BOOK OF REGULATIONS CHAPTER 7 SUMMARY PROCEDURE

CHAPTER 7 - SUMMARY PROCEDURE

7.01 CHOICE OF COURT upon failure to accept a fixed penalty offer should be taken by Procurators Fiscal in The general rule is that cases which may the District Courts. Justices are not be competently taken in the District Court empowered to disqualify for road traffic should be taken there. If a case is offences except under the "totting up" competent to be taken in the District Court procedure (see Section 50 of the 1988 Act it should be prosecuted there unless there and Section 19 of the Transport Act 1981). is some good reason for prosecuting it in the Sheriff Court. In such a case the 7.04 JURISDICTION AND POWERS OF reason for prosecuting in the Sheriff Court STIPENDIARY MAGISTRATES should be noted on the papers. Section 249(8)(b) of the 1995 Act limits the amount In terms of section 7(5) of the Criminal of compensation order which a District Procedure () Act 1995, a District Justice can award (now £2,500) and the Court when constituted by a Stipendiary Procurator Fiscal must bear this in mind Magistrate shall have the criminal when deciding in which court to prosecute jurisdiction and powers of a Sheriff. a case. 7.05 JURISDICTION AND POWERS OF 7.02 JURISDICTION OF DISTRICT SHERIFF SUMMARY COURT COURTS The Sheriff has summary jurisdiction in all Section 7 of the 1995 Act sets out the offences except murder, jurisdiction and powers of the District Court. , rape and breach of duty by The penalties which may be imposed by magistrates (section 3(6) of the 1995 Act). the district court on convicting of a common The Sheriff's sentencing powers in relation law offence are to be found in section 7(6) to common law offences are provided by of the 1995 Act. Section 225 of the 1995 section 5 of the 1995 Act (three months Act now contains the "" imprisonment or six months in the case of a which sets out the various levels of fines second or subsequent offences of which are available. Level 4, currently or personal violence) or a fine £2,500 is the appropriate upper limit not exceeding the available to a justice in the District Court for (currently £5.000). both common law and statutory offences unless the statute provides otherwise. 7.06 MODE OF TRIAL OF CERTAIN OFFENCES 7.03 DISTRICT COURT ROAD TRAFFIC OFFENCES Section 5(1) of the 1995 Act provides that the Sheriff, sitting as a court of summary The District Court, in terms of Section 10 of jurisdiction, shall continue to have all the the Road Traffic Offenders Act 1988, may jurisdiction and powers exercisable by him deal with endorsable road traffic offences at the commencement of the Act. The for which a fixed penalty may be offered mode of trial of a statutory offence should (subject to the District Court penalty limit of be specified in the statute creating the level 4 on the standard scale. These are offence. Section 292 of the 1995 Act specified in Schedules 3 and 5 to the 1988 provides for the mode of trial of certain Act. Prosecutions, therefore, following offences. Statutory offences are triable

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1 BOOK OF REGULATIONS CHAPTER 7 SUMMARY PROCEDURE either summarily, on indictment, or both on Provisions)(Scotland) Act 1995 indictment or summarily. All offences consolidates the provisions in the 1975 Act created after 1977 should have the mode which altered penalties in respect of certain of trial specified in the statute. For those offences and converted specified sums of statutory offences created before the money into levels on the standard scale. coming into effect of the 1977 (ie 29 July 1977) where the mode of 7.08 COMPLAINT trial was not specified, the offence will be triable summarily only if the maximum Although the police or other agency will penalty in force before 29 July 1977 did not submit draft charges, it is the duty of the include a fine exceeding £400 or Procurator Fiscal to ensure that the imprisonment for a period exceeding 3 charges are properly drafted and relevant months or a fine exceeding £50 in respect to the submitted. He will also of a specified quantity or number of things ensure that there is a sufficiency of or a specified period in the case of evidence to justify every charge libelled. continuing offences (section 292 of the As the procedure is summary, every 1995 Act). endeavour should be made to issue a complaint as soon as possible. If previous Section 292(6) of 1995 Act provides that an convictions are libelled, a schedule offence which may be tried only summarily disclosing them must be served with the may nevertheless be libelled in an complaint. indictment as an additional or alternative charge. The penalty which may be 7.09 imposed for the "summary" offence is restricted to that which could be imposed When drafting common law offences, the on summary conviction. This, however, Procurator Fiscal should follow the styles does not mean that all summary charges laid down in the book of styles issued by outstanding against an accused will be Crown Office. libelled as additional charges to the main charge on the indictment, and the 7.10 Procurator Fiscal must exercise his discretion as to which of the outstanding When drafting statutory charges the words summary charges he considers are of the statute should be followed as closely suitable for such inclusion. When reporting as possible referring to the section and a case by precognition, the Procurator subsection of the Act. If the Act has been Fiscal will draw the attention of Crown amended this should be stated, quoting the Counsel to such outstanding charges along amending legislation. with a recommendation as to their inclusion in, or omission from any indictment. 7.11

Procurators Fiscal should refer to Where there is a choice between a paragraph 7.17 in relation to time limits in common law or statutory charge the summary procedures as now governed by Procurator Fiscal will require to apply his Section 136 of the 1995 Act. mind as to which charge he should libel. He may not libel both. Normally the 7.07 RATIONALISATION OF PENALTIES statutory offence is libelled but there may be circumstances where the common law Section 3 (and Schedules 1 and 2) of the is more appropriate. Care should also be (Consequential taken to ensure that when a statutory

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2 BOOK OF REGULATIONS CHAPTER 7 SUMMARY PROCEDURE offence is being libelled it contains words and is to include assault, breach of the which will enable the court to find the peace, vandalism, malicious mischief and accused guilty of a if , together with any other alleged the statutory offence fails to prove. (See offences which a Procurator Fiscal section 138(4) schedule 3, paragraph 14, considers might properly qualify for that of the Criminal Procedure (Scotland) Act description according to the circumstances 1995. In making his choice the Procurator of the case. As large numbers of arrests Fiscal should also keep in mind the are often made, Procurators Fiscal should maximum penalty competent under each arrange to receive early warning from the method of prosecuting, eg a second Police in order that suitable court conviction in a summary court for arrangements may be made with the vandalism carries a higher penalty under Sheriff Clerk or the Clerk to the District the statutory offence than at common law. Court. (See section 52 of the Criminal Law (Consolidation) (Scotland) Act 1995.) 7.14 FOOTBALL SPECTATORS ACT 1989 7.12 The Act provides among other things for A charge which shows that an accused has the making by Courts of orders preventing a previous conviction, eg driving while certain persons from attending designated disqualified or in relation to being a known football matches. The purpose of these thief should always be libelled on a orders is to help prevent violence or separate complaint. disorder at such matches.

7.13 FOOTBALL HOOLIGANS AND Although the Act received the CONTROL OF ALCOHOL AT SPORTING on 16 November 1989, many of its EVENTS provisions did not come into effect until relatively recently. While in general the Act Persons arrested on charges relating to applies only to England & Wales, football hooliganism may be dealt with in Section 22 gives Magistrates Courts the the Sheriff or District Courts and power to impose an order (a 'restriction Procurators Fiscal should exercise their order') on a person normally resident in discretion as to which is more appropriate. England or Wales who has been convicted This instruction refers to offences both of a football related offence in a country inside and outside the football grounds at outside England or Wales if that offence is any time before, during or after a football specified in an as match, but does not include offences under corresponding to any offence in Schedule 1 Part II of the Criminal Law (Consolidation) of the Act. Such an Order - SI 993 -The Act 1995 which deals with the control of Football (Corresponding offences in alcohol at sporting events. These cases Scotland) Order 1990 - came into force on should be taken at the District Court unless 1 June 1990. A copy of that Order which they are included with other offences which sets out the corresponding offences in merit prosecution in the Sheriff Court. It will Scotland for which restriction orders can be normally be easy to identify accused made can be found in Annex 6. persons as football fans and to relate their presence at the locus of the offence to a The effect of a restriction order (whether particular match taking place at or near the made by a Court in England or Wales time of the offence. The term following a conviction there, or in a country "hooliganism" is to be interpreted broadly whose corresponding offences have been

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3 BOOK OF REGULATIONS CHAPTER 7 SUMMARY PROCEDURE defined by Order in Council) will be to additional endorsed copy of the prohibit the accused from travelling to report will be submitted for each certain football matches outside England & accused. Wales. The restriction order makes the accused liable to report to a police station 2. Both copies of the police report will in England & Wales when such football be submitted by the police to the matches take place. Football matches in Procurator Fiscal in the normal way. Scotland can be designated under this Attention will therefore be focused arrangement. on the more serious summary cases and those taken on A restriction order will apply for either two indictment. A full extract of any or five years depending on the seriousness conviction will require to be of the offence giving rise to it. Local police obtained by the Procurator Fiscal stations in England & Wales will handle the from the Sheriff Clerk and on the registration and reporting of accused expiry of the relevant period of subject to restriction orders. In all other appeal, it should be sent with the respects, the administration of the endorsed police report to Crown restriction order scheme will be carried out Office. by the Football Spectators Restrictions orders Authority (ROA), which will co- 3. Both the endorsed police report and ordinate information on accused persons the extract conviction will be with football related convictions. conveyed by Crown Office to the ROA as supplementary information Although most of the work in administering to the Certificate described above. the scheme in Scotland will be undertaken The Certificate will be the only by the police, Crown Office is responsible document admissible for for providing the ROA with details of consideration by Magistrates Courts relevant football related convictions which in England & Wales and consists of occur in Scotland. a certified statement that the accused was convicted of a PROCEDURES FOR REPORTING football-related offence in Scotland CONVICTIONS IN SCOTLAND FOR as well as narrating the disposal FOOTBALL-RELATED OFFENCES following conviction.

