practise in Edinburgh, that solicitor may appoint a solicitor who practises in Edinburgh to carry out the duties of solicitor for the appellant.

(4) If there is a change in representation of an appellant, the new solicitor for the appellant or the appellant, if unrepresented, must lodge Form 19.11–B with the Clerk of the Sheriff Appeal Court within 7 days of that change in representation.

(5) A change in representation occurs where—

(a)an unrepresented appellant instructs a solicitor;

(b)an appellant dismisses the appellant’s solicitor and—

(i)instructs another solicitor; or

(ii)intends to conduct the appeal in person.^F168]

Duty to print stated case etc._I80

19.12.—(1) The solicitor for the appellant or, if unrepresented, the appellant shall—

(a)print the complaint, minutes of proceedings and stated case or bill of suspension;

(b)not later than [^F169twenty-one^F169] days before the hearing, return the process to the [^F170Clerk of the Sheriff Appeal Court^F170] ; and

(c)provide—

(i)the [^F171Clerk of the Sheriff Appeal Court^F171] with four copies of the print; and

(ii)the respondent or his solicitor with three copies of the print.

(2) Where the solicitor for the appellant or the appellant, as the case may be, cannot comply with any of the requirements of paragraph (1), he shall, not later than [^F169twenty-one^F169] days before the hearing, so inform the [^F172Clerk of the Sheriff Appeal Court^F172] in writing with reasons.

(3) On being so informed, the [^F173Clerk of the Sheriff Appeal Court^F173] may in his discretion postpone the hearing by dropping the appeal from the [^F174Criminal Appeal Roll^F174] .

(4) Where the [^F175Clerk of the Sheriff Appeal Court^F175] does not drop the appeal from the roll under paragraph (3), the court may, at the hearing, allow the appeal to be dropped from the roll or may dismiss the appeal.

Duty of solicitor in bill of suspension_I81

19.13. A solicitor who requests a first deliverance in a bill of suspension shall comply with the requirements of rule 19.12(1) and (2) (printing of stated case) whether or not he is the nominated solicitor for the purposes of legal aid.

List of appeals_I82

19.14.[^F176—(1) The Clerk of the Sheriff Appeal Court shall, after consultation with the President of the Sheriff Appeal Court, issue a list of appeals with the respective dates of hearing on the Criminal Appeal Roll.^F176]

(2)[^F177 Subject to paragraph (3)^F177] the [^F178Clerk of the Sheriff Appeal Court^F178] shall give the respective solicitors representing parties to an appeal so listed at least 14 days notice of the date fixed for the hearing of the appeal.

[^F179 (3) In an appeal under section 175(2)(b), (c) or (ca) or by virtue of section 175(4) of the Act of 1995, the period of notice mentioned in paragraph (2) shall be [^F180 28^F180] days.^F179]

Diet for interim suspension_I83

19.15. Where a bill of suspension contains a prayer for interim suspension of any order or for interim liberation—

(a)the [^F181Appeal Sheriff^F181] before whom the bill is laid for a first deliverance shall assign a diet at which [^F182the parties^F182] may be heard on the crave for the interim order; and

(b)the [^F183Clerk of the Sheriff Appeal Court^F183] shall forthwith give notice of that diet to the parties.

Intimation of determination of appeal_I84

19.16.—(1) The [^F184Clerk of the Sheriff Appeal Court^F184] shall send to the clerk of the sentencing court a certified copy of the order made on determination of the appeal from summary proceedings.

(2) Where the appeal against a disqualification from driving is refused or abandoned, the clerk of the sentencing court shall—

(a)make the appropriate endorsement on the driving licence of the appellant; and

(b)intimate the disqualification to the appropriate driving licence and police authorities.

(3) In this rule,“appeal” includes any appeal whether by stated case, note of appeal, bill of suspension or advocation.

Suspension of disqualification etc. under section 193 of the Act of 1995_I85

19.17. In the application of section 193 of the Act of 1995 (suspension of disqualification, forfeiture, etc.) to a case in which leave to appeal has been refused under section 180 or 187 of the Act of 1995, the word “determination” in subsection (1) of section 193 of that Act shall be construed as meaning—

(a)the fifteenth day after the date of intimation to the appellant or his solicitor of refusal of leave under subsection (1)(b) of section 180 or 187 of that Act, as the case may be, unless the appellant applies to the [^F185Sheriff Appeal Court^F185] for leave to appeal; or

(b)the day [^F186seven^F186] days after the date of intimation to the appellant or his solicitor of the refusal of leave by the [^F185Sheriff Appeal Court^F185] under subsection (5)(b) of section 180 or subsection (4)(b) of section 187 of that Act, as the case may be.

