Act of Adjournal (Consolidation) 1988

Judicial Examination

Introductory

14.  Subject to the following provisions of this Part relating to judicial examination, the procedure to be followed in relation to examination of the accused under sections 20, 20A and 20B(1) (judicial examination) on any charge shall be in accordance with existing law and practice.

Record of proceedings

15.—(1) The record of all proceedings under those sections shall be kept by the sheriff clerk in the form set out in Form 10 of Schedule 1, and shall be kept by him together 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 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;

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

Verbatim record

16.—(1) The prosecutor shall provide for a verbatim record to be made by a shorthand writer under section 20B(1) if he provides a shorthand writer who is either—

(a) a person recognised by a court as a shorthand writer for the purposes of sections 274(2) and 276 of the 1975 Act or rule 73 of the First Schedule to the Sheriff Courts (Scotland) Act 1907(3); or

(b) a person other than a person mentioned in sub-paragraph (a) skilled in the writing of shorthand (whether or not in the service of the prosecutor),

and in proceedings where averbatim record is made by a person mentioned in sub-paragraph (b), a tape-recorded record of the proceedings is also made by the sheriff clerk in accordance with the provisions of rule 17(1) and (2).

(2) The declarationde fideli administratione officii shall be administered to the shorthand writer at the commencement of the proceedings.

(3) The name and designation of the shorthand writer and the making of a declaration by him shall be recorded in the record of proceedings.

(4) The shorthand writer shall record the whole proceedings relating to—

(a) the emitting by the accused of a declaration under section 20;

(b) any questions the accused is asked and answers given including declining to answer, under section 20A,

and, subject to paragraph (5), make a transcript of those proceedings.

(5) The shorthand writer shall not include in the transcript he makes of the proceedings any questions disallowed by the sheriff and any answers to such questions.

(6) The shorthand writer shall, in addition to the transcript of proceedings he makes under paragraph (4), also make such further transcript of the record made by him as either the judge at a preliminary diet or the High Court of Justiciary on an appeal may direct for the purposes of considering an application under section 151(2)(4).

(7) The shorthand writer shall, as soon as possible after the conclusion of the proceedings, deliver to the prosecutor the transcript signed and certified by him in accordance with section 20B(2).

Use of tape recorders

17.—(1) Any tape-recorded record of the proceedings made under rule 16(1), shall be made on two separate tapes simultaneously one of which shall be marked “tape A” and the other “tape B”.

(2) The sheriff clerk shall record on both tapes any proceedings mentioned in rule 16(5), and for the purposes of maintaining a continuous record of the proceedings on both tapes the proceedings may be interrupted at the instance of the sheriff clerk for such reasonable period as he may require.

(3) The sheriff clerk shall note in the record of proceedings the time of commencement and the time of termination of the tape-recording.

(4) On the conclusion of the proceedings in question the sheriff clerk shall—

(a) deliver tape B to the prosecutor;

(b) cause tape A to be sealed in an envelope or other similar container on which the following information shall be endorsed:—

(i) the name of the accused;

(ii) the date of examination;

(iii) the name of the presiding sheriff;

(iv) the name of the shorthand writer;

(v) the time of commencement and of termination of the tape;

(vi) the time and date of sealing.

(5) The sheriff clerk shall retain tape A until he is informed in writing by the prosecutor that the proceedings against the accused in respect of the charge or charges in relation to which he was examined have come to an end.

(6) The sheriff clerk shall not permit the seal on the container to be broken while he retains it except on being authorised to do so by a judge.

(7) On being so authorised the sheriff clerk shall only permit such access to tape A for such period as may be required for the purposes of the authorisation and on the expiry of that period shall again comply with the requirements of paragraphs (4)(b) and (5).

(8) The sheriff clerk shall, on being informed in writing by the prosecutor, that the proceedings mentioned in paragraph (5) have come to an end, return tape A to the prosecutor.

(9) For the purposes of paragraph (8), the circumstances in which the proceedings have come to an end include—

(a) a decision by the prosecutor to take no further action against the accused in respect of the charge or charges in question;

(b) following conviction and sentence of the accused in respect of the charge or charges in question, the expiry of any statutory period of appeal without an appeal being taken;

(c) the final disposal of any appeal which has been taken.

Questions by prosecutor

18.—(1) The sheriff before whom the accused is brought for examination shall, if the prosecutor proposes to ask the accused questions regarding the alleged making by the accused of an extrajudicial confession to which section 20A(1)(b) (confession in the hearing of police officer) applies, be provided by the prosecutor before the commencement of the examination with a copy of the written record of the confession allegedly made.

(2) If the sheriff has not been so provided the prosecutor shall not ask the accused any such questions.

(3) The accused shall not be put on oath in the course of any proceedings on examination.

(4) The judge presiding at the trial of an accused who has declined to answer any question under section 20A(1) (prosecutor’s questions as to matters in the charge or as to confession or declaration) may, in determining whether his having so declined may be commented upon by virtue of section 20A(5) (comments at trial), have regard to the terms of the charge to which the question related.