1. Where the police arrest an accused 7.15 CHARGES AGAINST AN ACCUSED person who is normally resident in IN SEVERAL DISTRICTS England & Wales and consider that he has committed a football-related In accordance with the decision in Kesson offence, an additional copy of the v Heatly 1964 JC 40, except in certain arrest (or summoning) report will be limited and exceptional circumstances all prepared for submission to the known outstanding charges against an Procurator Fiscal. The additional accused should be dealt with at one time. copy will be clearly endorsed by the This applies even if charges arise in reporting officer 'FOR THE several districts. (See section 9(4) of the INFORMATION OF THE 1995 Act.) In practice this may be difficult RESTRICTION ORDERS to achieve but the Procurator Fiscal AUTHORITY IF CONVICTED'. If involved should consult to this end more than one such accused is the particularly in custody cases. If a subject of the same report, an Procurator Fiscal is aware that an accused

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4 BOOK OF REGULATIONS CHAPTER 7 SUMMARY PROCEDURE in custody in his district has committed an prima facie would lead to a conviction as offence elsewhere, he will communicate charged. Further, the Procurator Fiscal with the Procurator Fiscal of the other should satisfy himself that the information district and request that the police received from the police is sufficient to information be sent to him immediately. In substantiate his decision to apply for a custody cases, the Procurator Fiscal who warrant. has brought the accused before the court 7.17 EXECUTION OF WARRANTS will normally be the one who takes the WITHOUT UNDUE DELAY other cases. In cited cases the norm will be to take cases individually but there may In terms of Section 136(1) and (2) of the be reasons indicating that charges should 1995 Act proceedings in relation to be conjoined. If they are conjoined the statutory contraventions, which are triable Procurator Fiscal of the district in which the only summarily, must be commenced accused lives should generally be the one within 6 months of the contravention of the who takes the cases. There may be statutory provision, or in the case of a exceptions to this rule eg if the majority of continuous contravention, within 6 months witnesses live elsewhere. The Procurator of the last date of such contravention Fiscal must exercise great care to avoid unless the enactment fixes a different time duplication of charges ie the same or limit. Proceedings are deemed to be basically the same charges arising out of commenced in terms of Section 136(3) on the same course of conduct being taken in the date on which a Warrant to apprehend more than one court because separate or to cite the accused is granted, if the police reports have been submitted, eg Warrant is executed without undue delay. where an accused has driven a car in What constitutes "undue delay" remains a several districts on the same day without question of fact in each case. insurance. Procurators Fiscal should, so far as it is The terms of section 138(4) Schedule 3 within their power, ensure that such para 8(2)-8(5) of the 1995 Act in relation to Warrants are issued to the police for conviction on alternative crimes committed execution as soon as they are received by outwith the jurisdiction are relevant. the Procurator Fiscal. Efforts should be made to ensure that there is no delay on the part of the Clerk of Court in handing 7.16 COMMENCEMENT OF over the Warrant to the Procurator Fiscal. PROCEEDINGS BY SUMMARY Procurators Fiscal should, so far as it is WARRANT within their power, ensure that such Warrants, once issued to the police, are The Procurator Fiscal should normally in executed as soon as is physically possible. the first instance cite the accused to attend court, but where citation Procurators Fiscal are reminded that there cannot be effected, or in the are statutory offences triable only circumstances detailed below, the summarily in respect of which proceedings Procurator Fiscal may initiate must still be commenced within a specific proceedings by means of a time limit. There are also "either way" summary warrant. offences in respect of which a time limit applies to any summary proceedings. For The Procurator Fiscal will not seek a example, section 25 of the Misuse of Drugs summary warrant unless the information Act 1971 provides that summary submitted to him contains evidence which proceedings for an offence under the Act

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5 BOOK OF REGULATIONS CHAPTER 7 SUMMARY PROCEDURE may be commenced at any time within 12 is appropriate in the circumstances months from the time when the offence of the case. This procedure will was committed. Section 136 of the 1995 only be used by the Procurator Act does not affect this requirement, and Fiscal in exceptional cases and not summary proceedings must therefore be as a general rule If there is no need commenced within 12 months of the date to have the offender at the police of the offence. The time limits in sections station, then, subject to local 34(1) and 34(3) of the Health and Safety at arrangements, the police can tell Work Act 1974 are other examples of the alleged offender to report periods within which summary proceedings directly to an officer at the court. In for an offence to which these subsections either instance, an arrest report or apply must be commenced. It should be its equivalent should be forwarded noted, however, that the scope of these to the Procurator Fiscal along with subsections is limited and most offences the warrant. under the 1974 Act and regulations will benefit from the exception to the general (3) The Procurator Fiscal may issue a time bar provision in section 136 for warrant to the police for offences which are triable "either way". enforcement without comment. In this situation, it is recognised that Although section 136 of the 1995 Act does the police have a discretion not impose a 6 month time limit for "either whether, in the particular way" offences Procurators Fiscal should circumstances of the case, the set a target of 6 months within which warrant should be executed summary proceedings should normally be formally or whether any voluntary taken. arrangement can be entered into in accordance with the provisions of 7.18 EXECUTION OF INITIAL paragraph 2. If the officer who WARRANTS executed the warrant is not the officer who reported the offence in (1) The Procurator Fiscal may decide the first place and has no not to issue a warrant to the police knowledge of the background of the but may write to the accused case he should in cases of doubt advising him that a warrant has communicate if possible with that been obtained and requiring reporting officer. Should there, attendance at court at a particular thereafter, still be doubt as to diet. Where a warrant has been whether or not the warrant should granted and not issued by the be executed formally, the Procurator Fiscal, the police will not Procurator Fiscal or his deputes will be involved in the procedure. be available for consultation.

(2) The Procurator Fiscal may issue a (4) The warrant handed to the police warrant to the police with a request for execution should be the initial that they co-operate in achieving a warrant itself or an extract obtained voluntary attendance at a court diet from the sheriff clerk and a copy of (which will normally be specified). the petition or complaint should be Such a request is not a mandatory provided. No police officer should instruction to the police who should arrest a person without direct exercise their discretion as to knowledge that the warrant exists whether or not voluntary attendance and that it is held by the police.

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IN ENGLAND, WALES OR NORTHERN (5) Once an arrest has been effected IRELAND TO A SCOTTISH COURT or a voluntary attendance arranged, the warrant or the extract should be Section 39(3) of the returned to the Procurator Fiscal gives authority to serve Scottish citations along with an arrest report or its on accused persons resident in England equivalent. Persons appearing on and Wales and in the warrants should be dealt with in the same manner as such citations are served same way as custody cases in Scotland. The persons authorised to whether or not they have been effect such a citation shall include, in detained. Immediately after the England and Wales and Northern Ireland, accused person has appeared at Constables and Prison Officers serving in court, the Procurator Fiscal will those parts of the . The advise the police in order that they (Criminal Procedure may arrange to have the accused's Rules) 1996 2.7 provides that where a name removed from the Police citation of an accused person is served in National Computer. England, Wales and Northern Ireland such service may be proved either by the oath in 7.19 CITATION OF ACCUSED IN Court of the Officer effecting the service or SCOTLAND by production of his written execution of service of citation signed by him. The 1995 authority to cite an accused to an ordinary sitting of the Court or to any 7.22 special diet is to be found in section 140 of the 1995 Act. Citation will usually be by Where a Procurator Fiscal wishes a means of recorded delivery. If the complaint served personally on a person complaint is returned by the Post Office to resident in Northern Ireland it requires the the Procurator Fiscal the Procurator Fiscal co-operation of the Northern Ireland Police. should issue the complaint to the police for The following procedure is required to be personal service. If the complaint is not followed by Procurators Fiscal and their returned by the Post Office to the staff:- Procurator Fiscal and the accused fails to answer the citation, the Procurator Fiscal (1) An enquiry should be made by should send intimation of the new diet to telephone to one of the Divisional the accused by recorded delivery. If the Royal Ulster Constabulary accused fails to answer the citation the Headquarters. Procurator Fiscal should initiate the (2) The complaint/citation should then proceedings afresh by personal citation on be forwarded to the Divisional RUC the accused. If the accused, after personal Headquarters (or any particular service, fails to appear in court or respond local RUC Station directed as a by letter a warrant may be taken for his result of the telephone enquiry) with apprehension. details of the service requirements.

7.20 METHOD OF CITATION (3) If served, the execution of citation will be returned to await further The manner of citation is set out in instructions from the Procurator section 141 of the 1995 Act. Fiscal, if any.

7.21 CITATION OF ACCUSED RESIDENT (4) If not served, the citation will be

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returned to await further instructions is in terms of section 297(2) of the 1995 from the Procurator Fiscal, if any. Act.

7.23 CITATION OF ACCUSED 7.27 NORTHERN IRELAND AND RESIDENT OUTWITH UNITED KINGDOM CHANNEL ISLANDS

Procurators Fiscal should refer to Chapter All Northern Ireland summonses sent to 14 on Specialities of Jurisdiction at 14.33 in Scotland must be served personally on an this regard. accused in accordance with the Magistrates' Courts (Amendment) Rules 7.24 ASSIGNED DIETS (Northern Ireland) 1980, Rule 11(a). Arrangements have been made whereby This procedure must be used if, without it, a the Northern Ireland Police will liaise case would become time barred. (See directly with the appropriate Scottish Police section 139(1) of the 1995 Act. Where the Force to execute service, and Procurators Court assigns a diet the complaint should Fiscal are not involved. be issued without undue delay to the police for personal service. (See also paragraph 7.28 SERVICE OF COMPLAINT ON 7.17). They in turn should be instructed by COMPANIES ETC the Procurator Fiscal to serve the complaint without undue delay. (See Smith v Peter Service may be effected in terms of section Walker & Son (Edinburgh) Ltd CO Circular 141(2)(b)(1) of the 1975 Act by leaving the A32/77). Where delay in service does citation at the accused's ordinary place of occur the Procurator Fiscal must be business with a partner, director, secretary prepared to justify this delay to the Court or other official or by posting it by recorded and if necessary to lead evidence. The delivery to the place of business of the manner of proof of service by an officer of accused. (See section 141(2)(b)(i) of the law is in terms of section 141(7) and 1995 Act in terms of section 150(5) of the (297(2) of the 1995 Act. In the case of 1995 Act), if an accused company fails to accused in England postal citation may be appear at any diet to which it has been used. cited the Court may on the motion of the Prosecutor and upon proof that the 7.25 CITATION OF ACCUSED IN accused has been duly cited proceed to SCOTLAND TO COURTS OUTSIDE hear and dispose of the case in the SCOTLAND absence of any representative of the accused as imprisonment is incompetent. Section 39(1) and (2) of the Criminal Law If in summary proceedings the Procurator Act 1977 provide that a summons requiring Fiscal considers that for any reason an accused to appear before a Court in proceedings against a company etc should England, Wales or Northern Ireland may be not be taken against it in its corporate served on him in Scotland in such manner capacity, he may proceed against an as may be prescribed by Rules of Court. individual representative of the company in terms of section 143(3) whereby the 7.26 ENGLAND AND WALES offence shall be deemed to be that of the company etc. Rules of Court brought into force on 12 May 1980 permit English and Welsh In respect of such proceedings it is summonses to be served in Scotland by incompetent to libel against the post or an Officer of Law. Proof of citation representative any previous convictions

