Following the first appearance at Edinburgh Sheriff Court of former First Minister Alex Salmond on a number of charges of sexual offending, much of the commentary on solemn criminal procedure in Scotland, including some from newspapers and organisations with access to quality legal advice, has been surprisingly misinformed on certain of the basics of what has already happened, and what may or will now happen.
Criminal procedure in Scotland is largely governed by the Criminal Procedure (Scotland) Act 1995, which has been amended numerous times since coming into force in April 1996, but remains the key statute. It is divided into two discrete types; solemn, for more serious cases, and summary for less serious ones. The maximum penalty for a single conviction in summary proceedings (except where it is proven that bail was breached by the commission of the offence) is twelve months imprisonment. In solemn proceedings, the maximum sentence that may be imposed in the High Court is life imprisonment, and in the Sheriff Court the maximum custodial sentence is five years imprisonment. Only trials in cases prosecuted under solemn procedure are heard before a jury.
Unlike some other countries, the accused cannot elect to be tried by jury. That is a decision for the prosecutor alone, based upon the nature of the offences and the likely sentence in the event of conviction, although there are certain offences such as murder and rape which are of such an obviously serious nature they may only ever be prosecuted in the High Court.
There are a few terms specific to Scots law that may come as a surprise to readers outside the system. The person facing the charge is not “the defendant”; in modern practice he or she is called “the accused”, although the older term “the panel” may still occasionally be heard. A witness who asserts that he or she is the direct victim of a crime is “the complainer”. When the Crown is ready to take the case to trial the accused is “indicted” (rhymes with “excited”), and the case will be prosecuted by the Lord Advocate, who is the chief prosecutor in Scotland, or one of his appointed prosecutors, who are entitled “Advocate depute”. In the lower courts, the prosecutions are undertaken by lawyers called Procurators Fiscal, who are paid employees of the Crown, mostly practice in specific local courts, and who hold commissions to prosecute on behalf of the Lord Advocate.
The first appearance in court
With a very few exceptions, everyone whose case is tried before a jury makes their first appearance before the Sheriff Court in answer to a petition proceeding in the name of the local Procurator Fiscal. This part of the procedure is quite ancient and its present-day requirements are quite simple. The fiscal presents to the court a petition which must identify (1) an accused person or persons, and (2) a crime or crimes known to the law of Scotland. The petition seeks authority of the court to carry out certain steps in the investigation of crime, some of which are now governed by statute, but this grants authority to the prosecutor to secure the documentary productions in the case, interview witnesses and cite them and to have enquiries carried out elsewhere in the country if necessary. In modern practice the petition also contains a brief summary of the Crown case so that the accused and his lawyer can be aware whether there is on the face of it evidence to justify the making of the charge.
The charge on the petition need not be, and very often is not, the charge ultimately faced at trial, so the accused is not called upon to plead. Until 2017 it was possible for an accused to make a declaration before a sheriff or to be examined by the prosecutor in the presence of the sheriff (but not on oath) directly after a first appearance. The first of these was a relic of 19th century procedure when the accused was forbidden to give evidence in their own case. the law on this only changed in 1898. It was vanishingly rare in modern practice. The second was introduced in 1980 but soon discovered to be pointless, as no-one was ever advised to answer questions before having sight of the evidence, so both were abolished with few paying any heed.
The accused therefore now simply makes “no plea”. The prosecutor may or may not oppose the accused being released on bail. Whether bail is opposed or not the sheriff must consider whether it should be granted. In general, where an accused has no previous convictions, has a fixed address and employment and there is no indication of currently being engaged in a course of criminal conduct, bail will be granted. Unlike cases in the USA, this does not require the posting of any sum of money that may be forfeit; the penalty for non-compliance is an additional sentence that may be consecutive to any sentence imposed for the original offence. Even if acquitted of the main offence, if the accused failed to comply with bail conditions they may be sentenced.
Where bail is granted, the accused is “committed for further examination” and no date is fixed for the next appearance. This may in practice be many months in the future. Where bail is refused the accused must return to court within eight days for a second appearance, known as “full committal” where the court may once again consider bail. Once again, no plea is tendered at full committal stage as the court is still considering the Fiscal’s petition.
Proceedings on petition take place in private. There may be cases where information regarding offences later not proceeded with, previous convictions, threats to witnesses or flight risk may be considered without the hearing of evidence, so the reason for the hearings being held in private seem obvious. In certain parts of the country the potential pool of jurors could be tainted by information about past offending/alleged but unproven interference with witnesses becoming public knowledge. A hearing in private is of course not the same as a hearing in secret. The press and other media are allowed to report that a named person (different rules may apply where identification of children arises) has appeared on certain charges and been granted or refused bail. Comment beyond that is strictly forbidden, but there is nothing unusual about the press being advised of the charges faced.
Preparation for trial
At this stage, so far as the public is concerned, the case falls into limbo. The Crown carries out its preparation and must disclose its evidence to the defence , while the defence will undertake its own investigations. Throughout this period the accused is subject to the protection of the court. If the Crown seeks to undertake investigations beyond these contained in the petition warrant (search of newly discovered premises, taking of physical samples), it must seek permission from the court. Both Crown and defence will be preparing long and hard for the forthcoming trial, but details of these investigations are considered strictly confidential.
