Act of Adjournal (Criminal Procedure Rules) 1996

• Citation: S.I. 1996/513
• Sections: 573

Section 1 Citation and commencement

(1) This Act of Adjournal may be cited as the Act of Adjournal (Criminal Procedure Rules) 1996 and shall come into force on 1st April 1996.

(2) This Act of Adjournal shall be inserted in the Books of Adjournal.

Section 2 Criminal Procedure Rules

Schedule 2 to this Act of Adjournal shall have effect for the purpose of providing rules of procedure in the High Court of Justiciary, in the sheriff court in the exercise of its criminal jurisdiction and in a justice of the peace court.

Section 3 Revocations

The Acts of Adjournal mentioned in Schedule 3 to this Act of Adjournal are revoked to the extent specified in the third column of that Schedule.

A4.1 Application to court to excuse procedural irregularity

(1) An application made in writing under section 300A of the Act of 1995 (power of court to excuse procedural irregularities) shall be in Form A4.1 and shall be served on the other parties to the proceedings.

(2) On an application referred to in paragraph (1) being made, the court may appoint a diet for a hearing and intimate the diet to the other parties.

A.B

( address )

[ or Prisoner in the Prison of ( place )]

PETITIONER

under

section 121A of the Criminal Procedure (Scotland) Act 1995

HUMBLY SHEWETH:

A.B

( address )

[ or Prisoner in the Prison of ( place )

or Her Majesty’s Advocate]

PETITIONER

under

section 121A of the Criminal Procedure (Scotland) Act 1995

HUMBLY SHEWETH:

A.B

( address )

APPLICANT

under

section 303A of the Criminal Procedure (Scotland) Act 1995

HUMBLY SHEWETH:—

Section 1.1 Citation of these Rules

These Rules may be cited as the Criminal Procedure Rules 1996.

Section 1.2 Interpretation

(1) In these Rules, unless the context otherwise requires—

“the Act of 1995 ” means the Criminal Procedure (Scotland) Act 1995 ;

“counsel” means a practising member of the Faculty of Advocates or a solicitor having a right of audience before the High Court by virtue of section 25A of the Solicitors (Scotland) Act 1980 ;

(2) Unless the context otherwise requires, a reference to a specified Chapter, Part, rule or form is a reference to the Chapter, Part, rule, or form in the appendix to these Rules, so specified in these Rules; and a reference to a specified paragraph, sub-paragraph or head is a reference to that paragraph of the rule or form, that sub-paragraph of the paragraph or that head of the sub-paragraph, in which the reference occurs.

Section 1.3 Forms

Where there is a reference to the use of a form in these Rules, that form in the appendix to these Rules, or a form substantially to the same effect, shall be used with such variation as circumstances may require.

Section 1.4 Direction relating to Advocate General

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.

Section 1

That on ( date ) the petitioner was convicted in the High Court of Justiciary [ or sheriff court] at ( place ) of ( specify offence ) and was sentenced to ( specify relevant sentence ).

Section 1

That on ( date ) the petitioner [ or [A.B.] ( address ) or Prisoner in the Place of ( place )] was convicted in the High Court of Justiciary [ or sheriff court] at ( place ) of ( specify offence ) and was sentenced to ( specify relevant sentence ).

Section 1

That a restriction of liberty order, a copy of which is annexed to this application, was made in respect of ( name of offender ) on ( date ) in the High Court of Justiciary sitting [ or in the sheriff court or in the district court] at ( place ).

Section 1

That the Petitioner is ( name ) and resides at ( address ).

Section 1

The appellant appeals to the High Court of Justiciary against the refusal of an application under section 25(1) [ or the granting of an application under section 26(1)] of the Proceeds of Crime (Scotland) Act 1995 in the above court on ( date ).

Section 1

That the petitioner is ( name ) and resides at ( address ).

Section 1

That on ( date ) [C.D.] ( address ) was convicted in the High Court of Justiciary [ or sheriff court or district court] at ( place ) of ( specify offence ) and sentenced to ( specify sentence ).

Section 2.1 Service on Crown

Any document that requires to be sent to or served on the Lord Advocate or the prosecutor under any enactment or rule of law shall be sent to or served on, as the case may be—

(a) if it relates to a case set down for trial in the High Court, the Crown Agent;

(b) if it relates to a case set down for trial in the sheriff court or district court, the appropriate procurator fiscal.

