The Intermediate Diet

***UPDATE: 11/11/20: As of 1st December 2020, new procedures will apply to intermediate diets in order to reduce the backlog of summary criminal cases (due, in part, to the impact of Covid-19).

The Crown and defence will be expected to hold a “Pre Intermediate Diet Meeting” in order to discuss the case with a view to resolving it entirely (either by the Crown discontinuing proceedings or a plea of guilty being arranged), sorting out issues that might otherwise prevent the trial from proceeding on the date fixed, or focussing the issues for trial. 

It is expected that this protocol will make summary procedure more efficient (and reduce the number of accused, solicitors and witnesses who need to attend court in person) by requiring far fewer intermediate diets to be physically held in court, reducing the number of trials by resolving cases early, and reducing the number of trials that do not proceed on the day for various reasons.

It is important that accused people ensure that their solicitors are fully instructed in advance of the PIDM. For full details, the relevant Practice Note is available here.***

When an accused person pleads not guilty at the first appearance, dates for an intermediate diet and trial diet will be fixed.

Strictly speaking, an intermediate diet is not a requirement in all cases. As of 1st April 2019 (in accordance with s148A of the Criminal Procedure (Scotland) Act 1995), the only types of cases in which an intermediate diet must be fixed involve charges of sexual offending or domestic abuse. These are cases in which the accused is prohibited from conducting his or her own defence, and must be represented by a solicitor (appointed by the court, if necessary). In practice, though, intermediate diets tend to be fixed for all cases.

When an accused is not remanded in custody, the intermediate diet is usually fixed for a date roughly four weeks prior to the trial. When an accused is remanded in custody, the intermediate diet is likely to be fixed for a date a week prior to the trial. The accused must attend, unless they have been excused attendance by the court in advance. Crown witnesses are not expected to attend the intermediate diet.

In the interim period between the first appearance and the intermediate diet, the defence will formally intimate to the Crown that they represent the accused, and request disclosure of all of the evidence that the Crown possesses in relation to the case. This normally encompasses statements that witnesses have given to the police, copies of productions (e.g. photographs) and copies of CCTV evidence (which may or may not work). The defence can also work on collating defence witnesses and evidence on behalf of the accused, depending on the particular facts and circumstances of the case.  The defence will also make a Legal Aid application if the client and case are eligible.

The purpose of the intermediate diet is set out in s148 of the 1995 Act. In short, it is to ascertain, as far as possible, whether both Crown and defence are ready to proceed to the trial. It is designed to avoid trials having to be adjourned at the last minute due to issues that could reasonably have been dealt with in court prior.

Issues that might typically be discussed in court during the intermediate diet are:

  • Whether the Crown has disclosed copies of witness statements and produtions to the defence.
  • Whether any special measures need to be put in place at the trial for vulnerable witnesses.
  • Whether the defence has secured Legal Aid funding for their client.
  • Whether there are any evidential matters in the case that both parties can agree, to simply any future trial proceedings.
  • Whether there are any special defences to be intimated on the part of the defence, such as self defence or alibi.
  • Whether the defence intend to call any defence witnesses at trial.

In a straightforward case with no outstanding issues, the hearing itself may be very brief, lasting under a minute. The defence will simply confirm that the accused is maintaining their not guilty plea, that they have all of the evidence from the Crown that they need, that there is nothing capable of agreement and nothing else to intimate. The Crown will confirm that they have their necessary witnesses cited for trial and ask the JP/Sheriff to continue the case to the trial date.

The accused is entitled to plead guilty to one or more charges at the intermediate diet if they wish to. If the accused is pleading guilty and the case no longer needs to go to trial, then then the Procurator Fiscal Depute will read a “narrative” of events from their summary of evidence. The defence will then give a plea in mitigation. The JP/Sheriff can either sentence the accused there and then, or adjourn/defer the case for sentencing at a later date.

If issues arise that cannot be resolved at the intermediate diet, the court effectively has three options:

  1. Continue the case to trial anyway, in the hope/expectation that the issue(s) will be resolved by then;
  2. Adjourn the case to a “continued intermediate diet” prior to trial, to see whether the issue(s) can be resolved by then, or;
  3. Postpone the trial to a later date, and potentially fix a new intermediate diet prior to then.

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