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8 BOOK OF REGULATIONS CHAPTER 7 SUMMARY PROCEDURE obtained against any former representative he has been given due notice is guilty of an of the company (Campbell v MacPherson offence, and, where appropriate, this new 1910 6 Adam 394). offence should be charged. An offence Certain statutes impose a liability upon an under section 150 is liable to time bar and individual as an officer, member, etc of a should be commenced by way of summary company for offences committed by the warrant to prevent prescription. company eg where the individual has knowingly and wilfully authorised or 7.30 ADDRESS FOR CITATION permitted the offence (section 440 of the Companies Act 1948) or has consented to Under section 25(1)(b) of the 1995 Act the or connived at the offence or where it has order granting bail handed to an accused been committed because of his neglect contains an address within the United (section 29 of the Trades Descriptions Act Kingdom which shall be the accused's 1968 and section 169 of the Consumer domicile of citation. Previously the domicile Credit Act 1974). of citation of a person released on bail had to be restricted to an address in Scotland. The development should be noted of the However section 39 of the Criminal Law concept of "knowledge" on the part of a Act 1977 makes it possible to operate the body corporate and its importance in provision of section 2 by permitting an considering proceedings against such a address for citation anywhere in the United body (See Tesco Supermarket Ltd v Kingdom. Nattrass 1972 AC 153, the Readers Digest Association Ltd v Pirie 1973 SLT 170 and 7.31 EXECUTION OF NON- Dean v John Menzies Holdings Ltd CO APPEARANCE WARRANTS Circular A21/80.) (1) The Procurator Fiscal should not 7.29 NON APPEARANCE WARRANTS seek a warrant in respect of the non-appearance of an accused at Where an accused has been personally any court diet (before conviction) cited to a diet of Court and fails to appear unless he has a clear indication that the Procurator Fiscal should move the the accused had knowledge of that Court to grant a warrant for his court diet (eg by personal service or apprehension. The Fiscal should be through some acknowledgement by prepared if necessary to lead evidence of the accused). citation by producing the execution of citation signed by the Serving Officer or by (2) On obtaining such a warrant, the asking the Court for an adjournment to Procurator Fiscal may:- produce the Serving Officer who can depone on oath that the complaint was (a) unless he has good reason served. In the case of an accused's failure to believe that the accused to attend for trial or at an adjourned diet the will not attend, retain the Procurator Fiscal should first enquire of the warrant and write to the Sheriff Clerk whether the accused has accused person to arrange been informed of the trial diet before asking a suitable date for him to the court for a warrant. appear. The police should not be involved in this Section 150 of the 1995 Act provides that procedure; an accused who without reasonable excuse fails to attend at any diet of which (b) issue the warrant to the

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police and seek their co- in respect of additional matters in operation in securing his order that the judge has the choice voluntary attendance at a of imposing a concurrent or specified diet of the court. consecutive sentence, whichever is The police should exercise in the interest of justice. their discretion as to whether or not voluntary Procurators Fiscal should bear in mind the attendance is appropriate. guidance of the execution of warrants This procedure will only be contained in paragraph 6.19 as the used by the Procurator principles therein apply equally to summary Fiscal in exceptional cases proceedings. and not as a general rule; or 7.32 EXECUTION OF WARRANTS (c) issue the warrant without OUTSIDE SCOTLAND comment. As with initial warrants, the police have a A warrant issued in Scotland for the arrest discretion as to whether or of a person charged with an offence may not a non-appearance be executed in England or Wales by any warrant should be executed Constable acting within his police area formally or by allowing the (section 38 Criminal Law Act 1977). Such accused to attend warrants should be sent by the Procurator voluntarily. In cases of Fiscal to the local police force who will doubt or difficulty, the transmit them to the appropriate English Procurator Fiscal or his force. deputes should be available for consultation. In this 7.33 instance, if the extract is not clear, the Procurator Fiscal Similar provisions are in force for warrants should ensure that the issued in Scotland in respect of accused police are aware that the persons living in Northern Ireland (section warrant has been granted in 38 Criminal Law Act 1977). These warrants respect of the non- should also be sent by the Procurator appearance of the accused Fiscal to his local Police Force for at a court diet. transmission to the appropriate Division of the Royal Ulster Constabulary. (3) Procurators Fiscal are requested to regularly review all outstanding 7.34 Warrants which have been issued to the police for execution. This will Under section 4 of the Indictable Offences involve asking the police to make Amendment Act 1868 a warrant issued in enquiries to ascertain whether or Scotland for an accused in the Channel not an accused is in custody or is Islands may be enforced by the Local serving a sentence of imprisonment Police Force there if it is endorsed in the imposed elsewhere. It is expected manner specified in Schedule K of the that, whenever possible, all Indictable Offences Act 1848. outstanding matters against an accused person will be dealt with at 7.35 the same time. Accused persons should be brought to court speedily Section 5(4) of the Act 1979

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10 BOOK OF REGULATIONS CHAPTER 7 SUMMARY PROCEDURE provides for the execution of a warrant in the instructions of Crown Counsel before the Isle of Man which has been issued in making such an application. If time does any part of the British Isles. not so permit (where, for example, the application is necessary because of 7.36 WARRANTS OF ARREST ISSUED postponement of the trial granted by the OUTSIDE SCOTLAND court at the request of the accused), the matter must be reported as soon as A warrant issued in England, Wales or possible thereafter. Northern Ireland for the arrest of a person charged with an offence, may be executed In summary cases, prison governors and in Scotland by any constable in like manner warders will make a particular check of as any such warrant issued in Scotland committal warrants to ensure that the date (section 38(2) Criminal Law Act 1977). set for trial is within the 40 day limit and where it is not, a report will be made to A warrant issued in the Channel Islands for Crown Office. the arrest of a person charged with an offence may be executed in Scotland by Although the Procurator Fiscal can any Constable provided it is endorsed in exercise no formal control over the fixing of the manner specified in Schedule K of the diets he must make very effort to ensure Indictable Offences Act 1848. the co-operation of the court in fixing diets in such a manner as to achieve the most expeditious disposal of his case load. In cases where bail is refused trials must be 7.37 FIXING OF TRIAL DIETS AND fixed for a date no later than 40 days after PREVENTION OF DELAYS the first appearance. When consideration is being given to the fixing of trial diets the Section 147 of the 1995 Act makes Procurator Fiscal should keep in mind the provision to prevent delay in bringing availability of witnesses especially police custody cases to trial in summary witnesses for the date being considered. proceedings. This section places a 40 day limit on the time spent in custody between 7.38 the date of first appearance on the summary complaint and the Any diet may be discharged and an earlier commencement of the trial, which for these or later one fixed by the court either on a purposes is when the first witness is sworn. joint application in writing in terms of If this time limit is not observed the section 137(1) of the 1995 Act or on the accused will be liberated forthwith and free application of one of the parties in terms of for all time from prosecution for that Section 137(4) or (5) of the 1995 Act. offence. However this definition of the time Procurators Fiscal are encouraged to use when a trial is deemed to have commenced these provisions as often as possible when is for the purposes of this section only. a trial has been fixed and advance notice of a plea of guilty is given to him thus enabling Where an application under section 147(2) the case to be disposed of more quickly, is necessary, the application, which should productions returned at an earlier date and be in the form of the style shown in Annex another trial fixed in lieu thereof. (See 2 to this Chapter, will be prepared by the Skeen v Evans CO Appeal Circular Procurator Fiscal and made to the A11/79.) appropriate Sheriff. If time permits, Procurators Fiscal will report the matter for 7.39 INTERMEDIATE DIETS

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proceed to trial, the court is obliged to Section 148 of the Criminal Procedure postpone the trial diet unless the court (Scotland) Act 1995 provides that the court considers it inappropriate to do so. When may fix an intermediate diet for the purpose postponing the trial diet, the court has a of ascertaining, so far as is reasonably discretion as to whether a further practicable, whether the case is likely to intermediate diet should be fixed. this is proceed to trial and - discretionary whether or not the court has been prescribed by the Secretary of State. (a) the state of preparation of the Where the court concludes that the case in prosecutor and of the accused with unlikely to proceed to trial, the court may, in respect to their cases; the first instance, adjourn the intermediate diet rather than postpone the trial diet. (b) whether the accused intends to adhere to the plea of not guilty; and Best Practice Relative to Conduct of Intermediate Diets (c) the extent to which the prosecutor and the accused have complied 1. Ideally, the intermediate diet should with the duty under section 257(1) be held shortly before the trial diet. of the Act (duty to seek agreement This should ensure that the defence of evidence). has completed its enquiries into the case, and that the prosecution is By virtue of sub-section (4) the court may fully prepared for the trial. A short ask the prosecutor and the accused any period between the intermediate question for the purpose of ascertaining and trial diet should also reduce the any of the above matters. incentive to delay submitting a plea of guilty. On the other hand, the The accused is obliged to attend an period should be sufficient to intermediate diet of which he has received enable witnesses to be intimation or to which he has been cited countermanded with reasonable unless he is legally represented and the notice being given to them. court considers that there are exceptional Experience suggests that circumstances justifying him not attending. intermediate diets should normally take place about two weeks before Although sub-section (1) is permissory the trial diet, and if the intermediate only, with the court having a discretion as diet is held at least 14 clear days to whether to fix an intermediate diet, sub- before the trial diet that would section (7) provides that the Secretary of enable certificates or reports (under State may prescribe the courts in which an section 280 of the 1995 Act) to be intermediate diet must be fixed unless there personally served on the accused is (1) a joint application by the prosecutor where it has not proved possible to and the accused and (2) the court do so prior to the diet. considers it inappropriate to have such a diet. In other words, an intermediate diet 2. Depending on the number of must be fixed unless all the parties, intermediate diets, and the including the court, agree that it would be availability of both deputes and inappropriate to do so. courts, it is recommended that, wherever possible, intermediate Where at an intermediate diet the court diets should be held in a court to concludes that the case is unlikely to which no other business has been

