Section 64(1) of the Criminal Procedure (Scotland) 1995 states, “All prosecutions for the public interest before the High Court or before the sheriff sitting with a jury shall proceed on indictment at the instance of Her Majesty’s Advocate.”
In most cases, an initial appearance on petition results in the eventual service of an indictment on the accused. It is open to the Crown to decide to proceed on summary complaint instead, in which case the accused will be given notice to appear at court for a “reduction to summary” hearing at which a summary complaint will be served on them, and the case will proceed as if it were a first appearance on summary complaint.
The Indictment Document
An indictment is the document that specifies the charges on which the accused is to face trial. It looks different to a summary complaint, but it will identify the accused by name, date of birth and address in the same way. Unlike a summary prosecution, which refers to “the complaint of the Procurator Fiscal”, indictments introduce the charge(s) with the words, “you are indicted at the instance of Her Majesty’s Advocate, and the charge(s) against you is/are that”. This is why summary cases are referred to as “PF Edinburgh/Glasgow/Aberdeen (etc) v [accused’s name]” whereas solemn cases are “HMA v [accused’s name].
Unlike a summary complaint, an indictment is served on an accused along with a numbered list of witnesses who may be called by the Crown at trial in order to prove the charges, and a numbered list of productions that may be used. Witnesses are designed using their name and address, although – for obvious reasons – non-police witness addresses are usually given as “care of Police Service of Scotland”. Productions are divided into documentary and non-documentary productions. In practice, the latter are known as “labels” because of the physical labels attached to an object specifying what it is, where it was seized and who seized it.
If the case is to proceed in the High Court, the indictment will be signed by the Lord Advocate or an Advocate Depute. If the case is to proceed in the Sheriff Court, it will be signed by the Procurator Fiscal or a Procurator Fiscal Depute (acting “by authority of Her Majesty’s Advocate”).
Service of the Indictment
At the conclusion of the first appearance on petition, when the accused is “committed for further examination” on bail, or “fully committed” in custody, they will not know when exactly they next have to appear in court. A court date (either a First Diet if the case is to be heard in the Sheriff Court, or a Preliminary Hearing if it is to be heard in the High Court) will be communicated to the accused along with the service of the indictment.
The date of the Preliminary Hearing or First Diet must be at least 29 clear days after the service of the indictment.
“Service” in this context means either “any officer of law” (as defined by s307 of the 1995 Act) handing over of a copy of an indictment with associated lists (as above) to an accused (or their solicitor at the solicitor’s place of business), or – as set out in s66(4)(b) of the 1995 Act – by “a constable affixing to the door of [the accused’s bail address or last known address] a notice…informing the accused that he may collect a copy of the indictment…from a police station specified in the notice; and calling upon him to to appear and answer to the indictment at such diet as shall be so specified.”
The notice looks like this:
If the indictment is served on the accused in person, then they will be given a similar-looking notice specifying the place and date to attend court. It looks like this:
If the accused is charged with certain sexual or domestic abuse offences, then the notice will inform the accused that they cannot conduct their own defence, and therefore they must seek the assistance of a solicitor, otherwise the court will appoint one to act for the accused.
Proper service of an indictment is crucial. Failure to serve an indictment on an accused is fatal to any subsequent proceedings relating to that indictment.
Time Limit for Service
The date on which the Crown serves an indictment on the accused is important, because of time limits that apply in order to “prevent delay in trials”. These time limits – and procedures that provide opportunites for them to be extended – are set out in s65 of the 1995 Act.
At the time of writing, the s65 time periods are significantly affected by the Coronavirus (Scotland) Act 2020.
If an accused is remanded in custody after the first appearance on petition, then they cannot be detained for more than 80 days without an indictment being served on them. If the indictment is not served in that time, then the accused is “entitled to be admitted to bail” (i.e. release from custody).
If the accused is on bail after the first appearance on petition, then the indictment must be served in enough time (bearing in mind the “29 clear days” rule mentioned above) to hold a Preliminary Hearing (in the High Court) or First Diet (in the Sheriff Court) within 11 months (and then to commence the trial within 12 months) of the first appearance. Failure to do so means that the accused, in accordance with s65(1) of the 1995 Act, “shall not be tried on indictment for any offence” (although they can still be prosecuted on summary complaint for most offences).
However, it’s not quite that simple. s65(5)-(8D) allow the court to extend the time limits referred to above, if the Crown makes an application for it. In practice, this is done regularly.