[^F187Remits in applications for leave to appeal

19.18. The [^F188 Appeal Sheriff^F188] considering an application for leave to appeal under section 180 (leave to appeal against conviction etc.), or section 187 (leave to appeal against sentence), of the Act of 1995 may, before deciding to grant or refuse leave, remit the case to the judge at first instance for a report or a supplementary report to be produced to him as soon as is reasonably practicable on any matter with respect to the grounds of appeal.^F187]

[^F189Presentation of summary conviction appeals in writing

19.18A.—(1) Where the Sheriff Appeal Court considers that the circumstances of the case require it, it may direct that this rule and rule 19.18B apply to an appeal under section 175(2)(a) or (d) of the Act of 1995.

(2) Where in relation to any ground of appeal an appellant seeks to lead evidence—

(a)this rule applies to that ground of appeal only in relation to the question of whether that evidence should be led;

(b)the court may nevertheless make an order containing provision similar to this rule in relation to the presentation of submissions following the hearing of that evidence.

(3) The appellant must, within 42 days of the granting of leave to appeal in accordance with section 180 of the Act of 1995, lodge a case and argument.

(4) A case and argument must—

(a)set out, for each ground of appeal, a succinct and articulate statement of the facts founded upon and the propositions of law being advanced;

(b)contain an estimate of how long will be required for the hearing of the appeal; and

(c)be signed—

(i)by the solicitor or counsel representing the appellant in the appeal; or

(ii)where the appellant intends to conduct the appeal personally, by the appellant.

(5) A case and argument must, when lodged, be accompanied by—

(a)all documents, or a copy thereof, referred to or founded upon in the case and argument and not already lodged in the appeal process; and

(b)all authorities, or a copy thereof, listed in the case and argument and not contained within a publication specified by the Lord Justice General by direction.

(6) The prosecutor—

(a)may lodge a case and argument in response to the appellant’s case and argument if the prosecutor considers it appropriate;

(b)must do so if the court, considering that the circumstances of the case require it, orders the prosecutor to do so.

(7) Where the court makes an order under paragraph (6)(b), the prosecutor must lodge the case and argument within 21 days of the making of that order.

(8) At the same time as a case and argument is lodged, a copy of it and all accompanying documents must be sent to the other party to the appeal.

(9) Where the Clerk of the Sheriff Appeal Court considers a case and argument to be unduly lengthy, the matter is to be referred to an Appeal Sheriff who is to give such directions as are considered appropriate.

(10) Where a case and argument is not lodged timeously, the Clerk of the Sheriff Appeal Court is to refer the matter to the President of the Sheriff Appeal Court, whom failing the Vice President of the Sheriff Appeal Court, for such action as is considered appropriate.

(11) The court may, on the application of the relevant party and on cause shown, extend the period for lodging a case and argument.

Hearing of appeal presented in writing

19.18B.—(1) This rule applies to the hearing of an appeal where a case and argument has been lodged by the appellant in accordance with rule 19.18A(3).

(2) At the hearing of the appeal—

(a)the appellant’s case and argument and supporting documents constitute the principal submissions of the appellant;

(b)unless it otherwise directs, the court will expect the appellant to rely on the case and argument without reading it over to the court;

(c)the appellant may, subject to the control of the court, make supplementary comment to the case and argument;

(d)the appellant may respond to any case and argument lodged by the prosecutor; and

(e)the appellant is to answer any points raised by the court.

(3) Where the prosecutor lodges a case and argument, paragraph (2) applies with the necessary modifications to the prosecutor as it applies to the appellant.

(4) The appellant and the prosecutor have a duty to co-operate with each other and the court to ensure the completion of the hearing within the time allocated by the court.

(5) The court may, at any point during the hearing, set a timetable for the completion by a party of any submissions permitted in terms of paragraph (2)(b), (c), (d) or (e).

(6) On cause shown, the court may permit the appellant to introduce new information that has come to light in the period since the case and argument was lodged.

(7) Where the court permits the introduction of new information, it may at its discretion permit the lodging of additional documents in support of the new information.

(8) An appellant who wishes to introduce new information and lodge additional documents must send a copy of the information and documents to the Clerk of the Sheriff Appeal Court and the prosecutor as soon as the information and documents come into the appellant’s possession.

(9) An appellant who has sent new information and documents to the Clerk of the Sheriff Appeal Court must apply at the bar to allow it to be introduced or lodged, as the case may be.^F189]

[^F190Presentation of summary sentence appeal in writing

[^F191 19.19.^F191] —(1) This rule applies to an appeal under section 175(2)(b), (c) or (ca) or by virtue of section 175(4) of the Act of 1995 listed in terms of rule 19.14 (list of appeals).

(2) In an appeal to which paragraph (1) applies the appellant shall present his case in writing.

(3) The solicitor for the appellant or, if unrepresented, the appellant shall—

(a)not later than [^F192 14^F192] days before the date assigned for the appeal court hearing, lodge a case and argument in [^F193 Form 19.19^F193] ;

(b)lodge with the case and argument all documents, or a copy thereof, referred to or founded upon in the case and argument and not already lodged; and

(c)at the same time as he lodges the case and argument referred to in sub-paragraph (a) and the supporting documents referred to in sub-paragraph (b), send a copy to the Crown or, where the Crown is the appellant, to the respondent.

