Criminal Procedure (Scotland) Act 1995

Part I — Criminal Courts

Jurisdiction and Powers

The High Court

Judges in the High Court.

1

• (1) The Lord President of the Court of Session shall be the Lord Justice General and shall perform his duties as the presiding judge of the High Court.

• (2) Every person who is appointed to the office of one of the Senators of the College of Justice in Scotland shall, by virtue of such appointment, be a Lord Commissioner of Justiciary in Scotland.

• (3) If any difference arises as to the rotation of judges in the High Court, it shall be determined by the Lord Justice General, whom failing by the Lord Justice Clerk.

• (4) Any Lord Commissioner of Justiciary may preside alone at the trial of an accused before the High Court.

• (5) Without prejudice to subsection (4) above, in any trial of difficulty or importance it shall be competent for two or more judges in the High Court to preside for the whole or any part of the trial.

Fixing of High Court sittings.

2

• (1) The High Court shall sit at such times and places as the Lord Justice General, whom failing the Lord Justice Clerk, may, after consultation with the Lord Advocate, determine.

• (2) Without prejudice to subsection (1) above, the High Court shall hold such additional sittings as the Lord Advocate may require.

• (3) Where an accused has been cited to , or otherwise required to attend, a diet to be held at any sitting of the High Court, the prosecutor may, at any time before the commencement of the diet or, in the case of a trial diet, the trial , apply to the Court to transfer the case to a diet to be held at a sitting of the Court in another place ; and a single judge of the High Court may—

• (a) after giving the accused or his counsel an opportunity to be heard; or

• (b) on the joint application of all parties,

make an order for the transfer of the case.

• (3C) The judge may proceed under subsection (3) above on a joint application of the parties without hearing the parties and, accordingly, he may dispense with any hearing previously appointed for the purpose of considering the application.

• (4) Where no diets have been appointed to be held at a sitting of the High Court or if it is no longer expedient that a sitting should take place, it shall not be necessary for the sitting to take place.

• (5) If in any case a diet remains appointed to be held at a sitting which does not take place in pursuance of subsection (4) above, subsection (3) above shall apply in relation to the transfer of any other such case to another sitting.

• (6) For the purposes of subsection (3) above—

• (a) a diet shall be taken to commence when it is called; and

• (b) a trial shall be taken to commence when the oath is administered to the jury.

Solemn courts: general

Jurisdiction and powers of solemn courts.

3

• (1) The jurisdiction and powers of all courts of solemn jurisdiction, except so far as altered or modified by any enactment passed after the commencement of this Act, shall remain as at the commencement of this Act.

• (2) Any crime or offence which is triable on indictment may be tried by the High Court sitting at any place in Scotland.

• (3) The sheriff shall, without prejudice to any other or wider power conferred by statute, not be entitled, on the conviction on indictment of an accused, to pass a sentence of imprisonment for a term exceeding five years.

• (4) Subject to subsection (5) below, where under any enactment passed or made before 1st January 1988 (the date of commencement of section 58 of the Criminal Justice (Scotland) Act 1987) an offence is punishable on conviction on indictment by imprisonment for a term exceeding two years but the enactment either expressly or impliedly restricts the power of the sheriff to impose a sentence of imprisonment for a term exceeding two years, it shall be competent for the sheriff to impose a sentence of imprisonment for a term exceeding two but not exceeding five years.

• (4A) Subject to subsection (5) below, where under any enactment passed or made after 1st January 1988 but before the commencement of section 13 of the Crime and Punishment (Scotland) Act 1997 (increase in sentencing powers of sheriff courts) an offence is punishable on conviction on indictment for a term exceeding three years but the enactment either expressly or impliedly restricts the power of the sheriff to impose a sentence of imprisonment for a term exceeding three years, it shall be competent for the sheriff to impose a sentence of imprisonment for a term exceeding three but not exceeding five years.

• (5) Nothing in subsection (4) above shall authorise the imposition by the sheriff of a sentence in excess of the sentence specified by the enactment as the maximum sentence which may be imposed on conviction of the offence.

• (6) Subject to any express exclusion contained in any enactment, it shall be lawful to indict in the sheriff court all crimes except murder, treason, rape (whether at common law or under section 1(1) of the Sexual Offences (Scotland) Act 2009 (asp 9)), rape of a young child (under section 18 of that Act) and breach of duty by magistrates.

The sheriff

Territorial jurisdiction of sheriff.

4

• (1) Subject to the provisions of this section, the jurisdiction of the sheriffs, within their respective sheriffdoms shall extend to and include all navigable rivers, ports, harbours, creeks, shores and anchoring grounds in or adjoining such sheriffdoms and includes all criminal maritime causes and proceedings (including those applying to persons furth of Scotland) provided that the accused is, by virtue of any enactment or rule of law, subject to the jurisdiction of the sheriff before whom the case or proceeding is raised.