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allocated. It is also recommended acceptable plea; and whether there that no more than 50 cases should is any evidence which might be be allocated to one court. agreed by a joint minute or whether a statement of facts should be 3. One of the commonest reasons for served on the accused. adjournments is that essential witnesses are unavailable. To help 6. Failure by the accused to attend at identify this difficulty so that a the intermediate diet should, unless motion for an adjournment can be exceptional circumstances exist, made at the intermediate diet, early result in a warrant being sought and citation is essential and the police quickly enforced. The Procurator should be instructed to serve Fiscal should advise local agents citations as quickly as possible and that warrants will be enforced and to return the executions of witness that, unless there are exceptional citations prior to the intermediate circumstances which are brought diet court. It should be stressed to immediately to the attention of the them that this is in their own Procurator Fiscal, no letter of interests in saving the time of police invitation to attend will be sent. In witnesses. addition, proceedings for a contravention of either section 150 4. Wherever possible the Procurator or section 27(1)(a) of the Act should Fiscal should take steps prior to the be taken. intermediate diet to agree evidence. In this connection it is suggested 7.40 INTERMEDIATE DIET MAY NOT BE the Procurator Fiscal should send FIXED WHEN COURT FIRST ADJOURNS to the accused and/or his representative a letter indicating, in The circumstances in which an very general terms, the areas upon intermediate diet may not be fixed when the which the Procurator Fiscal will be court first adjourns the case for trial in seeking agreement. (See also terms of section 146(3) are specified in Chapter 6 at paragraphs 6.3 to 6.5 subsection (1A) of section 148 which dealing with the identification of provides facts unlikely to be disputed securing the agreement of other "if, on a joint application by the parties.) prosecutor and the accused made at any time before the 5. An intermediate diet 'check list' commencement of the intermediate should be kept with the case papers diet, the court considers it (see Annex 5). The depute reading inappropriate to have such a diet, the case papers in preparation for the duty under subsection (1) above the intermediate diet must assess shall not apply and the court shall whether there is a sufficiency of discharge any such diet already evidence, whether extra witnesses fixed". have to be cited, or whether unnecessary witnesses should be Subsection (1B) provides cancelled; whether all the witnesses have been cited or whether it will be "the court may consider an necessary to adjourn the trial diet; application under subsection (1A) what would be the minimum above without hearing the parties".

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an intermediate diet, inter alia, Accordingly, in every case where a trial diet when a trial is adjourned. is fixed or adjourned, an intermediate diet Procurators Fiscal should, however, should be fixed unless the provisions of discourage courts from fixing a Section 148(1A) are complied with. further intermediate diet routinely in Procurators Fiscal should ensure that, in such circumstances. The purposes any cases where an intermediate diet is not of intermediate diets are set out in so fixed, the Clerk of Court properly records Section 148(1), and a further in the minutes of proceedings that no such intermediate diet should be fixed intermediate diet was fixed in terms of only if it is considered that one of Section 148(1A) and the Procurator Fiscal these purposes may be achieved. should minute his own papers accordingly. 2. Procurators Fiscal should bear in In the case of Kerr v Carnegie, Crown mind too that the amended Office Appeal Circular A8/98, the High Section 148(1) provides inter alia Court of Justiciary held that it was not fatal that the intermediate diet should be to proceedings if an intermediate diet was fixed when the case is adjourned not held before the (first) diet of trial. for trial under Section 146(3) of the Procurators Fiscal should bear in mind, Act. Notwithstanding the decision however, the of Parliament in of the court in Kerr (see 7.40), passing the legislation. In the course of the Procurators Fiscal should ensure debate in the House of Lords on that an intermediate diet is fixed at 6 February 1995, when discussing the the time when the case is clause which ultimately amended S337A of adjourned for trial under that the 1975 Act, Lord Fraser of Carmyllie said section. If the provisions of Section that the Government's intention in 148(1A) are invoked, that fact introducing the clause was "to ensure that should be clearly minuted and better use is made of court time, with fewer Procurators Fiscal should check trials being cancelled at the last minute and with clerks of court to ensure that fewer victims, witnesses and jurors being this is done. Despite the terms of inconvenienced". The Lord Advocate Kerr, Procurators Fiscal will considers that an intermediate diet should appreciate that there may exist be held between the pleading diet and the factors in individual cases which trial diet unless the provisions of Section may, if the provisions are not 148(1A) are invoked. followed, result in the possibility (however remote) that prejudice 7.41 INTERMEDIATE DIETS has been caused. (SCOTLAND) ACT 1998 3. As the 1998 Act makes the The attention of Procurators Fiscal is drawn amended provision retrospective in to the Criminal Procedure (Intermediate effect, no further cases should be Diets) (Scotland) Act 1998 which has affected directly by the decisions in received Royal Assent and which came Mackay and Milligan. If problems into force on 9 April 1998. do arise, these should be reported to Crown Counsel immediately for A number of matters arise: instruction.

1. Section 148(1) of the 1998 Act, as 4. Procurators Fiscal should also now amended, permits the fixing of report, with a view to consideration

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by Crown Counsel of a Bill of plead to the complaint. In all cases in Advocation, any case where which notice of a question is received proceedings have been held to be Procurators Fiscal should immediately incompetent but where a complaint contact Crown Office in order that the has not been and cannot be re- situation may be considered and raised, and where the Procurator instructions given about dealing with the Fiscal considers that further question at the later diet. Reference should proceedings would be appropriate. be made to the Appeals Unit in the first instance. 5. Reports in terms of paragraphs 3 and 4 should include a copy of the 7.43 PRODUCTIONS - INCIDENTAL complaint, police report and original PROCEDURES minutes of proceedings and should be marked in the first instance for Productions will be produced by the the attention of the Head of the Procurator Fiscal in the course of the trial Appeals Unit. and remain in his custody until introduced in evidence when they become the 7.42 REFERENCES TO THE EUROPEAN responsibility of the Sheriff Clerk until the COURT trial is concluded. If a production is likely to be forfeited at first calling it should be A lower court is entitled to seek a available for production then. Productions preliminary ruling from the European Court should be released and returned in of Justice if the lower court considers that a accordance with law as soon as possible decision on the question raised before it is after expiry of the appeal induciae (for necessary to enable the court to give release of productions generally see judgement (Wither v Cowie 1991 SLT 401 Chapter 5). at 405F). Procedure in relation to this is governed by paragraphs 31.1 to 31.7 of the 7.44 Act of Adjournal (Criminal Procedure Rules) 1996. Where a party wishes to Care should be taken in respect of the raise in summary proceedings a question rights of pawn-brokers under sections 114 of European Law (other than proceedings to 122 of the Consumer Credit Act 1974 in on appeal) his notice of intention to do so respect of articles taken in pawn under a shall be given before the accused is called regulated consumer credit agreement. on to plead to the complaint (31.3(1)). Similar rights were formerly contained in When such notice is given a record of the section 30 of the Pawn Brokers Act 1872 notice should be entered in the minute of which has now been repealed. proceedings and the court will not then call on the accused to plead to the complaint. 7.45 The court may hear parties on the question as soon as the question is raised and may adjourn the case to a specified date for a 7.46 hearing. In summary proceedings it is advisable for Procurators Fiscal to move for Copy productions will not normally be a continuation of the case to a later date required in summary cases but if they are rather than have the question considered at the Procurator Fiscal will exercise his the pleading diet. Where the court discretion with due regard to economy. determines the question the accused will then, where appropriate, be called on to

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7.47 CITATION OF WITNESSES their own jurisdiction. These leaflets will provide information about how to obtain Section 140 of the 1995 Act is the authority access to the High Court in the town where for citing witnesses in Scotland. Section it is held, but the contact point and the 141 specifies the manner of citation. A name on the leaflet will relate to the reasonable sum to defray expenses may Procurator Fiscal's Office from which the be tendered to a witness if asked or if case originated. financial difficulty appears likely to prevent attendance. (See the Finance Manual It is important to keep Form F17 up to date. paragraph 7.5 to 7.86 on Advance If Procurators Fiscal form the view that Payment of Witness Expenses). In relation there is a need for a change to this form to the citing of witnesses outside Scotland they should advise Crown Office see section 4(3) of the Summary immediately so that fresh supplies may be Jurisdiction (Process) Act 1881. produced. An example of Form F17 is contained at Annex 3 to this Chapter. 7.48 CITATION OF DEFENCE WITNESSES OUTWITH SCOTLAND EXPLANATORY LEAFLET FOR WITNESSES WITH LEARNING Problems have been experienced by DISABILITIES defence agents in the past in citing defence witnesses living in England to attend at If prosecution witnesses are known to have courts in Scotland. The statutory learning difficulties Procurators Fiscal provisions dealing with the matter are should attach to their citations the leaflet contained, in relation to solemn entitled "A Visit to Court". This is a leaflet proceedings, in the Writ of Subpoena Act designed for and aimed at witnesses with 1805 and, in relation to summary learning disabilities and not for those proceedings, in the Summary Jurisdiction witnesses who are mentally ill. The leaflet (Process) Act 1881. If however defence should also be attached to the citation of agents are unable to achieve the citation of the "appropriate adult". Further copies of a witness who resides outwith Scotland, the leaflet may be obtained on request from the Procurator Fiscal should give the Crown Office Library. assistance in citing the witness. 7.50 ABSCONDING WITNESSES 7.49 WITNESS INFORMATION LEAFLET The court, if satisfied by evidence on oath When citing witnesses for the prosecution that a witness is not likely to attend to give the Procurator Fiscal should attach Form evidence without being compelled to do so, F17 entitled "Being a Witness" to each may issue a warrant on his apprehension in citation. All witnesses should receive this the first instance (ie before being duly cited) leaflet with their citation. (section 156 of the 1995 Act). This warrant implies warrant to officers of law to detain The aim of the leaflet is to provide clear the witness in a police station etc, but not a general information in comprehensive form prison until the date fixed for the hearing of to all witnesses and in addition to provide the case unless sufficient security be found useful local information. to the amount fixed in the warrant for the appearance of such witness at all diets of Supplies of appropriate leaflets will be court (section 156(3) of the 1995 Act). given to offices to cover the situation where High Courts are held in places other than This procedure should, however, only be