[^F194 (4) The case and argument referred to in paragraph (3) shall be signed—

(a)by the solicitor or counsel representing the appellant in the appeal; or

(b)where the appellant intends to conduct the appeal personally, by the appellant.^F194]

(5) At the hearing of the appeal—

(a)the case and argument and supporting documents referred to in paragraph (3) shall constitute the submissions of the appellant;

(b)unless it otherwise directs, the Court will expect the appellant to rely upon the case and argument without reading it over to the Court; and

(c)the appellant may make supplementary comments to the case and argument; and shall answer any points raised by the Court.

(6) On cause shown, the Court may permit the appellant to introduce new information that has come to light in the period since the case and argument was lodged.

(7) Where the Court permits the introduction of new information, it may at its discretion permit the lodging of additional documents in support of the new information.

(8) A party who wishes to introduce new information and lodge additional documents shall send a copy of the information and documents to the [^F195 Clerk of the Sheriff Appeal Court^F195] as soon as the information and documents come into the appellant’s possession.

(9) A party who has sent new information and documents to the [^F196 Clerk of the Sheriff Appeal Court^F196] shall make application at the bar to allow it to be introduced or lodged, as the case may be.

(10) Where the documents referred to in paragraph (3) are not lodged timeously, the [^F197 Clerk of the Sheriff Appeal Court^F197] shall refer the matter to the [^F198 President of the Sheriff Appeal Court^F198] , whom failing the [^F199 Vice President of the Sheriff Appeal Court^F199] , for such action as the [^F198 President of the Sheriff Appeal Court^F198] or [^F199 Vice President of the Sheriff Appeal Court^F199] , as the case may be, considers appropriate.^F190]

[^F200CHAPTER 19A [^F201ALTERATION BY CLERK OF JUSTICIARY OF PLACE WHERE CASE TO BE HEARD^F201]

Power of clerk of Justiciary to alter place where case to be heard _cross-notes

(1) Where the High Court has–

(a)adjourned a case [^F202 following conviction^F202] ; or

(b)deferred sentence in a case [^F203 following conviction^F203] ,

[^F204 (c)fixed any diet in respect of any of the following—

^F205(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F205(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii)a drug treatment and testing order made under section 234B of the Act of 1995;

[^F206 (v)a community payback order.^F206]

(d)fixed any diet under section 52 or sections 52B to 59 of the Act of 1995,^F204]

[^F207 (e)adjourned a preliminary hearing under section 75A of the Act of 1995,^F207]

the Clerk of Justiciary may make an order altering the place where the case is to be heard, not later than two days before the case is to be called.

(2) The Clerk of Justiciary shall intimate an order made under paragraph (1) to–

(a)the parties to the proceedings; and

(b)the governor of any institution in which the accused is detained,

not later than two days before the case is to be called.

[^F208CHAPTER 19B SCOTTISH CRIMINAL CASES REVIEW COMMISSION

References

19B.1.—(1) This rule applies to a reference by the Scottish Criminal Cases Review Commission to the High Court under section 194B of the Act of 1995.

(2) The Clerk of Justiciary shall—

(a)assign the reference to a procedural hearing fixed for a date not earlier than 21 days after receipt of the reference; and

(b)as soon as possible thereafter, intimate the diet to every party and to the governor of any institution in which any accused is detained.

[^F209 (2A) Subject to section 194D(4A) of the Act of 1995, within 21 days after the date on which a copy of the Commission’s statement is sent under section 194D(4)(b) of the Act of 1995 the appellant shall lodge with the Clerk of Justiciary a note of the grounds of appeal that are to be relied upon at the hearing of the appeal and send a copy to the Crown Agent.

(2B) The High Court may, on cause shown, extend the period of 21 days mentioned in paragraph (2A).^F209]

(3) At the procedural hearing the High Court shall consider and make orders in respect of—

^F210(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)any application under section 194D(4B) of the Act of 1995;

(c)any application under section 194D(4D) of the Act of 1995;

(d)the procedure to be followed in the determination of the reference;

(e)any other matter which the Court considers appropriate in respect of the reference.

Applications for requests for assistance

19B.2.—(1) An application under section 194IA of the Act of 1995 shall be in Form 19B.2 and shall be lodged with the Clerk of Justiciary.

(2) The High Court shall—

(a)without requiring intimation to any other party, proceed to consider the application;

(b)after considering it shall grant it, with or without any modifications which it deems appropriate, or shall refuse it.

(3) The application shall be registered by the Clerk of Justiciary as if it were an application made under section 7(1) of the Crime (International Co-operation) Act 2003 and rule 36.6 applied.^F208,F200]]

[^F211CHAPTER 19C RISK ASSESSMENT

Risk assessment orders

19C.1.—(1) A notice of intention to make a motion for a risk assessment order under section 210B(2) of the Act of 1995 shall be in Form 19C.1–A.

