Legalize / United Kingdom / Statutory-Instrument

Act of Adjournal (Criminal Procedure Rules) 1996

Type Statutory-Instrument

Publication 1996-02-29

Last updated 2026-02-21

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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(1) On conviction of an accused in summary proceedings, the judge may, without adjourning those proceedings, interrupt them by—

(a) considering a conviction against that person in other proceedings pending before that court for which he has not been sentenced; or

(b) passing sentence on that person in respect of the conviction in those other proceedings.

(2) When the judge has interrupted any proceedings under paragraph (1), he may, in passing sentence on an accused person in respect of a conviction in those proceedings, at the same time pass sentence on that person in respect of any other conviction he has considered.

(3) No interruption of any proceedings under paragraph (1) shall cause the instance to fall in respect of any person accused in those proceedings or shall otherwise affect the validity of those proceedings.

Detention in precincts of court

18.6

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CHAPTER 19 — APPEALS FROM SUMMARY PROCEEDINGS

Appeals relating to preliminary pleas

19.1

(1) If—

(a) an accused states an objection to the competency or relevancy of a complaint or the proceedings, and

(b) that objection is repelled,

he may apply for leave to appeal against that decision under section 174(1) of the Act of 1995 (appeals relating to preliminary pleas) only after stating how he pleads to the charge or charges set out in the complaint.

(2) Subject to paragraph (1), the accused shall apply for leave to appeal against any decision to which that paragraph applies; and the court which made the decision shall determine that application immediately following the decision in question.

(3) Where the court grants the application, the clerk of court shall enter in the minute of proceedings—

(a) details of the decision in question; and

(b) the granting of leave to appeal against it.

(4) An appeal to which this rule applies shall be made by note of appeal in Form 19.1-A.

(5) The note of appeal shall be lodged with the clerk of the court which granted leave to appeal not later than seven days after the decision appealed against.

(6) The clerk of court shall, on the lodging of the note of appeal with him—

(a) send a copy to the respondent or his solicitor;

(b) request a report from the presiding judge; and

(i) the note of appeal,

(ii) two certified copies of the complaint and the minutes of proceedings, and

(iii) any other relevant documents,

to the Clerk of the Sheriff Appeal Court.

(7) The presiding judge shall, as soon as possible after receiving a request for a report, send his report to the Clerk of the Sheriff Appeal Court who shall send a copy to the appellant and respondent or their solicitors.

(8) The Clerk of the Sheriff Appeal Court shall arrange for the Sheriff Appeal Court to hear the appeal as soon as possible, and shall cause to be copied any documents necessary for the Sheriff Appeal Court.

(9) Where the Sheriff Appeal Court makes any order postponing the trial diet under section 174(2) of the Act of 1995, or makes any such order and gives a direction under that section, the Clerk of the Sheriff Appeal Court shall send a copy of that order and any direction to—

(a) the appropriate clerk of court;

(b) any accused who are not parties to the appeal or to their solicitors; and

(10) Any such appeal may be abandoned at any time prior to the hearing of the appeal.

(11) Where an appeal is abandoned, a minute of abandonment in Form 19.1-B shall be lodged with the Clerk of the Sheriff Appeal Court.

(12) On the lodging of a minute of abandonment under paragraph (11), the Clerk of the Sheriff Appeal Court shall inform the appropriate clerk of court and the respondent or his solicitor that the appeal has been abandoned.

Forms for appeals by stated case

19.2

(1) An application under section 176(1) of the Act of 1995 (stated case: manner and time of appeal) shall be in Form 19.2-A.

(2) A stated case shall be in Form 19.2-B.

(3) The form of minutes of procedure in an appeal by stated case shall be in Form 19.2-C.

Forms for appeals against sentence only

19.3

(1) A note of appeal under section 186(1) of the Act of 1995 (appeals against sentence only) shall be in Form 19.3-A.

(2) The form of minutes of procedure in an appeal under section 186(1) of the Act of 1995 shall be in Form 19.3-B.

Extension of time for appeals

19.4

(1) An extension of time by the sheriff principal under section 186(5) (extension of time in appeal against sentence only), or section 194(2) (extension of time for stated case), of the Act of 1995 shall be in Form 19.4.

(2) Where, by virtue of subsection (8) of section 186 of the Act of 1995 (application of section 181 where appellant in appeal against sentence only fails to comply with a requirement), the court makes an order extending the period within which the note of appeal shall be lodged under subsection (2) of that section, the periods mentioned in subsections (2) and (4) of that section shall run from the date which is two days after the date on which the court makes that order and not from the date of the passing of the sentence.

Abandonment of appeals by stated case

19.5

A minute of abandonment of an appeal under section 184(1) of the Act of 1995 (abandonment of stated case before lodging it with the Clerk of the Sheriff Appeal Court) shall be in Form 19.5.

Abandoning appeals against conviction only

19.6

(1) This rule applies for the purpose of section 175(8) of the Act of 1995 (abandoning appeal against conviction and proceeding with appeal against sentence alone).

(2) An application to abandon an appeal under section 175(8) of the Act of 1995 shall be made by minute in Form 19.6 and intimated by the appellant to the respondent.

(3) Subject to paragraph (4), the minute shall be lodged with the clerk of the court which imposed the sentence being appealed against.

(4) Where, before the lodging of the minute, the stated case has been lodged with the Clerk of the Sheriff Appeal Court, the minute shall be lodged with the Clerk of the Sheriff Appeal Court who shall send a copy of the minute to the clerk of the court which imposed the sentence appealed against.

(5) Where, before the lodging of the minute, copies of the stated case and relative proceedings have been lodged with the Clerk of the Sheriff Appeal Court, those copies shall be used for the purposes of the hearing of the appeal against sentence.

(6) On the lodging of the minute, section 186(3) to (9) of the Act of 1995 (provisions relating to appeal against sentence only) shall apply to the stated case as they apply to a note of appeal.

Abandonment of appeals against sentence only

19.7

A minute of abandonment under section 186(9) of the Act of 1995 (abandonment of appeal against sentence only) shall be in Form 19.7.

Intimation of abandonment

19.8

The Clerk of the Sheriff Appeal Court or clerk of court, as the case may be, on the lodging with him of—

(a) a minute abandoning an appeal under section 184(1) of the Act of 1995 (abandonment of appeal by stated case before lodging of case with the Clerk of the Sheriff Appeal Court), or

(b) a minute abandoning an appeal under section 186(9) of the Act of 1995 (abandonment of appeal against sentence only),

shall immediately notify the Crown Agent or the prosecutor, as the case may be, of the lodging of the minute; and the Clerk of the Sheriff Appeal Court shall, where the minute is lodged with him, notify immediately the clerk of the appropriate court.

Applications for suspension of disqualification from driving in appeals

19.9

(1) Where a person who has been disqualified from holding or obtaining a driving licence appeals against that disqualification under section 176(1) of the Act of 1995 by stated case, any application to suspend the disqualification shall be made with the application to the court to state a case for the opinion of the Sheriff Appeal Court.

(2) On an application being made under paragraph (1) to suspend a disqualification, the court shall grant or refuse to grant the application within seven days of it being made.

(3) Where the court refuses to grant the application and the appellant applies to the Sheriff Appeal Court to suspend the disqualification, any such application shall be made by note in Form 19.9.

(4) The note shall be lodged by the appellant or his solicitor with the Clerk of the Sheriff Appeal Court.

(5) The appellant or his solicitor shall intimate the lodging of the note to the respondent and the clerk of the court which imposed the disqualification.

(6) The clerk shall, on receiving such intimation, forthwith send to the Clerk of the Sheriff Appeal Court—

(a) a certified copy of the complaint; and

(b) a certified copy of the minute of proceedings.

(7) The Sheriff Appeal Court may order such further intimation (including intimation to the Lord Advocate) as it thinks fit, and may dispose of the application in open court or in chambers after such hearing as it thinks fit.