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16 BOOK OF REGULATIONS CHAPTER 7 SUMMARY PROCEDURE used in exceptional circumstances. Willingness of the public to give evidence in 7.51 criminal trials is fundamental to the administration of criminal justice in our A witness who goes into hiding to avoid system. Procurators Fiscal should do all giving evidence even before he is cited that is possible to avoid unnecessary may be prosecuted for to defeat attendance of and inconvenience to the ends of justice (HMA v Mannion 1961 witnesses. This can arise in a number of JC 69). ways; for example, because the attendance of the witness is unnecessary for the proof 7.52 WITNESSES FAILING TO APPEAR of the case; where the trial does not AFTER CITATION proceed; or because attendance entails some particular hardship for the witness If a witness wilfully fails to attend after which might have been avoided by, for being duly cited and no just excuse is instance, fixing a more convenient date for offered on his behalf the court may issue a the trial. It is appreciated that some warrant for his apprehension (sections 156 instances of inconvenience to witnesses of the 1995 Act) and may summarily punish are unavoidable and that in other cases the him forthwith for (section fault may lie with the accused or his legal 155(1)(a)). Where such summary representative. punishment is not imposed the Procurator Fiscal may proceed against the witness by 7.55 CITATION AND way of formal complaint for contempt of COUNTERMANDING OF WITNESSES court (section 155(1)(a) and (3)). (i) Procurators Fiscal should, wherever Where a witness does not attend and it is possible, issue witness citations to not immediately known whether his failure the police at least 4 weeks before to attend is wilful the Procurator Fiscal the trial date. It is appreciated that should not move for a warrant to this will not be possible in every apprehend the witness but should forthwith case. Where, for instance, the attempt to ascertain the reason for the accused is remanded in custody, a failure to appear. If he is unable to obtain trial date may be fixed for a date this information within the time available less than 4 weeks after his and the witness is essential he should appearance in court. In such cases move for an adjournment or desertion of Procurators Fiscal should issue the trial diet; if the witness is not essential witness citations as early as the Procurator Fiscal should proceed to trial possible. leaving any further action against the witness to be decided in the light of the (ii) Where Procurators Fiscal are subsequent enquiries. informed by the police that service of a witness citation cannot be 7.53 PROOF OF CITATION effected, an immediate decision should be made as to what steps When moving the court for a warrant to are appropriate. This may include apprehend a witness the appropriate countermanding other witnesses, execution of proof of citation should be approaching the defence for a joint produced to the court (section 297(2) of the minute in terms of section 137 of 1995 Act). the 1995 Act, citing a substitute 7.54 CONVENIENCE OF WITNESSES witness, or instructing the police to

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attempt to trace the witness. Each case will depend on its own facts Savings of time and expense may be and circumstances and Procurators achieved when selected precognitions Fiscal will have to decide on the dealing with formal evidence are made most appropriate action to be taken available to the defence. In addition, in in the light of those. However, it complicated cases where the defence should be borne in mind that all indicate they have not had time to prepare, such action is to ensure that, if Procurators Fiscal may in their discretion witnesses do attend court, their disclose precognitions and statements to time will not be wasted. the defence. In such cases efforts should be made to secure Minutes of Agreement (iii) Where, for any reason, witnesses where appropriate as a result of such have to be countermanded, disclosure. (See also paragraphs 16.72 immediate action should be taken and 16.79 in respect of the to ensure that such countermanding statements/precognitions of children.) is effectual and that witnesses will not attend at court unnecessarily. 7.58 MINUTES OF ADMISSION AND AGREEMENT Procurators Fiscal should, at a local level, liaise with the police and the courts in order As much use as possible should be made to ensure that local arrangements work of Minutes of Admission and Agreement in satisfactorily in respect of the citation, terms of section 256 of the 1995 Act. attendance at court, and countermanding Where appropriate, Procurators Fiscal of witnesses. Every effort should be made should approach defence agents in respect to ensure that the unnecessary attendance of formal or non-contentious evidence in an of witnesses at court is kept to a minimum. attempt to obtain a Minute of Agreement.

Procurators Fiscal are referred to Annex 4 Procurators Fiscal should bear in mind the to this Chapter which contains the duty on both parties to seek agreement of guidelines issued by the Lord Advocate to evidence (section 257) and are encouraged Chief Constables in relation to the citation to use the procedure available under of witnesses, issued in February 1983. section 258 to serve statements of uncontroversial evidence upon the 7.56 DISCUSSION OF EVIDENCE WITH accused. Reference should be made to DEFENCE SOLICITORS paragraphs 6.3 and 6.5 which contain principles equally applicable to summary Consultation between the defence and the cases. prosecution is to be encouraged in an endeavour to accelerate pleas of guilty in 7.59 APPROACHES BY THE DEFENCE whole or in part and thus avoid the FOR ADJOURNMENTS attendance of witnesses. Such consultation may also be fruitful in Requests by the defence for an producing Minutes of Agreement in respect adjournment of a trial diet should not be of non-contentious evidence. opposed as a matter of course. Each case should be considered on its merits. In particular, whether witnesses have been 7.57 DISCLOSURE OF cited, or, if cited, can be timeously PRECOGNITIONS AND POLICE countermanded is a very important factor. STATEMENTS In deciding whether or not to agree to such

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18 BOOK OF REGULATIONS CHAPTER 7 SUMMARY PROCEDURE a request, it should be borne in mind that the witnesses' attendance at court will be Police witnesses speaking only to a non- wasted if, when the case is called on the reply to caution and charge or to forms trial date, the motion by the defence to raised by the Police in terms of the adjourn is granted despite Crown detention provisions of section 14 of the opposition. If Procurators Fiscal are willing Criminal Procedure (Scotland) Act 1995 to agree to an adjournment, then a joint are unlikely to be necessary witnesses. In application should be made in terms of summary cases Procurators Fiscal should section 137 of the 1995 Act. therefore rely where appropriate on the presumption offered by section 280(A) of 7.60 NON-AVAILABLE DATES OF the Criminal Procedure (Scotland) Act 1995 WITNESSES and should take steps to ensure that such witnesses are not normally cited (or, where When fixing diets of trial, Procurators Fiscal they have been cited, countermand them should take care to avoid dates when it is once the position becomes clear). known that witnesses will not be available. In some force areas the police provide Where there is ample other evidence details of when police witnesses will not be consideration should also be given to the available. These should be consulted, need to cite both Police witnesses where they are made available, to ensure speaking to an incriminating reply by an that the trial date does not fall within a accused. For the avoidance of doubt two leave period. Similar considerations apply Police witnesses will of course be required to civilian witnesses where the relevant to speak to 'special knowledge' replies. information is available. Procurators Fiscal should endeavour to secure that such Procurators Fiscal should amend the information is gathered as a matter of standard letters used by most offices for course. When they are taking issue to defence solicitors with lists of precognitions, this should be done and witnesses to reflect the above and to arrangements for the police obtaining such indicate that these witnesses will not information should be discussed with them normally be cited and that it is the locally. It should be borne in mind that responsibility of the defence to ensure their some classes of workers, for example, oil attendance if required. rig workers, may suffer considerable financial hardship if required to attend 7.62 WITNESSES WITH MANY OTHER during a work period, and every effort COMMITMENTS should thus be made to fix a trial date for a convenient time in such circumstances. Every facility should be extended to witnesses with many other commitments 7.61 CITATION OF UNNECESSARY such as doctors and forensic scientists to WITNESSES minimise any inconvenience to themselves and others occasioned by their attendance Procurators Fiscal should take steps to at court. When such witnesses arrive at ensure that no more witnesses are cited court their evidence should be taken as than are necessary to prove a particular early as possible and permission sought for case. Procurators Fiscal are therefore their release from court at the conclusion of urged to examine carefully the question of their evidence. who should be cited to attend in a particular 7.63 DISCHARGE OF TRIAL DIETS case, with the aim of ensuring that unnecessary witnesses are not cited. Full use should be made of the provisions

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19 BOOK OF REGULATIONS CHAPTER 7 SUMMARY PROCEDURE contained in section 137 of the 1995 Act in ensure that the case is in a position to relation to discharge of diets. If before the proceed and that the attendance of the trial date it becomes apparent that a trial witness is not wasted. Such cases should cannot proceed, whether due to the be given a priority and the witness released absence of a witness or for some other as early as possible in the day. reason, Procurators Fiscal should approach defence agents or, where 7.66 RELEASE OF WITNESSES appropriate, accused with a view to a joint application being made to the court to After witnesses have completed their discharge the diet and fix in lieu thereof an evidence, permission should be sought to earlier or later diet as may be appropriate. secure their release. Some witnesses may Where the defence refuse to participate in wish to wait until the conclusion of the trial such an approach and where time permits, but they should not be compelled to do so Procurators Fiscal should take advantage unless the presiding judge so directs. of the provisions contained in section Where an accused fails to appear or pleads 137(4) and make an incidental application guilty in an acceptable form, the court under section 134 of the 1995 Act. officer should be instructed to release the witnesses as soon as possible after the 7.64 PART HEARD TRIALS case has been called and an order of court made. Where some witnesses are in attendance, and it is apparent that the trial cannot 7.67 INFORMATION FOR WITNESSES proceed to a conclusion because of the IN COURT absence of a particular witness, consideration should be given to hearing In the case of Crown witnesses who are the evidence that is available and actually waiting in the court building to give adjourning the trial to a later date for the evidence, the Procurator Fiscal should remainder of the evidence. It is keep the clerk of court informed of appreciated that this will not be practical or developments as the day progresses, so convenient in some cases. However, it that he in turn can keep the witnesses should be borne in mind that to adopt such informed. a course will result in the least inconvenience to those witnesses who Complaints have been made by members have attended. The court should be of the public about attending court only to informed of the position and pressed to be sent away again without giving adopt this course when this seems evidence. Where possible the Procurator appropriate. Fiscal should take the opportunity of having a personal word with witnesses who are 7.65 WITNESSES WHO HAVE TO being sent away. Some sheriffs TRAVEL CONSIDERABLE DISTANCES occasionally invite the witnesses into court after a case has been disposed of (for Where witnesses have to travel a example after a last minute plea of guilty) considerable distance to attend court, and explain to them why their evidence is consideration should be given in the first not required. These are both practices instance as to whether their evidence is which the Law Officers encourage. essential. Where appropriate, efforts should be made to agree their evidence by Once witnesses have been cited to a court joint minute of agreement. If the witness is and are in the precincts of the building, cited, then every effort should be made to responsibility for their general well-being