(2) A risk assessment order under section 210B(2) of the Act of 1995 shall be in Form 19C.1–B.

(3) An application under section 210B(5) of the Act of 1995 (application for extension of period of adjournment following order) shall be made by letter to the Clerk of Justiciary.

(4) On receipt of a letter under paragraph (3), the Clerk of Justiciary shall–

(a)send a copy of that letter to the prosecutor, the convicted person and the assessor; and

(b)fix a date and time for hearing the application which date and time shall be notified by the Clerk of Justiciary to the prosecutor; the convicted person and the governor of any institution in which the convicted person is detained.

(5) The Clerk of Justiciary shall notify the governor of any institution in which the convicted person is detained of any extension (or further extension) under section 210B(5) of the Act of 1995, of the period mentioned in section 210B(4) of the Act of 1995 (adjournment following risk assessment order).

Reports

19C.2. A report under section 210C or 210D of the Act of 1995 shall be in Form 19C.2.

Objections to reports

19C.3.—(1) A convicted person shall intimate any objection under section 210C(7) of Act of 1995 by lodging with the Clerk of Justiciary and serving on the prosecutor a notice of objection in Form 19C.3 within 14 days after receiving a copy of the report.

(2) On receipt of a notice of objection under paragraph (1), the Clerk of Justiciary shall fix a date and time for hearing the objection and shall intimate that date and time to the convicted person, the prosecutor and the governor if any institution in which the convicted person is detained.

(3) The convicted person and the prosecutor shall, not less than 7 days before the hearing mentioned in paragraph (2), lodge and serve on the other party lists of any witnesses and productions on which they propose to rely at the hearing.^F211]

[^F212PART IVA APPEALS AND REFERRALS FROM SHERIFF APPEAL COURT

CHAPTER 19D REFERRAL OF POINT OF LAW FOR OPINION OF THE HIGH COURT OF JUSTICIARY

Interpretation of this Chapter

19D.1. In this Chapter—

“appeal document” has the meaning given by rule 19E.3(2);

“reference” means a reference made by the Sheriff Appeal Court to the High Court for its opinion on a point of law under section 175A(1) of the Act of 1995.

Notice of intention to seek reference

19D.2.—(1) Where a party to the appeal proceedings applies to the Sheriff Appeal Court to make a reference, that party must give notice of intention to do so to the Clerk of the Sheriff Appeal Court and to every other party.

(2) A record of that notice is to be entered in the minute of proceedings.

(3) On receiving notice—

(a)the court is to fix a diet at which parties may be heard on the application for a reference;

(b)the Clerk of the Sheriff Appeal Court must give every party to the appeal proceedings notice of the date, time and place of the diet.

Reference proposed by the Sheriff Appeal Court on its own initiative

19D.3.—(1) Where the Sheriff Appeal Court proposes to make a reference on its own initiative, it is to fix a diet at which parties may be heard on the question of whether a reference should be made.

(2) The Clerk of the Sheriff Appeal Court must give every party to the appeal proceedings notice of—

(a)the intention of the court to make a reference; and

(b)the date, time and place of the diet.

(3) A record of that notice is to be entered in the minute of proceedings.

Preparation of a reference

19D.4.—(1) After hearing parties, where the court grants an application for a reference or decides to make a reference on its own initiative, the court is to—

(a)give reasons for that decision and cause those reasons to be recorded in the minute of proceedings;

(b)continue the proceedings from time to time as necessary for the purposes of the reference to the High Court.

(2) The reference is to be drafted—

(a)in Form 19D.4 unless the court directs otherwise;

(b)in accordance with directions given by the court to the parties about the manner in which and by whom the reference is to be drafted and adjusted.

(3) The reference may be further adjusted to take account of any adjustments required by the court.

(4) After approval by the court, the Clerk of the Sheriff Appeal Court must transmit the reference to the Clerk of Justiciary, together with a certified copy of—

(a)the minute of proceedings;

(b)the complaint;

(c)the appeal document.

Procedure before the High Court

19D.5.—(1) On receipt of a reference, the High Court may make such order as it thinks fit in order to determine the reference, and in particular it may—

(a)order that the reference be intimated on any person appearing to the High Court to have an interest, including the Lord Advocate;

(b)order parties to lodge written submissions in such form and on such matters as it considers appropriate;

(c)fix a diet at which parties may be heard on the reference.

(2) The Clerk of Justiciary must send to the Clerk of the Sheriff Appeal Court a certified copy of the opinion of the High Court on the reference, including any direction as to further procedure given in accordance with section 175A(3).

Procedure on receipt of opinion of the High Court

19D.6.—(1) When the Clerk of the Sheriff Appeal Court receives the opinion of the High Court, the clerk must lay the ruling before the Sheriff Appeal Court.

(2) The Sheriff Appeal Court is then to give directions as to further procedure.

(3) The Clerk of the Sheriff Appeal Court must give every party to the appeal proceedings—

(a)notice of those directions;

(b)a copy of the opinion of the High Court.

