The First Appearance

Hopefully, by the time the date of the first appearance comes around, the accused will have consulted a solicitor about their case. Whether the accused needs to be present at court for the first appearance depends on how the complaint is to be served on them.

  • If the case is a “cited case” (complaint through the post with a reply form attached), the covering page makes it clear that the accused person can attend court personally, arrange for their solicitor to attend on their behalf, or enter a plea via the attached form. In this way, the accused does not have to attend court for the first appearance, provided they have taken up either of the latter two options.
  • If the accused has given a signed guarantee to the police that they will attend court on the date specified, then they must be present. If they fail to attend, a warrant for their apprehension by the police will inevitably be granted.
  • If the accused is in custody, they don’t have much choice in the matter.

Ideally, in scenario #1 above, the accused will have consulted with their solicitor and discussed the content of the complaint in good time prior to the court appearance.

In scenario #2, because the accused will only have a copy of the signed undertaking form, it is often quite difficult to do more than give the solicitor a general idea of what happened that caused the arrest. The undertaking form may specify what the police have charged the accused with in very vague terms (e.g. “assault” / “s38 Criminal Justice and Licensing (Scotland) Act 2010”), but that does not necessarily mean that COPFS will even prosecute the accused, let alone produce a complaint reflecting those exact charges. Most likely, the accused and the solicitor will just have to turn up at court and see what happens on the day.

In scenario #3, it will likely be a fairly rushed consultation in the cells, during which time the solicitor will potentially need instructions on the unhappy accused’s position on the charge(s), instructions in order to make a bail application, and significant amounts of the accused’s personal and financial information in order to fill out a Legal Aid form, before going upstairs to potentially negotiate a plea agreement or bail conditions with the Procurator Fiscal Depute in court. It is a demanding and underappreciated part of the defence lawyer’s job.

In the courtroom itself, the accused person will be expected to do one of three things:

1. Plead guilty

If this happens, the Procurator Fiscal Depute will hand up any schedule of previous convictions to the JP/Sheriff and read out a “narrative” of the relevant parts of the summary of evidence in order to inform the JP/Sheriff what happened.

Thereafter, the defence has the opportunity to give a “plea in mitigation” on behalf of the accused. This is the accused’s chance to say anything that might mitigate the offence (it’s an art rather than a science, but “I wish I’d hit the bastard harder” probably isn’t wise) and set out their personal circumstances (e.g. family situation, whether they are in employment, significant income/outgoings to inform the ability to pay a fine).

The court can then proceed to sentence the accused immediately, or defer sentence for various reasons. Once the sentence is announced, the case is at an end. The accused is entitled to a relatively substantial discount on their sentence if they plead guilty at the first appearance.

2. Plead not guilty

If this happens, the court will fix two further court dates: an “intermediate diet” and a “trial diet”. The only question then is the accused’s status (ordained to appear / bail / remanded in custody).

In ordinary circumstances, an accused person can only be remanded in custody pre-trial for a maximum of 40 days in summary proceedings, although this period can be extended “on cause shown”. At the time of writing, the Coronavirus (Scotland) Act 2020 has temporarily extended that period by three months.

3. Seek a “continuation without plea”

If more time is needed before a plea of guilty or not guilty can be entered (e.g. for the defence to negotiate a plea agreement with COPFS, or for investigations to be carried out), a case can be continued without plea for up to 28 days at a time.  If the accused is remanded in custody, a case can be continued without plea for 7 days at a time, up to a maximum of 21 days while s/he remains in custody.

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