Criminal Evidence and Procedure, 5th edition

Alastair N. Brown is a Retired Sheriff and Member of the Faculty of Advocates

• PrefaceTable of StatutesTable of Orders, Rules and RegulationsTable of International MaterialsTable of Cases1. ABSOLUTE BASICSTypes of procedureThe courtsThe Sexual Offences CourtThe partiesAppearing in courtFinding the lawThe Criminal Procedure (Scotland) Act 1995Act of Adjournal (Criminal Procedure Rules) 1996Sentencing GuidelinesPractice NotesCase lawProofBurden of proofAdmissibility of evidenceSufficiency of evidenceCredibility and reliabilityStandard of proofExcusal of procedural irregularitiesChapter summary2. JURISDICTIONJurisdiction based on territoryGeneralFraud and cross-border crimesCrimes in more than one sheriff court districtJurisdiction based on nationality or residenceJurisdiction over particular crimesThe High Court of JusticiaryThe Sexual Offences CourtSheriff courtJP CourtChapter summary3. THE PROSECUTION OF CRIMEThe Lord AdvocateAdvocate DeputesProcurators fiscalBrief history and functionsRelationship with police and other investigatorsThe decision to prosecuteThe child accusedAlternatives to prosecutionNo proceedings, warning letters and diversionFixed penalties, compensation offers and work ordersChoice of procedureThe prosecutor as ‘master of the instance’Chapter summary4. INVESTIGATION OF CRIMEIntroductionArrestWhen can the police make an arrest?Criminal Justice (Scotland) Act 2016The power of arrestAction immediately following arrestProcedure after arrestPerson who has not been officially accusedBringing the arrested person before the courtInvestigative liberationQuestioning suspectsInitial enquiriesParticular suspicionQuestioning at a police stationThe right to legal adviceThe admissibility of police interviewsRecording police interviewsStatutory requirements to answer questionsAdmissibility of reply to charge of difference crime from that prosecutedQuestioning a person who has been officially accusedCourt authorisation of questioning after official accusationSearchSearch of the personTaking samplesInvasive searchSearch of propertyStatutory search warrantsCommon law search warrantsDefective warrantsWas the search within the scope of the warrant?Cases of urgencyRegulation of Investigatory PowersIdentification procedureChapter summary5. PETITION PROCEDUREThe PetitionCommittal for further examinationFull committalChapter summary6. BAILBail applicationsRelevant considerationsConditionsDomicile of citationBail appealsBail reviewsBail appeal after convictionChapter summary7. SOLEMN PROCEEDINGS FROM PETITION TO PRELIMINARY HEARING OR FIRST DIETOutlineCrown preparationTime limitsExtensionsPrecognition on authority of petition warrantPrecognition on oathDisclosureProsecutor’s dutyDefence statementDuty of investigating agencyRulings about disclosureDefence precognition and identification paradePlea of guilty before service of indictment (“s76 letters”)The indictmentServiceChargesRelevancySpecificationQuantityPlaceTimeModeSpecification in statutory offencesAggravations and docketsAggravationsBailDomestic abusePrejudiceDocketsAmendment of chargesList of witnessesProductionsLabelled productionsDocumentary productionsNotice of Previous ConvictionsAction by the Defence between Service of Indictment and First Diet/ Preliminary HearingDefence statementCompatibility IssuesNotice of special defences, defence witnesses and defence productionsPreliminary Pleas and Preliminary IssuesPreliminary pleasChallenges to competency or relevancyCompetencyChallenges to validity of citationPleas in bar of trialDouble jeopardyMoraPreliminary IssuesSeparation or conjunction of charges or trialsPreliminary objections under specified provisionsObjections to admissibility of evidenceAdmissions as to documents and other mattersApplications for witness anonymity ordersWritten RecordChapter summary8. PRELIMINARY HEARINGS AND FIRST DIETSIs the accused allowed to conduct his defence personallyPreliminary pleasRecording the pleaPreliminary issuesOther objections to the admissibility of evidenceWhich witnesses are requiredState of preparationAgreement of facts by joint minuteStatements of uncontroversial evidenceOther mattersAppealsFixing the trialChapter summary9. SUMMARY PROCEEDINGS FROM FIRST APPEARANCE TO TRIALThe complaintFirst AppearanceThe first calling in summary procedureProcedure on guilty pleaWithdrawal of guilty pleaProcedure on not guilty pleaAdjournment for trialIntermediate dietBailPrevention of delay in trialsDisclosureIntermediate dietChapter summary10. VULNERABLE WITNESSESThe problemClosing the courtChild witnesses: Discretionary PowersSpecial measures for vulnerable witnessesWhich witnesses are “vulnerable"Child WitnessesDeemed Vulnerable WitnessesSpecial measures for child witnesses and deemed vulnerable witnessesRisk to the quality of evidenceRisk of harm to the witnessThe special measuresTaking of evidence by a commissionerLive television linkScreensSupportersEvidence in chief in the form of a prior statementPrior sexual conduct of the complainerChapter summary11. THE TRIAL: EVIDENCEWhat things constitute evidenceAdmissibility of evidenceObjectionsTrial within a trialAppealParticular rulesRelevance – the exclusion of collateral materialCharacter of the complainerCharacter of the accusedHearsayPrevious statementsExpert witnessesSufficiency of EvidenceGeneralThe things that have to be corroboratedWhat constitutes corroborationDistress and de recenti statementsCourse of criminal conduct – The Moorov doctrineCorroboration of confessions“Special knowledge”Fingerprints, DNA, CCTV etcChapter summary12. THE TRIAL: PROCEDUREFailure of the accused to appearBack-up trials and call overCommencement of the trialSummary trialsIndictmentJury selectionJudge’s introductory remarksAll casesPart-heard trialsThe examination of witnessesNo case to answer submissionsDefence caseRecalling witnessesAdditional evidenceEvidence in replicationSubmission as to sufficiency of evidenceSpeechesJury directionsVerdictChapter summary13. SENTENCINGProcedureMotion for sentencePrevious convictionsUnexpired portion of a sentenceCrown narrativeForfeitureNotification requirementsAdjournment for inquiryMitigation and Proof in Mitigation‘Discount’ for guilty pleaParticular sentencesGeneral mattersSentencing guidelinesDeferred sentenceAdmonition and absolute dischargeCustodial sentencesLife imprisonment and orders for lifelong restrictionDeterminate custodial sentencesCommunity disposalsRestriction of liberty orderCommunity payback ordersDrug treatment and testing orderAntisocial Behaviour OrderNon harassment ordersFinancial penaltiesFinesVictim surchargeCompensationCautionConfiscation orderChapter summary14. APPEALSDefence appealsSolemn procedureAppeals from preliminary hearings and first dietsAppeals against convictionAppeals against sentenceSummary procedureAppeals relating to preliminary pleasAppeals against convictionAppeals against sentenceCrown AppealsSolemn procedureAppeals against decisions about sufficiency of evidenceLord Advocate's ReferenceLord Advocate's appeal against disposalSummary ProcedureBills of Advocation and Bills of SuspensionAdvocationSuspensionProcedureThe nobile officiumChapter summaryIndex