The judge of the High Court considering an application for leave to appeal under section 107 of the Act of 1995 may, before deciding to grant or refuse leave, remit the case to the judge who presided at the trial for a supplementary report to be produced to him as soon as is reasonably practicable on any matter with respect to the grounds of appeal.

Remits in applications for leave to appeal

19.18

The Appeal Sheriff considering an application for leave to appeal under section 180 (leave to appeal against conviction etc.), or section 187 (leave to appeal against sentence), of the Act of 1995 may, before deciding to grant or refuse leave, remit the case to the judge at first instance for a report or a supplementary report to be produced to him as soon as is reasonably practicable on any matter with respect to the grounds of appeal.

Notices under section 16A(4) of the Criminal Law (Consolidation) (Scotland) Act 1995

27.4

(1) A notice under section 16A(4) of the Criminal Law (Consolidation) (Scotland) Act 1995 (notice disputing that condition is satisfied and requiring prosecutor to prove such) shall be in Form 27.4.

(2) A notice by an accused under section 16A(4) of the Criminal Law (Consolidation) (Scotland) Act 1995 (notice disputing condition specified in section 16A(3)) may be served on the prosecutor by any of the methods of service in rule 2.3 (general provisions for service).

(3) At the same time as he serves a notice on the prosecutor under paragraph (2), the accused shall serve a copy of that notice on any co-accused or his solicitor.

(4) An accused shall serve a notice under paragraphs (2) or (3), no later than 21 days before the trial diet.

Form and notification of non-harassment order

20.10A

(1) A non-harassment order made under section 234A of the Act of 1995 shall be in Form 20.10A.

(2) A non-harassment order mentioned in paragraph (1) above shall be intimated by the clerk of the court by which it is made to any person, other than the offender, who is named in the order.

Variation or revocation of non-harassment order

20.10B

(1) This rule applies to an application under section 234(6) of the Act of 1995 (application for variation or revocation of non-harassment order).

(2) In this rule–

“the offender” means the offender subject to the order to which the application relates; and

“the prosecutor” means the prosecutor at whose instance the order was made.

(3) The application shall–

(a) identify the proceedings in which the order was made;

(b) state the reasons for which the applicant seeks the variation or revocation of the order;

(4) The applicant shall serve a copy of the application on–

(a) the clerk of the court which made the order;

(b) any person, other than the offender, who is named in the order; and

(i) the offender, the prosecutor; and

(ii) the prosecutor, the offender,

but the application may proceed notwithstanding that, having taken reasonable steps to do so, the applicant has been unable to effect service of it on the offender or any person such as is mentioned in subparagraph (b) above.

(5) Where the offender is the applicant, the prosecutor shall, within fourteen days of the receipt of the copy of the application, notify the clerk of court in writing whether he intends to oppose the application.

(6) Where the prosecutor is the applicant, the offender shall, within fourteen days of receipt of the copy of the application, notify the clerk of court in writing whether he intends to oppose the application.

(7) Where a person notifies the clerk of court under paragraph (5) or (6) above that he does not intend to oppose the application, or fails to make any notification, the court shall proceed to dispose of the application and may do so in the absence of the applicant.

(8) Where a person notifies the clerk of court under paragraph (5) or (6) above that he does intend to oppose the application, the clerk of court shall arrange a hearing before the court at which the prosecutor and the offender may appear or be represented.

(9) The clerk of court shall give notice in writing of the decision of the court on the application to–

(a) the applicant;

(b) any person served with a copy of the application under sub-paragraph (b) or (c) of paragraph (4) above.

Form of supervised attendance orders

Community service orders

Terms of compensation orders to record of proceedings

Legal disability of person entitled to compensation

Variation of compensation orders

Discharge or reduction of compensation order

Use of certified copy documents in certain proceedings

Form of extract of sentence

Reduction of disqualification period for drink-drive offencers

Suspension of sentence under s.121A of the Act of 1995

15.12A

–

(1) Where under section 109(1) of the Act of 1995 a person lodges intimation of intention to appeal, any application for suspension of a relevant sentence under section 121A of that Act shall be made by petition to the High Court in Form 15.12A-A.

(2) Where a convicted person or the prosecutor lodges a note of appeal in respect of an appeal under section 106(1)(b) to (e) or 108 of the Act of 1995, as the case may be, any application for suspension of a relevant sentence under section 121A of that Act shall be made by petition to the High Court in Form 15.12A-B.

(3) A petition to the High Court under paragraph (1) or (2) shall be lodged with the Clerk of Justiciary.

(4) The court shall grant or refuse any application under paragraph (1) or (2) within 7 days of the petition having been lodged as mentioned in paragraph (3).

(5) Where the court grants an application under paragraph (1) or (2) the Clerk of Justiciary shall, if the sentencing court was the sheriff, send a certified copy of the order to the clerk of that court.

(6) In any case where—

(a) intimation of intention to appeal is lodged under section 109(1) of the Act of 1995; and

(b) a relevant sentence is suspended under section 121A of that Act,

but no note of appeal is lodged under section 110 of that Act, the order suspending ad interim the relevant sentence shall be recalled with effect from the seventh day after the date on which the Clerk of Justiciary intimates that the appeal is deemed to have been abandoned.

(7) In the application of section 121A of the Act of 1995 (suspension of certain sentences pending appeal) to a case in which leave to appeal has been refused under section 107 of that Act, the word “determined” in subsection (1) of the said section 121A shall be construed as meaning—

(a) the fifteenth day after the date of intimation to the appellant or his solicitor and to the Crown Agent of refusal of leave under subsection (1)(b) of section 107 of that Act, unless the appellant applies to the High Court for leave to appeal; or

(b) the seventh day after the date of intimation to the appellant or his solicitor and to the Crown Agent of the refusal of leave by the High Court under subsection (5)(b) of section 107 of that Act.