CHAPTER 19E APPEALS TO HIGH COURT OF JUSTICIARY

Forms for appeals

19E.1.—(1) A note of appeal under section 194ZC(1) of the Act of 1995 (appeals: applications and procedure) is to be in Form 19E.1–A.

(2) The form of minutes of procedure in an appeal under section 194ZC(1) is to be in Form 19E.1–B.

Lodging of appeal

19E.2.—(1) The note of appeal is to be lodged with the Clerk of the Sheriff Appeal Court within the period specified in section 194ZB(4) of the Act of 1995, unless that period is extended by the High Court in accordance with section 194ZB(5).

(2) On receipt of the note of appeal, the Clerk of the Sheriff Appeal Court must—

(a)send a copy of the note to the respondent or the respondent’s solicitor;

(b)where the judgment of the Sheriff Appeal Court appealed against is not available, obtain it from the Sheriff Appeal Court.

(3) Within two weeks of receiving the note of appeal, the Clerk of the Sheriff Appeal Court must send—

(a)the note of appeal, together with the documents specified in rule 19E.3(1), to the Clerk of Justiciary;

(b)the judgment of the Sheriff Appeal Court appealed against to the appellant and respondent or their solicitors.

(4) Paragraph (3)(b) does not apply if the judgment was available when the note of appeal was lodged.

(5) The President of the Sheriff Appeal Court may, on cause shown, extend the period of two weeks specified in paragraph (3), and such an extension is to be in Form 19E.2.

Documents to be considered in determining an application for permission

19E.3.—(1) Where an application for permission is being considered and determined under section 194ZD of the Act of 1995, the following documents are specified for the purposes of section 194ZF(1)(c)(ii)—

(a)the judgment of the Sheriff Appeal Court appealed against;

(b)the minute of proceedings—

(i)in the Sheriff Appeal Court;

(ii)in the court in which the complaint was brought;

(c)a certified copy of the complaint;

(d)the appeal document;

(e)any other relevant documents sent by the clerk of court to the Clerk of the Sheriff Appeal Court under section 179(8)(b) or section 186(4)(a);

(f)any other documents that the Clerk of the Sheriff Appeal Court considers are relevant.

(2) In paragraph (1), “appeal document” means the document or documents by which the appeal to the Sheriff Appeal Court was instituted, that is in an appeal under the provision mentioned in the first column of the following table, the document or documents mentioned in the second column—

(3) Where an application for permission is being considered and determined under section 194ZE, the following documents are specified for the purposes of section 194ZF(1)(c)(ii)—

(a)the documents specified in paragraph (1);

(b)the reasons in writing given under section 194ZD(3)(a).

Solicitor entering appearance etc.

19E.4.—(1) The solicitor for the appellant or the appellant, if unrepresented, must enter appearance within 7 days after the Clerk of Justiciary intimates that permission has been given in accordance with section 194ZF(2)(a) of the Act of 1995.

(2) Appearance is entered by lodging Form 19E.4–A with the Clerk of Justiciary.

(3) Where an appellant is represented by a solicitor who does not practise in Edinburgh, that solicitor may appoint a solicitor who practises in Edinburgh to carry out the duties of solicitor for the appellant.

(4) If there is a change in representation of an appellant, the new solicitor for the appellant or the appellant, if unrepresented, must lodge Form 19E.4–B with the Clerk of Justiciary within 7 days of that change in representation.

(5) A change in representation occurs where—

(a)an unrepresented appellant instructs a solicitor;

(b)an appellant dismisses the appellant’s solicitor and—

(i)instructs another solicitor; or

(ii)intends to conduct the appeal in person.

List of appeals

19E.5.—(1) The Clerk of Justiciary must, after consultation with the Lord Justice General or the Lord Justice-Clerk, issue a list of appeals under section 194ZB of the Act of 1995 with the respective dates of hearing on the Justiciary Roll.

(2) The Clerk of Justiciary must give the respective solicitors representing parties to an appeal listed in accordance with paragraph (1) at least 14 days’ notice of the date fixed for the hearing of the appeal.

Intimation of determination of appeal

19E.6. The Clerk of Justiciary must send the Clerk of the Sheriff Appeal Court a certified copy of the order under section 194ZH of the Act of 1995 disposing of an appeal under section 194ZB.

Abandonment of appeal

19E.7.—(1) A minute of abandonment under section 194ZJ of the Act of 1995 (abandonment of appeal) is to be in Form 19E.7.

(2) When a minute of abandonment is lodged, the Clerk of Justiciary must inform the Clerk of the Sheriff Appeal Court that the appeal has been abandoned.^F212]

PART V Sentencing

CHAPTER 20 SENTENCING _cross-notes

[^F213Form of sentence of death _I86

20.1.—(1) The pronouncement of the sentence of death shall be in Form 20.1.

