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Summary Procedure 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 (Scotland) 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 common law offences except murder, jurisdiction and powers of the District Court. treason, 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 "standard scale" 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 dishonesty or personal violence) or a fine £2,500 is the appropriate upper limit not exceeding the prescribed sum 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 August 1998 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 Criminal Law Act 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 evidence 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 Criminal Procedure (Consequential taken to ensure that when a statutory August 1998 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 common law offence if theft, 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 Royal Assent 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 Order in Council 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.
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