The Trial

Summary trials are designed to be quick and relatively straightforward. It doesn’t always work out that way, but that’s the goal.

In summary procedure, trials are heard without a jury. In the Sheriff Court, they will be heard and decided by a single Sheriff. In the Justice of the Peace Court there is generally a single JP, although there can be three.

Trials are complicated and, generally, unpredictable. You should treat the following as an overview of the basic procedure followed in summary trials, rather than a forensic discussion of all possible issues that may arise at trial.

 

The Day of Trial: Call Overs, Witness Warrants and Negotiations

It is rare for a single trial to be allocated to each available courtroom. Depending on the level of court business, there might be upwards of ten summary trials due to call in a single courtroom on any given day. They are scheduled in the anticipation that most of them will not actually proceed to evidence being heard.

On the day of trial, the most pressing question for Crown and defence tends to be “which witnesses have turned up?” What might have seemed a water-tight Crown case on paper can easily fall to bits once it is established that key witnesses have not attended for trial. The Procurator Fiscal Depute in court will liaise with court officers who are responsible for taking the register in the witness room, and will be expected to quickly ascertain which of their trials are in a position to start, and which cannot.

If a witness has not attended when they ought to, and the Crown has proof that they were properly cited (usually a form attached to the citation that a witness returns, confirming that they will attend), then the Procurator Fiscal Depute is entitled to seek a “witness warrant”. This means that the police will be tasked with locating and arresting the witness, before bringing them to court in order to answer the warrant. A witness who fails to attend court without good reason is liable to be found in contempt of court and sentenced accordingly. If the trial at which they failed to attend has been rescheduled, a Sheriff/JP will often “continue consideration of contempt” until the date of the rescheduled trial, to allow the witness a further opportunity to attend and give evidence in a proper fashion, all the while with the threat of contempt of court hanging over them if they do not comply.

Certain Sheriffs and JPs prefer to do a “call-over” at the start of the court day. This involves “calling” each case in turn, in the hope that some cases can be resolved by way of pleas of guilty or motions to adjourn. Cases that cannot resolve yet will be slated to “call again later”. The Sheriff/JP will then often leave the courtroom for a period of time (usually between twenty and thirty minutes). During this time, the Procurator Fiscal Depute will liaise with court officers again (to see whether witnesses have turned up late) and with defence agents, who may want to negotiate a plea agreement (which can be affected by the Crown’s witness problems) or try to convince the Depute to “desert” (drop) their client’s case.

By the time the Sheriff/JP returns, it will usually be understood among those in court which cases are going to resolve there and then, and which cases are going to proceed to the trial itself (and which case has priority).

At this point, the cases that can resolve will call in order to be dealt with. Pleas of guilty will be tendered, and the court can deal with the accused there and then, or defer sentence to a later date. If the Crown or defence wants further time to prepare, or another opportunity to ensure the attendance of witnesses, motions to adjourn can be made and argued. If an adjournment is allowed, then a new trial date (and often a new intermediate diet) will be scheduled there and then If the Procurator Fiscal Depute considers that s/he cannot prove a case without certain absent witnesses, and the Sheriff/JP refuses a motion to adjourn, then they will likely have no choice but to move to desert the case.

Once all of the resolve-able cases have been resolved one way or another, the remaining case(s) can proceed to the trial itself.

The Crown Case

There are no opening speeches in Scottish trials. In summary trials, the Procurator Fiscal Depute will commence the trial simply by calling their first witness.

Crown witnesses are first subjected to “examination in chief” by the prosecutor. This tends to involve “open” questions (who/what/when/where/why/how/describe etc). That said, it is common for witnesses to be “lead” on certain non-controversial matters. For example, if the date of the allegation is not in dispute, then a witness might be asked in examination in chief “I want to ask you about something that happened on 7th May 2020 – you were at work that day, weren’t you?”

In practice, the Procurator Fiscal Depute will often conduct their examination in chief by holding a copy of the witness’ police statement, and asking questions designed to elicit the version of events that the witness appears to have given to the police. In certain circumstances (e.g. if the witness claims that they cannot remember what happened on the day in question), a witness can be presented with a copy of their police statement in the hope that they will “adopt” the content.

Once examination in chief is finished, the defence have the opportunity to “cross examine” the witness. Contrary to examination in chief, leading questions are allowed (and often advisable) in cross examination.

