mental health (care and treatment) (scotland) act 2003: code of practice- volume 3 compulsory powers in relation to mentally disordered offenders

part 1
part vi of the criminal procedure (scotland) act 1995 as amended by the mental health (care and treatment) (scotland) act 2003

chapter 1 overview

Introduction

This chapter begins with a discussion of the principles and other matters which underpin the Mental Health (Care and Treatment) (Scotland ) Act 2003 ("the 2003 Act") and which are laid out at section 1 to 3 of that Act. It then describes two important terms commonly used throughout the 2003 Act and the provisions which it inserts into Part VI of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"): namely, "mental disorder" and "medical treatment".

The chapter then provides a brief overview of the changes made to the 1995 Act by the 2003 Act.

Finally the chapter describes the different stages of the criminal justice process in relation to summary and solemn procedure.

Principles of the 2003 Act

Taking account of the principles

01 The changes in the legislation aim to provide more flexible procedures for the assessment and treatment of persons pre-trial and pre-sentence; to make the status of persons detained in hospital pre-trial and pre-sentence similar to that of persons detained under civil proceedings; to allow compulsory measures to be authorised in the community as well as in hospital as a disposal in line with the compulsory treatment order in civil cases; and to allow for a thorough assessment of mental disorder, needs and risk in cases where serious offences have been committed.

02 Although persons subject to these procedures have been charged with or convicted of offences the principles detailed in Part 1 of the 2003 Act which apply to patients subject to civil proceedings should also be applied when medical practitioners and mental health officers are making recommendations for orders or directions.

03 Where serious offences have been committed or a person is considered to pose a significant risk to others public protection will of course be a major concern. However, even in such cases the principles detailed in Part 1 of the 2003 Act should not be overridden by public protection concerns. For example, in a case where a serious offence has been committed and the offender appears to pose a high risk of further offending, a mental health disposal should not be recommended unless there would be some prospect of benefit to the offender and reduction in risk as a consequence of treatment.

04 Section 1 of the 2003 Act sets out the principles according to which people performing functions under that Act must discharge those functions. These principles also apply in the case of persons whose route into the mental health system is by way of the criminal justice process.

05 The principles apply to any professional such as a medical practitioner or a mental health officer who is carrying out a function or exercising a duty in relation to a person who is subject to the 2003 Act and the provisions which it inserts into the 1995 Act. Examples of persons discharging a function under the 2003 Act would be a medical practitioner making a recommendation to the court for an assessment order to be imposed with respect to a person, or a mental health officer (" MHO") preparing a report for the court where a compulsion order is under consideration. Other examples would include where a patient's responsible medical officer applies to the Mental Health Tribunal ("The Tribunal") for the renewal or variation of a compulsion order. The Tribunal is also bound by the principles when making decisions about a person who is subject to the provisions of the 2003 Act as are the Scottish Ministers with respect to restricted patients.

06 The following persons are not bound by the principles: the patient; the patient's named person; the patient's primary carer; a person providing independent advocacy services; the patient's legal representative; a curator ad litem appointed by the Tribunal; and any guardian or welfare attorney of the patient. However, these principles may serve to guide such persons in their dealings with the patient, their carer and others.

07 The principles require that any person, other than those who are exempt, in considering a decision or course of action takes into account the following matters:

• the present and past wishes and feelings of the patient, where they are relevant to the exercise of the function and in so far as they can be ascertained by any means of communication appropriate to the patient. Where the decision relates to medical treatment and the patient has an advance statement then this should be given due consideration. (For further information on advance statements see Chapter 6 of Volume 1, of this Code of Practice);
• the views of the patient's named person, carer, and any guardian or welfare attorney so far as it is practical and reasonable to do so. (For further information about the role of the named person see Chapter 6 of Volume 1 of this Code of Practice);
• the importance of the patient participating as fully as possible in any decisions being made and the importance of providing information to help that participation (in the form that is most likely to be understood by the patient). Where the patient needs help to communicate (for instance, translation services or signing) then these should be considered. Any unmet need should be recorded;
• the range of options available in the patient's case;
• the importance of providing the maximum benefit to the patient;
• the need to ensure that the patient is not treated any less favourably than the way in which a person who is not a patient would be treated in a comparable situation, unless that treatment can be shown to be justified by the circumstances;
• the patient's abilities, background and characteristics, including, without prejudice to that generality, the patient's age, sex, sexual orientation, religious persuasion, racial origin, cultural and linguistic background, and membership of any ethnic group.

