Act of Adjournal (Consolidation) 1988

Alteration and Postponement of Trial Diet

Alteration of trial diet

41.—(1) If circumstances arise in which the court may adjourn the trial diet to a subsequent sitting under section 77, and the prosecutor proposes such an adjournment, he may for that purpose require the trial diet to be called at the sitting for which it was originally fixed at such time as he thinks appropriate.

(2) If, on the trial being so called, the prosecutor—

(a) informs the court that a warrant for an appropriate subsequent sitting of the court has been issued, and

(b) moves the court to adjourn the trial diet to that subsequent sitting,

the court shall grant his motion.

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

(4) If the trial diet was so called and adjourned in the absence of the accused, the prosecutor shall immediately serve on the accused an intimation of adjournment in the form set out in Form 19 of Schedule 1.

(5) The calling and the adjournment of the trial 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.

(6) A copy of an order of the court adjourning the trial diet to a subsequent sitting under section 77 shall be sent by the Clerk of Justiciary or the sheriff clerk, as the case may be, to the governor of any institution in which any of the accused is detained.

Application for postponement of trial diet

42.—(1) Subject to paragraph (2), an application for postponement of the trial diet under section 77A(1) shall be made by way of minute in the form set out in Form 20 of Schedule 1.

(2) Where all the parties join in the application it shall be made by way of joint minute in the form set out in Form 21 of Schedule 1.

(3) The minute 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 appropriate sheriff clerk.

Order fixing diet

43.  The minute shall be placed before the court and the court (if section 77A(3) does not apply) shall make an order endorsed on the minute—

(a) fixing a diet for a hearing of the application.

(b) for intimation of the minute and of the diet to all parties.

Calling of diet

44.—(1) The diet shall (if section 77A(3) and the proviso to section 77A(4) do not apply) be held in open court in the presence of all parties, and shall be commenced by the calling of the diet.

(2) On the calling of the diet the prosecutor shall inform the court—

(a) whether any other cases have been set down for trial at the sitting in respect of which the application for postponement of the trial diet is made, and

(b) whether a warrant has been issued under section 69 for a subsequent sitting of the court.

Orders

45.—(1) If the court is informed by the prosecutor that no other cases have been set down for trial at the sitting in respect of which the application for postponement of the trial diet is made and has granted the application under section 77A(2), the court shall make an order authorising—

(a) if citations have been issued to jurors for the original diet, the issue to those jurors of intimations that they are not required to attend at the original diet, but are required to attend at the new diet;

(b) if such citations have not been issued, the issue to the jurors shown on the original list of jurors of citations requiring them to attend at the new diet.

(2) If the court is informed by the prosecutor that other cases have been set down for trial at that sitting and has granted the application under section 77A(2), the court shall, in fixing a new trial diet, have regard to the time required to issue citations to such jurors on the list of jurors as have not been summoned under section 97 for the sitting in which the new diet is being fixed and are required to be summoned by reason of the granting of the application.

(3) If at the diet—

(a) the court is of opinion that the original diet should not proceed, and

(b) the court has been informed that a warrant has been issued under section 69 for a subsequent sitting of the court within the period mentioned in relation to that court in section 77,

the court may, notwithstanding the provisions of section 77A(2), make an order adjourning the trial diet to that subsequent sitting, and that order shall have effect as if it had been made under section 77.

Notice fixing new diet

46.—(1) If the court gives leave to the prosecutor to serve a notice fixing a new trial diet under section 77A(2), the prosecutor shall consult with the Clerk of Justiciary or the sheriff clerk, as the case may be, as to an appropriate date before fixing that diet.

(2) Such a notice shall be in the form set out in Form 22 of Schedule 1, and shall be served by the prosecutor on all parties and on the governor of any institution in which any of the accused is detained, and a copy of the notice together with the relative execution of service shall be lodged by him as soon as possible with the clerk of court.

(3) A notice served in accordance with paragraph (2) shall, for the purposes of section 69, 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 specified in the notice for the new trial diet, and shall have effect for those purposes.

(4) The clerk of court shall, on receiving a copy of the notice, attach it to the record copy indictment.

Record

47.  The clerk of court shall record by endorsation on the record copy indictment—

(a) the calling of the diet of the hearing under section 77A(2),

(b) the proceedings at the hearing,

(c) the decision of the court,

and that record shall be authenticated by the judge subscribing his signature, and entered in the record of proceedings in accordance with existing law and practice.

Joint application without hearing

48.—(1) If in the case of a joint application the court proposes to proceed under section 77A(2) without hearing the parties, the Clerk of Justiciary or the sheriff clerk, as the case may be, shall on the lodging of the minute attach it to the record copy 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 indictment,

(b) authenticated by the judge subscribing his signature,

(c) entered in the record of proceedings in accordance with the existing law and practice,

(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 any of the accused is detained a copy of the following orders of the court—

(a) an order under rule 43 fixing a diet for hearing of the application,

(b) an order under section 77A(2) discharging a trial diet and fixing a new trial diet,

(c) an order under rule 45(3) adjourning a trial diet to a subsequent sitting.

Calling of adjourned diet

49.  If in relation to any case, a trial diet has been discharged or adjourned under rules 42 to 48, any requirement to call that diet at any sitting of the court shall have effect only in relation to the sitting at which the new trial diet has been fixed.