Criminal Procedure in Scottish Courts: Overview and Stages

1. International Congress of the Brazilian Judges’ Association - 31 May, 2016 A short outline of criminal procedure in the Scottish courts The Hon. Lord Pentland, Senator of the College of Justice and Chairman of the Scottish Law Commission

2. A - Initial Stages • Crime reported to Police • Police investigation – at this stage no substantive judicial involvement (although Sheriff (local judge) may grant a search warrant – a routine and summary procedure) • Suspect detained – for up to 12 hours (can be extended to 24) • Cautioned – has the right not to say anything, but anything said may be used in evidence against him. • Right to consult solicitor and to be legally represented during police interview: Cadder v HMA – Supreme Court held existing Scottish practice incompatible with ECHR • Police can question suspect, but questioning must be fair. Samples can be taken. • Charge (by police) and arrest – thereafter no further police questioning

3. B - After the suspect’s arrest • 2 types of criminal procedure – summary and solemn – this talk deals only with the latter - the more serious cases prosecuted before a jury • Conduct of prosecution now passes to the Crown Office and Procurator Fiscal Service – but note that still only limited judicial involvement at this stage • First appearance in court – petition warrants – authority to recover evidence and commit accused for further examination or until liberated in due course of law • Judicial examination – in presence of Sheriff - prosecutor can ask limited questions, but accused not obliged to answer. In practice, almost always says ‘on legal advice, no comment’. This can be commented on at a trial, but of little evidential value. • Bail or • Committal to prison • Time limits – section 65 of the Criminal Procedure (Scotland) Act 1995

4. B - After the suspect’s arrest • Indictment to be served within 80 days • If in custody – preliminary hearing within 110 days; trial to commence within 140 days • If on bail – preliminary hearing within 11 months; trial to commence within 12 months • Extension by the court only on ‘cause shown’ • Disclosure of evidence by the Crown to the defence • Indictment served • Intimation of Special Defences – alibi; incrimination; self-defence; consent; mental disorder • Preliminary Hearing – determine any preliminary issues such as objections to the admissibility of evidence; application to lead evidence of previous sexual history.

5. B - The trial • Whole procedure is adversarial in nature – the court has no investigative role • The trial continues from day to day until the verdict delivered by the jury • Trial by jury of 15 • Objection to jurors only on ‘special cause shown’ • Ballot • Rôles of judge and jury • The basic principles: • presumption of innocence • burden of proof is on the Crown throughout (effect of Special Defences) • standard of proof – beyond reasonable doubt • Corroboration – there must be evidence from at least 2 sources to prove (a) that the crime alleged was committed and (b) that the accused committed it Concert – the usual example is the bank robbery

6. B - The trial The shape of a trial in the High Court • No opening speeches • Crown evidence • Submission of no case to answer – decided by judge in absence of jury • Defence evidence • Closing speeches • Judge’s directions (the judge’s charge) • Jury’s verdicts 3 verdicts (unanimous or by majority) • Guilty • Not guilty • Not proven Previous convictions Sentence Appeal