08 Except where a decision is being made about medical treatment, the principles also require that the needs and circumstances of the patient's carer and the importance of providing such information to any carer as might assist him/her to care for the patient, so far as it is reasonable and practical to do so must also be taken into account. What is practical and reasonable will depend on the circumstances. While in an emergency the time available to consult and provide information may be limited, in other circumstances the person making the decision or taking a course of action should be able to take the time to do so.

09 When a person is considering the information to be shared with the carer, it would be best practice to consider in every case the patient's right to confidentiality about his/her private medical details and treatment options, before information is supplied. It should also be noted that the Community Care and Health (Scotland) Act 2002 amends the Social Work (Scotland) Act 1968 to give carers a right to have their own carer needs assessed by the local authority. It would be best practice to bring this assessment right to the notice of any carer providing a substantial amount of care where he/she appears to have unmet caring needs.

10 Where the person is discharging a function in relation to anyone who is, or who has been, subject to

• an emergency detention certificate under the 2003 Act;
• a short-term detention certificate under the 2003 Act;
• a compulsory treatment order under the 2003 Act; or
• a compulsion order under the 1995 Act,

that person must also have regard to the importance of the provision of appropriate services to the patient, including continuing care where he/she is no longer subject to the certificate or order.

11 The principles further require that, after taking into account the matters set out above and any other relevant circumstances the person discharging the function must then carry it out in the way that appears to that person to involve the minimum restriction on the freedom of the patient that is necessary in the circumstances.

12 For the purposes of these principles, making a decision not to act is still considered as taking a decision and any such consideration is bound by the principles of the 2003 Act.

Welfare of the Child

13 Section 2 of the 2003 Act makes specific provisions to safeguard the welfare of any child in respect of whom a person is discharging a function under that Act which may be exercised in more than one way. For this purpose a child is any person under the age of 18 years.

14 A person discharging such a function must do so in the manner that appears to that person to best secure the welfare of the child. The person must also take into account the matters set out in section 1 of the 2003 Act. For example, the views of the child and any carers should be taken into account in making decisions regarding the child. The importance of acting in the manner which involves the minimum restriction on the freedom of the child that is necessary in the circumstances must be considered.

Equal opportunities

15 Section 3 of the 2003 Act provides a duty which applies to specified persons who are exercising functions under that Act to ensure that the function is discharged in a manner which encourages equal opportunities and the observance of the equal opportunities requirements.

16 The 2003 Act refers to the meaning given to "equal opportunities" and "equal opportunities requirements" set out in the Scotland Act 1998. In terms of that Act, "equal opportunities" means the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds, or on grounds of disability, age, sexual orientation, language or social origin, or of other personal attributes, including beliefs or opinions, such as religious beliefs or political opinions. "Equal opportunity requirements" means the requirements of the law for the time being relating to equal opportunities.

17 The parties who are bound by the requirements of section 3 of the 2003 Act are the Scottish Ministers, the Mental Welfare Commission, local authorities, Health Boards, Special Health Boards, hospital managers, mental health officers, patients' responsible medical officers, medical practitioners and nurses.

Children and young people

Principles applying in the case of patients under 18: welfare of the child

18 Section 2 of the 2003 Act makes specific provisions to safeguard the welfare of any child. For this purpose, a child is any person under the age of 18 years.

