Criminal Justice (Scotland) Act 1980

6 Judicial examination. S

(1) In section 20 of the 1975 Act (accused at examination need not emit a declaration)—

(a) in subsection (1), after the words “declaration, and” there shall be inserted the words “ subject to section 20A of this Act ”;

(b) at the end of subsection (3) there shall be added the words “ , and that declaration shall be taken in further examination. ”; and

(c) after subsection (3) there shall be inserted the following subsections—

“(3A) An accused person may, where subsequent to examination (or further examination) on any charge the prosecutor desires to question him as regards an extrajudicial confession (whether or not a full admission) allegedly made by him, to or in the hearing of an officer of police, which is relevant to the charge and as regards which he has not previously been examined, be brought before the sheriff for further examination.

(3B) Where the accused is brought before the sheriff for further examination it shall be in the power of the sheriff to delay that exa@nation for a period not exceeding 24 hours in order to allow time for the attendance of the accused’s solicitor.

(3C) Any proceedings before the sheriff in examination or further examination shall be conducted in chambers and outwith the presence of any co-accused.”.

(2) After section 20 of the 1975 Act there shall be inserted the following sections—

“20A Accused at examination may be questioned by prosecutor.

(1) Subject to the following provisions of this section, an accused on being brought before the sheriff for examination on any charge (whether that examination is the first examination or a further examination) may be questioned by the prosecutor in so far as such questioning is directed towards eliciting any denial, explanation, justification or comment which the accused may have as regards—

(a) matters averred in the charge:

Provided that the particular aims of a line of questions under this paragraph shall be to determine—

(i)

whether any account which the accused can give ostensibly discloses a category of defence (as for example alibi, incrimination, or the consent of an alleged victim); and

(ii)

the nature and particulars of that defence;

(b) the alleged making by the accused, to or in the hearing of an officer of police, of an extrajudicial confession (whether or not a full admission) relevant to the charge:

Provided that questions under this paragraph may only be put if the accused has, before the examination, received from the prosecutor or from an officer of police a written record of the confession allegedly made ; or

(c) what is said in any declaration emitted in regard to the charge by the accused at the examination.

(2) The prosecutor shall, in framing questions in exercise of his power under subsection (1) above, have regard to the following principles—

(a) the questions should not be designed to challenge the truth of anything said by the accused ;

(b) there should be no reiteration of a question which the accused has refused to answer at the examination ; and

(c) there should be no leading questions ;

and the sheriff shall ensure that all questions are fairly put to, and understood by, the accused.

(3) The accused, where he is represented by a solicitor at the judicial examination, shall be told by the sheriff that he may consult that solicitor before answering any question.

(4) With the permission of the sheriff, the solicitor for the accused may ask the accused any question the purpose of which is to clarify any ambiguity in an answer given by the accused to the prosecutor at the examination or to give the accused an opportunity to answer any question which he has previously refused to answer.

(5) An accused may decline to answer a question under subsection (1) above; and, where he is subsequently tried on the charge mentioned in that subsection or on any other charge arising out of the circumstances which gave rise to the charge so mentioned, his having so declined may be commented upon by the prosecutor, the judge presiding at the trial, or any co-accused, only where and in so far as the accused (or any witness called on his be half in evidence avers something which could have been. stated appropriately in answer to that question.

(6) The procedure in relation to examination under this section shall be prescribed by Act of Adjournal under this Act.

2OB Record to be made of proceedings at examination.

(1) The prosecutor shall provide for averbatim record to be made by a shorthand writer of all questions to and answers and declarations by, the accused in examination, or further examination, under sections 20 and 20A of this Act.

(2) The shorthand writer shall sign the transcript of the notes taken by him and shall certify that it is a complete and accurate record of the said questions, answers and declarations; and, subject to subsection (4) below, it shall for all purposes be so deemed.

(3) Subject to subsections (5) and (6) below, within 14 days of the date of examination or further examination, the prosecutor shall—

(a) serve a copy of the transcript on the accused examined ; and

(b) serve a further such copy on the solicitor (if any) for that accused.

(4) Subject to subsections (5) and (6) below, where notwithstanding the certification mentioned in subsection (2) above the said accused or the prosecutor is of the opinion that a transcript served under paragraph (a) of subsection (3) above contains an error or is incomplete he may—

(a) within 10 days of service under the said paragraph (a), serve notice of such opinion on the prosecutor or as the case may be the said accused; and

(b) within 14 days of service under paragraph (a) of this subsection, apply to the sheriff for the error or incompleteness to be rectified;

and the sheriff shall within seven days of the application hear the prosecutor and the said accused in chambers and may authorise rectification:

Provided that where—

(i)

the person on whom notice is served under paragraph (a) of this subsection agrees with the opinion to which that notice relates the sheriff may dispense with such hearing;

(ii)

the said accused neither attends, nor secures that he is represented at, such hearing it shall, subject to paragraph (i) above, nevertheless proceed.

