Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
introduced. Thus, as had been indicated was the Government’s intention 22 , theautomatic right of appeal was abolished.8.1.8 Appeals against preliminary rulings, made during the first instance process butin advance of a trial diet, proceed by way of Note of Appeal, but leave of thecourt of first instance (not the appellate court) must be obtained 23 . The timelimit for appealing is seven days 24 . This period cannot be extended. If leaveto appeal is refused, or no appeal is timeously marked, any personsubsequently convicted can attack a preliminary ruling in the context of anappeal against conviction, if the ruling caused a miscarriage of justice.8.1.9 Once a Note of Appeal is lodged, whether allowed late or timeous, the trialjudge is required 25 to write a report on the case generally and on the specificgrounds of appeal “as soon as is reasonably practicable”. The papers areplaced before a single judge to determine whether to grant leave to appeal 26 .This is commonly known as the “first sift”. There are no specific time limitsfor the completion of any of these processes. The determination is made inchambers without any oral hearing 27 . If leave to appeal is refused, theapplicant may, within fourteen days 28 , require the High Court to reconsider theissue 29 . This is also done in chambers without an oral hearing. If leave toappeal against conviction is granted, the appellant has forty-two days in which22 ibid para 4223 1995 Act s 7424 ibid s 74(2)(b) as amended prospectively by the Criminal Justice and Licensing Act 2010 s 7225 1995 Act s 11326 ibid s 106-10727 Ibid s 107(6)28 ibid s 107(4A)29 although this is not an appeal, it is often called one to the “second sift”336
to lodge his/her written case and argument 30 . Thereafter, the appeal willnormally be rolled for a procedural hearing, at which it ought to be appointedto a full hearing. At the full hearing, the appellant’s written argument istreated as his/her principal submission without being read over.8.1.10 In sentence appeals, the case will be rolled for a full hearing after the grant ofleave. Not later than 21 days before the hearing, the appellant must lodge awritten case and argument 31 , which is taken as the appellant’s submission atthe hearing 32 . In recent times, it has become common in sentence appeals forthe written submission not to be lodged timeously. Sometimes they are lodgedon the eve of the hearing and, occasionally, on the day of the hearing. Thisdisadvantages appellants, in that the court may not have had adequate noticeof the full argument in advance of the oral hearing. The court has no effectivesanction to deal with such failures or with those in the rarer, but notuncommon, situation of a late case and argument in a conviction appeal.8.1.11 Bills of Suspension are not competent in solemn procedure 33 , but the Crowncan use the Bill of Advocation procedure to appeal decisions taken prior to thejury’s verdict 34 . This might be used, for example, where a judge has refusedto adjourn a trial, thus effectively bringing the case to a premature end.30 Act of Adjournal (Criminal Procedure Rules) 1996, rule 15.15A(4)31 ibid 15.16(3)(a)32 ibid rule 15.16(5)(a)-(b)33 1995 Act s 13034 ibid s 131337
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to lodge his/her written case <strong>and</strong> argument 30 . Thereafter, the appeal willnormally be rolled for a procedural hearing, at which it ought to be appointedto a full hearing. At the full hearing, the appellant’s written argument istreated as his/her principal submission without being read over.8.1.10 In sentence appeals, the case will be rolled for a full hearing after the grant ofleave. Not later than 21 days before the hearing, the appellant must lodge awritten case <strong>and</strong> argument 31 , which is taken as the appellant’s submission atthe hearing 32 . In recent times, it has become common in sentence appeals forthe written submission not to be lodged timeously. Sometimes they are lodgedon the eve of the hearing <strong>and</strong>, occasionally, on the day of the hearing. Thisdisadvantages appellants, in that the court may not have had adequate noticeof the full argument in advance of the oral hearing. The court has no effectivesanction to deal with such failures or with those in the rarer, but notuncommon, situation of a late case <strong>and</strong> argument in a conviction appeal.8.1.11 Bills of Suspension are not competent in solemn procedure 33 , but the Crowncan use the Bill of Advocation procedure to appeal decisions taken prior to thejury’s verdict 34 . This might be used, for example, where a judge has refusedto adjourn a trial, thus effectively bringing the case to a premature end.30 Act of Adjournal (Criminal Procedure Rules) 1996, rule 15.15A(4)31 ibid 15.16(3)(a)32 ibid rule 15.16(5)(a)-(b)33 1995 Act s 13034 ibid s 131337
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