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20 BOOK OF REGULATIONS CHAPTER 7 SUMMARY PROCEDURE rests with the clerk of court. It is appear for trial for either contraventions of recognised that it is a matter for the Fiscal, section 27(1)(a) or section 130(8) of the however, to exercise some control over the 1995 Act, and when so doing advise the witnesses and he has authority to release court that the failure of the accused to them from their citation if they have not appear resulted in considerable expense to been called, with agreement from the the Crown and inconvenience to witnesses. bench or the defence as necessary. In the event of a last minute plea of guilty at the 7.69 MEETINGS WITH POLICE trial diet, the Fiscal's authority is required before the witnesses can be released. Procurators Fiscal should meet regularly Normally, the court officer is the person with members of the local police to discuss who actually tells the witnesses that they arrangements for the citation, are free to go, although sometimes the countermanding and attendance of sheriff clerk may take on this duty in the witnesses at court. The aim of such absence of a court officer. meetings should be to ensure that arrangements have been made at a local Forms which the Fiscal in court can pass to level to minimise the unnecessary the court officer when witnesses are being attendance of police and other witnesses at sent away, one for the situation where the court. Such arrangements should be accused pleads guilty and one for all other viewed regularly to ensure that they are reasons are available. The style may be working efficiently and effectively at a local adapted, but the approach should not be level, and that witnesses' time is not being altered. In each witness room, a list of the wasted. cases to be heard that day will be displayed on a notice board. If the witnesses are 7.70 ADMINISTRATIVE being sent away, the court officer will take ARRANGEMENTS WITHIN the note completed by the Fiscal and in PROCURATOR FISCALS OFFICES releasing the witnesses, tell them why their attendance is no longer required. He will Procurators Fiscal should review the read the notice to the witnesses and then procedures currently employed within their delete the case from the list and pin the office to ensure that procedures are notice on to the board. adequate to deal promptly and efficiently with all aspects of office work relating to 7.68 FAILURE OF ACCUSED TO witnesses. In reviewing such procedures, APPEAR Procurators Fiscal should consider which members of staff should be made The attendance of witnesses is pointless responsible for particular areas of work when accused do not themselves appear. relating to witnesses, and ensure that On occasion when accused persons have decision-making is delegated at an been at liberty pending a trial, they have appropriately experienced and responsible been subsequently remanded in custody in level. respect of another charge, and this has not been noticed in the Procurator Fiscal's 7.71 AMENDMENT OF A COMPLAINT Office. This is very wasteful of witnesses' OR PREVIOUS CONVICTIONS time, and Procurators Fiscal should make such arrangements as are necessary to This is competent at any time prior to the ensure that these situations do not occur. determination of a summary prosecution Where appropriate, Procurators Fiscal unless the court sees just cause to the should also prosecute accused who fail to contrary so as to cure any error or defect

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21 BOOK OF REGULATIONS CHAPTER 7 SUMMARY PROCEDURE therein or meet any objection thereto or to Proof (section 285(2)) cure any discrepancy or variance between the complaint and the evidence (section Proof of Previous Convictions by 159(1) of the 1995 Act). An amendment Fingerprints (section 285(1) to (5)) which charges the character of the offence is incompetent (section 159(2)). If the court Requirements as to Medical shall be of the opinion that the accused Evidence for Hospital Orders may in any way be prejudiced in his (section 61) defence on the merits of the case by any amendment allowed it shall grant him such Examples of certificate evidence remedy by adjournment or otherwise as it admissible under section 280 and shall think just (section 159(2)). An Schedule 9: amendment shall be sufficiently authenticated by the initials of the Clerk of (a) Road Traffic Regulation Act 1984 Court (section 159(3)). In respect of further (accuracy of speed measuring consideration relative to amendment of the apparatus). complaint, see paragraph 6.117 on amendment of indictment. (In this (b) connection see also the cases of McCoull v (classification and analysis of Skeen 1974 SLT (Notes) 48, Campbell v drugs). McLeod 1975 SLT (Notes) 6 and Cochrane v The West Calder Co-operative Society (c) Social Security Administration Act 1978 SLT (Notes) 22). 1992 (benefits paid).

7.72 PROOF - EVIDENCE BY (d) Wireless Telegraphy Act 1949 CERTIFICATE (whether TV licence recorded as being in force). In the conduct of trials every effort must be made by Procurators Fiscal to achieve (e) Criminal Procedure (Scotland) Act expedition, economy of expenditure and 1995 section 150(8) (that specified minimum inconvenience to witnesses. person given notice of time and Statutory provisions are helpful towards place of diet). these ends and should be used wherever possible. In particular full use should be (f) Immigration Act 1971 (arrival in UK made of the following provisions of the and conditions imposed). 1995 Act, namely: Procurators Fiscal should consult Proof of Exceptions etc, (section schedule 9 for a full statement of those 138(4) schedule 3 paragraph 16) enactments in respect of which certificate evidence is available. Offence Committed in Special Capacity (sections 138(4) and 255) Section 280(4) of the 1995 Act provides that, for the purposes of any summary Proof of Official Documents (section criminal proceedings, a report signed by 154) two authorised forensic scientists is to be Minutes of Admission or Agreement sufficient evidence of any fact or conclusion (section 256) as to the fact contained in the report and of the authority of the person signing the Extract Convictions and Manner of report. The Secretary of State for Scotland

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22 BOOK OF REGULATIONS CHAPTER 7 SUMMARY PROCEDURE has approved the division of forensic regard they are very seldom challenged. science into the following six categories:- BT have intimated that there is now a long- standing and increasing problem of (1) Forensic Chemistry providing statements and witnesses on the matters mentioned for the whole of (2) Forensic Biology Scotland. At this proportion a demand is now being made on the BT witnesses. (3) Fingerprints, Palmprints and Other Prints 2. Land Register Witnesses

(4) Ballistics Members of staff of the Registers of Scotland Land Register are often cited to (5) Document Examination appear as Crown witnesses, to speak to the authenticity of office copies. These (6) Physical Examinations citations cause problems for the agency in terms of staff resources. The definition of The Secretary of State has also authorised an office copy is contained in section 6(5) a number of forensic scientists for these of the Land Registration (Scotland) Act individual categories. Each of the forensic 1979 which reads: scientists concerned will have received an individual authorisation which can be "the keeper shall issue, to any produced in court should the occasion person applying, a copy, arise. A list of forensic scientists authenticated as the keeper thinks authorised by the Secretary of State has fit, or any title sheet, part thereof, or been issued and will be amended from time of any document referred to in a title to time in the light of changes of authorised sheet; and such copy, which shall personnel. This is contained in Crown be known as an office copy, shall Office Circular No 23/1998 (Forensic be accepted for all purposes as Science No 1). sufficient evidence of the contents of the original". 7.73 CITATION OF WITNESSES SPEAKING TO ROUTINE EVIDENCE Procurators Fiscal are reminded of the duty to try to obtain agreement of evidence in Procurators Fiscal should be especially terms of section 257 of the Criminal mindful of their duty to avoid causing Procedure (Scotland) Act 1995. unnecessary inconvenience to witnesses Furthermore the evidence now being whose evidence is routine and formal in the produced by BT witnesses or by the Land following cases: Register witnesses referred to may include documentary evidence of a nature covered 1. British Telecom Witnesses by schedule 8 to the 1995 Act and the provisions of that schedule should be used BT Networks and Systems provide where possible. Procurators Fiscal are evidence of an uncontroversial nature for referred to Chapter 4 of the Book of use of prosecutions in Scotland. This Regulations and the section on proof of evidence relates to telephone numbers, documentary productions in the names and addresses, installation dates precognoscers handbook. and itemised telephone bills all extracted from BT records. Experience has indicated 7.74 CRIMINAL PROCEDURE that where BT witnesses are called in this (SCOTLAND) ACT 1995 SECTION 280

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SCHEDULE 9 examine closely each certificate issued to CERTIFICATES AS TO PROOF OF them to ensure that the signatory to the CERTAIN ROUTINE MATTERS UNDER certificate is entitled in terms of the Criminal THE FIREARMS ACT 1968 Procedure (Scotland) Act 1995 to certify the matters contained within the certificate. Procurators Fiscal will be aware that section 280 of and schedule 9 to the 1995 7.75 Act provide for certificates as to proof of certain routine matters. In particular, in Provisions regarding proof of official regard to the Firearms Act 1968 there are documents issuing from the office or in the two matters that may be the subject of the custody of any of the departments of state statutory concession of proof by certificate. or government in the United Kingdom and orders in respect of national and local First, a constable or a person employed by government etc, (in summary procedure a police authority, may purport to sign only) are to be found in the 1995 Act, certificates where the constable or person section 154 and the Local Government is authorised to do so by the chief (Scotland) Act 1973, Schedule 7, constable of the police force maintained for paragraph 7. the authorities area. Such a constable or person may certify in relation to a person 7.76 identified in the certificate that, on a date specified therein, that person held, or as In terms of section 104 of the Children and the case may be did not hold, a firearms Young Persons (Scotland) Act 1937 in certificate within the meaning of the respect of proceedings thereunder a copy Firearms Act 1968. of an entry in an employers wages book or, if no wages book be kept, a written Secondly, an officer authorised to do so by statement signed by the employer or any the Secretary of State, may purpose to sign responsible person in his employment is certificates. Such an officer may certify in evidence that the wages therein entered or relation to a person identified in the stated have in fact been paid. certificate that, on a date specified therein, that person possessed, or as the case may 7.77 be did not possess, an authority (which as regards a possessed authority, shall be A copy of or any extract from any document described in the certificate) given under kept and registered at any office of the Section 5 of the Firearms Act 1968 by the Registrar of Companies in England or Secretary of State. Scotland and certified to be a true copy under the hand of the Registrar is in all In relation to the second category of legal proceedings admissible in evidence authorised person, Procurators Fiscal will as of equal validity with the original (section recall that in HM Advocate v Copeland 709(3) of the Companies Act 1985 as 1987 SCCR 232 it was held that the power inserted by the Companies Act 1989 conformed on the Secretary of State could section 126. be exercised on his behalf by officials acting in his name under their general 7.78 powers, even if the Secretary of State had no personal concern with the decision. Sections 153 and 154 of the Customs and Excise Management Act 1979 and section Procurators Fiscal are instructed to 39 of the Finance Act 1972 refer to proof of