Suspension of disqualification etc. under section 121 of the Act of 1995

Remits in applications for leave to appeal

Suspension of sentence under s.193A of the Act of 1995

19.10A

(1) Where a convicted person or the prosecutor appeals to the Sheriff Appeal Court under section 175 of the Act of 1995, any application to suspend a relevant sentence shall be made with—

(a) the application to the court to state a case for the opinion of the Sheriff Appeal Court; or

(b) the note of appeal, as the case may be.

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

(3) In the application of section 193A of the Act of 1995 (suspension of certain sentences pending appeal) to a case in which leave to appeal has been refused under section 180 or 187 of that Act, the word “determined” in subsection (1) of the said section 193A shall be construed as meaning—

(a) the fifteenth day after the date of intimation to the appellant or his solicitor and to the prosecutor 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 seventh day after the date of intimation to the appellant or his solicitor and to the prosecutor 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.

Solicitor entering appearance etc.

Duty to print stated case etc.

Duty of solicitor in bill of suspension

List of appeals

Diet for interim suspension

Intimation of determination of appeal

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

Remits in applications for leave to appeal

Applications for evidence of vulnerable persons by television link

CHAPTER 38 — TRANSFER OF RIGHTS OF APPEAL OF DECEASED PERSONS

Applications for transfer under section 303A of the Act of 1995

38

Any application to the appropriate Appeal Court under section 303A of the Act of 1995 for an order authorising a person (the “applicant”) as executor, or as the case may be by reason of his having a legitimate interest, to institute or continue any appeal which could have been or has been instituted by a deceased person shall be made in Form 38 and shall be accompanied by a copy of the confirmation of the applicant as executor or evidence of his legitimate interest, as the case may be.

Sexual offences to which Part I of Sex Offenders Act 1997 applies

20.3A

(1) A certificate under section 92(2) of the Sexual Offences Act 2003 (certificate that an accused has been convicted of, found not guilty by reason of insanity of, or found to be under a disability and to have done the act charged against him in respect of, an offence listed in Schedule 3 to that Act) shall be in Form 20.3A A.

(2) Subject to paragraph (3), when a certificate such as is mentioned in paragraph (1) is prepared, the accused shall be given a copy of it by the clerk of the court, together with a notice in Form 20.3A B.

(3) If the certificate is not prepared immediately after the statement in open court but is to be prepared subsequently, the clerk of the court shall forthwith give the accused the notice required by paragraph (2) and shall in due course send a copy of the certificate to the accused.

(3A) Where sentence has been deferred in respect of an accused who has been given a notice required by paragraph (2), the clerk of the court shall, when sentence is passed, give the accused a notice in Form 20.3A-C.

(4) The clerk of the court shall retain a copy of any notices given to the accused under paragraph (3) or (3A), as the case may be and shall record on those copies the fact that notice has been so given.

(5) The record made under paragraph (4) shall be sufficient evidence of the fact recorded; and a certificate of posting sufficient evidence of the sending of a copy under paragraph (3).

Application of money found on offender towards fine

Extension of time for payment of fine

Forms for enquiry for non-payment of fine

Supervision of payment of fine

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

Transfer of fines

Probation orders

Form and notification of non-harassment order

Variation or revocation of non-harassment order

Form of supervised attendance orders

Community service orders

Terms of compensation orders to record of proceedings

Legal disability of person entitled to compensation

Variation of compensation orders

Discharge or reduction of compensation order

Use of certified copy documents in certain proceedings

Form of extract of sentence

Reduction of disqualification period for drink-drive offencers

Notice under section 16B(4) of Criminal Law (Consolidation) (Scotland) Act 1995

27.5

–

(1) Any notice under section 16B(4) of the Criminal Law (Consolidation) (Scotland) Act 1995 (notice served on prosecutor by person accused of sexual offence disputing whether an act done by him abroad constituted an offence under the law in force in the country or territory in question) shall be in Form 27.5 and may be served on the prosecutor by any of the methods of service mentioned in rule 2.3.

(2) Any such notice shall be served not later than 21 days before the trial diet; and when he serves such a notice the accused shall serve a copy of it on any co-accused or on the solicitor of any co-accused.

CHAPTER 37A — PROCEEDINGS UNDER SECTION 7 OF THE KNIVES ACT 1997

37A

An application to the sheriff under section 7(3) of the Knives Act 1997 (recovery order for delivery of property to applicant if it appears to court that he owns it) shall be made by petition in Form 37A.

Orders under sections 25 and 26

37.4

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

Appeals under section 27

37.5

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

CHAPTER 39 — PROCEEDINGS UNDER CRIMINAL LAW (CONSOLIDATION) (SCOTLAND) ACT 1995

Orders to make material available

39.1

(1) An application by the procurator fiscal to the sheriff for an order under section 31(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (order to make material available in investigation into drug trafficking) shall be made by petition; and section 134 of the Act of 1995 (incidental applications) shall apply to an application under section 31(2) as it applies to an application to which section 134 applies.

(2) The sheriff may make the order sought in the petition under paragraph (1) before intimation of the petition to the person who appears to him to be in possession of the material to which the application relates.

(3) An application by the procurator fiscal for an order under section 31(5) of the Criminal Law (Consolidation) (Scotland) Act 1995 (order allowing constable or person commissioned by Customs and Excise access to premises to obtain material) may be made in the petition applying for an order under section 31(2) of that Act; and paragraph (2) shall apply to an order in respect of a person who appears to the sheriff to be entitled to grant entry to the premises in question as it applies to an order in respect of the person mentioned in that paragraph.