(8) On the Sheriff Appeal Court making an order on the note, the Clerk of the Sheriff Appeal Court shall send a certified copy of the order to the clerk of the court which imposed the disqualification.

(9) Where the order suspends the disqualification, the Clerk of the Sheriff Appeal Court shall also send a certified copy of the order to the Secretary of State with such further information as the Secretary of State may require.

(10) An order made by a single Appeal Sheriff under this rule shall not be subject to appeal or review.

Applications for suspension of disqualification from driving in bills of suspension

19.10

(1) Where a person who has been disqualified from holding or obtaining a driving licence appeals against that disqualification by bill of suspension, an application to suspend the disqualification shall be made by requesting interim suspension of the disqualification in the prayer of the bill.

(2) Where the court orders interim suspension, that order shall not have effect until—

(a) the bill has been served on the respondent; and

(b) the principal bill and first deliverance on the bill with an execution, or acceptance, of service—

(i) have been shown to the clerk of the sentencing court and he has endorsed a certificate of exhibition; and

(ii) they have been returned to the Clerk of the Sheriff Appeal Court by the complainer or his solicitor.

(3) On certifying the bill under paragraph (2), the clerk of the court which imposed the disqualification shall send a certified copy of the complaint and the relative minute of proceedings to the Clerk of the Sheriff Appeal Court.

(4) Paragraphs (2), (8), (9) and (10) of rule 19.9 (applications for suspension of disqualification from driving in appeals) apply to this rule as they apply to that rule.

Solicitor entering appearance etc.

19.11

(1) The solicitor for the appellant or the appellant, if unrepresented, must enter appearance—

(a) at the same time as lodging a stated case in accordance with section 179(9) of the Act of 1995; or

(b) within 7 days after the Clerk of the Sheriff Appeal Court intimates that leave to appeal has been granted in accordance with section 187(9)(a) of the Act of 1995.

(2) Appearance is entered by lodging Form 19.11–A with the Clerk of the Sheriff Appeal Court.

(3) Where an appellant is represented by a solicitor who does not practise in Edinburgh, that solicitor may appoint a solicitor who practises in Edinburgh to carry out the duties of solicitor for the appellant.

(4) If there is a change in representation of an appellant, the new solicitor for the appellant or the appellant, if unrepresented, must lodge Form 19.11–B with the Clerk of the Sheriff Appeal Court within 7 days of that change in representation.

(5) A change in representation occurs where—

(a) an unrepresented appellant instructs a solicitor;

(b) an appellant dismisses the appellant’s solicitor and—

(i) instructs another solicitor; or

(ii) intends to conduct the appeal in person.

Duty to print stated case etc.

19.12

(1) The solicitor for the appellant or, if unrepresented, the appellant shall—

(a) print the complaint, minutes of proceedings and stated case or bill of suspension;

(b) not later than twenty-one days before the hearing, return the process to the Clerk of the Sheriff Appeal Court; and

(i) the Clerk of the Sheriff Appeal Court with four copies of the print; and

(ii) the respondent or his solicitor with three copies of the print.

(2) Where the solicitor for the appellant or the appellant, as the case may be, cannot comply with any of the requirements of paragraph (1), he shall, not later than twenty-one days before the hearing, so inform the Clerk of the Sheriff Appeal Court in writing with reasons.

(3) On being so informed, the Clerk of the Sheriff Appeal Court may in his discretion postpone the hearing by dropping the appeal from the Criminal Appeal Roll.

(4) Where the Clerk of the Sheriff Appeal Court does not drop the appeal from the roll under paragraph (3), the court may, at the hearing, allow the appeal to be dropped from the roll or may dismiss the appeal.

Duty of solicitor in bill of suspension

19.13

A solicitor who requests a first deliverance in a bill of suspension shall comply with the requirements of rule 19.12(1) and (2) (printing of stated case) whether or not he is the nominated solicitor for the purposes of legal aid.

List of appeals

19.14

(1) The Clerk of the Sheriff Appeal Court shall, after consultation with the President of the Sheriff Appeal Court, issue a list of appeals with the respective dates of hearing on the Criminal Appeal Roll.

(2) Subject to paragraph (3) the Clerk of the Sheriff Appeal Court shall give the respective solicitors representing parties to an appeal so listed at least 14 days notice of the date fixed for the hearing of the appeal.

(3) In an appeal under section 175(2)(b), (c) or (ca) or by virtue of section 175(4) of the Act of 1995, the period of notice mentioned in paragraph (2) shall be 28 days.

Diet for interim suspension

19.15

Where a bill of suspension contains a prayer for interim suspension of any order or for interim liberation—

(a) the Appeal Sheriff before whom the bill is laid for a first deliverance shall assign a diet at which the parties may be heard on the crave for the interim order; and

(b) the Clerk of the Sheriff Appeal Court shall forthwith give notice of that diet to the parties.

Intimation of determination of appeal

19.16

(1) The Clerk of the Sheriff Appeal Court shall send to the clerk of the sentencing court a certified copy of the order made on determination of the appeal from summary proceedings.

(2) Where the appeal against a disqualification from driving is refused or abandoned, the clerk of the sentencing court shall—

(a) make the appropriate endorsement on the driving licence of the appellant; and

(b) intimate the disqualification to the appropriate driving licence and police authorities.

(3) In this rule,“appeal” includes any appeal whether by stated case, note of appeal, bill of suspension or advocation.

Suspension of disqualification etc. under section 193 of the Act of 1995

19.17

In the application of section 193 of the Act of 1995 (suspension of disqualification, forfeiture, etc.) to a case in which leave to appeal has been refused under section 180 or 187 of the Act of 1995, the word “determination” in subsection (1) of section 193 of that Act shall be construed as meaning—

(a) the fifteenth day after the date of intimation to the appellant or his solicitor of refusal of leave under subsection (1)(b) of section 180 or 187 of that Act, as the case may be, unless the appellant applies to the Sheriff Appeal Court for leave to appeal; or

(b) the day seven days after the date of intimation to the appellant or his solicitor of the refusal of leave by the Sheriff Appeal Court under subsection (5)(b) of section 180 or subsection (4)(b) of section 187 of that Act, as the case may be.

PART V — Sentencing

CHAPTER 20 — SENTENCING

Form of sentence of death

20.1

(1) The pronouncement of the sentence of death shall be in Form 20.1.

(2) After the verdict of the jury finding the accused guilty has been recorded, the presiding judge shall sign the sentence on a paper separate from the record of proceedings and immediately thereafter shall pronounce sentence.

(3) The accused need not be present in court after the presiding judge has pronounced sentence.

(4) On sentence being pronounced, the clerk of court shall engross the sentence in the record of proceedings and the presiding judge shall sign it.

Detention in police custody instead of imprisonment

20.2

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Form of supervised release orders

20.3

(1) An order under section 209 of the Act of 1995 (supervised release orders) shall be in Form 20.3-A.

(2) The citation of an offender to appear before a court under section 15(5) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (variation of supervised release order etc.) shall be in Form 20.3-B.

(3) The citation of an offender to appear before a court under section 18(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (breach of supervised release order) shall be in Form 20.3-C.

Application of money found on offender towards fine

20.4

(1) A direction under section 212(1) of the Act of 1995 that money found on an offender should not be applied towards payment of a fine shall be in Form 20.4-A.

(2) A notice for the purposes of section 212(7) of the Act of 1995 (notice to governor of prison as warrant to convey offender to court) shall be in Form 20.4-B.

Extension of time for payment of fine

20.5

An order under section 214(7) or 215(3) of the Act of 1995 (order allowing further time for payment of fine) shall be in Form 20.5.

Forms for enquiry for non-payment of fine

20.6

(1) The citation of an offender issued under section 216(3)(a) of the Act of 1995 (citation to appear for enquiry before imprisonment in default of payment of fine) shall be in Form 20.6-A.

