The First Appearance
All first appearances on petition take place in the Sheriff Court. This is even the case where the petition alleges an offence that can only go to trial in the High Court, such as murder or rape.
The first appearance tends to be held in private, in the sense that the public are removed from the courtroom when an accused is to appear on petition.
The first appearance on petition is usually fairly straightforward. Historically, it was an occasion for the accused to be “judicially examined” – asked questions by the Sheriff or prosecutor. However, this fell out of fashion, and in practice never happens these days.
Nowadays, the first appearance usually only consists of the accused “making no plea”, then an application for bail (assuming the accused wants to make one). Until January 2017, the accused was entitled to make a “declaration” (for what it was worth) in respect of the charge, but this was removed by s78 of the Criminal Justice (Scotland) Act 2016.
If the accused is representing themselves, and is charged on petition with a sexual or domestic abuse offence, or an offence aggravated by abuse of a partner or ex-partner, then the Sheriff must inform them that their case can only be conducted by a lawyer in future. If the accused does not instruct one, then the court can appoint one to act for the accused.
The outcome of the first appearance on petition is that the accused is “committed for further examination”. If bail is granted, this means that the accused is free to go, and can expect to receive an indictment at some unspecified point over the next few months.
If bail is refused, then the accused will be remanded in custody for what is colloquially known as the “seven day lie down”. At the end of this period, there will be a hearing which is known as the “full committal”.
The Full Committal
The full committal presents a further opportunity for the accused to make an application for bail. It may be the case that, having had the benefit of a week’s worth of investigations, the Crown no longer oppose the accused being bailed.
If the Crown want the accused to remain in custody, then they will make a motion to “fully commit” them. In order to do so, the Sheriff must be satisfied that the content of the petition is competent and relevant (e.g. it is a signed petition that charges the accused with a recongised offence), and that there is a “prima facie” (on the face of it) case against the accused. In this context, a prima facie case means examining the Crown summary of evidence to ascertain whether, on paper, there is sufficient evidence (in terms of quantity, rather than quality) to corroborate the charge(s). An accused can oppose full committal on the basis that the Crown summary of evidence does not disclose a prima facie case, although this is not a high bar for the Crown to clear. If the accused is successful, then they should be bailed.
If bail is refused, then the accused will be remanded in custody pending service of an indictment, and eventual trial.