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Summary Procedure – Preliminary Plea

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Summary Procedure – Preliminary Plea 1.19 Criminal court procedure As we are already aware, criminal trials in Scotland are conducted under two types of procedure: ◆ Summary ◆ Solemn Less serious crimes are dealt with under summary procedure where a judge sits alone, i.e. the presiding judge is therefore ‘master of the facts’ and will determine the appropriate sentence to be handed down if the accused is found guilty. On the other hand, more serious crimes are conducted under solemn procedure where usually one judge sits with a jury of 15. In this type of trial, the jury is said to be ‘master of the facts’ and the judge’s role is merely to impose the penalty if the guilt of the accused is established beyond reasonable doubt. We shall look at the workings of both types of criminal procedure in turn. Summary procedure – preliminary plea As the name suggests, summary procedure is supposed to deal with minor crimes relatively quickly and efficiently and is used in the Justice of the Peace Court and the Sheriff Court. A judge presides and no jury is present. The accused person is prosecuted on complaint. A complaint is the document which outlines the specific nature of the criminal offence that the accused will have to answer at the trial. KEY POINT: Summary procedure is supposed to deal with minor crimes relatively quickly and efficiently and is used in the Justice of the Peace Courts and the Sheriff Court. The First Calling The first time that the prosecution and the defence lawyers appear in court will be at the First Calling. This is not a trial as members of the public would understand matters and largely deals with technical and operational matters surrounding the proposed trial of the accused. It is not usually necessary for the judge to be present in court at the First Calling. The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 permits the clerk of the court to deal with a number of administrative issues without the judge having to be present. Normally, the defence and the prosecution would be in attendance at the First Calling, but it is also possible for the clerk to deal with matters in their absence. The clerk may already be in possession of all the necessary information in writing. The clerk can deal with matters competently if they have already received a written or verbal plea of not guilty from the accused or if there is going to be a continuation of the plea to date in the future. Theoretically, this should permit matters to be dealt with speedily and efficiently and also to ease the financial burden on the taxpayer. At this stage of proceedings, it is very common indeed for the defence lawyer to raise an objection to some aspect of the prosecution case against the accused, e.g. the validity of the prosecution case may be challenged on the grounds that the alleged offence does not, in fact, represent a breach of the criminal law. In such circumstances, the defence lawyer will be strongly arguing that the accused has not committed any crime and, therefore, in such a situation it is clearly incompetent and unjust to proceed to a criminal trial. If the defence lawyer were to raise such an objection to the continuation of the criminal process in such circumstances, it would be normal practice for the judge to arrange a separate diet or sitting of the court in order to deal with this kind of objection. At this diet, 1 the judge will hear legal arguments or submissions from the prosecution and the defence in order to determine whether a trial is actually necessary. If the defence lawyer was able to persuade the judge that the charges against the accused were incompetent, the prosecution would be forced to abandon its case. On the other hand, the prosecution may well prove to the judge that there is a case to answer against the accused, which means that criminal proceedings can now begin in earnest. If there is a case to answer, a plea (guilty or not guilty) must be entered by the accused. It is a possibility that the defence lawyer may consider an appeal to the Sheriff Criminal Appeal Court in Edinburgh challenging the judge’s decision. At the First Calling, it is highly possible (and very probable) that no plea will be entered on behalf of the accused. There could be several reasons for this failure to enter a plea. In a large number of cases, the accused has simply failed to submit a response to the complaint meaning that the trial may not proceed. In this situation, the accused will be issued with a formal warning advising them to submit a response to the complaint. The prosecution could proceed with the case if so minded. A defence lawyer may also appear before the court on behalf of the accused where no plea has been entered – it could be that the accused has not yet firmly communicated the plea that they wish to enter. Summary procedure can deal with such eventualities fairly comfortably as the judge can arrange a further diet or sitting in order to accommodate these types of situation. In order for courts to operate more efficiently in Scotland, a criminal justice model was introduced as a result of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007. This legislation allows a continuation of a hearing to proceed where no plea has been entered by the accused. It is hoped that, in many cases, this will promote early resolution of the matter and will increase efficiency. In theory, this system of case management means that the prosecution and the defence can iron out any problems well in advance of a trial by identifying evidence that is agreed upon by the parties and by pinpointing any potential areas of dispute. Hopefully, a much clearer understanding of the evidential and legal issues surrounding the case can be established well before the case proceeds to trial. Previously, many criminal cases were bedevilled by a lack of preparation on the part of both the prosecution and the defence, which led to delays, inconvenience and cost to the taxpayer. KEY POINT: The first time that the prosecution and the defence lawyers appear in court will be at the First Calling, which largely deals with technical and operational matters surrounding the proposed trial of the accused. What if the accused decides to enter a guilty plea? The judge should be present at the First Calling in order to impose the relevant punishment. An accused can enter a plea of guilty at any stage of criminal proceedings in Scotland. It should be noted that in terms of Section 196 of the Criminal Procedure (Scotland) Act 1995, an accused who pleads guilty to a charge may be entitled to have any sentence imposed on him by a judge discounted or reduced. The sentencing judge should direct the clerk of the court to minute the discount or reduction as a permanent entry in the court records. The minute should merely state that the sentence imposed on the accused was discounted in terms of Section 196 of the Criminal Procedure (Scotland) Act 1995 and the sentence would otherwise have been X (i.e. the undiscounted sentence). There is no need for the sentencing judge to provide reasons for the amount of the discount, but they will have to justify the discount should the case proceed to an appeal before the Sheriff Appeal Court. 2 What if the accused decides to enter a not guilty plea? The case will obviously have to proceed to a full trial under summary procedure. There are two important stages of the procedure that must be considered and these are: ◆ The intermediate diet ◆ The trial diet KEY POINT: Summary procedure consists of two stages: the intermediate diet and the trial diet. What is the intermediate diet? This sitting of the court will normally take place two weeks prior to the trial diet. The purpose of the intermediate diet is to check that both defence and prosecution are ready to proceed to trial. The parties are obliged to state at the intermediate diet that their witnesses and evidence are in a state of readiness for the trial. It will be necessary, for example, to find out how many witnesses are going to appear at the trial. Both parties will be asked at this stage whether they are ready to proceed to trial as originally planned. If they both answer positively, then the trial diet will take place within the next 14 days. If, however, one or both of the parties cannot give a firm undertaking that they are ready for the trial, a further intermediate diet will have to be set down meaning that the trial diet will be postponed. A new trial diet will therefore be arranged and, 14 days prior to this, a second intermediate diet will take place. At the second intermediate diet, the parties will again be quizzed about the stage of their preparations and, hopefully, they will both be ready to proceed to trial. Proposed sittings of the court will then be scheduled to take place some three or four months after the First Calling. The clerk of the court will notify these dates to the prosecution and defence by calling them out in court and both lawyers will take note of these. Currently, there are proposals on the table to have the intermediate diet take place four weeks before the trial diet. Such proposals are strongly supported by the prosecution service, which argues that it would force the parties to ensure that their preparations were well in hand before any trial can take place.
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