(2) The execution of a citation referred to in paragraph (1) which is served other than by post shall be in Form 20.6-B.

(3) The—

(a) execution of a citation referred to in paragraph (1) which is served by post,

(b) warrant for apprehension of an offender issued under section 216(3)(b) of the Act of 1995, and

shall be in Form 20.6-C.

Supervision of payment of fine

20.7

A notice to be sent to an offender under section 217(7) of the Act of 1995 (appointment of different supervising officer to offender allowed time to pay fine) shall be in Form 20.7.

Forms of warrant for execution and charge for payment of fine or other financial penalty

20.8

(1) In every extract of a sentence of a fine or other financial penalty, there shall be included a warrant for execution in the following terms:—“and the Lords [or sheriff or justice(s)] grant(s) warrant for all lawful execution hereon”.

(2) The charge for payment of a fine or other financial penalty to be used by a sheriff officer under section 90 of the Debtors (Scotland) Act 1987[^f00008] (provisions relating to charges for payment) shall be in Form 20.8.

Transfer of fines

20.9

(1) A transfer of fine order under section 222(1), and a notice of it required by section 223(1), of the Act of 1995 shall be in Form 20.9-A.

(2) A transfer of fine order made by virtue of section 222(5) of the Act of 1995, and a notice of it required by section 223(1), shall be in Form 20.9-B.

(3) Where a notice of a transfer of fine order is received by a court in Scotland, the clerk of that court shall serve by post a notice to the offender in Form 20.9-C.

Probation orders

20.10

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Form of supervised attendance orders

20.11

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Community service orders

20.12

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Terms of compensation orders to record of proceedings

20.13

Entries shall be made in the record of proceedings by the clerk of court on the making of a compensation order,specifying the terms of the order and in particular—

(a) the name of the convicted person required to pay compensation;

(b) the amount of compensation required to be paid by such person;

(d) where there is more than one person entitled to compensation, the amount of compensation each is entitled to and the priority, if any, among those persons for payment

Legal disability of person entitled to compensation

20.14

(1) The prosecutor, if he knows that any person entitled to payment of compensation under a compensation order is under any legal disability, shall so inform the court immediately it makes any such order in respect of any such person, and that information shall be entered by the clerk of court in the record of proceedings.

(2) Where payment of any sum is made under a compensation order to the clerk of court in respect of a person known to be under a legal disability, Part IV (except rule 36.17(1) (receipt sufficient discharge) of Chapter 36 of the Ordinary Cause Rules 1993 in Schedule 1 to the Sherriff Courts(Scotland Act 1907[^f00009] (management of damages payable to persons under legal disability) shall apply to the administratio of that sum as they apply to the administration of a sum of money paid into court in respect of damages for such a person.

Variation of compensation orders

20.15

(1) The court may, at any time before a compensation order is fully complied with, and after such further inquiry as the court may order, vary the terms of the order as it thinks fit.

(2) A variation made under paragraph (1) may be made in chambers and in the absence of the parties or any of them.

Discharge or reduction of compensation order

20.16

(1) An application to discharge a compensation order or to reduce the amount that remains to be paid under section 25(1) of the Act of 1995 (review of compensation order) shall be made writing to the clerk of the court which made the order.

(2) The clerk of court shall, on any such application being made to him, serve a copy of the application on the prosecutor by post.

(3) The court to which the application is made may dispose of the application after such inquiry as it thinks fit.

Use of certified copy documents in certain proceedings

20.17

(1) Subject to paragraph (2), in proceedings relating to—

(a) an order which imposed a fine ; or

(f) a community payback order,

in a court other than the court which made the order, the principal indictment, complaint, record or minute of proceedings, or notice of previous conviction need not be before the court.

(2) The court to which paragraph (1) applies shall have before it a copy of the principal of each such documents certified as a true copy by the clerk of the court which made the order.

Form of extract of sentence

20.18

(1) An extract of a custodial sentence following a conviction on indictment, and warrant of detention and return of sentence, required for any purpose in connection with any case shall be in Form 20.18-A.

(2) An extract of a sentence of imprisonment, a fine or caution in summary proceedings under the Act of 1995 shall be in the appropriate form in Form 20.18-B

(3) An extract issued in accordance with paragraph (1) or (2) shall be warrant and authority for execution

Reduction of disqualification period for drink-drive offencers

20.19

(1) In this rule—

“the Act of 1988” means the Road Traffic Offencers Act 1988[^f00010];

“course provider” has the meaning assigned in section 34C(3) of the Act of 1988;

“relevant date” means the date specified in an order under section 34A of the Act of 1088;

“supervising court” has the meaning assigned in section 34C(3) of the Act of 1988.

(2) An application to the supervising court for a declaration under section 34B(6) of the Act of 1988 shall be

(a) in Form 20.19-A;

(b) accompanied by a copy of the written notice required by section 34B(5) of the Act of 1988 intimating the course provider’s decision not to give a course completion certificate; and

(3) An application to the supervising court for a declaration under section 34B(8) of the Act of 1988 shall be—

(a) in Form 20.19.-B; and

(b) lodged with the clerk of court within 28 days after the relevant date.

(4) On the lodging of an application under section 34B(6) or (8) of the Act of 1988—

(a) the sheriff or stipendiary magistrate, as the case may be, shall fix a date for hearing the appliction; and

(b) the clerk of court shall—

(i) notify the applicant of the date of hearing; and

(ii) serve a copy of the application, with notice of the hearing, on the course provider and the procurator fiscal.

PART VI — Evidence

CHAPTER 21 — UNCONTROVERSIAL EVIDENCE, HERESAY AND PRIOR STATEMENTS

Notice of uncontroversial evidence

21.1

(1) Where a party to criminal proceedings serves a copy of a statement and document on another party under section 258 of the Act of 1995 (uncontroversial evidence), he shall also serve with that statement and document a statement in Form 21.1-A

(2) Where a document is annexed to a statement under section 258(2) of the Act of 1995 and is not described in the statement, a docquet in Form 21.1-B shall be endorsed on that document.

Notice of challenge of evidence as uncontroversial

21.2

A notice by a party under section 258(3) of the Act of 1995 (notice challenging fact in statement under section 258(2) of the Act of 1995) shall be in Form 21.2.

Notice of intention to have hearsay statement admitted

21.3

A notice under section 259(5) of the Act of 1995 (notice of intention to apply to have evidence of hearsay statement admitted) shall be in Form 21.3

Authentication of certain prior statements of witnesses

21.4

A statement in a document which it is sought to be admitted in evidence under section 260(4) of the Act of 1995 (admissibility of certain prior statements of witnesses) shall be authenticated by a certificate in Form 21.4 endorsed on or attached to the first page of the statement or attached to the device on which the statement has been recorded.

CHAPTER 22 — EVIDENCE OF VULNERABLE WITNESSES

Applications for evidence of children by television link

22.1

(1) An application to the court under section 271(5) of the Act of 1995 (authorisation of the giving of evidence by a vulnerable person by means of a live television link) shall be made by petition in Form 22.1 and, where the vulnerable person is subject to an order or transfer direction (being an order or transfer direction such as is mentioned in paragraph (b)(i) or (ii) of the definition of “vulnerable person” in section 271(12) of the Act of 1995) shall be accompanied by a copy of the order or transfer direction, as the case may be.

(2) A petition referred to in paragraph (1) shall—

(a) where it relates to proceedings in the High Court, be lodged with the Clerk of Justiciary, or

(b) where it relates to proceedings in the sheriff court, be lodged with the sheriff clerk,

not later than 14 days before the trial diet (except on special cause shown).

(3) The High Court or the sheriff, as the case may be, shall—

(a) order intimation of the petition to be made to the other party or parties to the proceedings; and

(b) fix a diet for hearing the petition on the earliest practicable date.