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24 BOOK OF REGULATIONS CHAPTER 7 SUMMARY PROCEDURE certain documents, onus of proof of Handbook (Chapter 4). averments etc and evidence by certificate in respect of offences under these Acts. 7.81 PREVIOUS CONVICTIONS

In respect of vehicles excise prosecutions When an accused has admitted or been and back duty proofs see the Vehicles found guilty of a charge any previous Excise and Registration Act 1994, section convictions which have been libelled and 52 which provides for simplified proof of served on him along with the complaint are records. placed before the court and the accused is asked by the court if he admits them. If he 7.79 does not the Procurator Fiscal must either withdraw them or prove them then or at any In respect of printout certificates from the adjourned diet. (Section 166(5) of the Act). Driver and Vehicles Licensing Centre, If the Procurator Fiscal realises at this Swansea, it appears that the clerical stage that the notice of previous assistants who are engaged in convictions has any error or any defect in it, authenticating these certificates are it is his duty to move the court to amend to permitted to use a rubber stamp signature cure the defect. (Authorities contained in for this purpose. Steps have been taken to section 159 of the Act). ensure that the person using this stamp is the person whose facsimile signature it If, however, a plea of guilty is tendered in bears. See Cardle v Wilkinson and writing, any previous conviction libelled will Another (A3/82) as regards the be held to the admitted unless the accused admissibility of such a document. expressly denies it at the same time as he intimates his plea. (Section 166(4)(a)). The person authenticating the documents is merely certifying that it is genuine and 7.82 EXTRACT CONVICTIONS not speaking to its contents. Difficulties have arisen in a few cases in 7.80 which Sheriff Clerks have failed to provide extract convictions requested by Section 19 of the Road Traffic Offenders Procurators Fiscal. In requesting extract Act 1988 provides that in any proceedings convictions, Procurators Fiscal should for an offence under section 103(1)(b) of ensure that the request is made as early as the Road Traffic Act 1988 an extract possible and that the fullest possible details conviction will be sufficient evidence that are given of the name of the accused, his the conditions specified in this subsection address, his date of birth and the date of are satisfied, and unless the accused sentence (if known). The Procurators serves notice on the prosecutor not less Fiscal's reference number will also be than 6 days before the trial denying that the required. disqualification applies to him. The court has no discretion to reduce this 6 day period. In summary proceedings the 7.83 Procurator Fiscal should not obtain the extract conviction from the Sheriff Clerk Appearances before a Children's Hearing until the accused has pled not guilty and a are not previous convictions and must not trial has been fixed. Further guidance on be libelled as such although they may be this subject is contained in the section on brought to the attention of the court. road traffic offences in the Precognoscer's

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7.84 The Police will continue to make facilities It may be that there are previous for precognition available. If for any reason convictions disclosed on the accused's statements are not available to be sent out driving licence. The court may take these following a request, the solicitors will be into consideration. (See also paragraph informed: in such cases, solicitors can 9.27). precognosce in the normal way. There will also be situations, for example, in custody 7.85 PROVISION OF STATEMENTS OF trials, where the trial diet is only a short POLICE WITNESSES TO DEFENCE time after the pleading diet in which the SOLICITORS defence may require to proceed straight to precognition. While the precise details will In response to a request from a defence be a matter for local arrangement between solicitor for a list of Crown witnesses, the Procurator Fiscal and the local Bar the usually once a diet of trial has been fixed, broad outlines given above should be the Procurator Fiscal will send the solicitor followed. a list of Crown witnesses in the normal way provided that reciprocal arrangements are 7.86 PREVIOUS CONVICTIONS afforded. Form F71 should be used for this purpose. In no circumstances will an accused or his solicitor be furnished with Procurators Fiscal should co-operate in the information relating to the criminal handing over by the Police of statements of record of any person other than his Police witnesses in lieu of precognition by a client. If a request for such information is defence. made by the defence they should be informed accordingly and told that if a Where Police witnesses are involved in a witness gives in this respect case the Police reference number will be action will be taken by the Crown. noted on the letter containing a list of witnesses and solicitors are invited to apply 7.87 DISCUSSION OF EVIDENCE WITH direct to the Police for copies of statements DEFENCE SOLICITORS of the Police witnesses. No charge is made by the Police for these statements, It is part of the duties of the Procurator the Police having agreed to bear the Fiscal to meet defence solicitors as soon copying costs. There is no interference as possible after a plea of not guilty has with the right of solicitors to precognosce been tendered for the purpose of: Police witnesses in these cases. (a) discussing the evidence The copy statements which are issued to available to the Crown. defence solicitors under this scheme do not bear an actual signature of the Police (b) arranging minutes of admission Officer involved. The Lord Advocate in respect of evidence which is not recognises that they nonetheless fall into to be contested, and the category of "previous statements" which may in certain circumstances be put (c) giving to defence solicitors to the witness in court (in terms of section copies of statements of witnesses 263(4) of the Criminal Procedure (Scotland) whose evidence is regarded as Act 1995) if the witness departs materially formal or technical. from that statement in his evidence.

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The Procurator Fiscal must therefore be in representations to the Secretary of State a position to deal efficiently with requests that the alleged offence was committed in by defence solicitors for interviews. circumstances where so many prisoners Arrangements will require to be flexible and could not have been in the position to will be essentially a matter to be resolved speak to the facts. by the individual Procurator Fiscal. Procurators Fiscal should notify Crown In making local arrangements the Office of any case where difficulties arise Procurator Fiscal should have regard to the as a result of a refusal by the Secretary of fact that any person who meets with State to produce prisoners as witnesses. solicitors should have sufficient seniority and experience to accept reduced pleas 7.89 DISCRETION TO DESERT and to exercise a proper judgement in the CHARGES BEFORE THE START OF disclosure of evidence or the handing over TRIAL of statements. This regulation relates to the pre-trial stage 7.88 CITATION OF PRISONERS AS and does not relate to decisions which are DEFENCE WITNESSES taken in the course of a trial.

Difficulties can arise when prisoners cite 1. Any Procurator Fiscal Depute who, large numbers of other prisoners as prior to the commencement of the witnesses for criminal court proceedings in trial considers that he should connection with incidents in prison. permanently abandon proceedings against the living accused person The Secretary of State has discretion to must before doing so (a) consult produce prisoners as witnesses in terms of with the person who originally section 29 of the Criminal Justice Act 1961. marked the case for prosecution (if that person is available) and (b) The discretion not to produce prisoners as consult also with a senior witnesses can be exercised where the Procurator Fiscal Depute or the Secretary of State is satisfied that that is Procurator Fiscal. desirable in the interest of justice. Although, in the ordinary case, it would be 2. Where prior to the commencement in the interest of justice to produce a of the trial a Procurator Fiscal prisoner in court where a Governor has Depute decides to desert a case or received a citation in proper form, the to accept a plea of not guilty to part Secretary of State may ultimately refuse to of the charges the Procurator Fiscal produce a prisoner after having regard to Depute must when possible (a) the nature or number of citations which a consult with the person who particular Governor has received. It may originally marked the case for for example be that a Prison Governor will prosecution (if that person is have knowledge that a particular cited available) and (b) consult also with prisoner would not be relevant to the case a senior Procurator Fiscal Depute if, for example, that prisoner was in another or Procurator Fiscal. prison or was not in the relevant part of the prison at the time of the alleged offence. In any of the situations envisaged in Similarly where the number of prisoners paragraphs 1 or 2 hereof the person by cited is substantial it may be that a whom the decision is made (Procurator Governor will consider and make Fiscal or Procurator Fiscal Depute) must

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27 BOOK OF REGULATIONS CHAPTER 7 SUMMARY PROCEDURE minute on the Police Report his full reasons In every case where the Sheriff holds that for doing so. The Procurator Fiscal should there is no case to answer, a note of the personally peruse all such reports in order terms of the submission and of the decision to ensure that continuity and uniformity of should be made and the case brought to practice is maintained. the attention of the Procurator Fiscal and of the person who originally marked the case. 7.90

In addition it would greatly assist in dealing with questions of acceptance or refusal of reduced plea if the person who originally marked the case for prosecution were to append a note concerning the acceptance of any reduced plea.

7.91 APPEAL IN CONNECTION WITH OBJECTION TO RELEVANCY, ETC

Section 174 sets out the procedure for appealing against a decision of the court which relates to such objection or denial as is mentioned in subsection (1). Where the Procurator Fiscal wishes to appeal he must apply to the court at the time the judge's decision is made. Thereafter, the Note of Appeal must be lodged within two days. (See paragraph 19.1 of the Act of Adjournal (Criminal Procedure Rules) 1996 for procedure.)

7.92 NO CASE TO ANSWER

In summary proceedings, when a submission of no case to answer under section 160 of the 1995 Act is made the Sheriff (or Justice in a District Court case) will be required to make his decision on the basis of sufficiency of evidence. If he rejects the submission, holding that there is insufficient evidence if accepted, he will then require to reach his verdict on grounds of sufficiency and credibility. It should not therefore be assumed that an eventual finding of guilty will ensue when a defence submission of no case to answer is rejected.

7.93

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ANNEX 1

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ANNEX 2

ANNEX 3

TRAVELLING TO COURT

BY BUS

The Sheriff Court House is within walking distance of Dunfermline Town Centre and is directly across Carnegie Drive from James Street Bus Station.

