Act of Adjournal (Consolidation) 1988

Preliminary Diet

Minute giving written notice

24.—(1) Any written notice given under section 76(1) (preliminary diet) shall be in the form of a minute as set out in Form 15 of Schedule 1.

(2) Any such minute that relates to a case set down for trial in the High Court at a sitting outside Edinburgh shall specify any productions required for the preliminary diet.

(3) The minute shall be lodged—

(a) if it relates to a case set down for trial in the High Court, with the Clerk of Justiciary,

(b) if it relates to a case set down for trial in the sheriff court, with the sheriff clerk,

in accordance with the provisions of rules 25 and 26.

Intimation of minute

25.—(1) A formal execution of prior intimation of the minute to all other parties shall be lodged at the same time as the minute.

(2) If it is not so lodged, the Clerk of Justiciary or the sheriff clerk, as the case may be, shall refuse to accept the minute for lodging.

Procedure on lodging

26.—(1) On the lodging of the minute, the Clerk of Justiciary or the sheriff clerk, as the case may be, shall—

(a) endorse on it the time and date on which it was received;

(b) as soon as possible, place the minute before a judge.

(2) On considering the minute in the absence of parties or of any person acting on their behalf, or otherwise as he thinks fit, the judge—

(a) if the minute raises a matter mentioned in paragraph (a) of section 76(1) (competency and relevancy, etc.), shall make an order for a preliminary diet specifying the date and time of the diet and the period (if any) for which the trial diet is postponed in terms of section 76(4);

(b) if the minute raises a matter mentioned in either paragraphs (b) or (c) of section 76(1), may make or refuse to make such an order.

Order for preliminary diet

27.—(1) An order made under rule 26(2) shall not be invalid by reason only of having been made in the absence of the parties or of any person acting on their behalf.

(2) Any such order shall be—

(a) endorsed on the minute,

(b) authenticated by the judge subscribing his signature,

(c) attached together with the minute to the record copy indictment.

Intimation of order

28.—(1) The Clerk of Justiciary or the sheriff clerk, as the case may be, shall as soon as possible after the making of any such order, intimate its terms to all parties and to the governor of any institution in which any of the accused is detained.

(2) Where, in relation to a case set down for trial in the sheriff court, the High Court makes an order under section 76(5) extending the period for which the trial diet has been postponed, the Clerk of Justiciary shall send a copy of the order to the appropriate sheriff clerk who shall, as soon as possible after receiving the order, intimate its terms to all parties and the governor of any institution in which any of the accused is detained.

Order to be warrant for citation

29.  Any order made under rule 26(2) specifying the period for which the trial diet is postponed, and any order made under section 76(5) extending that period shall, for the purposes of section 69 (warrants for citation), be treated as being a warrant issued by the Clerk of Justiciary or the sheriff clerk, as the case may be, to officers of law to cite accused persons, witnesses and jurors for the date to which the trial diet has by virtue of that order been postponed and shall have effect for those purposes.

Calling postponed diet

30.  If in relation to any case a trial diet has been postponed by virtue of an order mentioned in rule 29, any requirement to call that diet at any sitting of the court shall have effect only in relation to a sitting on the date to which the diet has been postponed.

Warrant for conveyance and transmission

31.  A copy of any order for a preliminary diet under rule 26(2) duly certified by the Clerk of Justiciary or the sheriff clerk, as the case may be, shall be warrant—

(a) for the conveyance to the preliminary diet of any accused who is in custody,

(b) in a case set down for trial by the High Court at a sitting outside Edinburgh in respect of which the preliminary diet has been ordered in Edinburgh, for the transmission to the Clerk of Justiciary of any productions specified in the minute.

Abandonment of matter to be raised at preliminary diet

32.—(1) Where a diet has been fixed for a preliminary diet under section 76 and the party raising the matter decides not to proceed with it, he shall give written notice of abandonment of the minute giving written notice under that section previously lodged by him.

(2) The notice of abandonment shall be in the form set out in Form 16 of Schedule 1.

(3) The notice shall be intimated forthwith to the clerk of court and to all other parties and to the governor of any institution in which any of the accused is detained.

(4) Upon such intimation it shall not be necessary to convene the court for the preliminary diet unless another minute giving written notice under section 76(1) has been lodged between the lodging of the first notice and the notice of abandonment.