(2) After the verdict of the jury finding the accused guilty has been recorded, the presiding judge shall sign the sentence on a paper separate from the record of proceedings and immediately thereafter shall pronounce sentence.

(3) The accused need not be present in court after the presiding judge has pronounced sentence.

(4) On sentence being pronounced, the clerk of court shall engross the sentence in the record of proceedings and the presiding judge shall sign it.^F213]

Detention in police custody instead of imprisonment

^F21420.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[^F215Supervised release orders

20.3.—(1) An order under section 209 of the Act of 1995 (supervised release orders) shall be in Form 20.3-A.

(2) The citation of an offender to appear before a court under section 15(5) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (variation of supervised release order etc.) shall be in Form 20.3-B.

(3) The citation of an offender to appear before a court under section 18(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (breach of supervised release order) shall be in Form 20.3-C.^F215]

[^F216Sexual offences to which Part 2 of the Sexual Offences Act 2003 applies

20.3A—(1) A certificate under section 92(2) of the Sexual Offences Act 2003 (certificate that an accused has been convicted of, found not guilty by reason of insanity of, or found to be under a disability and to have done the act charged against him in respect of, an offence listed in Schedule 3 to that Act) shall be in Form 20.3A A.

(2) Subject to paragraph (3), when a certificate such as is mentioned in paragraph (1) is prepared, the accused shall be given a copy of it by the clerk of the court, together with a notice in Form 20.3A B.

(3) If the certificate is not prepared immediately after the statement in open court but is to be prepared subsequently, the clerk of the court shall forthwith give the accused the notice required by paragraph (2) and shall in due course send a copy of the certificate to the accused.

[^F217 (3A) Where sentence has been deferred in respect of an accused who has been given a notice required by paragraph (2), the clerk of the court shall, when sentence is passed, give the accused a notice in Form 20.3A-C.^F217]

(4) The clerk of the court shall retain a copy of [^F218 any notices^F218] given to the accused [^F219 under paragraph (3) or (3A), as the case may be^F219] and shall record on [^F220 those copies^F220] the fact that notice has been so given.

(5) The record made under paragraph (4) shall be sufficient evidence of the fact recorded; and a certificate of posting sufficient evidence of the sending of a copy under paragraph (3).^F216]

Application of money found on offender towards fine_I87

20.4.—(1) A direction under section 212(1) of the Act of 1995 that money found on an offender should not be applied towards payment of a fine shall be in Form 20.4-A.

(2) A notice for the purposes of section 212(7) of the Act of 1995 (notice to governor of prison as warrant to convey offender to court) shall be in Form 20.4-B.

Extension of time for payment of fine_I88

20.5. An order under section 214(7) or 215(3) of the Act of 1995 (order allowing further time for payment of fine) shall be in Form 20.5.

Forms for enquiry for non-payment of fine_I89

20.6.—(1) The citation of an offender issued under section 216(3)(a) of the Act of 1995 (citation to appear for enquiry before imprisonment in default of payment of fine) shall be in Form 20.6-A.

(2) The execution of a citation referred to in paragraph (1) which is served other than by post shall be in Form 20.6-B.

(3) The—

(a)execution of a citation referred to in paragraph (1) which is served by post,

(b)warrant for apprehension of an offender issued under section 216(3)(b) of the Act of 1995, and

(c)record of proceedings at an enquiry under section 216 of that Act,

shall be in Form 20.6-C.

Supervision of payment of fine_I90

20.7. A notice to be sent to an offender under section 217(7) of the Act of 1995 (appointment of different supervising officer to offender allowed time to pay fine) shall be in Form 20.7.

Forms of warrant for execution and charge for payment of fine or other financial penalty_I91

20.8. —(1) In every extract of a sentence of a fine or other financial penalty, there shall be included a warrant for execution in the following terms:—“and the Lords [or sheriff or justice(s)] grant(s) warrant for all lawful execution hereon”.

(2) The charge for payment of a fine or other financial penalty to be used by a sheriff officer under section 90 of the Debtors (Scotland) Act 1987(7) (provisions relating to charges for payment) shall be in Form 20.8.

Transfer of fines_I92

20.9.—(1) A transfer of fine order under section 222(1), and a notice of it required by section 223(1), of the Act of 1995 shall be in Form 20.9-A.

(2) A transfer of fine order made by virtue of section 222(5) of the Act of 1995, and a notice of it required by section 223(1), shall be in Form 20.9-B.

(3) Where a notice of a transfer of fine order is received by a court in Scotland, the clerk of that court shall serve by post a notice to the offender in Form 20.9-C.

[^F221Enforcement orders

20.9A. An order under section 226B of the Act of 1995 (enforcement orders) shall be in Form 20.9A and the form of warrant for civil diligence granted under section 226F of that Act (powers of diligence) in respect of the order shall be in the form set out in that Form.