Orders and transfer of cases

22.2

(1) After hearing the parties and allowing such further procedure as the court thinks fit—

(a) the High Court or the sheriff, as the case may be, may make an order granting or refusing the application; or

(b) where section 271(9) of the Act of 1995 (transfer of cases in which vulnerable person's evidence is to be given through television link) applies, the sheriff may make an order under that section transferring the case to another sheriff court in the same sheriffdom.

(2) Where the sheriff makes an order under paragraph (1)(b) transferring the case to another sheriff court (the“receiving court”), the sheriff clerk shall forthwith transmit the record copy of the indictment or the complaint, the minute of proceedings, any productions and any relevant documents to the clerk of the receiving court.

CHAPTER 23 — LETTERS OF REQUEST

Applications for letters of request

23.1

(1) An application to the court by the prosecutor or the defence under section 272(1)(a) of the Act of 1995 (evidence by letter of request) for the issue of a letter of request shall be made by petition—

(a) where the accused has appeared on petition under Part IV of the Act of 1995 (petition procedure) but an indictment has not been served on him, in Form 23.1-A presented to the High Court; or

(b) where an indictment or a complaint has been served on the accused, in Form 23.1-B presented to the appropriate court.

(2) A petition referred to in paragraph (1) shall—

(a) where it relates to proceedings in the High Court or to proceedings in respect of which the court where the trial is to take place is not yet known, be lodged with the Clerk of Justiciary, or

(b) where it relates to proceedings in the sheriff court, be lodged with the sheriff clerk ....

(2A) A petition referred to in paragraph (1) must be accompanied—

(a) subject to paragraph (b), by a proposed letter of request in Form 23.1-C; or

(b) where the proposed letter of request is to be sent to a member State of the European Union, by a proposed letter of request in Form 23.1-D.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Such an application made to the High Court may be disposed of by a single judge of that court.

(5) The High Court or the sheriff, as the case may be, shall—

(a) order intimation on the other party or parties to the proceedings;

(b) subject to paragraph (6), allow such time for lodging answers as appears appropriate; and

(6) The High Court or the sheriff, as the case may be, may dispense with answers to the petition on cause shown.

Powers of court in applications

23.2

(1) The High Court or the sheriff, as the case may be, may, after considering the petition for the issue of a letter of request and any answers to it, grant the petition with or without modification or refuse it.

(2) On granting the petition, the High Court or the sheriff, as the case may be, shall—

(a) in relation to an application under section 272(1)(a) of the Act of 1995 (evidence by letter of request), allow interrogatories to be adjusted summarily;

(b) pronounce an order approving the terms—

(i) of the letter of request to be sent;

(ii) of any interrogatories and cross-interrogatories to be sent; and

(c) if English is not an official language of the body to which the letter of request is addressed, specify a period within which a translation of each of the letter, any interrogatories and cross-interrogatories, and any productions, are to be lodged.

Expenses

23.3

(1) The solicitor for the petitioner or, if he is unrepresented, the petitioner shall be liable for the expenses of the petition for the issue of a letter of request.

(2) The High Court or the sheriff, as the case may be, may order the solicitor for the petitioner, or the petitioner, to consign into court such sum in respect of those expenses as may be specified, and on or before such date as may be specified, in the order.

(3) In the event of the sum so specified not being consigned into court on or before the date so specified, the petition shall be treated as having been abandoned.

Transmission of letters of request

23.4

(1) On—

(a) the High Court or the sheriff, as the case may be, pronouncing an order under rule 23.2(2), or

(b) in a case where a translation requires to be lodged, on the lodging of the translation,

the Clerk of Justiciary or the sheriff clerk, as the case may be, shall send the letter of request and any documents to the Secretary of State for Foreign, Commonwealth and Development Affairs for onward transmission to the body to which the letter of request is addressed.

(2) On sending the letter of request and any documents to the Secretary of State, the Clerk of Justiciary or sheriff clerk, as the case may be, shall note, on the petition, record copy of the indictment or in the minute of proceedings—

(a) the documents sent;

(b) to whom the documents were sent; and

(3) On the relative documents being returned to him, the Clerk of Justiciary or sheriff clerk, as the case may be, shall—

(a) note—

(i) the documents returned,

(ii) by whom they were returned, and

(iii) the date on which they were returned,

on the application, the record copy of the indictment or in the minute of proceedings; and

(b) intimate what he has noted to all parties concerned.

Custody of documents

23.5

(1) The Clerk of Justiciary or sheriff clerk, as the case may be, shall, subject to paragraph (2), keep the documents referred to in rule 23.4(3) in his custody.

(2) Where the petition for the issue of a letter of request was made to the High Court on the ground that the court in which the trial was to take place was not then known, the prosecutor shall, as soon as that court is known, inform the Clerk of Justiciary of that fact; and if that court is the sheriff court, the Clerk of Justiciary shall, as soon as is practicable, send to the sheriff clerk of that sheriff court the record of the evidence of the witness obtained by a letter of request under section 272(1)(a) of the Act of 1995.

(3) Where the record of the evidence of a witness is in the custody of the Clerk of Justiciary or a sheriff clerk under this rule and where intimation has been given to that effect under rule 23.4(3) to all the parties concerned in the proceedings, the name and address of that witness and the record of his evidence shall be treated as being within the knowledge of those parties; and no party shall be required, notwithstanding any enactment to the contrary—

(a) to include the name of that witness in any list of witnesses; or

(b) to include the record of his evidence in any list of productions.

Prohibition of reference to evidence without leave

23.6

(1) No reference shall be made either directly or indirectly in any proceedings to the evidence, or any part of the evidence, of a witness whose evidence has been taken by virtue of a letter of request under section 272(1)(a) of the Act of 1995 unless the party seeking to make such reference has made a motion to the court to that effect and that motion has been granted.

(2) The terms of any motion made under paragraph (1) and the grant or refusal of that motion by the court shall be noted by the clerk of court in the record or minute of proceedings.

(3) On any such motion in solemn proceedings being granted—

(a) the judge may direct copies of the evidence, to which he has granted leave for reference to be made, to be provided to the jury by the party making the motion; and

(b) the clerk of court shall read the record of that evidence to the jury and shall then record that he has done so in the record of proceedings.

CHAPTER 24 — EVIDENCE ON COMMISSION

Applications to take evidence on commission

24.1

(1) An application to the court by the prosecutor or the defence under section 272(1)(b) of the Act of 1995 for the appointment of a commissioner to examine a witness to whom that section applies, shall be made by petition—

(a) where the accused has appeared on petition under Part IV of theAct of 1995 (petition procedure) but an indictment has not been served on him, in Form 24.1-A presented to the High Court; or

(b) where an indictment or a complaint has been served on the accused, in Form 24.1-B presented to the appropriate court.

(2) A petition referred to in paragraph (1) shall—

(a) where it relates to proceedings in the High Court or to proceedings in respect of which the court where the trial is to take place is not yet known, be lodged with the Clerk of Justiciary; or

(b) where it relates to proceedings in the sheriff court, be lodged with the sheriff clerk.

(3) A petition in relation to section 272(1)(b)(i) of the Act of 1995 (examination of witness ill or infirm) shall be accompanied by an appropriate medical certificate duly certified on soul and conscience by a qualified medical practitioner.

(4) Such an application made to the High Court may be disposed of by a single judge of that court.

(5) The High Court or the sheriff, as the case may be, shall—

(a) order intimation on the other party or parties to the proceedings;

(b) subject to paragraph (6), allow such time for lodging answers as appears appropriate; and

(6) The High Court or the sheriff, as the case may be, may dispense with answers to the petition on cause shown.

Appointment of commissioner

24.2

(1) The High Court or the sheriff, as the case may be, may, after considering the petition for the taking of evidence on commission and any answers to it, grant the petition with or without modifications or refuse it.

(2) On making an order granting the petition, the High Court or the sheriff, as the case may be, shall appoint—

(a) a commissioner to examine the witness to whom the order applies, and

(b) a clerk to assist the commissioner in the carrying out of his duties,

and shall dispense with interrogatories.