BY CAR

If you are arriving by car, parking is not available at Court itself, but there is a large multi-storey car park nearby in James Street.

BY TAXI

If you are disabled or elderly, and restricted in your movements, you may hire a taxi for your journey to and from court. However, you must make sure you obtain a receipt from the driver, otherwise my staff will not be able to reimburse you for the fare. If you have any other problems or enquiries do not hesitate to contact my office.

IF YOU ARE DISABLED

There is no difficulty in obtaining disabled access to the Sheriff Court House and there are facilities for disabled persons inside.

REFRESHMENTS

Are normally available in the mornings in the Court buildings. The court building normally shuts between 1pm and 2pm, and you will be able to go for lunch at that time. There is a number of places to eat nearby.

EXPENSES

Use the form on the back of the citation to claim travelling expenses to and from court and money for meals. As well as getting payment towards any loss of earnings, some special expenses can be claimed.

My staff will help you fill in your claim and make sure you receive the expenses to which you are entitled. You will be paid right away or money will be sent to you within one week.

Phone my office now if you have any doubts or problems about attending court. Make sure that you have a note of the date of the trial, the name of the accused and

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30 BOOK OF REGULATIONS CHAPTER 7 SUMMARY PROCEDURE the reference number on the citation (if any).

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PLEASE REMEMBER:

You must attend court if you have a citation. You may be excused if attendance will cause you particular difficulty, for example if you are unwell or plan to be away on holiday.

IMPORTANT

If you do not appear at court, and have not been excused by myself or one of my colleagues, you may be arrested.

REMEMBER TO BRING YOUR CITATION WITH YOU

ARRIVING AT COURT

Please report to the appropriate court official when you arrive. He will note your arrival on his list. You should show him your citation and he will then direct you to the correct waiting room for witnesses.

Take something to pass the time as you may have to wait for a while before being called into court.

You must not go into court before you have given evidence. You will be kept informed about your case. If it becomes clear that you can leave you will be told and why.

HOW LONG WILL IT TAKE?

I am afraid that I cannot predict beforehand which trials will proceed and which witnesses will be required to give evidence. Accused persons are entitled to change their plea at any time. They often do this during the trial, or just before it is due to start.

If an accused person decides to plead guilty it is not necessary for witnesses to give evidence. In addition, some trials cannot proceed because the accused or perhaps another witness is ill or missing.

In any of these situations you will be told that you may leave, but you may also be told that you will have to return on a later date. Until it is clear that a trial is not going to proceed you must stay in the court building.

You must be prepared to stay all day if necessary. Wait in the witness room until you have been called to give evidence or told that you can go.

WHAT WILL HAPPEN?

When it is your turn to give evidence a court official will call your name and show you into a witness box in court. Once there you will be asked to face the judge, raise your right hand, and repeat the words of the oath. If you would prefer to promise solemnly to tell the truth, say to the judge or to the court official that you wish to “affirm”.

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In some courts you will be allowed to sit while you are giving your evidence. Otherwise, you should stand unless this would be difficult for you, in which case you can ask the judge if you can sit down.

GIVING EVIDENCE

The first person to ask you questions will be the prosecutor. In the High Court this will be an Advocate Depute. In other courts the prosecutor is myself or one of my colleagues.

You will be asked your name, address, age and occupation. If for good reason you prefer to give your address, ask the judge if you can write it down on a piece of paper. Then you will be asked questions about the case, after which the defence lawyer may ask you questions.

It will help the court and your confidence if you listen carefully to what you are asked. Take your time in answering, and say if you do not understand or cannot answer. It is your duty to answer all the questions asked truthfully and as accurately as you can. Speak slowly and clearly.

In some cases where there is no defence lawyer, you may be asked questions by the accused. In cases with more than one accused, a number of different lawyers may ask you questions for the defence. Sometimes the judge will ask questions too.

You will be told when you can leave the witness box but you must remain in court unless you are told you are free to go. If you want to go away after giving evidence ask the judge. You can stay and listen to the rest of the case if you wish.

ANYTHING ELSE?

In the High Court and Sheriff Court you should call the “My Lord” or “My Lady” and in the District Court the judge is called “Your Honour”.

VICTIM SUPPORT (SCOTLAND)

If you are a victim of crime, you may wish to contact your local Victim Support Scheme in your area from the police or a Citizen’s Advice Bureau.

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ANNEX 4

LORD ADVOCATE’S GUIDELINES TO CHIEF CONSTABLES THE CITATION OF WITNESSES

The following guidelines by the Lord Advocate set out, in general terms, procedures to be followed in the citation of witnesses for attendance at court. It is important that all witnesses who have been cited for a particular trial are in attendance at the diet of trial. If a material witness, without whom the trial cannot proceed, is absent, trial diets have frequently to be adjourned, with consequent inconvenience to witnesses who are in attendance. It is desirable that service of witness citations should be effected well in advance of the trial diet, so that problems regarding the attendance of witnesses can be identified as early as possible and remedial action taken with the aim of minimising the unnecessary attendance of other witnesses.

1. Wherever possible Procurators Fiscal will issue witness citations to the police at least 4 weeks before the trial date. In some cases, where for instance the accused is in custody, a trial date may be fixed for a date less than 4 weeks after his appearance in court. In such cases the Procurator Fiscal will issue witness citations as early as possible.

2. When witness citations are received from the Procurator Fiscal, arrangements should be made for service to be effected as soon as possible thereafter.

3. it is desirable that, in cases where it can readily be done, the citation should be served personally on the witness and the execution of service completed accordingly. This will enable a motion to be made for a warrant to apprehend in appropriate cases where the witness fails to attend the trial diet. If, however, the witness cannot be found in person, the citation may be left with another person in the household, and the execution of service completed accordingly. This should be done, however, only if every effort is made to ensure that the witness will in fact receive the citation. It should always be borne in mind that the purpose of a citation is to produce the appearance in court of the witness, and all reasonable steps should be taken to ensure that service of the citation will be effectual. Under no circumstance should a witness citation be put through a letter box or otherwise simply left at an address.

4. Where service of a witness citation cannot be effected the Procurator Fiscal should be informed of that fact immediately and of the reason for non service. To avoid unnecessary delay this should be done by telephone, and confirmed in writing as soon as possible thereafter enclosing the unserved citation. A record of the unsuccessful made to effect citation should be made on the reverse of the form used to record the execution of the citation.

5. Immediately upon service of a witness citation, the execution thereof should be returned to the Procurator Fiscal. Care should be taken to ensure that all the particulars are completed accurately, including those on the reverse of the form, and in particular it should be noted whether service was effected personally or otherwise.

6. Where instructions are received from Procurators Fiscal to countermand witnesses for

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a trial, immediate steps should be taken to secure compliance. It is of importance that the unnecessary attendance of witnesses at court should be avoided wherever possible.

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ANNEX 5

ANNEX 6

SI 1990 NO 993

STATUTORY INSTRUMENTS

SPORTS GROUNDS AND SPORTING EVENTS

The Football Spectators (Corresponding Offences in Scotland) Order 1990

Made 1st May 1990 Laid before Parliament 9th May 1990 Coming into force 1st June 1990

At the Court at Buckingham Palace, the 1st day of May 1990.

Present,

The Queen’s Most Excellent Majesty in Council

Whereas it appears to Her Majesty that the offences under the law of Scotland describe in Schedule 1 to this Order correspond to offences specified in Schedule 1 to the Football Spectators Act 1989[1]; Now, therefore, Her Majesty, in exercise of the powers conferred upon Her by section 22(1) of the Football Spectators Act 1989[2], is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered as follows:

1.-(1) This order may be cited as the Football Spectators (Corresponding Offences in Scotland) Order 1990 and shall come into force on 1st June 1990.

(2) In this Order “the 1989 Act” means the Football Spectators Act 1989.

2.-(1) The offences under the law of Scotland which are described in Schedule 1 to this Order are hereby specified as offences corresponding to the offences specified in Schedule 1 to the 1989 Act.

(2) In Schedule 1 to this Order –

(a) the expression “period relevant to” shall be construed in accordance with section 1(8) of the 1989 Act, and

(b) “specified football match” means any association football match played in Scotland involving a team which represents –

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(i) a country or territory, or

(ii) a club from England or Wales which is, at the time the match is played, a member (whether a full or associate member) of the Football League, or

(iii) a club which is, at the time the match is played, a member of the Scottish Football League.

3. The Crown Office, Edinburgh, is hereby specified as the authority in Scotland which is to certify the conviction of a person there of an offence specified in Schedule 1 to this Order, the nature and circumstances of the offence and whether or not the conviction is the subject of proceedings there questioning it.

4. The form of the certificate certifying the matters referred to in article 3 above is hereby prescribed in Schedule 2 to this Order.

G I de Deney

Clerk to the Privy Council

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NOTES

[1] 1989 C. 37 back

[2] The power in section 22(1) is supplemented by section 22(9) of that Act.

EXPLANATORY NOTE

(This note is not part of the Order)

Article 2 of, and Schedule 1 to, this Order specifies offences under the law of Scotland which appear to Her Majesty to correspond to certain of the offences specified in Schedule 1 to the Football Spectators Act 1989. Under section 22 of that Act proceedings may be commenced before magistrates against a person who resides or is believed to reside in an area of England or Wales if that person has been convicted of such an offence. Under such proceedings a restriction order may be made against such a person. Under section 19 of that Act the person to whom such an order applies may be required to report to a police station in England or Wales on the occasion of a football match played in any country outside England and Wales of a description for the time being designated by order under section 14(2) of that Act.

Article 3 specifies the Crown Office, Edinburgh, as the authority in Scotland by which a certificate may be made certifying a person’s conviction for one of the offences specified in Schedule 1 to this Order. Article 4 prescribes the form of the certificate. Under section 22(10) of the Football Spectators Act 1989 such a certificate is admissible in proceedings under Part II of that Act (which concerns restriction orders) as evidence of the facts therein stated. Under section 22(11) such facts are to be taken as proved (on production of the certificate and proof that the person against whom the proceedings are brought is the person whose conviction is certified) unless the contrary is proved.

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