[^F222Application for release of vehicle

20.9AA. An application under regulation 19(1)(b) or (c) of the Enforcement of Fines (Seizure and Disposal of Vehicles) (Scotland) Regulations 2008 (release of seized vehicle on application by offender) shall be in Form 20.9AA.^F222]

Application for an order for sale or disposal of a vehicle

20.9B.—(1) An application for an order for sale or disposal of a vehicle under section 226D(6) of the Act of 1995 (seizure of vehicles) shall be in Form 20.9B-A and a copy shall be served on the offender by the fines enforcement officer.

(2) Where an offender objects to an application under paragraph (1) he shall, within 7 days of its receipt, lodge with the clerk of court a response in the form of numbered paragraphs which correspond to the paragraphs of that application.

(3) The court may fix a diet for hearing an application mentioned in paragraph (1) and any response lodged under paragraph (2) in relation to the application.

(4) Where the court fixes a diet under paragraph (3) the clerk of court shall intimate the diet to the offender and the applicant.

(5) An order under section 226D(6) of the Act of 1995 shall be in Form 20.9B-B.

Application by a third party claiming to own vehicle

20.9C.—(1) An application to a sheriff under section 226D(7)(b)(ii) of the Act of 1995 by a third party who claims to own the vehicle shall be in Form 20.9C.

(2) The court may fix a diet for hearing an application mentioned in paragraph (1).

(3) Where the court fixes a diet under paragraph (2) the clerk of court shall intimate–

(a)the application and the diet to–

(i)the offender subject to the enforcement order in terms of which the vehicle seizure order was made;

(ii)any other person from whose possession the vehicle was taken;

(iii)the relevant fines enforcement officer; and

(b)the diet to the applicant.

Review of actions of fines enforcement officer

20.9D.—(1) An application for review under section 226H of the Act of 1995 (review of actions of FEO) shall be in Form 20.9D.

(2) The court may fix a diet for hearing an application mentioned in paragraph (1).

(3) Where the court fixes a diet under paragraph (2) it shall intimate–

(a)the application and the diet to the relevant fines enforcement officer; and

(b)the diet to the applicant.^F221]

Probation orders

^F22320.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[^F224Form and notification of non-harassment order

20.10A.—(1) A non-harassment order made under section 234A of the Act of 1995 shall be in Form 20.10A.

(2) A non-harassment order mentioned in paragraph (1) above shall be intimated by the clerk of the court by which it is made to any person, other than the offender, who is named in the order.

Variation or revocation of non-harassment order

20.10B.—(1) This rule applies to an application under section 234(6) of the Act of 1995 (application for variation or revocation of non-harassment order).

(2) In this rule–

“the offender” means the offender subject to the order to which the application relates; and

“the prosecutor” means the prosecutor at whose instance the order was made.

(3) The application shall–

(a)identify the proceedings in which the order was made;

(b)state the reasons for which the applicant seeks the variation or revocation of the order;

(c)be, as nearly as may be, in Form 20.10B.

(4) The applicant shall serve a copy of the application on–

(a)the clerk of the court which made the order;

(b)any person, other than the offender, who is named in the order; and

(c)where the applicant is–

(i)the offender, the prosecutor; and

(ii)the prosecutor, the offender,

but the application may proceed notwithstanding that, having taken reasonable steps to do so, the applicant has been unable to effect service of it on the offender or any person such as is mentioned in subparagraph (b) above.

(5) Where the offender is the applicant, the prosecutor shall, within fourteen days of the receipt of the copy of the application, notify the clerk of court in writing whether he intends to oppose the application.

(6) Where the prosecutor is the applicant, the offender shall, within fourteen days of receipt of the copy of the application, notify the clerk of court in writing whether he intends to oppose the application.

(7) Where a person notifies the clerk of court under paragraph (5) or (6) above that he does not intend to oppose the application, or fails to make any notification, the court shall proceed to dispose of the application and may do so in the absence of the applicant.

(8) Where a person notifies the clerk of court under paragraph (5) or (6) above that he does intend to oppose the application, the clerk of court shall arrange a hearing before the court at which the prosecutor and the offender may appear or be represented.

(9) The clerk of court shall give notice in writing of the decision of the court on the application to–

(a)the applicant;

(b)any person served with a copy of the application under sub-paragraph (b) or (c) of paragraph (4) above.^F224]

Supervised attendance orders

^F22520.11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Community service orders

^F22620.12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[^F227Restriction of liberty orders

20.12A. –

(1) A restriction of liberty order made under section 245A(1) of the Act of 1995 shall be in form 20.12A-A.

(2) An application under section 245E(1) (application to review a restriction of liberty order) of that Act shall be in form 20.12A-B.

(3) The citation of an offender under section 245E(3) (citation to appear before a court which proposes to vary or revoke a restriction of liberty order) of that Act shall be in form 20.12A-C.

(4) The citation of an offender under section 245F(1) (citation for failure to comply with requirement of restriction of liberty order) of that Act shall be in form 20.12A-D.^F227]

[^F228Drug treatment and testing orders

20.12B—(1) A drug treatment and testing order made under section 234B of the Act of 1995 shall be in Form 20.12B-A.