(3) On the making of an order under paragraph (1), the Clerk of Justiciary or sheriff clerk, as the case may be, shall send the order to the commissioner or his clerk with the other relative documents.

(4) On sending the order to the commissioner or his clerk under paragraph (2), the Clerk of Justiciary or sheriff clerk, as the case may be, shall note on the petition, record copy of the indictment or in the minute of proceedings—

(a) the order and documents sent;

(b) to whom they were sent; and

Expenses

24.3

(1) The solicitor for the petitioner or, if he is unrepresented, the petitioner shall be liable for the expenses of the petition for the appointment of a commissioner to take the evidence of a witness on commission.

(2) The High Court or the sheriff, as the case may be, may order the solicitor for the petitioner, or the petitioner, to consign into court such sum in respect of those expenses as may be specified, and on or before such date as may be specified, in the order.

(3) In the event of the sum so specified not being consigned into court on or before the date so specified, the petition shall be treated as having been abandoned.

The commission

24.4

(1) The commissioner shall, on receiving the order and documents mentioned in rule 24.2 (appointment of commissioner), determine the place and the date of the diet for the examination of the witness to whom the order of the court relates, and shall give reasonable notice of those matters to all the parties concerned.

(2) The commissioner may vary or revoke his determination or adjourn the examination of any witness to such other place, at such other date and time, as he may determine.

(3) If, in the course of the examination of a witness under this rule, any question arises as to the admissibility of any evidence, the commissioner shall not determine any such question but shall allow the evidence subject to all questions of competency and relevancy.

Commissioner’s report

24.5

(1) On the carrying out of his commission in accordance with the terms of the order appointing him, or otherwise on concluding his commission, the commissioner shall complete a written report of his commission, and he or his clerk shall return the report and relative documents to the Clerk of Justiciary or sheriff clerk, as the case may be.

(2) On the report and any documents being returned to him, the Clerk of Justiciary or sheriff clerk, as the case may be, shall—

(a) note—

(i) the documents returned,

(ii) by whom they were returned, and

(iii) the date on which they were returned,

on the application, the record copy of the indictment or in the minute of proceedings; and

(b) intimate what he has noted to all parties concerned.

Custody of documents

24.6

(1) The Clerk of Justiciary or the sheriff clerk, as the case may be, shall, subject to paragraph (2), keep the documents referred to in rule 24.5(2) in his custody.

(2) In any case where the petition for the taking of evidence on commission was made to the High Court on the ground that the court in which the trial was to take place was not then known, the prosecutor shall, as soon as that court is known, inform the Clerk of Justiciary of that fact; and if that court is the sheriff court, the Clerk of Justiciary shall, as soon as is practicable, send to the sheriff clerk of that sheriff court the record of the evidence of the witness or witnesses.

(3) Where the record of the evidence of a witness is in the custody of the Clerk of Justiciary or a sheriff clerk under this rule and where intimation has been given to that effect under rule 24.5(2) to all the parties concerned in the proceedings, the name and address of that witness and the record of his evidence shall be treated as being within the knowledge of those parties; and no party shall be required, notwithstanding any enactment to the contrary—

(a) to include the name of that witness in any list of witnesses; or

(b) to include the record of his evidence in any list of productions.

Prohibition of reference to evidence without leave

24.7

(1) No reference shall be made either directly or indirectly in any proceedings to the evidence, or any part of the evidence, of a witness whose evidence has been taken on commission under this Chapter unless the party seeking to make such reference has made a motion to the court to that effect and that motion has been granted.

(2) The terms of any motion made under paragraph (1) and the grant or refusal of that motion by the court shall be noted by the clerk of court in the record or minute of proceedings.

(3) On any such motion in solemn proceedings being granted—

(a) the judge may direct copies of the evidence, to which he has granted leave for reference to be made, to be provided to the jury by the party making the motion; and

(b) the clerk of court shall read the record of that evidence to the jury and shall then record that he has done so in the record of proceedings.

CHAPTER 25 — RECORD OF JUDICIAL EXAMINATION AS EVIDENCE IN SOLEMN PROCEEDINGS

Use of transcript of judicial examination

25.1

(1) The record made under section 37 of the Act of 1995 (judicial examination: record of proceedings) shall be received in evidence in accordance with section 278(1) of that Act by means of the clerk of court, subject to paragraph (2) of this rule, reading the record of those proceedings to the jury.

(2) The clerk of court shall not read to the jury such part of the record as the court refuses to allow to be read to the jury on an application under section 278(2) of the Act of 1995.

(3) The presiding judge may direct that copies of such part of the record as has been read to the jury shall be made available to them together with copies of any written record of a confession allegedly made and received by the accused under section 36(3) of the Act of 1995 (written record of confession allegedly made received from prosecutor or constable).

CHAPTER 26 — DOCUMENTARY EVIDENCE

Authentication of copies of documents

26.1

(1) For the purposes of paragraph 1(1) of Schedule 8 to the Act of 1995 (production of copy documents), a copy, or a copy of a material part, of a document shall be authenticated—

(a) by a person who is—

(i) the author of the original of it;

(ii) a person in, or who has been in, possession and control of the original of it or a copy of it; or

(iii) the authorised representative of the person in, or who has been in, possession and control of the original of it or a copy of it; and

(b) by means of a signed certificate, certifying the copy as a true copy, which may be in Form 26.1-A—

(i) endorsed on the copy; or

(ii) attached to the copy.

(2) For the purposes of paragraph 4 of Schedule 8 to Act of 1995 (documents kept by businesses etc.), a document shall be certified by a docquet in Form 26.1-B—

(a) endorsed on the document; or

(b) attached to the document.

(3) For the purposes of paragraph 5(3) of Schedule 8 to the Act of 1995 (statements not contained in business documents), a certificate shall be in Form 26.1-C.

(4) In this Chapter a reference to a certificate or docquet being endorsed on, or attached to, a copy of a document includes endorsement or attachment by electronic means.

CHAPTER 27 — ROUTINE EVIDENCE, SUFFICIENT EVIDENCE AND PROOF OF PREVIOUS CONVICTIONS

Notices in relation to use of autopsy and forensic science reports

27.1

(1) Any notice given by an accused under subsection (1) or (2) of section 281 of the Act of 1995 (routine evidence: autopsy and forensic science reports) shall be in writing and shall be given to the prosecutor.

(2) For the purposes of the application of section 281(1) of the Act of 1995 to any summary proceedings, an autopsy report shall not be treated as having been lodged as a production by the prosecutor unless it has been lodged as a production not later than 14 days before the date of the trial diet.

(3) For the purposes of the application of subsection (2) of section 281 of the Act of 1995 to any summary proceedings, the prosecutor shall intimate his intention in accordance with that subsection by serving a copy of the autopsy or forensic science report lodged by him on the accused or his solicitor with a notice of his intention not later than 14 days before the date of the trial diet.

Form of certificates in relation to certain evidence

27.2

A certificate under any of the following provisions of the Act of 1995 shall be in Form 27.2:—

section 283(1) (certificate as to time and place of video surveillance recordings),

section 284(1) (certificate in relation to fingerprints),

section 285(2) (certificate relating to previous convictions),

section 285(4) (certificate relating to fingerprints),

section 285(5) (certificate relating to fingerprints of previously convicted person).

Form of notice in relation to certain evidential certificates

27.3

A notice under any of the following provisions of the Act of 1995 shall be in Form 27.3:—

section 282(3) (notice not accepting evidence as to controlled drugs or medicinal products),

section 283(2) (notice not accepting evidence as to video surveillance),

section 284(2) (notice not accepting evidence in relation to fingerprints),

section 286(1) (notice denying extract conviction applies to accused).

