The main difference between summary and solemn trials is that solemn trials take place in front of a jury.
At this point, it is worth repeating the point made at the outset of the summary trials section: trials are complicated and, generally, unpredictable. You should treat the following as an overview of the basic procedure followed in solemn trials, rather than a forensic discussion of all possible issues that may arise at trial.
Pre-Trial
Unlike summary trials, which are always fixed for a specific day, solemn trials are often fixed as “floating” trials, in the sense that they might start at some point within a range of days. This is to do with the vagaries of court scheduling and the requirement that solemn trials should be “continuous” – run from one day to the next until they are finished. Accused people, their legal representatives and witnesses are expected to drop everything and be in position to start trials at short notice – often less than 24 hours.
On the day the trial is to begin, jurors assemble in accordance with their citations. Similar to summary trials, a similar amount of horse-trading in respect of plea offers and counter-offers can take place depending on the state of the Crown’s witness room.
The accused will be expected to confirm their plea in respect of the charges on the indictment once the trial is called. Assuming no plea is offered which the Crown will accept, the pool of potential jurors (of whom there must be at least thirty) will be whittled down to fifteen lucky participants who are “empanelled” as the jury. Unlike America, there is no convoluted system of jury questioning and selection; in Scotland juries are selected by way of a ballot (in my experience, the clerk will pick names out of a goldfish bowl).
They will then be expected to speak up if there is any reason why they cannot properly serve as a juror in the case. The indictment will be read to them and they will be asked if they have any prior knowledge of anyone named in the charges, or the incidents themselves. If any selected juror has to be removed from the jury, a new name is picked to replace them. After any issues with the jury are resolved, the remaining unselected jurors will be dismissed. The jury will usually be read any notice of special defences that the accused may be relying on.
Finally, the jury will be sworn in; this marks the point at which the trial officially begins. The oath is: Do you swear by Almighty God that you will well and truly try the accused and give a true verdict according to the evidence? Jurors can choose to affirm instead, in which case they will “solemnly, sincerely and truly declare and affirm” that they will well and truly try the accused [etc]. During the trial, if jurors cannot continue to serve for any reason, the trial will simply continue without them, provided there are at least twelve remaining jurors.
The Trial Itself
In almost all circumstances, solemn trials proceed in the presence of the accused. It is not an option to simply start without the accused because it is convenient. If an accused “misconducts himself” (i.e. is disruptive in the dock) during the trial, then the court can order (in accordance with s92(2) of the 1995 Act) that they be removed from the court and the trial continue in their absence. There is no provision, however, for an accused to be pre-emptively removed from the trial, even if the court believes that it is inevitable that they will be disruptive once it begins.
If a self-representing accused is removed from their trial for being disruptive, then a solicitor will be appointed by the court to represent their interests during their absence (which presumably means that their appointment will end if the accused calms down and returns to court to resume the conduct of their own defence).
There are no opening speeches in Scottish trials. After some basic introductory words to the jury, the Sheriff / Judge will simply ask the Crown to call their first witness.
Evidence proceeds in much the same way as in summary trials: examination in chief is followed by cross-examination, followed by re-examination. Because solemn proceedings are audio-recorded, it is important for witnesses (often at the coaxing of the lawyers questioning them) to describe important gestures that they make when giving evidence.
If any legal (as opposed to factual) questions arise during the course of evidence, the jury will likely be removed to the jury room, so that the Crown and defence can argue about them outwith the jury’s presence. The Sheriff/Judge will make their ruling to resolve the point in question, and the jury will be brought back in for the evidence to continue.
It is commonplace for any Joint Minutes of Agreement (setting out agreed facts that there is no need to call witnesses to speak to) to be read aloud to the jury at the close of the Crown case.
No Case To Answer
Just as with summary trials, at the close of the Crown case there is the opportunity for the accused to argue that there is no case to answer. This is an argument on a point of law, so is held outwith the presence of the jury. To quote the relevant part from the Summary Trial page:
The argument will be that, even if you “take the Crown’s case at its highest” (i.e. believe every single word that every Crown witness has said) there is “insufficient” evidence to convict the accused of a particular charge (or charges). It is a question of quantity of evidence, as opposed to quality of evidence.
In Scotland, there must be two sources of evidence to support a charge before an accused can be convicted of it. In other words, nobody can be convicted solely on the word of another, without any supporting evidence. This is known as the requirement for corroboration. It is not quite universal – s21 of the Road Traffic Offenders Act 1988 provides that corroboration is not required for certain minor road traffic offences – but it is certainly the general rule.
Corroborating evidence can come in many shapes and forms. It could be a second witness seeing or overhearing something as the alleged crime is being committed. It could be individual pieces of “circumstantial evidence” that combine to become stronger, like strands in a rope. It could be CCTV footage, an accused’s admission to the police or forensic evidence such as fingerprints or footprints. I do not propose to go into great detail on corroboration at this point – it will depend on the evidence in relation to any given case.
