Follow-up review of the investigation and prosecution of sexual crime

Criminal procedure

240. 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.

Solemn procedure

241. 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,^[66] when the most likely outcome is that accused will be fully committed (FC) for trial. Again the accused may either be released on bail at that point or remanded in custody, pending trial.^[67]

High Court

242. Time limits apply to all solemn cases prosecuted in Scotland. Time limits regulate the maximum length of time that can elapse between the first time a person appears in court charged with an offence and the start of their trial on that charge. Failure to comply with time limits has serious consequences. Time limits for cases prosecuted in the High Court are different for accused persons on bail and those who are remanded, as follows:

Custody

243. 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 their legal representative within 80 days of FC.^[68] The indictment provides the accused with notice of a preliminary hearing (PH). The purpose of the PH^[69] 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^[70] and not less than 29 clear days after service of the indictment.^[71] The trial is fixed by the court at the PH^[72] and must commence within 140 days of FC.^[73] Failure to adhere to any of these custody time limits results in the accused being granted bail and released from custody.^[74]

Bail

244. 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^[75] and not less than 29 days prior to the PH.^[76] The PH must be held within 11 months of CFE^[77] and the trial must commence within 12 months.^[78] 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. 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.^[79]

Temporary amendments to time limits – Coronavirus (Scotland) Act 2020

245. In response to the Covid-19 pandemic, the Coronavirus (Scotland) Act 2020 made a number of changes to law and procedure. Its provisions are in place for a defined period, but may be extended. Paragraph 10 in Part 4 of Schedule 4 of the 2020 Act temporarily amends various time limits in the 1995 Act. All solemn time bars, for cases where the accused is either remanded in custody or on bail, are suspended for six months for all ongoing and future cases. No account should be taken of the six-month suspension period when calculating time bars.