Investigation and prosecution of serious crime
18. The statutory provisions regulating time limits are contained in the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act").
19. There are two types of criminal procedure - "solemn" and "summary". In summary procedure, a trial is held in the Sheriff or Justice of the Peace Court before a judge without a jury. In solemn procedure the trial, whether in the High Court or the Sheriff Court, is held before a judge sitting with a jury of 15 people.
20. More serious cases are dealt with under solemn procedure ("solemn cases") and are prosecuted in the name of the Lord Advocate. The focus of this inspection is the management of solemn cases.
21. Solemn proceedings generally commence with the accused person appearing in court "on petition" or being "placed on petition". The petition is the initiating warrant in such proceedings and sets out the nature of the criminal allegations. When the accused first appears at court, the most likely outcome is that s/he will be "committed for further examination" (CFE). The accused will then either be released on bail or remanded in custody. If remanded, the accused must be brought back to court within eight days, when the most likely outcome is that s/he will be fully committed (FC) for trial. Again s/he may either be released on bail at that point or remanded in custody, pending trial.
22. Time limits apply from the point at which the accused is either CFE'd on bail or FC in custody. Time limits apply to every charge for each accused. There are procedural differences between solemn proceedings in the High Court and Sheriff Courts. Annex A provides flowcharts of the time limits that apply to solemn proceedings. The end of the time limit is commonly referred to as the "time bar".
23. The High Court is the Supreme Criminal Court in Scotland and deals with the most serious cases. Time limits for cases prosecuted in the High Court are different for accused persons on bail and those who are remanded, as follows:
24. If an accused person is remanded in custody, the prosecution must serve an indictment - the document narrating the charges, witnesses and productions for the case - on the accused or the accused's legal representative within 80 days of FC. The indictment provides the accused with notice of a preliminary hearing (PH). The purpose of the PH is to determine the state of preparation of the defence and the prosecution and ensure outstanding issues are resolved before trial. The PH must be held within 110 days of FC and not less than 29 clear days after service of the indictment. The trial is fixed by the court at the PH and must commence within 140 days of FC.
25. Failure to adhere to the 80, 110 or 140 day custody time limits results in the accused being granted bail and released from custody.
26. If an accused person is CFE'd on bail the prosecution must serve an indictment on the accused or their legal representative no later than 10 months after the date of the accused's first appearance at court and not less than 29 days prior to the PH. The PH must be held within 11 months of CFE and the trial must commence within 12 months.
27. As earlier noted, time limits in solemn custody cases run from the date of the FC, whereas time limits in bail cases run from the date of the CFE.
28. In all cases, if the 11 and 12 month bail time limits are not complied with, the proceedings come to an end and the accused can never be prosecuted on those charges.
29. The Sheriff Court at solemn level deals with serious cases in which a sentence of up to five years' imprisonment is the likely outcome. Again time limits are different for accused persons on bail and those who are remanded, as follows:
30. As in High Court cases, if an accused person is remanded in custody, the prosecution must serve an indictment on the accused or their legal representative within 80 days of FC. The indictment in Sheriff solemn cases provides the accused with notice of a trial sitting at which their case will be heard.
31. The equivalent of the PH in Sheriff and Jury proceedings is the first diet. The first diet must take place not less than 15 clear days after service of the indictment and not less than 10 clear days before any trial. The trial must commence within 110 days of full committal.
32. Failure to serve an indictment within 80 days or to commence the trial within 110 days, results in the accused being granted bail and released from custody.
34. As in High Court cases, if bail time limits are not complied with, the proceedings come to an end and the accused can never be prosecuted on those charges.
Interruption of time limits
35. Statutory time limits are "interrupted" in the following circumstances:
- an intervening sentence of imprisonment
Where an accused has been remanded in custody and a sentence of imprisonment is imposed on the accused in another case, subject always to trial commencing within 12 months of CFE. If there is such an intervening sentence, the clock does not start to run again until the prisoner's earliest release date ("the ERD"). Time limits are also interrupted if a prisoner released on licence has their licence revoked.
- failure to appear
If a warrant is granted for a failure of an accused person to appear at a court hearing in the case. Once arrested on the warrant, an accused can be remanded and subject anew to the operation of the 110 and 140 day rules.
Extension of time limits
37. In any application for an extension, the test is whether the prosecution has shown sufficient cause to justify the extension sought. If the prosecution satisfies that test, the second stage is for the court to decide whether or not to exercise its discretion in favour of the prosecution in all the circumstances. The prosecutor must therefore be prepared to address the court in detail on the procedural history of the case and provide a full explanation for the reason why an extension is necessary and why it is in the interests of justice that the application should be granted. The grant or refusal of any application for extension may be appealed to the High Court.
Service of indictments
38. After the initial court procedures, the service of the indictment dictates the timetable for all subsequent proceedings. The form and manner of service is governed by rules set out in the Act of Adjournal (Criminal Procedure Rules) 1996. The rules provide that service of an indictment is established if a copy of the indictment is served by an officer of law by one of the following methods:
- delivering it personally to the accused;
- leaving it with a member of the accused's family or a resident at the bail address provided to the court;
- If the accused is not in custody, fixing an indictment notice to the door of the accused's bail address or, if there is no bail address, any premises which the constable reasonably believes to be the accused's dwelling house or place of business; or
- delivered to the legal representative engaged by the accused, or to an employee or partner there, in person at their place of business, during business hours, or by recorded delivery post.
39. Failure to serve an indictment properly brings any subsequent proceedings on that indictment to an end.
40. The provisions enabling service on legal representatives, assisted in simplifying service provisions, but the requirement to deliver it in person to an employee or partner at their place of business during business hours can be problematic. In an increasingly digital working environment, many solicitors' offices are unmanned for long periods of time and some prefer to use PO boxes.
41. The prosecution is often required to serve the indictment within a tight timescale to meet the time limit. If it cannot be served on a legal representative for any reason it may need to be couriered to a prison for service or delivered personally by a police officer to the accused or the accused's bail address. Reliance on third parties such as police and prison officers to serve documents is not ideal. It can create unexpected demands on police resources and there have been cases where service has not been conducted in accordance with the legal requirements resulting in the prosecution having to apply to the court for an extension to the time limit. If granted, the prosecution has the additional work of revising the indictment and associated documents prior to re-serving them.
42. To assist in addressing these issues and to maximise the use of digital working, we consider that it would be more cost effective and efficient to serve indictments and associated documentation by sending them electronically to the legal representative of the accused. To comply with legal requirements, it is incumbent on the prosecution to provide proof of service of the indictment. COPFS currently discloses information to the legal representative of the accused through a secure website. The website provides an indelible electronic audit trail showing when the information was made available for download by the prosecution and when it was received and downloaded by the defence. Other than where an accused is unrepresented, this vehicle could also be used to transmit an indictment to the legal representative of an accused, reducing the expense of using couriers and work for other agencies.
43. This would accord with the intention to use digital solutions wherever possible to deliver and improve the quality of services within the justice sector as outlined in the Scottish Government's Digital Strategy for Justice in Scotland.
|COPFS should explore with the Criminal Courts Rules Council, the possibility of amending court rules relating to the service of indictments to enable service by means of electronic transmission to the accused person's legal representative.|