Discharge and variation of orders

39.2

(1) A person in respect of whom an order has been made under section 31(2) or (5) of the Criminal Law (Consolidation) (Scotland) Act 1995 may apply to the sheriff for discharge or variation of the order in question.

(2) The sheriff may, after hearing the parties, grant or refuse to grant the discharge or variation sought.

Warrants to search premises

39.3

An application by the procurator fiscal to the sheriff under section 32(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 (authority for search) shall be made by petition; and section 134 of the Act of 1995 (incidental applications) shall apply to an application under section 32(1) as it applies to an application to which section 134 applies.

Restriction of liberty orders

20.12A

–

(1) A restriction of liberty order made under section 245A(1) of the Act of 1995 shall be in form 20.12A-A.

(2) An application under section 245E(1) (application to review a restriction of liberty order) of that Act shall be in form 20.12A-B.

(3) The citation of an offender under section 245E(3) (citation to appear before a court which proposes to vary or revoke a restriction of liberty order) of that Act shall be in form 20.12A-C.

(4) The citation of an offender under section 245F(1) (citation for failure to comply with requirement of restriction of liberty order) of that Act shall be in form 20.12A-D.

Terms of compensation orders to record of proceedings

Legal disability of person entitled to compensation

Variation of compensation orders

Discharge or reduction of compensation order

Use of certified copy documents in certain proceedings

Form of extract of sentence

Reduction of disqualification period for drink-drive offencers

Further provision as respects extension of twelve months period for commencement of trial on indictment

8.1A

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

Fresh indictment as alternative to serving notice fixing new trial diet

8.1B

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

Citation of accused and witnesses

Notice of previous convictions

CHAPTER40 — COMPATIBILITY ISSUES , DEVOLUTION ISSUES AND INTERVENTIONS

Interpretation of this Chapter

40.1

In this Chapter—

“Advocate General” means the Advocate General for Scotland;

“compatibility issue” means a compatibility issue within the meaning of section288ZA(2) of the Act of 1995 or a UNCRC compatibility issue;

“devolution issue” means a devolution issue within the meaning of paragraph1 of Schedule6 to the Scotland Act 1998;

“Schedule6” means Schedule6 to the Scotland Act 1998;

“UNCRC compatibility issue” has the meaning given by section 288AB(1) (references of UNCRC compatibility issues to the High Court or Supreme Court) of the Act of 1995.

Raising devolution issues: proceedings on indictment

40.2

(1) This rule applies to solemn proceedings.

(2) In proceedings at first instance, where a party proposes to raise a compatibility issue or devolution issue he shall give written notice of his intention to do so by minute in Form40.2.

(3) The minute must be lodged with the clerk of court and served on the other parties no later than 14clear days before the preliminary hearing or, as the case may be, first diet.

(4) In proceedings on appeal (where the issue is being raised for the first time), where a party proposes to raise a compatibility issue or devolution issue he shall, subject to section107 of the Act of 1995, do so in the note of appeal.

Raising devolution issues: summary proceedings

40.3

(1) This rule applies to summary proceedings.

(2) In proceedings at first instance, where a party proposes to raise a compatibility issue or devolution issue he shall give written notice of his intention to do so by minute in Form40.3.

(3) The minute must be lodged with the clerk of court and served on the other parties—

(a) where an intermediate diet is to be held, before the first such diet; or

(b) where such a diet is not to be held, no later than 14clear days before the trial diet.

(4) In proceedings on appeal (where the issue is being raised for the first time), where a party proposes to raise a compatibility issue he shall, subject to section176 of the Act of 1995, do so in the application for a stated case.

Raising devolution issues: other criminal proceedings

40.4

(1) This rule applies to criminal proceedings which are not proceedings on indictment or summary proceedings, including bills of advocation and bills of suspension.

(2) Where a party to proceedings proposes to raise a compatibility issue or devolution issue he shall raise such an issue as a point of law in the pleadings.

Time for raising devolution issue

40.5

Where a compatibility issue or devolution issue is raised in accordance with rule40.2, rule40.3 or rule40.4 the facts and circumstances and contentions of law on the basis of which it is alleged that a compatibility issue or devolution issue arises in the proceedings shall be specified in sufficient detail to enable the court to determine whether such an issue arises.

Specification of devolution issue

40.6

(1) No party to criminal proceedings shall raise a compatibility issue or devolution issue in those proceedings except as in accordance with rule40.2, 40.3 or 40.4, unless the court, on cause shown, otherwise directs.

(2) Where the court determines that a devolution issue may be raised as mentioned in paragraph(1), it shall order that intimation of the devolution issue is given in writing to the Advocate General.

(3) Where the court determines that a UNCRC compatibility issue may be raised as mentioned in paragraph (1), it shall order that intimation of the UNCRC compatibility issue is given in writing to the Commissioner for Children and Young People in Scotland and the Scottish Commission for Human Rights.

Reference of devolution issue to the High Court

40.7

(1) Where a party raises a devolution issue in accordance with rule40.2, rule40.3 or rule 40.4 a copy of the document in which it is raised shall be served on the Advocate General.

(2) A copy document served on the Advocate General under paragraph(1) shall be treated as intimation of the devolution issue arising in the proceedings as mentioned in paragraph5 of Schedule6.

Orders pending determination of devolution issue

40.8

Where the Advocate General intends to take part in the proceedings as mentioned in paragraph6 of Schedule6 or, as the case may be, section288ZA(1) of the Act of 1995, he shall give written notice of his intention to do so to the clerk of court and the other parties.