Procedure at preliminary diet

33.—(1) A preliminary diet shall commence on the diet being called.

(2) For the purposes of the application of section 274 (shorthand notes of trial) to a preliminary diet the whole proceedings at the preliminary diet shall be proceedings at the trial for the purposes of that section.

(3) A record of those proceedings, including—

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

(b) any continuation or adjournment,

(c) the plea or pleas stated at the conclusion of the diet in terms of section 76(6),

shall be kept in accordance with existing law and practice.

(4) At any time after the commencement of the diet, the judge may make an order continuing or adjourning the diet to another time or place, but he shall not require to make an order continuing it to the trial diet.

(5) A copy of an order continuing or adjourning the diet under paragraph (4) duly certified by the Clerk of Justiciary or the sheriff clerk, as the case may be, shall be warrant—

(a) for the conveyance to the continued or adjourned diet of any accused who may be in custody,

(b) for the citation to that diet of any witnesses.

Application for leave to appeal

34.—(1) An application for leave to appeal to the High Court against a decision at a preliminary diet under section 76A(1)(1) (appeal against decision at preliminary diet) shall be made by way of motion to the judge at that diet immediately following the making of the decision in question, and shall be either granted or refused there and then.

(2) If leave to appeal is granted, the judge shall consider whether or not to postpone the diet of trial and if he decides that it is necessary or desirable to do so, he may discharge the trial diet and fix a new diet under section 77A (postponement of the trial diet).

(3) Rule 38 shall apply to an order postponing a trial diet under this rule as it applies to an order postponing the trial diet under that rule.

(4) Any order made under this rule shall be recorded in the record of proceedings.

Note of appeal

35.—(1) An appeal taken under section 76A(1) (appeal against decision at preliminary diet) shall be made by way of note of appeal in the form set out in Form 17 of Schedule 1.

(2) The note of appeal shall be lodged—

(a) in a case set down for trial in the High Court, with the Clerk of Justiciary,

(b) in a case set down for trial in the sheriff court, with the sheriff clerk,

not later than two days after the making of the decision in question.

Procedure on lodging note of appeal

36.—(1) On the lodging of a note of appeal with the sheriff clerk he shall endorse on it a certificate that leave to appeal has been granted and the date and time of lodging.

(2) On the lodging of a note of appeal against a decision of a sheriff, the sheriff clerk shall as soon as possible—

(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 his decision from the sheriff,

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

(i) the indictment,

(ii) the record of proceedings,

(iii) any relevant document.

Sheriff’s report

37.—(1) The sheriff on receiving a request for a report under rule 36(2) shall, as soon as possible, send his report to the Clerk of Justiciary.

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

(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,

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

Intimation of order postponing trial diet

38.—(1) Where in relation to any appeal under section 76A(1) (appeal against decision at preliminary diet) in a case set down for hearing in the sheriff court, the High Court makes an order or order and direction under section 76A(2) postponing the trial diet, the Clerk of Justiciary shall send a copy of the order or order and direction, as the case may be, to the sheriff clerk and to all parties to the proceedings and to the governor of any institution in which any of the accused is detained.

(2) Rules 29 and 30 shall apply to an order or an order and direction mentioned in paragraph (1) as they apply to an order mentioned in rule 29.

Order of appeal court

39.—(1) The Clerk of Justiciary shall intimate to the sheriff clerk the decision of the High Court disposing of an appeal under section 76A(1) (appeal against decision at preliminary diet).

(2) If the High Court in disposing of an appeal under section 76A(1) reverses a decision that dismisses the case against the accused, and makes a direction to the Court of first instance that it fix a trial diet, that direction shall be authority to the Clerk of Justiciary or the sheriff clerk, as the case may be, to issue a fresh warrant for citation under section 69 (warrant of citation).

Abandonment of appeal

40.—(1) An appellant who has taken an appeal under section 76A(1) may abandon the appeal at any time before the hearing of the appeal.

(2) An appeal shall be abandoned by way of lodging a minute of abandonment with the Clerk of Justiciary in the form set out in Form 18 of Schedule 1.

(3) The Clerk of Justiciary, on receiving a minute of abandonment of an appeal in a case set down for trial in the sheriff court, 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.

(1)

Section 76A was inserted by the 1980 Act, Schedule 4, paragraph 5.