Section 2.2 Citation in solemn proceedings

(1) Subject to rule 2.4 (service on witnesses), this rule applies to the citation of, and service on, an accused under section 66(4)(a) of the Act of 1995 (service and lodging of indictment, etc ).

(2) Service shall be effected by an officer of law—

(a) delivering the document to the accused personally;

(b) leaving the document in the hands of a member of the family of the accused or other occupier or employee at the proper domicile of citation of the accused;

(c) affixing the document to the door of, or depositing it in, the proper domicile of citation of the accused; or

(d) where the officer of law serving the document has reasonable grounds for believing that the accused, for whom no proper domicile of citation has been specified, is residing at a particular place but is unavailable—

(i) leaving the document in the hands of a member of the family of the accused or other occupier or employee at that place; or

(ii) affixing the document to the door of, or depositing it in, that place.

(3) In this rule,“proper domicile of citation” means the address at which the accused may be cited to appear at any diet relating to the offence with which he is charged or an offence charged in the same proceedings as that offence or to which any other intimation or document may be sent.

Section 2.2A Citation in solemn proceedings by service on solicitor

Where the documents mentioned in section 66(6C) of the Act of 1995 (citation by service on solicitor) are to be served on a solicitor under that section, they shall be–

(a) delivered to the solicitor personally at the solicitor’s place of business;

(b) left for the solicitor with an employee or partner of the solicitor at the solicitor’s place of business; or

(c) posted to the solicitor’s place of business by the first class recorded delivery service,

with a notice in Form 2.2A.

Section 2.3 General provisions for service

(1) Subject to the following paragraphs of this rule and to rule 2.3A , the citation of, or the service of any document on, a person under or by virtue of the Act of 1995, these Rules or any other enactment shall, unless otherwise provided in the relevant enactment, be effected in the same manner, with the necessary modifications, as the citation of an accused in summary proceedings under section 141 of that Act (manner of citation) or under rule 2.2 of these Rules (citation in solemn proceedings).

(1A) The citation of a person to appear before the sheriff under an enactment mentioned in paragraph (1B) is to be effected in the same manner, with the necessary modifications, as the citation of an accused in summary proceedings under section 141 of the Act of 1995 (manner of citation), but—

(a) the citation is to be signed by the sheriff clerk instead of the prosecutor;

(b) the forms relating to the citation of an accused do not apply to such a citation.

(1B) The enactments are—

(a) section 256AC(1)(a) of;

(b) section 256C(1)(a) of; and

(c) paragraph 8(1)(a) of schedule 19A of,

the Criminal Justice Act 2003, as applied by paragraph 8(2) or (4) of schedule 1 of the Crime (Sentences) Act 1997.

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

(3) The citation in Form 29.3 of a person to attend a diet fixed for taking his precognition on oath under section 291 of the Act of 1995 (precognition on oath of defence witnesses) shall be made by personal service on him by an officer of law acting on the instructions of the accused or his solicitor.

Section 2.3A Service etc. on accused through a solicitor

(1) Where ... anything is to be served on, given, notified or intimated to a solicitor under section 72G or section 148D of the Act of 1995 it shall be—

(a) delivered to the solicitor personally;

(b) left for the solicitor with an employee or partner of the solicitor at the solicitor’s place of business; or

(c) posted to the solicitor’s place of business by the first class recorded delivery service,

with a notice in Form 2.3A.

(2) Paragraph (3) applies where a party requires to intimate—

(a) a vulnerable witness notice in accordance with section 271A(13) of the Act of 1995 (child and deemed vulnerable witnesses); or

(b) a vulnerable witness application in accordance with section 271C(11) of the Act of 1995 (vulnerable witness application).

(3) Intimation may be given to a solicitor under section 72G or 148D of the Act of 1995 by—

(a) any of the methods specified in paragraph (1); or

(b) sending it to the solicitor via the CJSM system, if that solicitor is a CJSM user.

(4) In this rule—

“CJSM user” means a solicitor who has an active account on the CJSM system;

“CJSM system” means the Criminal Justice Secure eMail system managed by the Ministry of Justice to facilitate the transmission of encrypted sensitive information between criminal justice organisations and practitioners.