Reference of devolution issue to Judicial Committee

40.9

(1) An application to the High Court under section288AA(5) of the Act of 1995 (appeals to the Supreme Court: compatibility issues) , section 288AC(4) of that Act (appeals to the Supreme Court: UNCRC compatibility issues) or paragraph13 of Schedule6 (appeals to the Supreme Court: devolution issues) shall be in Form40.9.

(2) Where the Advocate General is not already a party to the proceeding, the applicant shall, at the same time as lodging the application, intimate a copy to the Advocate General.

(3) Paragraph (2) does not apply to an application under section 288AC(4) of the Act of 1995.

Procedure on receipt of determination of devolution issue

40.10

(1) This rule applies where a court, other than a court consisting of two or more judges of the High Court of Justiciary decides or, as the case may be, is required to refer—

(a) a compatibility issue to the High Court of Justiciary under section288ZB(1) or (2) or section 288AB(3) or (4) of the Act of 1995;

(b) a devolution issue to the High Court of Justiciary under paragraph9 of Schedule6.

(2) The court shall—

(a) pronounce an order giving directions to the parties about the manner and time in which the reference is to be drafted;

(b) give its reasons for making the reference and cause those reasons to be recorded in the record or minutes of proceedings, as the case may be;

(c) give written notice of the reference to the Advocate General where the reference relates to a devolution issue and the Advocate General is not already a party to the proceedings;

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

(3) The reference shall—

(a) be adjusted at the sight of the court in such manner as the court may direct;

(b) after approval and the making of an appropriate order by the court (after the expiry of any period for appeal) be transmitted by the clerk of court to the Clerk of Justiciary with a certified copy of the record or minutes of proceedings, as the case may be, and, where applicable a certified copy of the relevant indictment or complaint.

Procedure following disposal of appeal by Supreme Court

40.11

(1) This rule applies where a court consisting of two or more judges of the High Court of Justiciary decides or, as the case may be, is required to refer—

(a) a compatibility issue to the Supreme Court under section288ZB(3), (4) or (5) or section 288AB(5), (6) or (7) of the Act of 1995;

(b) a devolution issue to the Supreme Court under paragraph11 or 33 of Schedule6.

(2) The court shall—

(a) pronounce an order giving directions about the manner and time in which the reference is to be drafted (including such matters as may be required by Supreme Court Practice Direction10);

(b) give its reasons for making the reference and cause those reasons to be recorded in the record or minutes of proceedings, as the case may be;

(c) give written notice of the reference to the Advocate General where the Advocate General is not already a party to the proceedings;

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

(2A) Paragraph (2)(c) does not apply to a reference made under section 288AB(5), (6) or (7) of the Act of 1995.

(3) The reference shall—

(a) be adjusted at the sight of the court in such manner as the court may direct;

(b) after approval and the making of an appropriate order by the court, shall be transmitted by the clerk of court to the Registrar of the Supreme Court with a certified copy of the record or minutes of proceedings, as the case may be, and, where applicable, a certified copy of the relevant indictment or complaint.

Orders mitigating the effect of certain decisions

40.12

(1) Where a court makes a reference mentioned in rule 40.10 or rule 40.11 it may make such orders as it considers just and equitable in the circumstances pending the determination of the compatibility issue or devolution issue.

(1A) Where an appeal under paragraph 13(a) of Schedule 6 is taken, the High Court of Justiciary may make such orders as it considers just and equitable in the circumstances pending the determination of that appeal.

(1B) Without prejudice to the generality of paragraphs (1) and (1A), orders made under those paragraphs may include—

(a) an order postponing any diet, including a trial diet, fixed in the case;

(b) such orders as the court considers appropriate in relation to bail;

(c) subject to paragraph (2), an order extending the period within which any step requires to be taken or event to have occurred.

(2) An order ... extending a period which may be extended under section 65 or section 147 of the Act of 1995 may be made only by a court which has power to do so under that section, and for the purposes of that section, the fact that a devolution issue has been raised by the prosecutor shall not, without more, be treated as fault on the part of the prosecutor.

Direction relating to Advocate General

1.4

The Lord Justice General may, by direction, specify such arrangements as he considers necessary for, or in connection with, the appearance in court of the Advocate General for Scotland.

Registers kept by High Court

3.5A

Any register kept by the High Court, whether or not under or by virtue of these Rules, may be kept either—

(a) in documentary form; or

(b) in electronic form (that is to say in a form accessible only by electronic means).

Custody and transmission of records

Form and notification of drug treatment and testing orders

20.12B

(1) A drug treatment and testing order made under section 234B of the Act of 1995 shall be in Form 20.12B-A.

(2) The citation of an offender to appear before a court under section 234E(2) of the Act of 1995 (variation or revocation of drug treatment and testing order) shall be in Form 20.12B-B.

(3) The citation of an offender to appear before a court under section 234G(1) of the Act of 1995 (breach of drug testing and treatment order) shall be in Form 20.12B-C.

Terms of compensation orders to record of proceedings

Legal disability of person entitled to compensation

Variation of compensation orders

Discharge or reduction of compensation order

Use of certified copy documents in certain proceedings

Form of extract of sentence

Reduction of disqualification period for drink-drive offencers

CHAPTER 41 — DECLARATIONS AND DECLARATORS

Application and interpretation

41.1

(1) This Chapter deals with various matters relating to—

(a) the Human Rights Act 1998;

(b) the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024.

(2) In this Chapter—

“the 1998 Act” means the Human Rights Act 1998;

“the 2024 Act” means the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024;

“declaration of incompatibility” has the meaning given by section 4 (declaration of incompatibility) of the 1998 Act;

“incompatibility declarator” has the meaning given by section 26(2) of the 2024 Act;

“strike down declarator” has the meaning given by section 25(2) of the 2024 Act.

