Business of the High Court
The following memorandum of guidance is designed to supplement the existing statutory procedures for dealing with preliminary matters before High Court trial diets and will apply to all High Court diets on and after 25 February 2002, regardless of the location in which the Court is sitting.
A number of statutory and other procedures exist to enable cases indicted into the High Court to call before the trial diet in order that the Court may consider procedural issues, such as postponement (see section 80 of the Criminal Procedure (Scotland) Act 1995) or recovery of documents, and to enable the court to resolve preliminary issues (see section 72). There is, however, no formal procedure requiring communication prior to the trial diet between the defence and the Crown regarding basic information such as the identity of defence solicitor and counsel, or any matter which may prevent the case proceeding to trial at some point during the sitting.
It would greatly assist the planning and disposal of business at sittings of the High Court if the undernoted guidance about communication before and during the sitting were to be followed as a matter of good practice by those conducting business before the Court. While compliance with the responsibilities enumerated will not result in any guarantee about the timing and conduct of any case, it is likely that regular adherence to the guidance will greatly improve the efficient conduct of the business of the Court, provide greater opportunity for practitioners to plan their business, and greatly reduce the unproductive time spent by witnesses, jurors, practitioners and judges in attendance at High Court sittings.
1. Before the sitting
1.1 Responsibility of Defence Solicitor.
A solicitor instructed to represent an accused person at a sitting of the High Court should contact the procurator fiscal manager, whose identity and contact details will appear on the relevant sitting list, no later than the Monday of the week before the commencement of the sitting and advise of the following:
(a) Solicitor’s name, business address, telephone number, fax number and e-mail address;
(b) The legal aid certificate reference;
(c) The name of counsel instructed in the case; and
(d) Any matter which may prevent the case proceeding at that sitting.
1.2 Responsibility of Defence Counsel.
Counsel instructed to act in a case within the sitting should, by the Thursday before the commencement of the sitting, cause the procurator fiscal manager and the instructing solicitor to be advised of the cases in which counsel has accepted instructions in that sitting and any matter which may affect counsel’s ability to retain those instructions throughout the sitting.
1.3 Responsibility of the Crown.
1.3.1 The procurator fiscal manager should, by the Thursday before the commencement of the sitting, advise the defence solicitor of any matter which may foreseeably prevent a case proceeding on any date within the sitting.
1.3.2 The procurator fiscal manager should, before the commencement of the sitting, where either side has given notification of any matter which may prevent a case proceeding to trial at the sitting, discuss with the defence solicitor the possibility of scheduling the case in such a way as to enable it to proceed within the sitting.
1.3.3 The procurator fiscal manager should, on the Friday before the sitting, in respect of any case where a matter has arisen that may prevent it from proceeding within that sitting and which it has not been possible to resolve by any formal pre-trial procedure such as a Minute of Postponement or in accordance with the arrangements referred to in para.1.3.2 hereof, notify the defence solicitor that the case will be brought before a judge on the first day of the sitting.
2 Commencement of the sitting - First Day
2.1 Responsibility of Judge.
On the first day of the sitting, a judge will hear parties and endeavour to determine further procedure in respect of cases that are brought before the judge in accordance with the arrangements in para.1.3.3 hereof, with a view to avoiding adjournment outwith the sitting.
2.2 Responsibility of Parties.
Both crown and defence should have available for consideration by the judge appropriate documentation and other information to vouch any problem which may cause the case to be adjourned.
3 During the sitting
3.1 Responsibility of Defence Solicitor.
If after the commencement of the sitting, any matter arises which the defence solicitor considers may affect the ability of the case to proceed at the sitting, the solicitor should immediately notify the procurator fiscal manager thereof.
3.2 Responsibility of Defence Counsel.
If after the commencement of the sitting, any matter arises which might prevent counsel attending on any date when the case may proceed within the sitting, counsel should immediately cause the procurator fiscal manager and the instructing solicitor to be notified thereof.
3.3 Responsibility of the Crown.
If after the commencement of the sitting¸ any matter arises which the procurator fiscal manager considers may affect the ability of the case to proceed on any date within the sitting, he should immediately notify the defence solicitor thereof.
W. Douglas Cullen
Lord Justice-General
9th January 2001