Investigation and prosecution of sheriff solemn cases: thematic review

Chapter 1 – Sheriff and Jury Journey

1. The following depicts a typical journey for an accused person prosecuted by sheriff solemn procedure.

Report by the Police

2. Cases are reported to the prosecution service by the police or other reporting agencies by way of a Standard Prosecution Report (SPR). The SPR sets out: information on the crime(s); the circumstances of the crime(s); an analysis of the evidence; and information on the background, including vulnerabilities, of the accused and, where appropriate, victims and witnesses.

3. The accused person may be reported in custody or liberated on an undertaking^[2] or for report.^[3]

Initial Decision-Making

4. On receipt of a police report prosecutors in sheriff and jury teams will assess the evidence and, taking account of any relevant prosecution policies and the public interest, determine whether sheriff solemn is the most appropriate forum.

Appearance at Court

5. Solemn proceedings generally commence with the accused person appearing in court "on petition". The petition is the initiating document which, among other things, sets out 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 to allow further enquiries to be carried out.

6. 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.^[4]

7. The next appearance at court by the accused is at the first diet which is discussed below.

Investigation

8. Following the appearance of the accused at court, the case will be allocated to a case preparer by a Solemn Legal Manager (SLM) to prepare the case for court. This is referred to as the precognition process.

9. The SLM will, as part of the allocation process, instruct any additional lines of inquiry deemed necessary including forensic analysis, examination of mobile phones, obtaining additional statements and consider whether any expert reports are required. The case preparer will thereafter undertake full investigation of the case, and, if necessary, instruct further additional lines of inquiry.

10. The case preparer records all key milestones and the progress of the case on an electronic "living" document known as the Pathway. It is accessible through an app that sits on the case preparers' desktop. It is supported by a Pathway User Group that identifies best practice and enhancements.

Reporting to Crown Office

11. Once the case preparer has completed their investigation, the analysis and recommendations are considered by a SLM who will record whether they agree or disagree with the recommendation. With the exception of cases involving sexual crimes, the case is then reported to the High Court Unit (HCU) at Crown Office. The HCU is a specialised unit that provides a quality assurance role and will make a final decision whether to prosecute and the appropriate forum. Cases of sexual crimes are considered by the National Sexual Offences Unit (NSCU), a body of Crown Counsel specialising in the investigation and prosecution of sexual crimes.

12. In some cases no further proceedings may be instructed due to, for example, insufficient evidence. Other cases may be prosecuted by way of summary procedure – known as a reduction to summary – and others may resolve with an early plea of guilty being tendered in terms of Section 76 of the 1995 Act.

Section 76 Procedure

13. Where the accused intimates that he/she intends to plead guilty to some or all offences on the petition and wishes the case disposed of immediately, the prosecution can serve an indictment, without a list of witnesses or productions, with a notice to appear at court not less than four days from the date of the notice. This accelerated procedure is referred to as a Section 76 plea.

14. There are considerable benefits to using the Section 76 procedure. For victims and witnesses, it avoids their attendance at court and provides earlier resolution. For the accused an early plea will result in a discount of their sentence.^[5] For the prosecution, depending on the stage of proceedings, it may avoid the need to make further investigation and prepare for a trial, including securing the attendance of witnesses. For the courts and the criminal justice system, including legal aid provision, it provides a saving in allocating court time and resources to a trial sitting.

Indicting

15. Following an instruction to prosecute in the sheriff solemn court, the indictment is prepared. The indictment is a document narrating the charges, the witnesses and productions for the case. The prosecution is required to serve the indictment on the accused or his legal representative 29 clear days before the first diet. Additional witnesses, productions or labels can be added at a later stage by means of a written notice, referred to as a Section 67 notice. Such notices may be objected to by the defence and/or refused by a judge.

First Diet

16. The purpose of the first diet is to ascertain, for those cases that cannot be resolved, the state of preparation of the prosecutor and defence for trial and the extent to which they have complied with their duty to agree evidence.^[6] If both parties are prepared, the sheriff will fix a trial diet. The accused can plead guilty at the first diet if they wish.

Trial

17. Sheriff solemn cases are appointed to a trial diet which can continue (float) for a period of four days. For practical purposes they call within a trial sitting which are usually scheduled to last for one or two weeks during which a number of cases will be heard.

18. All prosecutions in sheriff solemn cases are conducted by local prosecutors. If convicted the sheriff has the power to impose a sentence of up to five years imprisonment and/or an unlimited fine.^[7]