Evidence of judgments etc

41.2

(1) Evidence of any judgment, decision, declaration or opinion of which account has to be taken by the court under section 2 of the 1998 Act shall be given by reference to any authoritative and complete report of the said judgment, decision, declaration or opinion and may be given in any manner.

(2) Evidence given in accordance with paragraph (1) shall be sufficient evidence of that judgment, decision, declaration or opinion.

Declaration of incompatibility

41.3

(1) Where in any proceedings a party seeks a declaration of incompatibility , incompatibility declarator or strike down declarator or the court is considering whether to make such a declaration or declarator at its own instance–

(a) notice in Form 41.3-A shall be given as soon as reasonably practicable to such person as the Lord Justice General may from time to time direct–

(i) by the party seeking the declaration or declarator; or

(ii) by the clerk of court,

as the case may be, provided that there shall be no requirement to give such notice to a party or to the representative of a party; and

(b) where notice is given by the party seeking the declaration or declarator the party shall lodge a certificate of notification in process.

(2) Where any–

(a) Minister of the Crown (or person nominated by him);

(b) member of the Scottish Executive;

(d) Northern Ireland department,

wishes to be joined as a party to proceedings in relation to which the Crown is entitled to receive notice under section 5 of the 1998 Act he or, as the case may be, it shall serve notice in Form 41.3—B to that effect on the Deputy Principal Clerk of Justiciary and shall serve a copy of the notice on all other parties to the proceedings.

(3) Where any of—

(a) the Commissioner for Children and Young People in Scotland;

(b) the Scottish Commission for Human Rights,

wishes to take part as a party to proceedings in relation to which it is entitled to receive intimation under section 27(1) of the 2024 Act, it shall serve notice in Form 41.3-B to that effect on the Deputy Principal Clerk of Justiciary and shall serve a copy of the notice on all other parties to the proceedings.

41.4

Within 14 days after the date of service of the notice under rule 41.3(2) or (3), the person serving the notice shall lodge a minute in the proceedings in Form 41.4 and shall serve a copy of that minute on all other parties to the proceedings.

41.5

The court may fix a diet for a hearing on the question of incompatibility as a separate hearing from any other hearing in the proceedings and may sist the proceedings if it considers it necessary to do so while the question of incompatibility is being determined.

CHAPTER 42 — CONVENTION RIGHTS (COMPLIANCE) (SCOTLAND) ACT 2001

Application and interpretation

42.1

(1) This Chapter applies to punishment part hearings.

(2) In this Chapter—

“the 2001 Act” means the Convention Rights (Compliance) (Scotland) Act 2001;

“punishment part hearing” means a hearing in terms of paragraph 12 of Part 1 or paragraph 59 of Part 4 of the Schedule to the 2001 Act;

“life prisoner” has the meaning given in paragraph 2 of Part 1 of the Schedule to the 2001 Act;

“procedural hearing” means a hearing, held in terms of rule 42.4, for the purpose of determining any matter raised in terms of rule 42.3.

Intimation

42.2

(1) The Deputy Principal Clerk of Justiciary shall intimate the date, time and place of a punishment part hearing in Form 42.2.

Disputed or additional documents

42.3

(1) If a life prisoner who has received intimation of a punishment part hearing in terms of rule 42.2(1) wishes to—

(a) dispute the terms of any document, or a part of any document, sent to him by the Scottish Ministers in terms of paragraph 9 of Part 1 or paragraph 56 of Part 4 of the Schedule to the 2001 Act; or

(b) lodge any other document,

he shall, not later than 21 days before the date of the punishment part hearing, give written intimation to the Deputy Principle Clerk of Justiciary.

(2) A life prisoner who gives intimation in terms of paragraph (1) of this rule shall, at the same time, specify the grounds upon which he seeks to—

(a) dispute the document or part of the document; or

(b) lodge any other document,

and shall lodge any document referred to in, or to which he intends to refer, in support of such grounds.

(3) None of the matters mentioned in paragraph (1) of this rule may be raised after the time specified in that paragraph.

Procedural hearing

42.4

Where a life prisoner gives intimation in terms of paragraph (1) of rule 42.3, there shall, 14 days before the date of the punishment part hearing, be a procedural hearing.

CHAPTER 43 — TERRORISM AND NATIONAL SECURITY

Interpretation

43.1

In this Chapter—

“the 2000 Act” means the Terrorism Act 2000;

“the 2023 Act” means the National Security Act 2023;

“law enforcement officer” has the meaning given by section 22B(14) of the 2000 Act (information orders);

“relevant court” means the High Court of Justiciary or the sheriff court.

Applications under the Act of 2000 or 2001

43.2

(1) An application under the following provisions of the 2000 Act is to be made by petition—

(a) section 22B(1) (information orders);

(b) paragraph 22(1) of Schedule 5 (production orders);

(d) paragraph 19(1) of Schedule 5A (disclosure orders);

(e) paragraph 2(b) of Schedule 6 (customer information orders);

(f) paragraph 2(1) of Schedule 6A (account monitoring orders).

(2) An application under the following provisions of the 2023 Act is to be made by petition—

(a) paragraphs 19(1) and 20(1) of Schedule 2 (production orders);

(b) paragraph 26(1) of Schedule 2 (explanation orders);

(d) paragraph 1(1) of Schedule 4 (customer information orders);

(e) paragraph 1(1) of Schedule 5 (account monitoring orders).

(3) The sheriff may make the order sought in an application mentioned in paragraph(1)(b), (c) or (e) before intimation of that application to the person—

(a) who appears to be in possession of information to which the application relates;

(b) who is the subject of the order that was applied for.

Procedural hearing

15.5A

(1) In any appeal ... the Clerk of Justiciary may fix a procedural hearing for the purposes of determining whether the parties are ready to proceed to a hearing of the appeal.