PART VII — Miscellaneous procedures

CHAPTER 28 — IDENTIFICATION PROCEDURES

Applications for identification parade

28.1

(1) An application to the sheriff made by an accused under section 290 of the Act of 1995 (application by accused for identification parade) shall be made—

(a) to the sheriff in whose sheriffdom the proceedings in relation to which the order is sought have been commenced;

(b) by petition—

(i) where the accused has appeared on petition under Part IV of the Act of 1995 (petition procedure) but an indictment has not been served on him, in Form 28.1-A; or

(ii) where an indictment or a complaint has been served on the accused, in Form 28.1-B.

(2) On the petition referred to in paragraph (1) being lodged, the sheriff shall—

(a) order intimation of the petition to be made to the prosecutor;

(b) fix a diet for a hearing of the petition on the earliest practicable date; and

(c) after giving the prosecutor an opportunity to be heard at the hearing and allowing such further procedure as he thinks fit, make an order granting or refusing the petition.

(3) If—

(a) the prosecutor is not present at the hearing of the petition; and

(b) the sheriff makes an order granting the petition,

the sheriff clerk shall issue a certified copy of the order to the petitioner or his solicitor.

(4) The sheriff clerk shall record the order made by the sheriff under paragraph (2)(c) in the minute of proceedings, and shall keep the petition and relative documents in his custody.

CHAPTER 29 — PRECOGNITION ON OATH OF DEFENCE WITNESSES

Applications for warrant to cite for precognition

29.1

(1) An application to the sheriff made by an accused under section 291(1) of the Act of 1995 (warrant to cite any person to appear for precognition on oath) shall be made—

(a) to the sheriff in whose sheriffdom the proceedings, in respect of which the accused seeks the precognition of that person, have been commenced;

(b) by petition—

(i) where the accused has appeared on petition under Part IV of the Act of 1995 (petition procedure) but an indictment has not been served on him, in Form 29.1-A; or

(ii) where an indictment or a complaint has been served on the accused, in Form 29.1-B.

(2) On a petition referred to in paragraph (1) being lodged, the sheriff shall—

(a) order intimation of the application to be made to the procurator fiscal; and

(b) fix a diet for a hearing of the application.

Orders for taking precognition

29.2

Where, after the hearing fixed under rule 29.1(2), the sheriff is satisfied that it is reasonable to require such precognition on oath in the circumstances, he shall—

(a) order the precognition to be taken;

(b) fix a diet for it to be taken; and

Citation to attend for precognition

29.3

(1) Citation of a person to attend the diet fixed for taking his precognition on oath shall be in Form 29.3; and an execution of service shall be produced at the diet fixed under rule 29.1(2).

(2) Where a person fails to appear at a diet fixed for taking his precognition and the sheriff issues a warrant for his apprehension under section 291(2) of the Act of 1995, execution of that warrant—

(a) shall be made by an officer of law instructed by the accused or his solicitor; and

(b) may proceed on a copy of the petition and warrant duly certified by the sheriff clerk.

(3) The sheriff clerk shall immediately give notice of that person’s failure to appear at the diet to the procurator fiscal.

Record of proceedings

29.4

(1) Where a person appears before the sheriff to have his precognition taken on oath, the proceedings shall be recorded in shorthand by an official shorthand writer instructed by the accused or his solicitor.

(2) The shorthand writer shall extend his shorthand notes recording the proceedings, sign the transcript, and lodge it with the sheriff clerk.

(3) On the transcript being lodged, the sheriff clerk shall—

(a) send a copy to the solicitor for the accused or, if he is not represented, to the accused; and

(b) fix a diet for the person whose precognition has been taken on oath to attend before the sheriff to sign the precognition.

Fees of shorthand writer

29.5

(1) The solicitor for the accused or, if he is not represented, the accused shall be liable for payment of—

(a) the fees of the shorthand writer, and

(b) the reasonable expenses of the person precognosed on oath;

and shall tender any such expenses in advance if required by that person to do so.

(2) Where the accused is not represented, the sheriff may, at the hearing of the application or at any time before the precognition is taken, order the accused to consign into court such sum as he may be required to pay under paragraph (1) in respect of fees and expenses on or before such date as the sheriff may specify in the order.

(3) If the sheriff orders the accused to consign a sum into court under paragraph (2) and that sum is not consigned by the date specified in the order, the petition shall be treated as abandoned.

CHAPTER 30 — PROCEEDINGS FOR THE EXECUTION OF IRISH WARRANTS

Interpretation of this Chapter

30.1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Form of endorsement

30.2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Procedure in applications for stated case under section 2A of the Act of 1965

30.3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power of High Court to extend period of time

30.4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

30.5

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Handing over of warrant of arrest

30.6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Certification of warrant

30.7

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 31 — REFERENCES TO THE EUROPEAN COURT OF JUSTICE

Interpretation of this Chapter

31.1

(1) In this Chapter, unless the context otherwise requires—

“the European Court” means the Court of Justice of the European Communities;

“question” means a question or issue in respect of which the European Court has jurisdiction to give a preliminary ruling under the Community Treaties;

“reference” means a request to the European Court for a preliminary ruling on a question.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Notice of references in solemn proceedings

31.2

(1) Where a question is to be raised in any proceedings on indictment (other than proceedings on appeal), notice of intention to do so shall be given to the court before which the preliminary hearing or first diet is to take place , as the case may be, and to the other parties not later than 14 days after service of the indictment.

(2) Where such a notice is given, a record of the notice shall be made on the record copy of the indictment or in the record of proceedings, as the case may be; and the court, in chambers, shall reserve consideration of the question to the preliminary hearing or first diet, as the case may be.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) At the trial diet, the court, after hearing the parties, may determine the question or may decide that a preliminary ruling should be sought.

(5) Where the court determines the question, the accused shall then (if appropriate) be called on to plead to the indictment; and, without prejudice to any other power available to it, the court—

(a) may prorogate the time for lodging any special defence;

(b) may continue the diet to a specified time and place; and

(c) in a case where witnesses and jurors have not been cited to attend at the trial diet, shall continue the diet and order the citation of witnesses and jurors to attend the continued diet.

(6) No period during which the diet is continued under paragraph (5) shall—

(a) subject to paragraph (7), be longer than 21 days; or

(b) be taken into account for the purposes of determining whether any time limit has expired.

(7) The court may, on the application of the prosecutor or defence, extend any period during which the diet is continued for such longer period than 21 days as it thinks fit on special cause shown.

Notice of references in summary proceedings

31.3

(1) Where a question is to be raised in any summary proceedings (other than proceedings on appeal), notice of intention to do so shall be given before the accused is called on to plead to the complaint.

(2) Where such notice is given, a record of the notice shall be entered in the minute of proceedings and the court shall not then call on the accused to plead to the complaint.

(3) The court may hear parties on the question forthwith or may adjourn the case to a specified date for such hearing.

(4) After hearing parties, the court may determine the question or may decide that a preliminary ruling should be sought.

(5) Where the court determines the question, the accused shall then (where appropriate) be called on to plead to the complaint.

Proceedings on appeal etc.

31.4

(1) Where a question is raised in the High Court in any proceedings on appeal or on a petition for the exercise of the nobile officium, the court shall proceed to make a reference.

(2) In paragraph (1), the reference to proceedings on appeal is a reference to proceedings on appeal under the Act of 1995 or on appeal by bill of suspension, bill of advocation or otherwise.

Preparation of case for reference

31.5

(1) Where the court decides that a preliminary ruling should be sought, the court shall—

(a) give its reasons and cause those reasons to be recorded in the record or minute of proceedings, as the case may be; and

(b) continue the proceedings from time to time as necessary for the purposes of the reference.

(2) The reference—

(a) except in so far as the court may otherwise direct, shall be drafted in Form 31.5 and the court may give directions to the parties as to the manner in which and by whom the case is to be drafted and adjusted;

(b) shall thereafter if necessary, be further adjusted to take account of any adjustments required by the court; and

(c) after approval and the making of an appropriate order by the court, shall (after the expiry of the period for appeal) be transmitted by the clerk of court to the Registrar of the European Court with a certified copy of the record or minute of proceedings, as the case may be, and, where applicable, a certified copy of the relevant indictment or complaint.