• (2) Where an offence is alleged to have been committed in one district in a sheriffdom, it shall be competent to try that offence in a sheriff court in any other district in that sheriffdom.

• (3) It shall not be competent for the sheriff to try any crime committed on the seas which it would not be competent for him to try if the crime had been committed on land.

• (4) The sheriff shall have a concurrent jurisdiction with every other court of summary jurisdiction in relation to all offences competent for trial in such courts.

The sheriff: summary jurisdiction and powers.

5

• (1) The sheriff, sitting as a court of summary jurisdiction, shall continue to have all the jurisdiction and powers exercisable by him at the commencement of this Act.

• (2) The sheriff shall, without prejudice to any other or wider powers conferred by statute, have power on convicting any person of a common law offence—

• (a) to impose a fine not exceeding the prescribed sum;

• (b) to ordain the accused to find caution for good behaviour for any period not exceeding 12 months to an amount not exceeding the prescribed sum either in lieu of or in addition to a fine or in addition to imprisonment;

• (c) failing payment of such fine, or on failure to find such caution, to award imprisonment in accordance with section 219 of this Act;

• (d) to impose imprisonment, for any period not exceeding 12 months.

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

• (4) It shall be competent to prosecute summarily in the sheriff court the following offences—

• (a) uttering a forged document;

• (b) wilful fire-raising;

• (c) robbery; and

• (d) assault with intent to rob.

National jurisdiction for callings of custody cases in a sheriff court

5B

• (1) A calling of criminal proceedings in the sheriff court to which subsection (2) or (3) applies may be dealt with—

• (a) in any sheriff court in Scotland, and

• (b) by a sheriff of any sheriffdom.

• (2) This subsection applies to a calling of criminal proceedings in which the person who is the subject of the proceedings is appearing from custody—

• (a) having been arrested by a constable in connection with the matter to which the proceedings relate, and

• (b) without having subsequently—

• (i) been released from custody, or

• (ii) had a court authorise the person’s continued remand in custody.

• (3) This subsection applies to a calling of proceedings on petition in which—

• (a) the person who is the subject of the proceedings is appearing from custody after a court authorised the person’s remand, and

• (b) the hearing is not able to be held in that court due to the closure of the court building by reason of emergency or other special circumstances.

• (4) If more than one person is the subject of the proceedings, the reference in subsection (2) or, as the case may be, (3) to the person who is the subject of the proceedings is to be read as referring to any of them.

• (5) It is for the Lord Advocate or the procurator fiscal to determine in which sheriff court a calling to which subsection (2) or (3) applies is to be taken.

• (6) Where proceedings have come before a sheriff court by virtue of subsection (1), and are proceedings to which subsection (2) applies, the proceedings may continue to be dealt with—

• (a) in the same sheriff court, and

• (b) by a sheriff of any sheriffdom.

• (7) The ability for proceedings to be dealt with by virtue of subsection (6) comes to an end as follows—

• (a) in the case of summary proceedings, insofar as the proceedings relate to a charge in respect of which the accused person has tendered a plea of not guilty which has not been accepted by the prosecutor, the proceedings cannot continue to be dealt with by virtue of subsection (6) after the end of the diet at which that plea was tendered,

• (b) in the case of proceedings on petition or indictment—

• (i) insofar as the proceedings relate to a charge in respect of which the accused person has tendered a plea of not guilty which has not been accepted by the prosecutor, the proceedings cannot continue to be dealt with by virtue of subsection (6) after the end of the diet at which that plea was tendered,

• (ii) the proceedings cannot continue to be dealt with by virtue of subsection (6) after the committal of the accused person until liberation in due course of law,

• (iii) the first diet, and any proceedings which follow on from it, cannot be dealt with by virtue of subsection (6).

• (8) Insofar as the ability to deal with proceedings by virtue of subsection (6) is not brought to an end by subsection (7), proceedings may continue to be dealt with by virtue of subsection (6) until their conclusion.

• (9) For the purposes of subsection (6), proceedings on petition and any subsequent proceedings on indictment are to be treated as the same proceedings.

National jurisdiction for cases in a sheriff court after failure to appear

5C

• (1) This section applies where—

• (a) a calling of criminal proceedings has come before a sheriff court by virtue of section 5B(1), and

• (b) the proceedings are in respect of an accused person’s failure to attend a diet in summary proceedings or proceedings on indictment (“the principal proceedings”).

• (2) If the principal proceedings are proceedings on indictment, the court may deal with them until the end of the diet in which the calling mentioned in subsection (1)(a) takes place.

• (3) If the principal proceedings are summary proceedings, they may be dealt with—

• (a) in the same sheriff court, and

• (b) by a sheriff of any sheriffdom,

unless, and until the end of the diet at which, a plea of not guilty is rejected.

• (4) Despite subsections (2) and (3), the court may pass a sentence or otherwise dispose of the principal proceedings only where—

• (a) evidence has not been led in the principal proceedings, or

• (b) the court considers that for it to pass a sentence or otherwise dispose of the case would be in the interests of justice.