(2) The procedural hearing shall be heard by a judge of the High Court and, where the appellant is an individual and is represented, may be held in his absence.

(3) The Clerk of Justiciary shall intimate to the parties in Form 15.5A-A the date of the procedural hearing fixed under paragraph (1), not later than twenty-one days before that date.

(4) Not later than seven days before the date of the procedural hearing, the appellant shall complete and lodge a notice in Form 15.5A-B with the Clerk of Justiciary and send a copy to the respondent. The said notice shall be signed by the counsel or solicitor advocate representing the appellant in the appeal, or by the appellant where the appellant intends to conduct the appeal himself.

(5) Where the appellant has lodged a notice in accordance with paragraph (4), the Clerk of Justiciary, having considered the terms of the said notice and any representations made to him by the respondent, may determine that it is unnecessary to proceed with the procedural hearing and, if he so determines, shall intimate this to the parties not less than forty-eight hours before the date of the procedural hearing.

(6) Not later than seven days after the last day of the appeal court sitting during which

(a) the procedural hearing at which it has been determined that the appeal is ready to proceed has been heard; or

(b) the procedural hearing was due to be heard but in respect of which the Clerk of Justiciary has made a determination in terms of paragraph (5),

the Clerk of Justiciary shall fix and intimate to the parties the date when the appeal is to be heard.

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Abandonment of appeals

Note of proceedings at trial

Clerk to give notice of date of hearing

Continuation of hearings

Note to be kept of appeal

Suspension of disqualification from driving pending appeal

Provisions supplemental to rule 15.11(3)

Suspension of sentence under s.121A of the Act of 1995

Suspension of disqualification etc. under section 121 of the Act of 1995

Remits in applications for leave to appeal

Amended grounds of appeal

15.15

(1) On cause shown, the High Court may grant leave to an appellant to amend the grounds of appeal contained in the note of appeal.

(2) Where the High Court has granted leave to amend the grounds of appeal under paragraph (1), it may order—

(a) that the Clerk of Justiciary shall send a copy of the amended note of appeal to the judge who presided at the trial; and

(b) that as soon as is reasonably practicable after receiving a copy of the amended note of appeal, the judge who presided at the trial shall provide the Clerk of Justiciary with a written report on the amended grounds of appeal.

(3) Section 113(2) to (4) of the Act of 1995 (judge’s report) shall apply to a report on the amended grounds of appeal ordered under paragraph (2) as it applies to a report under subsection (1) of that section.

(4) Where the High Court grants leave to amend under paragraph (1), section 107 of the Act of 1995 shall apply, unless the Court otherwise directs, for the purposes of obtaining leave to appeal for the amended grounds of appeal as it applied for the purposes of the original grounds of appeal and, for the references in subsection (2)(a) and (c) of that section to the note of appeal and the trial judge’s report, there shall be substituted references to the amended grounds of appeal contained in the amended note of appeal and the trial judge’s report, if any, on the amended grounds of appeal, respectively.

(5) This rule does not apply to appeals on reference to the High Court under section194B of the Act of 1995.

Order for preliminary diet under section 72(2A) of the Act of 1995

9.4A

(1) Where the court makes an order for a preliminary diet under section 72(2A) of the Act of 1995 for the purpose of considering an application for the purposes of section 275(1) of that Act, the court shall specify the date and time of the diet and the period (if any) for which the trial diet is postponed under section 72(4) of that Act.

(2) An order mentioned in paragraph (1) shall not be invalid by reason only of having been made in the absence of the parties or of any person acting on their behalf.

(3) Any such order may signed by the Clerk of Court and shall be attached to the record copy of the indictment.

Orders for diets under sections 71A and 148A of the Act of 1995

9.4B

(1) An order for–

(a) a further pre-trial diet in terms of section 71A(2);

(b) a diet in terms of section 148A(1); or

of the Act of 1995 may be signed by the Clerk of Court.

(2) Intimation of the terms of an order–

(a) mentioned in paragraph (1); or

(b) for a diet under section 71(5A) of the Act of 1995,

shall be given by the Clerk of Court to all parties and to the governor of any institution in which any accused is detained.

Intimation of order for preliminary diet

Order for preliminary diet to be warrant for citation

Calling postponed diet

Warrant for conveyance and transmission

Abandonment of matter to be raised

Procedure at first diet or preliminary diet

Request to dispense with further pre-trial diet and pre-trial diet

9.10A

(1) Where a solicitor in writing requests that a further pre-trial diet be dispensed with under section 71A(7) of the Act of 1995 (power of court to dispense with further pre-trial diet), the solicitor shall intimate the request to—

(a) all other parties; and

(b) the sheriff clerk,

no less than two days before the date of the further pre-trial diet.

(2) Where a solicitor requests in writing that a pre-trial diet be dispensed with under section 72A(7) of the Act of 1995 (power of court to dispense with pre-trial diet), the solicitor shall intimate the request to—

(a) all other parties; and

(b) the Clerk of Justiciary,

no less than two days before the date of the pre-trial diet.

Procedure at further pre-trial diet and pre-trial diet

9.10B

(1) A further pre-trial diet in the sheriff court or pre-trial diet in the High Court, shall commence on the diet being called.

(2) For the purposes of the application of section 93 of the Act of 1995 (record of trial) to a further pre-trial diet or pre-trial diet, the whole proceedings at the pre-trial diet shall be proceedings at the trial for the purposes of that section.

(3) A record of those proceedings, including any continuation or adjournment shall be kept in accordance with existing law and practice.

(4) At any time after the commencement of the further pre-trial diet or pre-trial diet, the judge may make an order continuing or adjourning the diet to another time or place; but the judge shall not require to make an order continuing the diet to the trial diet.

