Criminal Procedure (Scotland) Act 1995

Pre-trial proceedings

71 First diet

(1) At a first diet the court shall, so far as is reasonably practicable, ascertain whether the case is likely to proceed to trial on the date assigned as the trial diet and, in particular—

(a) the state of preparation of the prosecutor and of the accused with respect to their cases; and

(b) the extent to which the prosecutor and the accused have complied with the duty under section 257(1) of this Act.

(2) In addition to the matters mentioned in subsection (1) above the court shall, at a first diet, consider any matter mentioned in any of paragraphs (a) to (d) of section 72(1) of this Act of which a party has, not less than two clear days before the first diet, given notice to the court and to the other parties.

(3) At a first diet the court may ask the prosecutor and the accused any question in connection with any matter which it is required to ascertain or consider under subsection (1) or (2) above.

(4) The accused shall attend a first diet of which he has been given notice and the court may, if he fails to do so, grant a warrant to apprehend him.

(5) A first diet may proceed notwithstanding the absence of the accused.

(6) The accused shall, at the first diet, be required to state how he pleads to the indictment, and section 77 of this Act shall apply where he tenders a plea of guilty.

(7) Where at a first diet the court concludes that the case is unlikely to proceed to trial on the date assigned for the trial diet, the court—

(a) shall, unless having regard to previous proceedings in the case it considers it inappropriate to do so, postpone the trial diet; and

(b) may fix a further first diet.

(8) Subject to subsection (7) above, the court may, if it considers it appropriate to do so, adjourn a first diet.

(9) In this section “the court” means the sheriff court.

72 Preliminary diet: notice

(1) Subject to subsections (4) and (5) below, where a party to a case which is to be tried in the High Court within the appropriate period gives written notice to the court and to the other parties—

(a) that he intends to raise—

(i) a matter relating to the competency or relevancy of the indictment; or

(ii) an objection to the validity of the citation against him, on the ground of any discrepancy between the record copy of the indictment and the copy served on him, or on account of any error or deficiency in such service copy or in the notice of citation;

(b) that he intends—

(i) to submit a plea in bar of trial;

(ii) to apply for separation or conjunction of charges or trials;

(iii) to raise a preliminary objection under section 255 of this Act; or

(iv) to make an application under section 278(2) of this Act;

(c) that there are documents the truth of the contents of which ought to be admitted, or that there is any other matter which in his view ought to be agreed;

(d) that there is some point, as regards any matter not mentioned in paragraph (a) to (c) above, which could in his opinion be resolved with advantage before the trial and that he therefore applies for a diet to be held before the trial diet,

the court shall in a case to which paragraph (a) above applies, and in any other case may, order that there be a diet before the trial diet, and a diet ordered under this subsection is in this Act referred to as a “preliminary diet”.

(2) A party giving notice under subsection (1) above shall specify in the notice the matter or, as the case may be, the grounds of submission or the point to which the notice relates.

(3) The fact that a preliminary diet has been ordered on a particular notice under subsection (1) above shall not preclude the court’s consideration at that diet of any other such notice as is mentioned in that subsection, which has been intimated to the court and to the other parties at least 24 hours before that diet.

(4) Subject to subsection (5) below, the court may on ordering a preliminary diet postpone the trial diet for a period not exceeding 21 days; and any such postponement (including postponement for a period which by virtue of the said subsection (5) exceeds 21 days) shall not count towards any time limit applying in respect of the case.

(5) Any period mentioned in subsection (4) above may be extended by the High Court in respect of the case.

(6) In subsection (1) above, “appropriate period” means as regards notice—

(a) under paragraph (a) of that subsection, the period of 15 clear days after service of the indictment;

(b) under paragraph (b) of that subsection, the period from service of the indictment to 10 clear days before the trial diet; and

(c) under paragraph (c) or (d) of that subsection, the period from service of the indictment to the trial diet.

73 Preliminary diet: procedure

(1) Where a preliminary diet is ordered, subject to subsection (2) below, the accused shall attend it, and he shall be required at the conclusion of the diet to state how he pleads to the indictment.

(2) The court may permit the diet to proceed notwithstanding the absence of an accused.

(3) At a preliminary diet the court shall, in addition to disposing of any matter specified in a notice given under subsection (1) of section 72 of this Act or referred to in subsection (3) of that section, ascertain, so far as is reasonably practicable, whether the case is likely to proceed to trial on the date assigned as the trial diet and, in particular—

(a) the state of preparation of the prosecutor and of the accused with respect to their cases; and

(b) the extent to which the prosecutor and the accused have complied with the duty under section 257(1) of this Act.

(4) At a preliminary diet the court may ask the prosecutor and the accused any question in connection with any matter specified in a notice under subsection (1) of the said section 72 or referred to in subsection (3) of that section or which it is required to ascertain under subsection (3) above.

(5) Where at a preliminary diet the court concludes that the case is unlikely to proceed to trial on the date assigned for the trial diet, the court—

(a) shall, unless having regard to previous proceedings in the case it considers it inappropriate to do so, postpone the trial diet; and

(b) may fix a further preliminary diet.

(6) Subject to subsection (5) above, the court may, if it considers it appropriate to do so, adjourn a preliminary diet.

(7) Where an objection is taken to the relevancy of the indictment under subsection (1)(a)(i) of the said section 72, the clerk of court shall minute whether the objection is sustained or repelled and sign the minute.

(8) In subsection (1) above, the reference to the accused shall, without prejudice to section 6(c) of the [1978 c. 30.] Interpretation Act 1978, in any case where there is more than one accused include a reference to all of them.

74 Appeals in connection with preliminary diets

(1) Without prejudice to—

(a) any right of appeal under section 106 or 108 of this Act; and

(b) section 131 of this Act,

and subject to subsection (2) below, a party may with the leave of the court of first instance (granted either on the motion of the party or ex proprio motu) in accordance with such procedure as may be prescribed by Act of Adjournal, appeal to the High Court against a decision at a first diet or a preliminary diet.

(2) An appeal under subsection (1) above—

(a) may not be taken against a decision to adjourn the first or, as the case may be, preliminary diet or to postpone the trial diet;

(b) must be taken not later than 2 days after the decision.

(3) Where an appeal is taken under subsection (1) above, the High Court may postpone the trial diet for such period as appears to it to be appropriate and may, if it thinks fit, direct that such period (or some part of it) shall not count towards any time limit applying in respect of the case.

(4) In disposing of an appeal under subsection (1) above the High Court—

(a) may affirm the decision of the court of first instance or may remit the case to it with such directions in the matter as it thinks fit; and

(b) where the court of first instance has dismissed the indictment or any part of it, may reverse that decision and direct that the court of first instance fix a trial diet, if it has not already fixed one as regards so much of the indictment as it has not dismissed.

75 Computation of certain periods

Where the last day of any period mentioned in section 66(6), 67(3), 72 or 74 of this Act falls on a Saturday, Sunday or court holiday, such period shall extend to and include the next day which is not a Saturday, Sunday or court holiday.