NCJ Number
54875
Date Published
1978
Length
11 pages
Annotation
THE COUNCIL OF EUROPE'S STUDY OF EDINBURGH, SCOTLAND'S PRETRIAL PROCEDURE IS PRESENTED.
Abstract
PRETRIAL PROCEDURE TAKES PLACE WHEN A CRIME HAS BEEN COMMITTED AND WHEN A PERSON HAS BEEN ARRESTED AND CHARGED WITH THE COMMISSION OF THE CRIME. IN THE CASE OF SERIOUS CRIMES, THE PROCEDURE IS ALMOST EXCLUSIVELY IN THE CHARGE OF THE PROCURATOR FISCAL. THE PROCURATOR FISCAL IS A POSITION DATING BACK TO ANCIENT TIMES. THE POSITION'S DUTIES HAVE CHANGED OVER THE YEARS, BUT NOW THE PROCURATOR FISCAL ASSUMES THE INVESTIGATORY PROSECUTING FUNCTION OF THE SHERIFF. THE PROCURATOR FISCAL IS RESPONSIBLE FOR ALL CRIMES BROUGHT TO HIS ATTENTION AND HAS THE ULTIMATE AUTHORITY TO DECIDE WHETHER TO PROSECUTE. IF THE PROCURATOR FISCAL DECIDES TO PROSECUTE, HE MUST THEN DECIDE WHAT FORM THE PROSECUTION IS TO TAKE. IN DECIDING WHICH COURT TO USE, HE CONSIDERS THE GRAVITY OF THE CRIME, ITS SIGNIFICANCE FOR THE VICTIM, AND THE PREVIOUS RECORD OF THE ACCUSED. LEGAL AID FOR THOSE PROSECUTED IS FREE. THE PROCEEDINGS ARE BY WAY OF PETITION. IT IS THE DUTY OF THE SHERIFF TO SEE THAT THE PETITION IS IN PROPER ORDER, THAT HE HAS JURISDICTION, AND THAT THE CRIME SPECIFIED IS A CRIME ACCORDING TO THE LAW OF SCOTLAND. WHEN AN ACCUSED PERSON HAS MADE A DECLARATION OR HAS INDICATED TO THE SHERIFF THAT HE DOES NOT WISH TO MAKE A DECLARATION, THE PROCURATOR FISCAL ASKS THE SHERIFF TO COMMIT THE ACCUSED. THE MOTION MAY BE TO COMMIT HIM FOR FURTHER EXAMINATION, OR IT MAY BE TO COMMIT HIM FOR TRIAL. PERSONS AWAITING TRIAL MAY BE KEPT IN PRISON FOR ONLY A LIMITED PERIOD OF TIME. THE COURT WILL GRANT BAIL UNLESS THERE IS GOOD REASON FOR REFUSING IT IN THE PUBLIC INTEREST. THERE IS NO RULE OF HABEAS CORPUS IN SCOTLAND. THERE IS, HOWEVER, THE 110 DAYS RULE WHICH STATES THAT IF THE TRIAL IS NOT CONCLUDED WITHIN 110 DAYS THE ACCUSED MUST BE RELEASED AND DECLARED FREE. ADDITIONAL DUTIES OF THE PROCURATOR FISCAL ARE TO OBTAIN STATEMENTS FROM WITNESSES AND TO SECURE NECESSARY EVIDENCE. (MLC)