Section 2.4 Service on witnesses

(1) Service of a citation by the prosecution or defence on a witness in any proceedings may, in the first instance, be by post.

(2) Where citation of a witness has been attempted by post but has not been effected, or the witness has not returned Form 8.2-D or Form 16.6-B, as the case may be, within the period prescribed in rule 8.2(3) or 16.6(1), as the case may be, citation of that witness shall be effected by an officer of law delivering the document to the witness personally.

Section 2.5 Service by post

(1) Subject to any provision in the Act of 1995 or of these Rules , service by post shall be by registered post, ordinary first class post or the first class recorded delivery service.

(2) Where the citation of, or service on, any person is effected by post under these Rules, the date of citation shall be deemed to be the day after the date of posting.

Section 2.6 Forms of execution of service

(1) The execution of service of a citation and notice to appear of a person accused on indictment referred to in rule 8.2(1) (citation of accused and witnesses) shall be in Form 2.6-A.

(1A) The execution of a citation of a person accused on indictment referred to in rule 8.2(1A) (citation of accused by affixing a notice) shall be in Form 2.6-AA.

(2) The execution of service of a complaint on an accused shall be in Form 2.6-B.

(2A) The execution of a citation of an accused referred to in rule 16.1(2A) (citation of accused by affixing a notice) shall be in Form 2.6-BA.

(3) The execution of personal service of a citation of a witness cited to appear at a trial on indictment shall be in Form 2.6-C.

(4) The execution of personal service of a citation of a witness cited to appear at a trial on summary complaint shall be in Form 2.6-D.

(5) The execution of a citation referred to in–

(a) rule 20.3(2) or (3) (supervised release orders: form of citation of offender) shall be in Form 2.6-EA;

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) rule 20.12A(3) or (4) (restriction of liberty orders: forms of citation of offender) shall be in Form 2.6-EE; ...

(f) rule 20.12B(2) or (3) (drug treatment and testing orders: forms of citation of offender) shall be in Form 2.6-EF ; and

(h) rule 20.22(2) (community payback orders: failure to attend progress review) shall be in Form 2.6-EH;

(i) rule 20.22(4) (community payback orders: breach of community payback order) shall be in Form 2.6-EI.

(j) rule 20.22(5) (community payback orders: hearing of applications to vary, revoke and discharge community payback orders) shall be in Form 2.6-EJ.

(k) rule 20.23(4) (supervision default orders: failure to comply) shall be in Form 2.6–EK;

(l) rule 20.23(5) (supervision default orders: hearing of application to amend or vary) shall be in Form 2.6–EL.

(6) The execution of a citation or service under rule 2.3(1) (general provisions for service) shall, with the necessary modifications, be in Form 2.6-F.

(7) The execution of service of documents under rule 2.2A (citation in solemn proceedings by service on solicitor) or rule 2.3A (service etc. on accused through a solicitor) shall be in Form 2.6–G.

Section 2.7 Proof of service furth of Scotland

Where any citation of an accused is served in England, Wales or Northern Ireland by an officer effecting such service in accordance with section 39(3) of the Criminal Law Act 1977 (citation of person charged with crime or offence to appear before a court in Scotland), the evidence of—

(a) that officer on oath, or

(b) written execution of service by him,

shall be sufficient evidence of that service.

Section 2

That on ( date ) the petitioner lodged with the Clerk of Justiciary an intimation of intention to appeal under section 109(1) of the Criminal Procedure (Scotland) Act 1995.

Section 2

That on ( date ) the petitioner lodged with the Clerk of Justiciary [a note of appeal under section 110 of the Criminal Procedure (Scotland) Act 1995 in respect of an appeal under section 106(1)(b) to (e) of that Act] [ or an appeal under section 108 of the Criminal Procedure (Scotland) Act 1995].

Section 2

That the applicant applies to the court in terms of subsection (1) of section 245E of the Criminal Procedure (Scotland) Act 1995 to revoke [ or vary] the order for the following reason–

( statement of reason )

MAY IT THEREFORE PLEASE YOUR LORDSHIP[S] [ OR THE COURT]:

to [revoke the restriction of liberty order] [vary the restriction of liberty order by ( statement of variation sought in terms of subsection (2) (a) of the said section 245E) ],

or

to do otherwise as to your Lordship[s] [ or to the court] shall seem proper.