(5) Where at the time of a further examination a trial diet is already fixed and the interval between the further examination and that diet is not sufficient to allow of the time limits specified in subsections (3) and (4) above, the sheriff shall (either or both)—

(a) direct that those subsections shall apply in the case with such modifications as to time limits as he shall specify;

(b) postpone the trial diet:

Provided that postponement under paragraph (b) above alone shall only be competent where the sheriff considers that to proceed under paragraph (a) above alone, or paragraphs (a) and (b) above together, would not be practicable.

(6) Any time limit mentioned in subsections (3) and (4) above (including any such time limit as modified by a direction under subsection (5) above) may extended, in respect of the case, by the High Court.

(7) In so far as it is reasonably practicable so to arrange, the sheriff who deals with any application made under subsection (4) above shall be the sheriff before whom the examination (or further examination) to which the application relates was conducted.

(8) Any decision of the sheriff, as regards rectification under subsection (4) above, shall be final.

(9) A copy of—

(a) a transcript required by paragraph (a) of subsection (3) above to be served on an accused or by paragraph (b) of that subsection to be served on his solicitor; or

(b) a notice required by paragraph (a) of subsection (4) above to be served on an accused or on the prosecutor,

may either be personally served on the accused, solicitor or prosecutor (as the case may be) or sent to him by registered post or by the recorded delivery service ; and a written execution purporting to be signed by the person who served such transcript or notice, together with, where appropriate, a post office receipt for the relative registered or recorded delivery letter shall be sufficient evidence of service of such a copy.”.

(3) For section 151 of the 1975 Act (accused’s declaration in solemn proceedings to be received in evidence without being sworn to by witnesses), there shall be substituted the following section—

“151 Record of proceedings at examination to be received in evidence without being sworn to by witnesses.

(1) Subject to subsection (2) below, the record made, under section 20B of this Act (with any rectification, authorised under subsection (4) of that section, incorporated), of proceedings at the examination of an accused shall be received in evidence without being sworn to by witnesses, and it shall not be necessary to insert the names of any witnesses to the record in any list of witnesses, either for the prosecution or for the defence.

(2) Subject to sections 2OB(2) and 76(1)(b) of this Act, on the application of either an accused or the prosecutor, the court may refuse to allow the record or some part of the record to be read to the jury ; and at the hearing of such application it shall be competent for the defence to adduce as witnesses the persons who were present during the proceedings mentioned in subsection (1) above and for the defence and for the prosecutor to examine those witnesses upon any matters regarding the said proceedings.

(3) “Record” in subsection (2) above comprises, as regards any trial, each record included, under section 78(2) of this Act, in the list of productions.”.

(4) For section 352 of the 1975 Act (accused’s declaration, in summary proceedings, to be received in evidence without being sworn to by witnesses), there shall be substituted the following section—

“352 Record of proceedings at examination to be received in evidence without being sworn to by witnesses.

(1) Subject to subsection (2) below, the record made, under section 20B of this Act (with any rectification, authorised under subsection (4) of that section, incorporated), of proceedings at the examination of an accused shall be received in evidence without being swom to by witnesses.

(2) Subject to section 2OB(2) of this Act and to subsection (4) below, on the application of either an accused or the prosecutor, the court may refuse to admit the record or some part of the record as evidence ; and at the hearing of such application it shall be competent for the defence to adduce as witnesses the persons who were present during the proceedings mentioned in subsection (1) above and for the defence and for the prosecutor to examine those witnesses upon any matters regarding the said proceedings.

(3) “Record” in subsection (2) above comprises, as regards any trial, each record which it is sought to have received in evidence under subsection (1) above.

(4) Except on cause shown, an application under subsection (2) above shall not be heard unless notice of at least 10 clear days has been given to the court and to the other parties.”.

Modifications etc. (not altering text)

C1 The text of ss. 6, 11, 13–22, 24, 25, 27–30, 33–38, 40, 43, 45(1), (3), 46(1)(e)(f), (2), 47–51, 53, 54, 56, 57, 79, 83(2)(3) is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any amendments or repeals which may have been made prior to 1.2.1991.