(5) A copy of an order continuing or adjourning the further pre-trial diet or pre-trial diet under paragraph (4) certified by the Clerk of Court shall be warrant for the conveyance to the continued or adjourned diet of any accused who may be in custody.

(6) In this rule “further pre-trial diet” means a diet under section 71A of the Act of 1995 and “pre-trial diet” means a diet under section 72A of that Act.

Application of rules 9.6 and 9.7 to order at pre-trial diet to postpone trial diet

9.10C

Rules 9.6 (order for preliminary diet to be warrant for citation) and 9.7 (calling postponed diet) apply to an order at a pre-trial diet to postpone the trial diet under section 72A(6) of the Act of 1995 as they apply to an order for a preliminary diet specifying the period for which the trial diet is postponed.

Applications for leave to appeal

Note of appeal

Procedure on lodging note of appeal

Report of sheriff

Intimation of order postponing trial diet

Orders of appeal court

Abandonment of appeal

Form of application to introduce evidence relating to sexual offences

21.5

An application under section 275(1) of the Act of 1995 (exception to restrictions on evidence relating to sexual offences) shall be in Form 21.5.

Intimation of appointment of solicitor by court in certain proceedings

33.6

The clerk of court shall intimate to the Scottish Legal Aid Board any decision of the court to appoint a solicitor under section 288D(2) of the Act of 1995 (appointment of solicitors by court in such cases).

34.6

Notice of consent to extradition shall be given–

(a) in the case of extradition to a category 1 territory, in Form 34.6–A; and

(b) in the case of extradition to a category 2 territory, in Form 34.6–B.

Chapter 37AA — PROCEEDINGS UNDER THE PROCEEDS OF CRIME ACT 2002

Interpretation of this Chapter

37AA.1

In this Chapter—

“the Act of 2002” means the Proceeds of Crime Act 2002;

“the 2014 Regulations” means the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014;

“appropriate person” has the meaning given by section 412 (interpretation) of the Act of 2002;

“compliance order” has the meaning given by section 97B(2) of the Act of 2002.

“interested person” and “senior officer” have the meanings given by section 336D (sections 336A to 336C: interpretation) of the Act of 2002;

“relevant person” has the meaning given by section 339ZH(12) (... information orders) of the Act of 2002.

CONFISCATION

Confiscation orders

37AA.2

(1) A request by the prosecutor under subsection (3) of section 92 of the Act of 2002 (making of order) may be made orally at the bar.

(2) A person who wishes to make representations to the court under subsection (8) of section 92 of the Act of 2002 shall do so–

(a) in writing to the Clerk of Court, unless the court otherwise directs; and

(b) by such date as the court directs.

(2A) In the High Court, where written representations are made under paragraph (2) after the second procedural hearing fixed under rule 37AA.5B(4)(a) has taken place—

(a) a hearing shall be fixed for a date no later than 4 weeks after the date of lodging of the written representations; and

(b) the Clerk of Justiciary shall intimate the date of that hearing and a copy of the written representations to the parties.

(3) An application under–

(a) subsection (2) of section 111 (conviction or other disposal of accused); or

(b) subsection (2) of section 112 (accused neither convicted nor acquitted),

of the Act of 2002 may be made–

(i) orally at the bar; or

(ii) by minute.

(4) An application by the prosecutor under subsection (6)(a) of section 131ZA of the Act of 2002 (seized money) may be made orally at the bar or by minute.

Disposal of family home

37AA.3

An application by an administrator under subsection (2) of section 98 of the Act of 2002 (disposal of family home) to dispose of a right or interest in a person’s family home shall be–

(a) by petition; and

(b) served on–

(i) the person in respect of whose right or interest the application is made; and

(ii) any other person likely to be affected by the application.

Application for postponement

37AA.4

An application by the accused or the prosecutor for postponement or extension under subsection (7) of section 99 of the Act of 2002 (postponement)–

(a) may be made either–

(i) orally at the bar; or

(ii) in writing by minute; and

(b) may be determined by the court without a hearing.

Statement of information

37AA.5

(1) This rule applies where the court ordains the prosecutor to give a statement of information or further statement of information, as the case may be, under any of the following provisions of the Act of 2002:–

(a) subsection (1) of section 101 (statement of information);

(b) subsection (5) of that section; or

(2) The prosecutor shall give a statement referred to in the foregoing paragraph within such period as the court determines.

(3) At the same time as giving a statement under paragraph (2) the prosecutor shall—

(a) serve a copy on the accused; and

(b) make arrangements, where applicable, for the accused to view, and copy if required, any documents that the prosecutor intends to rely upon.

(4) An accused who gives an indication under subsection (1) of section 102 of the Act of 2002 (accused’s response to statement of information) (called the “response”) shall do so in writing to the Clerk of Court.

(5) At the same time as giving a response under paragraph (4), the accused shall serve a copy on the prosecutor.

Reconsideration of case, benefit or available amount

37AA.6

(1) This rule applies to an application by the prosecutor under any of the following provisions of the Act of 2002:–

(a) to consider new evidence under–

(i) paragraph (c) of subsection (1) of section 104 (no order made: reconsideration of case);

(ii) paragraph (b) of subsection (3) of section 105 (no order made: reconsideration of benefit); or

(iii) paragraph (d) of subsection (1) of section 106 (order made: reconsideration of benefit); and

(b) to make a new calculation of the available amount under paragraph (c) of subsection (1) of section 107 (order made: reconsideration of available amount).

(2) An application mentioned in the foregoing paragraph–

(a) shall be made by minute; and

(b) shall be served by the prosecutor on the accused and any other person likely to be affected by it.