(3) In preparing a reference, the parties shall have regard to guidance issued by the European Court.

Procedure on receipt of preliminary ruling

31.6

(1) Where a preliminary ruling has been given by the European Court on a question referred to it and the ruling has been received by the clerk of the court which made the reference, the ruling shall be laid by the clerk before the court.

(2) On the ruling being laid before the court, the court shall then give directions as to further procedure, which directions shall be intimated by the clerk, with a copy of the ruling, to each of the parties to the proceedings.

Appeals against references

31.7

(1) Subject to paragraph (2), where an order making a reference is made under ..., any party to the proceedings who is aggrieved by the order may, within 14 days after the date of the order, appeal against the order to the High Court sitting as a court of appeal.

(2) Paragraph (1) shall not apply to such an order made in proceedings in the High Court sitting as a court of appeal or in proceedings on petition to that court for the exercise of its nobile officium.

(3) Any appeal under this rule shall be taken by lodging with the clerk of the court which made the order a note of appeal in Form 31.7 and signed by the appellant or his solicitor; and a copy of the note shall be served by the appellant on every other party to the proceedings.

(4) The clerk of court shall record the lodging of the note in the record or minute of proceedings, as the case may be, and shall forthwith transmit the note to the Clerk of Justiciary with the record or minute of proceedings and a certified copy of the relevant indictment or complaint.

(5) In disposing of an appeal under this rule, the High Court (sitting as a court of appeal) may—

(a) sustain or dismiss the appeal, and in either case remit the proceedings to the court of first instance with instructions to proceed as accords; and

(b) give such directions for other procedure as it thinks fit.

(6) Unless the court making the order otherwise directs, a reference shall not be transmitted to the Registrar of the European Court before the time allowed by this rule for appealing against the order has expired or before the appeal has been disposed of or abandoned.

CHAPTER 32 — ANNOYING CREATURES

Interpretation of this Chapter

32.1

In this Chapter,“the Act of 1982” means the Civic Government (Scotland) Act 1982[^f00015].

Form of application to district court and service

32.2

(1) An application to a justice of the peace court under section 49(3) of the Act of 1982 (annoying creatures) shall be made in Form 32.2.

(2) On the lodging of any such application, the district court shall make an order for service of a copy of the application on any person mentioned in the application as having the creature so mentioned in his charge or keeping the creature, and fixing a date and time for the hearing of the application.

(3) A copy of the application and of the order made under paragraph (2) shall be served on any such person by recorded delivery at the normal place of residence or place of business of that person, and such service shall be treated as sufficient notice to that person of the terms of the application and the order for the purposes of paragraph (4).

(4) If any person upon whom service has been made in accordance with paragraph (3) fails to appear or be represented at the time and date of the hearing specified in the order without reasonable excuse, the court may proceed to hear and decide the application in his absence.

(5) Where the court makes an order in respect of any person under section 49(2) of the Act of 1982, the clerk of court shall, within seven days after the date on which the order was made, serve on that person, by recorded delivery at the normal place of residence or place of business of that person, a copy of the order and a notice setting out the terms of section 49(4) of the Act of 1982.

CHAPTER 33 — LEGAL AID

Interpretation of this Chapter

33.1

In this Chapter, unless the context otherwise requires—

“the Act of 1986” means the Legal Aid (Scotland) Act 1986[^f00016];

“assisted person” means a person who is in receipt of criminal legal aid in the proceedings in question;

“the Regulations” means the Criminal Legal Aid (Scotland) Regulations 1996.

Legal aid in High Court

33.2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Discontinuance of entitlement to legal aid

33.3

(1) Subject to paragraph (1A) below, where the court before which there are proceedings in which an assisted person is an accused or appellant is satisfied, after hearing that person—

(a) that he—

(i) has without reasonable cause failed to comply with a proper request made to him by the solicitor acting for him to supply any information relevant to the proceedings,

(ii) has delayed unreasonably in complying with any such request,

(iii) has without reasonable cause failed to attend at a diet of the court at which he has been required to attend or at a meeting with the counsel or solicitor acting for him under the Act of 1986 at which he has reasonably and properly been required to attend,

(iv) has conducted himself in connection with the proceedings in such a way as to make it appear to the court unreasonable that he should continue to receive criminal legal aid,

(v) has wilfully or deliberately given false information for the purpose of misleading the court in considering his financial circumstances under section 23(1) of the Act of 1986, or

(vi) has without reasonable cause failed to comply with a requirement of the Regulations, or

(b) that it is otherwise unreasonable for the solicitor to continue to act on behalf of the assisted person in the proceedings,

the court may direct that the assisted person shall cease to be entitled to criminal legal aid in connection with those proceedings.

(1A) Where the solicitor acting for the assisted person was appointed by the court under section 288D of the Act of 1995 (appointment of solicitors by court in proceedings in respect of sexual offence), paragraph (1) shall not apply.

(2) Where a direction is made under paragraph (1) of this rule in the course of proceedings to which section 22 of the Act of 1986[^f00019] (automatic availability of criminal legal aid) applies, the accused shall not be entitled to criminal legal aid in relation to any later stages of the same proceedings before the court of first instance.

(3) Where a court issues a direction under paragraph (1), the clerk of court shall send notice of it to the Scottish Legal Aid Board.

(4) Where a court of first instance has made a direction under paragraph (1)(a), it shall instruct the clerk of court to report the terms of the finding made by the court to the Scottish Legal Aid Board for its consideration in any application for criminal legal aid in an appeal in connection with the proceedings in that court.

Statements on oath

33.4

In considering any matter in regard to the entitlement of a person to criminal legal aid, the court may require that person to make a statement on oath for the purpose of ascertaining or verifying any fact material to his entitlement to criminal legal aid.

Intimation of determination of High Court

33.5

The Clerk of Justiciary shall intimate to the Scottish Legal Aid Board any decision of the High Court made under section 25(2A) of the Act of 1986[^f00020] (determination by High Court that applicant should receive legal aid).

CHAPTER 34 — EXTRADITION

Interpretation of this Chapter

34.1

In this Chapter—

“the Act of 1989” means the Extradition Act 1989[^f00021];

“court of committal” has the meaning assigned in section 9(1) of the Act of 1989.

“the 1995 Convention” means the Convention drawn up on the basis of Article K.3 of the Treaty on European Union on Simplified Extradition Procedures between the Member States of the European Union;

“party to the 1995 Convention” means a state in respect of which the 1995 Convention is in force either generally or between it and the United Kingdom.

Procedure in applications for stated case

34.2

(1) Where—

(a) the court of committal refuses to make an order under section 9 of the Act of 1989 (proceedings for committal) in relation to a person in respect of the offence or, as the case may be, any of the offences to which the authority to proceed relates,

(b) the state, country or colony seeking the surrender of that person immediately informs the court that it intends to make an application to the court to state a case for the opinion of the High Court, and

(c) the court of committal makes an order under section 10(2) of the Act of 1989 (detention or bail where refusal of extradition order challenged) releasing that person on bail,

the sheriff clerk shall forthwith send a copy of that order to the Crown Agent.

(2) Where—

(a) the court of committal refuses to make an order under section 9 of the Act of 1989 in relation to a person in respect of the offence or, as the case may be, any of the offences to which the authority to proceed relates, and

(b) the state, country or colony seeking his surrender wishes to apply to that court to state a case for the opinion of the High Court under section 10(1) of the Act of 1989,

such an application shall be made to the court of committal within 21 days after the date on which that court refuses to make the order under section 9 of the Act of 1989 unless the sheriff grants a longer period within which the application is to be made.

(3) Such an application shall be made in writing and shall identify the question or questions of law on which the opinion of the High Court is sought.

