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Preliminary Hearings Bench Book The Hon Lord Matthews The Hon Lord Beckett July 2020 Updated 20 November 2020 and 23 February 2021 JUDICIAL INSTITUTE | PARLIAMENT HOUSE | EDINBURGH PAGE 1 OF 140 Foreword by the Lord Justice General The Preliminary Hearing system was designed, first, to deal with all preliminary pleas and issues in advance of the trial and, secondly, to fix a trial diet, within the 140 day time limit, at a point when the case was ready for trial. The trial would proceed as scheduled, other than where desertion or a guilty plea followed. As a result of having a dedicated cadre of pro-active judges who have made a collective effort to maintain a uniform and effective approach, the introduction of a Preliminary Hearing has been largely successful in producing an efficient system which complies with the intention of the legislation and ensures that trials are held within a reasonable time. Practitioners, staff and judges prefer to work in a system which operates efficiently. In the case of counsel and especially agents, there ought to be a degree of satisfaction on completion of a prosecution, whatever its outcome. In an effort to maintain a consistent and effective approach to case management, Lords Matthews and Beckett have co-authored this comprehensive Bench Book for the conduct of Preliminary Hearings. It will provide support to the Preliminary Hearing judges in dealing with the many issues which must be addressed. It will also be a valuable tool for practitioners who will better understand the obligations which rest upon them and the expectations the court will have of them. I am very grateful to Lords Matthews and Beckett for their work on this project. I commend the Bench Book to all. Lord Justice General The Right Honourable Lord Carloway July 2020 JUDICIAL INSTITUTE | PARLIAMENT HOUSE | EDINBURGH PAGE 2 OF 140 User guide for the Preliminary Hearings Bench Book Please read the following information before using the Preliminary Hearings Bench Book. Updates to the Bench Book The Preliminary Hearings Bench Book will be kept up to date by the Judicial Institute for Scotland. The JI Directors will endeavour to take note of future changes (such as Appeal Court decisions, legislation or Practice Notes) which require to be referenced in the Bench Book, and will work with the editors of the Bench Book (Lord Matthews and Lord Beckett) to ensure that the Bench Book is kept up to date on the Judicial Hub. Amendments will be intimated to judges through news items posted on the Judicial Hub. The most up to date version will also be published on the Judiciary of Scotland website. Downloading and printing The Bench Book is available as a pdf and can be downloaded for offline use or printed out. If you elect to print the Bench Book or use a downloaded version saved on your computer, you should regularly check the Judicial Hub for updates (by news item) and should always refer to the latest version, whether printed or on the Judicial Hub. Where judicial office holders wish to have a separate hard copy of the Appendices for use on the bench, they can select “Print” on the pdf and then under “Settings” select the option to print a custom range of pages eg 140 – 191 which is the current page numbering of the Appendices. Hyperlinks An additional benefit of the online Bench Book is the hyperlinking found throughout – this means that wherever cases, legislation, or similar are referenced, judicial office holders who have LINETS, Westlaw and LexisNexis open can easily follow these links to view the document in question, hosted on Westlaw, LexisNexis etc. The hyperlinked contents page allows all users easy navigation within the various sections of the Bench Book. Cross-references to other chapters or paragraphs within the body of the Bench Book are also hyperlinked for ease. JUDICIAL INSTITUTE | PARLIAMENT HOUSE | EDINBURGH PAGE 3 OF 140 Emphasis Throughout the Bench Book, bold text has been used to emphasise certain parts of the text, including important aspects of quotations. Where emphasis has been added to a quotation by the authors, this is marked by the note “[emphasis added].” Copy and paste We recommend that judges also consult Copy and Paste PDF – a guide to copying and pasting content from the PDF Bench Book into Word Documents. Questions or comments If you require any further help or have any questions please contact the Judicial Hub Support Team by emailing [email protected] JUDICIAL INSTITUTE | PARLIAMENT HOUSE | EDINBURGH PAGE 4 OF 140 Contents Foreword by the Lord Justice General ....................................................................... 2 User guide for the Preliminary Hearings Bench Book ................................................ 3 Updates to the Bench Book .................................................................................... 3 Downloading and printing ....................................................................................... 3 Hyperlinks ............................................................................................................... 3 Emphasis ................................................................................................................ 4 Copy and paste ...................................................................................................... 4 Questions or comments .......................................................................................... 4 Chapter 1: The principal statutory obligations and powers governing preliminary hearings ..................................................................................................................... 9 1.1 Preliminary matters ........................................................................................... 9 1.1.1 Dispensing with preliminary hearing ........................................................... 9 1.1.2 Absence of accused ................................................................................... 9 1.1.3 Attendance by live TV link ........................................................................ 10 1.2 Substantive matters ........................................................................................ 11 1.2.1 Sex cases, domestic abuse cases, cases with child witnesses and cases with vulnerable witnesses – inquire about representation ................................. 11 1.2.2 Disposal of preliminary pleas ................................................................... 12 1.2.3 Thereafter pleas must be tendered .......................................................... 12 1.2.4 Dispose of any preliminary issues ............................................................ 12 1.2.5 Vulnerable witness notices, s275 applications, etc to be disposed of ...... 13 1.2.6 Is there any further objection to evidence? .............................................. 14 1.2.7 Which witnesses do parties require? ........................................................ 14 1.2.8 Any further vulnerable witnesses? ........................................................... 14 1.2.9 State of preparation and compliance with duties to agree evidence ........ 14 1.2.10 Is a further diet necessary? .................................................................... 15 1.2.11 Fix a trial and deal with any application re time limits ............................. 15 1.2.12 Review bail ............................................................................................. 15 1.2.13 Written record and court’s powers .......................................................... 16 1.3 Other issues.................................................................................................... 16 1.3.1 Check the form of any notice of special defence ...................................... 16 1.3.2 Check the presence and terms of the defence statement ........................ 16 1.3.3 Where preliminary hearing does not proceed or is deserted .................... 17 1.3.4 Appeals from decisions at preliminary hearings ....................................... 17 Chapter 2: Defence statements ................................................................................ 18 2.1 Section 70A .................................................................................................... 18 JUDICIAL INSTITUTE | PARLIAMENT HOUSE | EDINBURGH PAGE 5 OF 140 2.2. Section 124 in solemn proceedings ............................................................... 20 Chapter 3: Disclosure obligations and recovery of information ................................ 22 3.1 Disclosure generally ....................................................................................... 22 3.2 Criminal Justice and Licensing (Scotland) Act 2010 ....................................... 22 3.3 Ruling on disclosure ....................................................................................... 26 3.4 Common law applications ............................................................................... 33 Chapter 4: Time limits affecting preliminary hearings ............................................... 37 4.1 Productions ..................................................................................................... 37 4.2 Notice of previous convictions ........................................................................ 38 4.3 Defence statements ........................................................................................ 38 4.4. Other issues at the preliminary hearing ........................................................
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