Variation or discharge of confiscation order

37AA.7

(1) Any of the following applications made under any of the following provisions of the Act of 2002 shall be by minute:–

(a) by the accused or the prosecutor under paragraph (b) of subsection (1) of section 108 (inadequacy of available amount: variation of order);

(b) by the prosecutor under paragraph (b) of subsection (1) of section 109 (inadequacy of available amount: discharge of order);

(d) by the accused under–

(i) paragraph (c) of subsection (1); or

(ii) paragraph (d) of subsection (3),

of section 114 (discharge of order).

(2) A party who makes an application mentioned in the foregoing paragraph shall serve a copy on every person likely to be affected by it.

Time for payment

37AA.8

(1) An application by the accused under subsection (4) of section 116 of the Act of 2002 (time for payment) may be made–

(a) by minute; or

(b) orally at the bar.

(2) Where an accused makes an application by minute, he shall serve a copy on the prosecutor.

Hearings

37AA.9

Any request or application mentioned in the following rules shall be determined at a hearing, unless the court otherwise directs:

(a) 37AA.2 (confiscation orders);

(aa) 37AA.2A (confiscation orders: certification);

(ab) 37AA.2B (compliance orders);

(ac) 37AA.2C(1) (compliance orders: discharge and variation applications);

(ad) 37AA.2C(4) (compliance orders: discharge and variation appeals);

(b) 37AA.3 (disposal of family home);

(d) 37AA.7 (variation or discharge of confiscation order),

(e) 37AA.8 (time for payment);

(f) 37AA.10 (application, discharge and variation).

INVESTIGATIONS

Application, discharge and variation

37AA.10

(1) The following applications shall be by petition:–

(a) by the appropriate person to the Sheriff under any of the following provisions of the Act of 2002–

(i) subsection (1) of section 380 (production orders);

(ii) subsection (1) of section 387 (search warrants);

(iii) subsection (1) of section 397 (customer information orders);

(iv) subsection (1) of section 404 (account monitoring orders),

in relation to a confiscation investigation or money laundering investigation; ...

(aa) by the senior officer to the sheriff under the following provisions of the Act of 2002—

(i) section 336A(1) (extension of moratorium period);

(ii) section 336B(4) (order to withhold specified information);

(ba) by the relevant person to the sheriff under section 339ZH(1) (... information orders); and

(b) by the Lord Advocate, to the High Court of Justiciary under subsection (1) of section 391 of that Act (disclosure orders) for a disclosure order in relation to a confiscation investigation or a money laundering investigation.

(2) An application under subsection (2) of section 382 of the Act of 2002 (order to grant entry)–

(a) may be included in a petition in respect of an application under paragraph (1)(a)(i) of this rule; or

(b) if made after the lodging of the petition, shall be by minute,

and paragraph (3) of this rule shall apply to such an application.

(3) An application under any of the following provisions of the Act of 2002 shall be by minute and shall be intimated to any person affected by it:–

(a) subsection (4) of section 386 (production orders: supplementary) to discharge or vary a production order or an order to grant entry;

(b) subsection (4) of section 396 (disclosure orders: supplementary) to discharge or vary a disclosure order;

(c) subsection (4) of section 403 (customer information orders: supplementary) to discharge or vary a customer information order;

(d) subsection (4) of section 408 (account monitoring orders: supplementary) to discharge or vary an account monitoring order.

Presentation of solem sentence appeal in writing.

15.16

(1) This rule applies to an appeal under sections 106(1)(b) to (e) , 108(1) or 210F(3) of the Act of 1995 listed in terms of rule 15.1(3) (register and lists of appeals).

(2) In an appeal to which paragraph (1) applies, the appellant shall present his case in writing.

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

(a) not later than 14 days before the date assigned for the appeal court hearing, lodge a case and argument in Form 15.16;

(b) lodge with the case and argument all documents, or a copy thereof, referred to or founded upon in the case and argument and not already lodged; and

(c) at the same time as he lodges the case and argument referred to in sub-paragraph (a) and the supporting documents referred to in sub-paragraph (b), send a copy to the Crown or, where the Crown is the appellant, to the respondent.

(4) The case and argument referred to in paragraph (3) shall be signed by counsel or the solicitor advocate representing the appellant in the appeal, or by the appellant where the appellant intends to conduct the appeal himself.

(5) At the hearing of the appeal—

(a) the case and argument and supporting documents referred to in paragraph (3) shall constitute the submissions of the appellant;

(b) unless it otherwise directs, the Court will expect the appellant to rely upon the case and argument without reading it over to the Court; and

(c) the appellant may make supplementary comments to the case and argument; and shall answer any points raised by the Court.

(6) On cause shown, the Court may permit the appellant to introduce new information that has come to light in the period since the case and argument was lodged.

(7) Where the Court permits the introduction of new information, it may at its discretion permit the lodging of additional documents in support of the new information.

(8) A party who wishes to introduce new information and lodge additional documents shall send a copy of the information and documents to the Clerk of Justiciary as soon as the information and documents come into the appellant’s possession.

(9) A party who has sent new information and documents to the Clerk of Justiciary shall make application at the bar to allow it to be introduced or lodged, as the case may be.

(10) Where the documents referred to in paragraph (3) are not lodged timeously, the Deputy Principal Clerk of Justiciary shall refer the matter to the Lord Justice-General, whom failing the Lord Justice-Clerk, for such action as the Lord Justice-General or Lord Justice-Clerk, as the case may be, considers appropriate.

Presentation of summary sentence appeal in writing

19.19

(1) This rule applies to an appeal under section 175(2)(b), (c) or (ca) or by virtue of section 175(4) of the Act of 1995 listed in terms of rule 19.14 (list of appeals).

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