(4) Within 21 days after receipt of an application to state a case under section 10(1) of the Act of 1989, the clerk of the court of committal shall send a draft stated case prepared by the sheriff to the solicitor for the state, country or colony and to the person whose surrender is sought or his solicitor; and the court of committal shall allow each party 21 days from the date of the sending of the draft stated case within which to lodge and intimate proposed adjustments.

(5) Within seven days after the latest date on which such adjustments may be lodged, the sheriff shall, on the motion of either party, or may of his own accord, hear parties on any such adjustments.

(6) Within 14 days after the latest date on which such hearing on adjustments may take place (or, if there are no such adjustments, within 14 days after the latest date by which such adjustments could have been lodged), the sheriff shall, after considering any such proposed adjustments and representations, state and sign the case; and the sheriff clerk shall—

(a) forthwith transmit the case, with the application for the case and all other documents in the case to the Clerk of Justiciary; and

(b) send a duplicate of the case to the solicitor for the state, country or colony and to the person whose surrender is sought or his solicitor.

(7) If any period of time specified in paragraph (4), (5) or (6) expires on a Saturday, Sunday or court holiday prescribed for the court of committal, the period shall be extended to expire on the next day which is not a Saturday, Sunday or such court holiday.

(8) Where the sheriff referred to in paragraph (4), (5) or (6) becomes temporarily absent from duty for any cause, the sheriff principal of the sheriffdom of Lothian and Borders may extend any period of time specified in that paragraph for such period as he considers reasonable.

(9) Where the sheriff referred to in paragraph (4), (5) or (6) dies before signing the stated case, the applicant for the stated case may present a bill of suspension to the High Court and bring under the review of that court any matter which might have been brought under review by stated case.

Power of High Court to extend period of time

34.3

(1) Without prejudice to any other power which the High Court may have, where it appears to that court, on an application made in accordance with the following provisions of this rule, that a party has failed to comply with any of the requirements of paragraph (2) or (4) of rule 34.2 (procedure in applications for stated case), the High Court may direct that such further period of time as it considers reasonable be afforded to such party to comply with any requirements of paragraph (2) or (4) of rule 34.2.

(2) An application for a direction under paragraph (1) shall be made in writing to the Clerk of Justiciary and shall state the grounds for the application; and notification of the application shall be made by the applicant to the sheriff clerk of the court of committal; and the sheriff clerk shall forthwith transmit one certified copy of all documents in the case to the Clerk of Justiciary.

(3) The High Court shall dispose of any application under paragraph (1) in the same manner as an appeal in respect of bail under section 32 of the Act of 1995 and, when the High Court has disposed of the application, the Clerk of Justiciary shall inform the clerk of the court of committal of the result.

Applications to High Court for order for stated case

34.4

(1) The High Court is to begin to hear an appeal under section 26 or 28 of the Act of 2003 within 40 days after the date on which the arrested person was arrested.

(2) The High Court is to begin to hear an appeal under section 103, 105, 108 or 110 of the Act of 2003 within 76 days after the date on which the note of appeal is lodged.

34.5

(1) A notice given under section 14 of, or paragraph 9 of Schedule 1 to, the Act of 1989 (which relate to waiver of rights) shall be in Form 34.5.

(2) Such a notice shall be signed in the presence of a sheriff, sheriff clerk, justice of the peace or solicitor.

(3) Any such notice given by a person in custody shall be delivered to the governor of the prison in whose custody he is.

(4) Where a person on bail gives such notice he shall deliver it, or send it by post in a registered letter or by the first class recorded delivery service addressed, to the Crown Agent.

CHAPTER 35 — COMPUTER MISUSE ACT 1990

Notices in relation to relevance of external law

35.1

A notice under section 8(5) of the Computer Misuse Act 1990[^f00022] (notice by defence that conditions not satisfied) shall be served on the prosecutor not later than 14 days before the trial diet.

CHAPTER 36 — CRIME (INTERNATIONAL CO-OPERATION) ACT 2003

Interpretation of this Chapter

36.1

In this Chapter—

“the Act of 1990” means the Criminal Justice (International Co-operation) Act 1990[^f00023]; and

“document” means a document to which section 2 of the Act of 1990 (service of United Kingdom process overseas) applies.

Service of orders outside the United Kingdom

36.2

Where a document is to be served on a person outside the United Kingdom, it shall be sent by the Clerk of Justiciary or sheriff clerk, as the case may be, to the Crown Agent with a view to its being served in accordance with arrangements made by the Secretary of State.

Proof of service outside the United Kingdom

36.3

The service on any person of a document may be proved in any legal proceedings by a certificate given by or on behalf of the Secretary of State, and such a certificate shall be sufficient evidence of the facts stated in it.

Notice of applications for letters of request

36.4

An application under section 3(1) of the Act of 1990 (issue of letter of request)—

(a) shall be made in Form 36.4-A;

(b) shall be lodged with the Clerk of Justiciary or sheriff clerk, as the case may be; and

(i) be made in writing;

(ii) state the particulars of the offence which it is alleged has been committed or the grounds on which it is suspected that an offence has been committed;

(iii) state whether proceedings in respect of the offence have been instituted or the offence is being investigated; and

(iv) include particulars of the assistance requested in a draft letter of request in Form 36.4-B.

Hearing of applications for letters of request

36.5

(1) Where the prosecutor presents an application under section 3(1) of the Act of 1990 (issue of letter of request) before either the first appearance of the accused on petition or the service of a summary complaint, the High Court or sheriff, as the case may be, shall, without requiring intimation to any other party, proceed to consider the application.

(2) Where any party presents such an application following the first appearance of the accused on petition or the service of a summary complaint, the High Court or sheriff, as the case may be, may—

(a) before the lodging of an indictment, dispense on cause shown with intimation to any other party and proceed to consider the application; or

(b) fix a diet for hearing the application and order intimation of the diet and application to any other party.

(3) The High Court or sheriff, as the case may be, after considering any such application—

(a) may allow summary adjustment of the statement of assistance required in the letter of request;

(b) shall grant the application, with or without any modifications which it or he deems appropriate, or shall refuse it.

(4) On granting such application the High Court or sheriff, as the case may be, shall—

(a) approve and sign the letter of request;

(b) if English is not an official language of the body to which the letter of request is addressed, specify a period within which a translation of the letter of request and of any production is to be lodged.

Court register of applications for letters of request

36.6

(1) A register shall be kept by the Clerk of Justiciary and by the sheriff clerk of applications under section 3(1) of the Act of 1990 (issue of letter of request).

(2) Save as authorised by the court, the register relating to applications mentioned in paragraph (1) above shall not be open to inspection by any person.

Letters of request in cases of urgency

36.7

Where, in a case of urgency, the court sends a letter of request direct to any court or tribunal in accordance with section 3(5) of the Act of 1990 (issue of letter of request), the Clerk of Justiciary or sheriff clerk, as the case may be, shall forthwith notify the Crown Agent and Secretary of State of this and send with the notification a copy of the letter of request.

Proceedings before a nominated court

36.8

(1) In proceedings before a court nominated under section 4(2) of the Act of 1990 (nomination of court to receive evidence for use overseas)—

(a) the procurator fiscal or Crown counsel shall participate in any hearing;

(b) the prosecutor of the requesting country mentioned in the request under section 4(1) of the Act of 1990 may participate in any hearing;

(c) where the request under section 4(1) of the Act of 1990 (request for assistance in obtaining evidence in United Kingdom) originates from current criminal proceedings any party to or persons with an interest in those proceedings may attend and, with the leave of the court, participate in any hearing;

(d) a judge or investigating magistrate in the current criminal proceedings may participate in any hearing;

(e) a lawyer or person with a right of audience from the requesting country who represents any party to the current criminal proceedings may participate in any hearing;

(f) a solicitor or counsel instructed by any party may participate in any hearing;

(g) any other person may, with the leave of the court, participate in any hearing;

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