Throughout this period and until the case concludes with a plea or a verdict, the law of contempt of court applies. Public speculation on guilt or innocence, revelation of names of people granted anonymity (this applies to all complainers in sexual offence cases), assertions as to motives on the part of complainers, can all amount to contempt of court and can result in prosecution and punishment, including imprisonment. Again, the restrictions on comment on ongoing court proceedings often comes as a surprise to commentators in the USA.
In high profile cases, the law of contempt of court can struggle when information is posted online from foreign countries, although sharing posts or re-tweeting within the UK will be considered publication and can still give rise to prosecution.
Ultimately the Crown will determine which charges should be prosecuted, and an indictment is drafted in the name of the Lord Advocate specifying the precise nature of the charges the Crown seeks to prove, and in which court the case is to be heard. This is the first time the accused is formally aware of the charges that will be heard by the jury. The indictment may be served on him in person or may be served via his solicitor. This will cite the accused to a first diet (sheriff court) or preliminary diet (High Court), and 29 days notice of the date of the preliminary hearing must be given. The Act further provides that where the accused is on bail the trial must commence within 12 months of first appearance.
In order to prevent delay in trials the Act provides that where the accused is on bail, the preliminary hearing must commence within eleven months. Thus, in the case of Mr Salmond the Crown must (in theory) indict by 25th November for a preliminary hearing on December 24th 2019. However, where an indictment has been served on the accused in respect of the High Court, a single judge of that court may, on cause shown, extend either or both of the periods of 11 and 12 months specified. In practice, where the case is complex and/or likely to last several weeks, extensions of time are commonplace, so no-one should assume that the case of Her Majesty’s Advocate v Salmond will start hearing evidence in or before January 2020
The Preliminary Hearing will take place in a public court, and the details of the charges, although not the identity of the complainers, may be reported. The Crown and defence will have provided the court with written records of the state of preparation of their cases, which witnesses’ evidence will need to be heard and which witnesses’ evidence is formal and capable of agreement. Each side must specify when and how they communicated with the other side and what steps have been taken to agree formal evidence. Where the accused pleads not guilty, the defence must confirm that the accused is aware of the discount on sentence available for a guilty plea.
The defence requires to submit a brief statement of its position in respect of the charges; where this involves a complete denial of guilt this does rather render the preceding question pointless. If the defence is a special one (for example, that on the date of an alleged offence the accused was elsewhere, or where the charge is of rape or attempted rape that the complainer consented), this must be intimated before the preliminary hearing. Courts expect both sides to be fully prepared for trial at the Preliminary Hearing unless there is good reason not to be, such as new evidence coming to light very late in the day a wholly unforeseeable issue emerging. In general, judges are reluctant to continue preliminary hearings and instead look to fix trials.
Pressure on court diaries mean that it is exceptional for a trial date or dates to be available within the next month; motions to extend the twelve month limit are routinely granted to fit the court’s requirements, and those of the accused, witnesses and counsel. In practice trials may start two to three months after the preliminary hearing. Throughout this period the Crown and the court will remain diligent in its seeking to preserve the integrity of proceedings from any issue of contempt of court.
Since this was written there has been much online comment on the private or secret nature of the petition hearing itself. Having practised in court for over thirty years I had not really considered how little non-lawyers understand about what happens in a petition hearing, so some further clarification is necessary -
1. The charges are not “read out”. The petition (and summary of evidence) is provided to the accused and considered by the accused and their lawyer before the case calls.
2. When the case calls, the only persons present are the sheriff, the prosecutor, the clerk of court, the accused plus lawyer, and court security staff.
3. There is no discussion of the evidence, nor is the accused called upon to plead, for the reasons explained above; the lawyer simply announces that the accused “makes no plea” and the Crown moves to commit the accused for further examination.
4. In all cases bail must be considered, although sometimes it is not requested.
5. Most of the hearing is taken up with consideration of the question of bail.
6. The defence may seek bail and the Crown opposes this. In this situation the Crown sets out its grounds of opposition (commonly nature of the charge plus one or more of previous convictions, breaches of court orders, alleged course of conduct, specific risk to witnesses, risk of absconding), and the defence sets out arguments in favour of bail (e.g. fixed address, in employment, willing to adhere to curfew/surrender passport, accept additional conditions to safeguard witnesses). The court then makes a ruling.
7. The defence may seek bail and the Crown does not oppose this, but seeks additional special conditions relating to specific witnesses, addresses, curfew, or restrictions on computer use and agreeing that police may have access to computer equipment. It is for the Crown to justify why these extra conditions are necessary and why standard conditions, which include a duty not to interfere with witnesses or affect the course of justice, will not suffice. Such arguments may be lengthy and may require the prosecutor to refer to matters in the police report that have not been fully investigated or verified. Once again, it is for the sheriff to decide whether additional conditions are necessary.
8. The defence may seek bail and the Crown does not oppose this being granted on standard conditions. This is usually fairly formal, although the sheriff still retains a legal right to refuse bail.
There is some concern at the lack of information made public, although the press and other media may still report that a named person appeared in court on a specified charge or charges and bail was granted or the accused was remanded in custody. Since the coming into force of the Data Protection Act 2018, neither Crown Office nor Scottish Courts and Tribunal Service is willing to provide additional information. Unless the case involves a child, where Section 47 prevents the inclusion of “any particulars calculated to lead to the identification, of any person under the age of 18 years concerned in the proceedings” this is not due to anything contained in the Criminal Procedure (Scotland) Act 1995 but is a matter of legal advice on GDPR policy. Whether that policy is correctly applied may be a matter for argument elsewhere.