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Preliminary Hearings Bench Book updated


Dec 8, 2022

Practitioners may wish to note that the Preliminary Hearings Bench Book has been updated as of 8 December. The latest update encompasses changes made in light of the justice provisions in the Coronavirus (Recovery and Reform) (Scotland) Act 2022.

The updates include:

In Chapter 1:

  • The effect of the Criminal Courts Determination of 2022 on arrangements for Preliminary Hearings and the presumption that an accused person need not attend unless directed to do so by the court.
  • There is an updated focus on the importance of deciding at Preliminary Hearing which witnesses may be directed to give evidence at trial remotely and an updated explanation of how this works in practice. The permissive nature of the revised provisions is noted.

In Chapter 5:

  • The effect is noted of the 2022 Act on the time limits for bringing an accused to trial, both those who first appeared on petition before and after 1 October 2022.

    In Chapter 6:

  • The discussion at para 6.5.1 of the importance of identifying the time needed for trial with precision is updated and expanded. There are disadvantages to effective administration in both over and under-estimating the time required. It is noted that rigorous and precise compliance with the duty to identify which witnesses will actually be called at trial, and with the duties under section 257 to agree facts which are not in dispute, ought to ensure that estimates are as accurate as they can be.
  • The discussion at para 6.5.2 about the extent to which the availability of counsel can be taken into account in selecting a date for trial is updated in light of recent experience. In particular, the importance of fixing a trial for young or vulnerable accused persons as soon as feasible is noted.
  • Para 6.6.5 has been updated to remind judges of the need for careful scrutiny of s.75A applications and their implications and to remind parties of the need for absolute accuracy in their averments in such applications.

In Chapter 9:

  • The cases of AW v HM Advocate and Jordan Garry, previously embargoed, are now referenced in the Bench Book, including more detail from AW. In particular, it is noted that observations recorded in the appeal court’s interlocutor in Garry appear to support the suggestion made in para 9.3.2 that that each party who wishes to elicit a particular piece of evidence, or ask questions, which would otherwise be prohibited by section 274 must seek permission via a section 275 application.

The latest version of the Preliminary Hearings Bench Book can be accessed from the Judicial Institute Publications page of the Judiciary of Scotland website.