IN RESPECT WHEREOF

( Signed )

Offender

[ or Solicitor for offender]

[ or applicant with responsibility for monitoring compliance]

( Where a solicitor signs, the address and telephone number of the solicitor ).

Section 2

That on ( date ) the court in the case of Her Majesty’s Advocate [ or Procurator Fiscal] against ( name and address ) made an order under section 21 of the Proceeds of Crime (Scotland) Act 1995 forfeiting (specify property and, for heritable property in Scotland, state conveyancing description (unless already stated in suspended forfeiture order) and date and county of recording of a certified copy of the suspended forfeiture order in the General Register of Sasines or, as the case may be, the Title Number under which a certified copy of the suspended forfeiture order was registered in the Land Register of Scotland).

Section 2

The ground(s) of appeal is (are):

( here set out the ground(s) )

( Signed )

Appellant

[ or Solicitor for appellant]

( Address and telephone number of solicitor )

( Place and date )

Section 2

That on ( date ) the court in the case ( Procurator Fiscal ) against ( name and address ), accused, made an Order in terms of section 6 of the Knives Act 1997 forfeiting ( specify property forfeited ).

Section 2

That [C.D.] did not institute any appeal in relation to that conviction or sentence [ or state details of any appeal instituted by [C.D.]].

Section 3.1 Books of Adjournal

(1) The Edinburgh Book of Adjournal and the Book of Adjournal for cases heard outwith Edinburgh shall respectively contain—

(a) in the case of a trial in the High Court—

(i) the record copy of the indictment;

(ii) the minute of proceedings prepared by the Clerk of Justiciary;

(iii) the relative printed list of assize;

(b) in the case of a petition to the High Court—

(i) the record copy of the petition;

(ii) the minute of proceedings prepared by the Clerk of Justiciary;

(2) The Edinburgh Book of Adjournal shall contain the Acts of Adjournal.

(3) The minute of proceedings referred to in paragraph (1) shall be signed by the Clerk of Justiciary; and, on being so signed, shall have effect and shall be treated for all purposes, including extracts, as a true and sufficient record of the proceedings to which it relates.

Section 3.2 Form of minuting in solemn proceedings

Subject to the provisions of any other enactment, the forms of minuting in solemn proceedings before the sheriff shall be in accordance with the forms used in the High Court.

Section 3.3 Interlocutors in High Court to be signed by clerk of court

In the High Court, an interlocutor shall be distinctly minuted or entered in the record, and that entry shall be signed by the clerk of court.

Section 3.4 Record copies of indictments etc. to be inserted in record books

(1) The record copies of indictments brought before the High Court, and the record copies of all printed proceedings in that court, shall be inserted in the books of adjournal, either at their proper place in the body of such books, or at the end of the volume in which the relative procedure is recorded (in which case they shall be distinctly referred to as so appended); and the books of adjournal so made up and completed shall be and be taken to be and be used as the books of adjournal of that court.

(2) Where an indictment in solemn proceedings in a sheriff court is either wholly or partly printed, a copy of it, either wholly or partly printed, shall be inserted in the record book of court, either in its proper place in the body of that book or at the end of the volume in which the relative procedure is recorded (in which case it shall be distinctly referred to as so appended).

Section 3.5 Form of recording warrants for remission of sentences

The Clerk of Justiciary shall cause all warrants under the royal sign manual for remission of sentences received by him to be bound in volumes and indexed, and a note of each warrant referring to a High Court sentence shall be entered in the margin of the minute book opposite the case to which it relates.

Section 3.5A Registers kept by High Court

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).

Section 3.6 Custody and transmission of records

(1) Subject to the following provisions of this rule, the records of the High Court shall, after the Keeper of the Records of Scotland and the Clerk of Justiciary have consulted as to what records or parts of them may first be destroyed as not being considered to have a value for legal purposes or for historical or other research, be transmitted to the Keeper of the Records of Scotland under arrangements to be agreed between him and the Clerk of Justiciary.

(2) The Clerk of Justiciary and the Keeper of the Records of Scotland shall arrange for such transmissions at intervals of not less than five years nor more than 10 years from the date of the immediately preceding transmission and after similar consultation, for such periods as may be deemed by them to be appropriate.

