Pleading Guilty by Section 76 Procedure

The period between appearance on petition and the service of an indictment can be fairly lengthy, particularly if an accused is on bail. Clearly, resolving cases with pleas of guilty as early as possible can save a lot of time and hassle, particularly in respect of COPFS no longer having to prepare what might be a complex case against a particular accused. The accused is entitled to a larger discount on their sentence if they plead guilty earlier in proceedings, in order to reflect “the utilitarian value” of doing so. 

An offer to plead guilty at this early stage of solemn proceedings, prior to service of an indictment, is governed by section 76 of the Criminal Procedure (Scotland) Act 1995. This states that such an offer to plead guilty must be in writing. The accused will typically sign a letter drafted by their solicitor, indicating the terms on which they are prepared to plead guilty.

The offer does not have to be to the charges “as libelled” on the petition; it can be in whatever terms the accused proposes. For example, when an accused has appeared on a petition containing ten charges of housebreaking, they might offer to plead guilty to five of them, on the basis that their pleas of not guilty are accepted to the remaining five charges. Alternatively, if the petition charges the accused with assault to severe injury and to the danger of life, the accused might offer to plead guilty to a breach of the peace.

It is for the Crown to either accept or refuse the offer. A refusal of an offered plea can kick off a period of negotiation between parties, potentially resulting in an acceptable plea to both sides. If the accused is eventually convicted after trial of an offence that they had offered to plead guilty to as part of rejected s76 letter, that fact ought to be reflected in the sentence for that particular offence. 

Assuming that the s76 letter results in the Crown accepting an offer to plead guilty, the accused will shortly thereafter be served with a specially-prepared indictment that reflects the terms in which s/he has agreed to plead guilty.

The accused will also be given notice to appear at a “s76 diet” in court (either the Sheriff Court or High Court), at which point the plea of guilty can formally be made, and the sentencing process can begin.

That said, the accused is not bound by the terms of any s76 letter. They are free to change their mind and plead not guilty at the s76 diet. If this happens, then the diet will be “deserted” and the case will proceed as if the s76 procedure had never happened.  

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