• (5) For the purposes of subsection (3), a plea of not guilty is rejected where—

• (a) the accused person—

• (i) tenders a plea of not guilty, or

• (ii) confirms that the person is adhering to a previously tendered plea of not guilty, and

• (b) that plea is not accepted by the prosecutor.

Further provision about national jurisdiction of sheriff courts

5D

• (1) A sheriff has jurisdiction for all cases which come before the sheriff by virtue of section 5B or 5C.

• (2) A procurator fiscal for a sheriff court district has—

• (a) power to prosecute or, as the case may be, represent the interests of the prosecutor in any case that comes before the sheriff court of that district by virtue of section 5B or 5C,

• (b) the like powers in relation to such cases as the prosecutor has for the purposes of other cases that come before the sheriff when exercising criminal jurisdiction.

• (3) For the purposes of sections 5B and 5C—

• (a) a sheriff may, in every sheriffdom, without the need for further commission, exercise the jurisdiction and powers that attach to the office of sheriff in relation to criminal proceedings,

• (b) paragraph (a) applies accordingly to any other member of the judiciary, so far as that member has the jurisdiction and powers that attach to the office of sheriff in relation to criminal proceedings.

• (4) This section, and sections 5B and 5C, are without prejudice to—

• (a) any other provision in this Part, and

• (b) sections 34A and 137C.

Interpretation of sections 5B to 5D

5E

In sections 5B to 5D of this Act, “criminal proceedings” means any proceedings in which a sheriff court is exercising criminal jurisdiction including in particular—

• (a) proceedings on petition,

• (b) proceedings on indictment,

• (c) summary proceedings,

• (d) ancillary proceedings, such as proceedings in respect of—

• (i) breach of bail,

• (ii) non-payment of a fine or other monetary penalty,

• (iii) breach of an order of a court, or

• (iv) failure of an accused person or a witness to attend a diet.

JP courts

JP courts: constitution and prosecutor.

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• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) The jurisdiction and powers of the JP court shall be exercisable by a summary sheriff or by one or more justices, and no decision of the court shall be questioned on the ground that it was not constituted as required by this subsection unless objection was taken on that ground by or on behalf of a party to the proceedings not later than the time when the proceedings or the alleged irregularity began.

• (3) All prosecutions in a JP court shall proceed at the instance of the procurator fiscal.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) The authority of the procurator fiscal to prosecute in JP courts is without prejudice to the authority of any other person to take proceedings there in pursuance of section 43 (prosecutions and penalties) of the Education (Scotland) Act 1980 (c. 44).

• (6) In this section, “justice” means a justice of the peace.

JP courts: jurisdiction and powers.

7

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

• (3) Except in so far as any enactment (including this Act or an enactment passed after this Act) otherwise provides, it shall be competent for a JP court to—

• (a) try any common law or statutory offence which is triable summarily;

• (b) make such orders and grant such warrants as are appropriate to a court of summary jurisdiction;

• (c) do anything else (by way of procedure or otherwise) as is appropriate to such a court

• (4) It shall be competent, whether or not the accused has been previously convicted of an offence inferring dishonest appropriation of property, for any of the following offences to be tried in the JP court—

• (a) theft or reset of theft;

• (b) falsehood, fraud or wilful imposition;

• (c) breach of trust or embezzlement,

where (in any such case) the amount concerned does not exceed level 4 on the standard scale.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) The JP court shall, without prejudice to any other or wider powers conferred by statute, be entitled on convicting of a common law offence—

• (a) to impose imprisonment for any period not exceeding 60 days;

• (b) to impose a fine not exceeding level 4 on the standard scale;

• (c) to ordain the accused (in lieu of or in addition to such imprisonment or fine) to find caution for good behaviour for any period not exceeding six months and to an amount not exceeding level 4 on the standard scale;

• (d) failing payment of such fine or on failure to find such caution, to award imprisonment in accordance with section 219 of this Act,

but in no case shall the total period of imprisonment imposed in pursuance of this subsection exceed 60 days.

• (7) Without prejudice to any other or wider power conferred by any enactment, it shall not be competent for a JP court, as respects any statutory offence—

• (a) to impose a sentence of imprisonment for a period exceeding 60 days;

• (b) to impose a fine of an amount exceeding level 4 on the standard scale; or

• (c) to ordain an accused person to find caution for any period exceeding six months or to an amount exceeding level 4 on the standard scale.

• (8) The JP court shall not have jurisdiction to try or to pronounce sentence in the case of any person—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) brought before it accused or suspected of having committed within its jurisdiction any of the following offences—

• (i) murder, culpable homicide, robbery, rape (whether at common law or under section 1(1) of the Sexual Offences (Scotland) Act 2009 (asp 9)), rape of a young child (under section 18 of that Act), wilful fire-raising, or attempted wilful fire-raising;