(3) The Lord Justice General or Lord Justice-Clerk may make a direction from time to time in relation to the retention, disposal, transmission or destruction by the Clerk of Justiciary of any document or category of document in the records of the High Court.

Section 3

That (state facts relevant to application).

Section 3

That the petitioner has served a copy of this petition on the Crown Agent [ or [A.B.]].

MAY IT THEREFORE please your Lordships under section 121A of the Criminal Procedure (Scotland) Act 1995 to suspend ad interim the sentence.

ACCORDING TO JUSTICE, etc.

( Signed )

[Solicitor for petitioner]

[Advocate Depute [ or Procurator Fiscal]

On behalf of Her Majesty’s Advocate]

( Address and telephone number of solicitor )

Section 3

That (state the relevant facts in support of grant of order).

MAY IT THEREFORE please your Lordship(s):

(1) to appoint intimation of this petition to be made to (specify) ;

(2) to appoint parties to be heard thereon on the earliest practicable date thereafter; and

(3) thereafter, on being duly satisfied in terms of section 25(1)(a) [ or section 26(1)(a)] of the Proceeds of Crime (Scotland) Act 1995, to make an order under section 25 [ or section 26] of that Act; and to do further or otherwise as to your Lordship(s) shall seem proper.

ACCORDING TO JUSTICE, etc

( Signed )

Petitioner

[ or Solicitor for Petitioner]

( Address and telephone number of Solicitor )

Section 3

That ( state facts relevant to application ).

MAY IT THEREFORE please your Lordship:

(1) to appoint intimation of this petition to be made to ( specify ).

(2) to appoint parties to be heard thereon on the earliest practicable date thereafter; and

(3) thereafter, on being duly satisfied, to make an order in terms of section 7(3) of the Knives Act 1997; and to do further or otherwise as Your Lordship shall deem proper.

ACCORDING TO JUSTICE, etc.

( Signed )

[Solicitor for petitioner]

( Address and telephone number of solicitor )

Section 3

That [C.D.] died on ( date ) at ( place ).

Section 4.1 Application to alter address in bail order

(1) An application under section 25(2) of the Act of 1995 (alteration of address specified in the order granting bail) shall—

(a) include the following information:—

(i) identification of the proceedings in which the order was made;

(ii) details of the new address;and

(iii) reasons for the proposed change of address; and

(b) be served on—

(i) the clerk of the court which made the order; and

(ii) the prosecutor.

(2) The prosecutor shall, within seven days of receipt of the copy of the application, notify the clerk of court in writing whether or not he intends to oppose the application.

(3) Where the prosecutor notifies the clerk of court that he does not intend to oppose the application, the court shall proceed to dispose of the application and may do so in the absence of the applicant.

(4) Where the prosecutor notifies the clerk of court that he intends to oppose the application, the clerk of court shall arrange a hearing before the court in chambers at which the applicant and the prosecutor may appear or be represented.

(5) The clerk of court shall give notice in writing of the decision of the court on an application referred to in paragraph (1) to—

(a) the applicant;

(b) the prosecutor; and

(c) any co-accused.

(6) Where–

(a) the application is made by a witness who has been granted bail under section 90B(1)(b) of the Act of 1995; and

(b) the warrant to apprehend the witness under section 90A(1) of the Act of 1995 was issued on the application of a party other than the prosecutor,

paragraphs (1) to (5) shall also apply to that party as they apply to the prosecutor.

Section 4.2 Attendance of accused at Crown bail appeals

(1) Where an appeal is made under section 32(2) of the Act of 1995 the accused may attend the hearing of the appeal.

(2) Where the accused wishes to attend the hearing of the appeal, he shall inform the clerk of the appropriate Appeal Court not later than 24 hours before the hearing is due to take place.

(3) In this rule, “clerk of the appropriate Appeal Court” has the meaning given by section 32(11) of the Act of 1995.

Section 4

That the applicant has served a copy of this application on the Crown Agent.

MAY IT THEREFORE please your Lordships under section 121A of the Criminal Procedure (Scotland) Act 1995 to suspend ad interim the sentence.

ACCORDING TO JUSTICE, etc.

( Signed )

[Solicitor for petitioner]

( Address and telephone number of solicitor )

Section 4

That the applicant is executor of [C.D.] conform to attached copy confirmation [ or has a legitimate interest ( specify nature of interest and attach supporting documents )].