If the Sheriff/Judge agrees that there is insufficient evidence to convict the accused of a particular charge, and there is no other offence under the indictment thatthe accused could legitimately be convicted of by the jury, then the accused will be acquitted of the charge there and then. If there are any other charges left standing, then the trial will proceed in relation to those charges only.
If the submission of no case to answer is repelled by the Sheriff/Judge, then the trial will continue as if the submission had never been made in the first place. In that respect, the defence does not lose anything by trying.
Additionally, in solemn trials, the defence has a further opportunity to make a very similar, if not identical, type of argument. Section 97A of the 1995 Act allows the defence, either at the close of “the whole of the evidence” (so, Crown and defence cases) or “the conclusion of the prosecutor’s address to the jury on the evidence”, to argue either or both of the following:
“(a) that the evidence is insufficient in law to justify the accused’s being convicted of the indicted offence or any other offence of which the accused could be convicted under the indictment (a “related offence”),
(b) that there is no evidence to support some part of the circumstances set out in the indictment.”
If the Sheriff/Judge decides that there is insufficient evidence to convict the accused of the charge libelled, but there is sufficient evidence to convict them of an alternative offence (e.g. there is insufficient evidence to convict them of rape in accordance with s1 of the Sexual Offences (Scotland) Act 2009, but there is sufficient evidence to convict them of common law assault), they will direct that the indictment be amended accordingly before the jury retires to consider their verdict. If there is no evidence to support part of the circumstances set out in the indictment, they are to direct that the indictment be amended to delete the part in question.
If a defence “no case to answer” argument is successful, the Crown has the right to immediately appeal an acquittal (or forced amendment of the indictment) under s107A of the 1995 Act and, effectively suspend proceedings (and the effect of the acquittal/amendment) until the appeal is heard. For an example of this happening in practice, see the case of HMA v MM [2019] HCJAC 77, in which an accused person was acquitted in respect of several charges on 31st October 2019, and a Crown appeal against said acquittal was heard and decided within three working days.
The Defence Case
Just as with summary trials, the accused is not obliged to prove their innocence, so in a general sense is not obliged to lead any evidence. It is a tactical question for the accused (and those representing him/her) to answer. If there is to be any defence evidence, the examination in chief – cross-examination – re-examination process is followed again, with the defence examining in chief and the Crown cross-examining.
The Closing Speeches
The fun part. Both Crown and defence have the opportunity to address the jury on the evidence. The Crown will invite the jury to convict the accused of something or other, and the defence will generally invite them to acquit the accused (or possibly convict them of a lesser charge). The defence is always entitled to speak last.
Speeches are not evidence. The content of the speeches is generally down to the judgment (and flair) of the respective speakers, but both sides are expected to act fairly, with restraint and in accordance with the evidence heard by the jury. Neither side is allowed to invite the jury to speculate (e.g. why they have not heard from certain potential witnesses).
The “Charge”
After speeches have concluded, it is for the Sheriff or Judge to “charge” the jury. This means giving them directions on the law that they should apply in reaching their verdict. Obviously, the jury will be reminded that they must be satisfied beyond reasonable doubt as to the accused’s guilty before they can return a guilty verdict on any charge.
The content of every charge is different, and there are any number of things that could be covered, depending on the nature of the evidence. An excellent resource is the publicly-available Jury Manual, which is updated regularly and gives suggested directions to juries on many categories of evidence and offences libelled. It has no formal legal status, but is well worth a look.
The Verdict
After the charge, the jury will depart for the jury room and deliberate over their verdict(s) on each charge. This is done in private, and s8 of the Contempt of Court Act 1981 states that “it is a contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings.”
The verdict is usually delivered in respect of each charge by a member of the jury nominated as foreman/spokesperson. The clerk of court will ask them for their verdict in respect of each charge, and whether the verdict is unanimous or by majority (though they do not have to specify how many of their number voted either way).
The same three verdicts are available in all criminal trials in Scotland: “guilty”, “not guilty” and “not proven”. The latter two verdicts are verdicts of acquittal, and have exactly the same effect.
It is open for the jury to find the accused guilty under deletion of certain parts of the charge. There is also some scope for the jury to find the accused guilty of an alternative charge, such as convicting of culpable homicide when the accused is charged with murder, or that the accused is guilty of acting, but under provocation. In such cases, the terms of the amended charge on which the jury is delivering a verdict should be clarified in court (so that it makes grammatical sense, if nothing else) before the verdict is formally recorded.
If the accused is acquitted, then they are free to go. If they are convicted, then the Crown must “move for sentence”, at which point they will hand up a copy of any schedule of previous convictions to the Sheriff / Judge. The jury will not be given a copy. The process will then move to sentencing.
Crime.Scot 