The Preliminary Hearing / The First Diet

Just as with the intermediate diet in summary procedure, solemn procedure incorporates a “case management” type of hearing at which both Crown and defence are expected to address the court on their respective states of readiness for trial. It can be dispensed with if both sides agree (and there are no preliminary issues and no child witnesses in the case), but in practice the hearing is usually held.

If the case against the accused is being prosecuted in the High Court, then the hearing in question is the Preliminary Hearing. If the case against the accused is being prosecuted in the Sheriff Court, then it is the First Diet.

By the time the indictment is served on the accused, it is almost always the case that they will be represented by a solicitor (and, in the High Court, either a solicitor-advocate or an advocate). Section 72F of the 1995 Act requires the solicitor to formally notify the Crown in writing that they act for the accused. Similarly, if the solicitor withdraws from acting or is sacked by the accused, that also has to be intimated to the Crown. The purpose of this is to ensure that disclosure of evidence and service of any indictment is effected on the right people.

Defence Statement & Joint Written Record

s70A of the 1995 Act requires the defence to lodge a “defence statement” with the court at least 14 days prior to the First Diet or Preliminary Hearing. This is supposed to be a relatively brief document covering the matters raised in s70A(9):


As an aside, it may seem from the above that the defence statement puts an unfair onus on the accused to reveal more about the specifics of their defence than they ought to. Indeed, the case of Barclay v HMA from 2012 concerned a challenge as to whether the requirement to lodge a defence statement contravened the right to a fair trial as set out in Article 6 of the European Convention on Human Rights. Ultimately, the Appeal Court found that, since defence statements are not available for the Crown to use as evidence at trial, they do not affect the generally-recognised right to silence in Scots law. They also concluded that “While section 70A obliges an accused to lodge a defence statement, that statement need not advance a positive defence; the accused’s position in his statement may simply be to deny the charge or charges and to put the Crown to its proof.”

In practice, then, many defence statements will simply contain flat denials that the accused committed the offence(s) libelled, and little more than that. That said, if the accused is relying on a special defence (such as self defence or alibi), then it should be contained within the defence statement.

Additionally, in advance of the hearing, whether in the Sheriff Court or the High Court, the Crown and Defence will be expected to produce a Joint Written Record of Preparation. The Sheriff Court version of the template for the Joint Written Record is here, and the High Court version is here. The Joint Written Record must be lodged at least two court days prior to the hearing.

The Joint Written Record requires both sides to state and justify their state of readiness for trial. In this way, it encourages the parties to discuss the case in advance and resolve matters as far as possible prior to setting foot in court.

The Hearing

The accused must attend the hearing.

In the case of both First Diets and Preliminary Hearings, barring any prior s76 procedure, this will be the first opportunity for the accused to enter a plea in respect of the charge(s) on the indictment. This will only happen once any preliminary pleas are dealt with. These are set out in s79(2)(a) of the 1995 Act as:

  • matters relating to the competency or relevancy of the indictment (generally, whether the accused has been properly charged with a recognised offence);
  • an objection to the validity of the citation against a party, on the ground of any discrepancy between the record copy of the indictment (held by the court) and the copy served on him, or on account of any error or deficiency in such service copy or in the notice of citation. In the latter case, any error or deficiency has to tend “substantially to mislead and prejudice the accused” according to s79(3);
  • a plea in bar of trial (such as mental disorder)

If the accused pleads not guilty, attention will turn to the state of preparation for trial (likely to be directed by the content of the Joint Written Record and Defence Statement). There are many potential issues that could arise at a First Diet or Preliminary Hearing, and I do not intend to go into each and every possibility.

The following is a list of examples, informed largely by “Practice Note No.1 of 2005” ,which was produced by the (then) Lord Justice General in order to assist practitioners in respect of Preliminary Hearings. So, examples of what may be dealt with at the First Diet and Preliminary Hearing are:

  • Preliminary issues are to be determined. They are set out in s79(2)(b) as:
    • an application for separation or conjunction of charges or trials (e.g. if an accused person is facing charges across two or more indictments at once);
    • a preliminary objection in respect of certain specified statutory provisions, e.g. that where an accused is charged with breaching a condition of police liberation, it is taken as read that the accused was the person who signed the undertaking document unless it is challenged as a preliminary issue;
    • an application for a witness anonymity order;
    • an objection to the admissiblity of any evidence (e.g. on the grounds that statements made by the accused to the police were made in unfair circumstances);
    • “an assertion by a party that there are documents the truth of whose contents ought to be admitted, or that there is any other matter which in his view ought to be agreed”;
    • “any other point raised by a party which could in his opinion be resolved with advantage before the trial”
  • Any application regarding restrictions on questioning and evidence in relation to sexual offences in accordance with s275 of the 1995 Act;
  • The state of preparation of both parties;
  • Ascertaining which witnesses are required.

Assuming that both parties are ready for trial, then the court will fix a trial date at the hearing.

Appeals from First Diets and Preliminary Hearings

Clearly, decisions made at First Diets and Preliminary Hearings can have a massive impact on any subsequent trial. For example, an accused person’s entire defence might be based on a preliminary objection to the admissiblity of comments made in the course of a police interview, on the basis that, if the comments are judged to be inadmissible, the Crown will have insufficient evidence to prove the charge at trial.

s74 of the 1995 Act provides that parties can appeal against certain decisions made by the court at First Diets and Preliminary Hearings. This allows for the matter to be finally determined by the Appeal Court, pre-trial.

Parties require the permission of the First Diet or Preliminary Hearing court in order to appeal most decisions. No permission to appeal is required if the Crown want to appeal a decision to dismiss an indictment (or part of an indictment), thus preventing said indictment (or part thereof) proceeding to trial.

If permission to appeal the preliminary decision is denied, it is still open for the accused to appeal against any subsequent conviction on the basis that the preliminary decision resulted in a miscarriage of justice.


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