(5) The petition containing the terms of the charge to which the question referred to in paragraph (4) related, or a copy of the petition certified by the sheriff clerk as such, shall be sufficient evidence of the terms of that charge for the purposes of that paragraph; but the petition or certified copy petition in question shall—

(a) not be included in any list of productions made available at the trial;

(b) not be referred to in evidence by any witness at the trial.

(6) The prosecutor shall, if the presiding judge proposes to have regard to the terms of that charge for the purposes of paragraph (4), provide him with the petition or certified copy petition referred to in paragraph (5).

Rectification of errors in transcript

19.—(1) A notice served under section 20B(4)(a) shall be in the form set out in Form 11 of Schedule 1.

(2) The prosecutor shall, on serving or on receiving such a notice, immediately lodge with the sheriff clerk the transcript, signed and certifed by the shorthand writer under section 20B(2).

(3) An application to the sheriff for an error or incompleteness to be rectified under section 20B(4)(b) shall be in the form set out in Form 12 of Schedule 1.

(4) The application shall be lodged with the sheriff clerk together with—

(a) a copy of the notice served under section 20B(4)(a), and

(b) an execution of service of that notice.

(5) When the person upon whom notice is served under section 20B(4)(a) agrees with the opinion to which that notice relates, he may intimate his agreement to the person serving notice in the form set out in Form 13 of Schedule 1, and shall, at the same time as so intimating his agreement, send a copy to the sheriff clerk.

(6) On the lodging of an application under paragraph (3), the sheriff unless he dispenses with a hearing, shall by deliverance endorsed on the application—

(a) fix a date for a hearing;

(b) order intimation of the date of the hearing to be made by the sheriff clerk to the prosecutor and to the accused person to whose examination the transcript relates.

(7) If the sheriff authorises rectification of the transcript, he shall by deliverance endorsed on the application and signed by him specify the rectification authorised.

(8) The sheriff clerk shall give effect to any authorised rectification by amending the signed and certified transcript in accordance with the terms of the sheriff’s deliverance and initialling any amendment.

(9) On making any such amendment, the sheriff clerk shall—

(a) attach to the rectified transcript a copy of the deliverance certified by him;

(b) return it to the prosecutor;

(c) retain the application for rectification and the deliverance made in respect of the application;

(d) attach them to the record of proceedings mentioned in rule 15.

Alteration of time limits by sheriff

20.  Any direction made by the sheriff under section 20B(5)(a) with modifications as to time limits shall be entered in the record of proceedings mentioned in rule 15 and authenticated by the sheriff subscribing his signature.

Postponement of trial diet by sheriff

21.—(1) The sheriff shall not make an order under section 20B(5)(b) postponing the trial diet in respect of a case set down for trial in the High Court.

(2) Any order by a sheriff postponing the trial diet in a case not set down for trial in the High Court shall be—

(a) endorsed on the record copy indictment;

(b) authenticated by the signature of the sheriff;

(c) intimated—

(i) by the prosecutor to any co-accused by serving on them an intimation of postponement in the form set out in Form 14 of Schedule 1;

(ii) by the sheriff clerk to the governor of any institution in which any co-accused is detained.

Postponement of trial diet by High Court

22.—(1) If the sheriff considers that it may be appropriate to make an order under section 20B(5)(b) postponing a trial diet in respect of a case set down for trial in the High Court, he shall report the circumstances (including the making of any direction under section 20B(5)(a)) to the Clerk of Justiciary.

(2) The Clerk of Justiciary on receiving the sheriff’s report shall—

(a) fix a diet to which the trial diet shall be treated as being postponed for the determination by a single judge of the High Court of the diet to which the trial shall be postponed;

(b) intimate that diet to the prosecutor and the accused and to the governor of any institution in which any of the accused is detained.

(3) The judge, in determining the diet to which the trial shall be postponed, shall have regard to the terms of the sheriff’s report.

Alteration of time limits by High Court

23.—(1) All applications to the High Court for a direction to extend a time limit mentioned in section 20B(6) shall be made by way of petition.

(2) A petition under paragraph (1) shall be intimated to the other party and lodged together with a certificate of intimation with the sheriff clerk.

(3) The sheriff clerk, on the lodging of a petition, shall transmit it to the Clerk of Justiciary together with a certified copy of the relative petition and record of proceedings.

(4) A petition under paragraph (1) may be disposed of by a single judge of the High Court.

(5) The Clerk of Justiciary shall, as soon as possible after he receives the petition, fix a diet for the hearing and intimate the diet to the prosecutor and the accused.

(6) The Clerk of Justiciary, on the disposal of the petition by the High Court, shall transmit a certified copy of the deliverance of the High Court to the sheriff clerk.

(7) The sheriff clerk on receiving the certified copy of the deliverance shall attach it to the record of proceedings.

(1)

Section 20 was amended by, and sections 20A and 20B inserted by, the 1980 Act, section 6.

(2)

Section 274 was amended by the 1980 Act, Schedule 8.

(3)

1907 c. 51; the First Schedule was substituted by S.I. 1983/747

(4)

Section 151 was substituted by the 1980 Act, section 6(3).