Criminal practice note alert

The Society is meeting with local faculties and practitioner group representatives to discuss the obligations imposed by the Criminal Courts Practice Note No 3 of 2015, which came into effect on 1 December. It anticipates the requirement in the Criminal Justice (Scotland) Bill for prosecution and defence to communicate and to work together to lodge a joint written record of preparation in advance of the first diet in a sheriff and jury case. The rationale is to encourage early resolution.

The practice note states: “It will be regarded as unacceptable if the first time that there is meaningful communication between the Crown and the defence is at the first diet. The court will expect to be advised at that diet of when, how and by what means communication has taken place since (i) any appearance on petition; and (ii) service of the indictment.”

It further provides: “The court will, as a matter of good practice, expect both the Crown and the defence to be in a position to address the court fully on the matters set out in the joint written record of state of preparation appended hereto. In particular, the court will expect full details from both the Crown and defence of the steps taken to comply with the duty, under s 257 of the Criminal Procedure (Scotland) Act 1995..., to agree facts which are unlikely to be disputed. In the event that such agreement has been reached, a joint minute must be lodged as soon as possible.”

The Lord Justice Clerk takes the view that the practice note simply sets out work that practitioners should already be doing and therefore does not create a requirement for additional funding. However, the Society’s criminal legal aid team considers that there is no doubt that the defence will be required to carry out additional work earlier on in the process. The Government has stated that changes brought about by the bill may result in amendments to legal aid and that it will engage at the appropriate time to assess whether that is required. The Society believes that additional funding is required now, given the terms of the practice note.