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

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

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

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.

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

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