(2) The citation of an offender to appear before a court under section 234E(2) of the Act of 1995 (variation or revocation of drug treatment and testing order) shall be in Form 20.12B-B.

(3) The citation of an offender to appear before a court under section 234G(1) of the Act of 1995 (breach of drug testing and treatment order) shall be in Form 20.12B-C.^F228]

Community reparation orders

^F22920.12C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Terms of compensation orders to record of proceedings_I93

20.13 Entries shall be made in the record of proceedings by the clerk of court on the making of a compensation order,specifying the terms of the order and in particular—

(a)the name of the convicted person required to pay compensation;

(b)the amount of compensation required to be paid by such person;

(c)the name of the person entitled to the compensation payable; and

(d)where there is more than one person entitled to compensation, the amount of compensation each is entitled to and the priority, if any, among those persons for payment

Legal disability of person entitled to compensation_I94

20.14.—(1) The prosecutor, if he knows that any person entitled to payment of compensation under a compensation order is under any legal disability, shall so inform the court immediately it makes any such order in respect of any such person, and that information shall be entered by the clerk of court in the record of proceedings.

(2) Where payment of any sum is made under a compensation order to the clerk of court in respect of a person known to be under a legal disability, Part IV (except rule 36.17(1) (receipt sufficient discharge) of Chapter 36 of the Ordinary Cause Rules 1993 in Schedule 1 to the Sherriff Courts(Scotland Act 1907(8) (management of damages payable to persons under legal disability) shall apply to the administratio of that sum as they apply to the administration of a sum of money paid into court in respect of damages for such a person.

Variation of compensation orders_I95

20.15.—(1) The court may, at any time before a compensation order is fully complied with, and after such further inquiry as the court may order, vary the terms of the order as it thinks fit.

(2) A variation made under paragraph (1) may be made in chambers and in the absence of the parties or any of them.

Discharge or reduction of compensation order_I96

20.16.—(1) An application to discharge a compensation order or to reduce the amount that remains to be paid under section 25(1) of the Act of 1995 (review of compensation order) shall be made writing to the clerk of the court which made the order.

(2) The clerk of court shall, on any such application being made to him, serve a copy of the application on the prosecutor by post.

(3) The court to which the application is made may dispose of the application after such inquiry as it thinks fit.

Use of certified copy documents in certain proceedings_I97

20.17.—(1) Subject to paragraph (2), in proceedings relating to—

(a)an order which imposed a fine[^F230 ; or^F230]

[^F231 (f)a community payback order,^F231]

in a court other than the court which made the order, the principal indictment, complaint, record or minute of proceedings, or notice of previous conviction need not be before the court.

(2) The court to which paragraph (1) applies shall have before it a copy of the principal of each such documents certified as a true copy by the clerk of the court which made the order.

Form of extract of sentence_I98

20.18.—(1) An extract of a custodial sentence following a conviction on indictment, and warrant of detention and return of sentence, required for any purpose in connection with any case shall be in Form 20.18-A.

(2) An extract of a sentence of imprisonment, a fine or caution in summary proceedings under the Act of 1995 shall be in the appropriate form in Form 20.18-B

(3) An extract issued in accordance with paragraph (1) or (2) shall be warrant and authority for execution

Reduction of disqualification period for drink-drive offencers_I99

20.19.—(1) In this rule—

“the Act of 1988” means the Road Traffic Offencers Act 1988 ( 9 );

“ [^F232 course provider ^F232] ” has the meaning assigned in [^F233 section 34C(3) ^F233] of the Act of 1988;

“ [^F234 relevant date ^F234] ” means the date specified in an order under section 34A of the Act of 1088;

“supervising court” has the meaning assigned in [^F233 section 34C(3) ^F233] of the Act of 1988.

(2) An application to the supervising court for a declaration under section 34B(6) of the Act of 1988 shall be

(a)in Form 20.19-A;

(b)accompanied by a copy of the written notice required by section 34B(5) of the Act of 1988 intimating the [^F232course provider’s^F232] decision not to give a course completion certificate; and

(c)lodged with the clerk of court within 28 days after the [^F235relevant date^F235] .

(3) An application to the supervising court for a declaration under [^F236section 34B(8)^F236] of the Act of 1988 shall be—

(a)in Form 20.19.-B; and

(b)lodged with the clerk of court within 28 days after the [^F237relevant date^F237] .

(4) On the lodging of an application under [^F238section 34B(6) or (8)^F238] of the Act of 1988—

(a)the sheriff or stipendiary magistrate, as the case may be, shall fix a date for hearing the appliction; and

(b)the clerk of court shall—

(i)notify the applicant of the date of hearing; and

(ii)serve a copy of the application, with notice of the hearing, on the [^F232course provider^F232] and the procurator fiscal.

[^F239Antisocial behaviour orders

20.20. An antisocial behaviour order made under section 234AA of the Act of 1995 shall be in Form 20.20.^F239]