Cross examination is an art, rather than a science. In summary trials, excessive theatrics or being overly confrontational are unlikely to go down well with the Sheriff or JP. I have no intention of producing a guide on cross examination here, but I would recommend this book to anyone who has an interest; it is a straightforward and useful read.

Once cross examination is over, the prosecutor has an opportunity to “re-examine” the witness. Re-examination should only cover matters that arose during cross examination (as opposed to introducing new areas of evidence), and leading questions are generally not allowed. Re-examination is often used to allow a witness to clarify something that they might have said in cross examination.

After any re-examination, the witness is told by the Sheriff/JP that they are free to go (although they are generally welcome to sit in court and watch the rest of the trial if they want).

The Crown will then call their next witness, and the process repeats until there are no further Crown witnesses. At that point, the Procurator Fiscal will confirm to the court that the Crown case has concluded.

 

No Case To Answer

At this stage, the defence can make a submission of “no case to answer”. This is in accordance with s160 of the Criminal Procedure (Scotland) Act 1995. The defence will make the argument, then the Procurator Fiscal Depute can respond if they wish. The argument will be that, even if you “take the Crown’s case at its highest” (i.e. believe every single word that every Crown witness has said) there is “insufficient” evidence to convict the accused of a particular charge (or charges). It is a question of quantity of evidence, as opposed to quality of evidence.

In Scotland, there must be two sources of evidence to support a charge before an accused can be convicted of it. In other words, nobody can be convicted solely on the word of another, without any supporting evidence. This is known as the requirement for corroboration. It is not quite universal – s21 of the Road Traffic Offenders Act 1988 provides that corroboration is not required for certain minor road traffic offences – but it is certainly the general rule.

Corroborating evidence can come in many shapes and forms. It could be a second witness seeing or overhearing something as the alleged crime is being committed. It could be individual pieces of “circumstantial evidence” that combine to become stronger, like strands in a rope. It could be CCTV footage, an accused’s admission to the police or forensic evidence such as fingerprints or footprints. I do not propose to go into great detail on corroboration at this point – it will depend on the evidence in relation to any given case.

If the Sheriff/JP agrees that there is insufficient evidence to convict the accused of a particular charge, then the accused will be acquitted of the charge there and then. If there are any other charges left standing, then the trial will proceed in relation to those charges only.

If the submission of no case to answer is repelled by the Sheriff/JP, then the trial will continue as if the submission had never been made in the first place. In that respect, the defence does not lose anything (although in practice you can sometimes get an idea from, the Sheriff/JP of how badly the trial is going for your client at this stage).

 

The Defence Case

The defence does not have to lead any evidence. After all, the ultimate burden is always on the Crown to prove the charge(s) beyond reasonable doubt.

If the defence does decide to lead any evidence, then the examination in chief / cross examination / re-examination process mentioned above takes place again, although this time it is the defence who examines in chief and re-examines, whereas the Procurator Fiscal Depute can cross examine if they want to.

 

Closing Submissions

Once the defence case (if any) has concluded, both sides have the opportunity to make closing submissions to the Sheriff/JP.

The Procurator Fiscal Depute will go first, and summarise the evidence that tends to point to the guilt of the accused. The defence will speak last (as is their right) and summarise the evidence that tends to point away from the accused’s guilt. Depending on the particular facts and circumstances of the trial, the defence may be inviting the Sheriff/JP to acquit the accused, find the accused guilty of a lesser charge, or convict the accused as libelled under some sort of mitigating explanation.

Once both sides have said their piece, the Sheriff/JP will make their decision. They may leave the courtroom in order to consider the evidence they have heard before returning to deliver a verdict, or they can make a decision right there and then.

As with all trials in Scotland, the verdicts available are “guilty”, “not guilty” and “not proven”. “Not guilty” and “not proven” are verdicts of acquittal. If the accused is acquitted of all charges, then they are free to go, and the case is at and end.

If the accused is found guilty of a charge, the Procurator Fiscal Depute will hand up any schedule of the accused’s previous convictions, and the defence will have the opportunity to give a plea in mitigation. The Sheriff/JP can either proceed to sentence the accused there and then, or defer sentence for a period of time for various reasons. Once a sentence is imposed, the case is at an end (although the accused has the right to appeal their conviction and/or sentence).

 


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