19 Section 2 requires that any functions under the 2003 Act or the 1995 Act in relation to a child with mental disorder should be discharged in the way that best secures the welfare of the child. In particular it is necessary to take into account:

• the wishes and feelings of the child and the views of any carers;
• the carer's needs and circumstances which are relevant to the discharge of any function;
• the importance of providing any carer with information as might assist them to care for the child;
• where the child is or has been subject to compulsory powers, the importance of providing appropriate services to that child;
• the importance of the function being discharged in the manner that appears to involve the minimum restriction on the freedom of the child as is necessary in the circumstances.

Can a child be made subject to the provisions in the 1995 Act and the 2003 Act which relate to mentally disorder offenders?

20 Yes, subject to the provisions contained in sections 41, 42(1) and 49(6) of the 1995 Act a child under the age of 18 years can be made subject to an assessment order, a treatment order, an interim compulsion order, a compulsion order (with or without a restriction order), a hospital direction or a transfer for treatment direction in the same way as an adult can, and the procedures for imposing such an order or direction are the same irrespective of whether the patient is a child or an adult. Where it becomes apparent to a medical practitioner that it may be appropriate to recommend, for example, a treatment order to the court with respect to a child, special consideration should be given to the effects of detention on the child and to ensuring that all other options have been fully explored. While these points are, of course, also relevant to the detention of adults, they should be given particular consideration where a child is being detained.

21 Best practice would be for the RMO responsible for the child's care to be a child specialist.

Consent to treatment under the provisions of the 2003 Act - under 18 years of age

22 The principle that consent should be obtained whenever possible, applies to children suffering from mental disorder who are detained under the provisions of the 2003 Act or the 1995 Act. The treatment provisions and safeguards of Part 16 of the 2003 Act, including those relating to urgent treatment in emergencies, apply to child patients.

23 The medical practitioner attending the child must consider whether the child is capable of understanding the nature and possible consequences of the procedure or treatment. If the child is considered capable, the practitioner must seek the consent of the child rather than of the parent. Section 2(4) of the Age of Legal Capacity (Scotland) Act 1991 states:

a person under the age of 16 years shall have legal capacity to consent on his own behalf to any surgical medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment.

24 Where a child is capable of giving consent on their own behalf, best practice suggests that parents are still involved in discussions where possible. Unless there are confidentiality issues, it would be reasonable to involve parents, advocacy workers or other appropriate persons to assist the child to reach a decision.

25 There is a general presumption that a child aged 12 years or over will have the necessary maturity to understand and give consent.

A child's named person - under 16 years of age

26 Where the patient is a child under 16 years of age, the 2003 Act makes provision at section 252 for a person who has parental rights and responsibilities for the child to be the child's named person. This section was amended by The Mental Health (Care and Treatment)(Scotland) Act 2003 (Modification of Enactments) Order 2005 to refer to a "relevant person".

27 A "relevant person" must have parental responsibilities and parental rights as defined by sections 1(3) and 2(4) of the Children (Scotland) Act 1995 (c.36). and must be:

• a local authority: or
• a person who has attained the age of 16 years of age.

28 Where two or more "relevant persons" have such rights and responsibilities, then they must decide between them who is to be the named person. If they reach agreement, then the named person will be the person who is the child's primary carer.

29 However, if a local authority has parental rights and responsibilities in relation to the child by virtue of an order under section 86(1) of the Children (Scotland) Act 1995, then the local authority shall automatically be the child's named person.

30 Where a child is in the care of a local authority by virtue of a care order made under section 31 of the Children Act 1989, then local authority shall be the child's named person.

Parental relations

31 Persons discharging functions under the 2003 Act must be aware of the duties placed on them by section 278 of that Act. This section applies where a child or a person with parental responsibilities is subject to any provisions of the 2003 Act or the 1995 Act. Persons discharging functions under these Acts must take all practicable and appropriate steps to mitigate any effects of the measures authorised by the Acts which might impair the personal relations or diminish direct contact between a child and a person with parental responsibilities. The patient's designated MHO will play an important role in this process, particularly in relation to liaising closely with colleagues in the social work children and families teams.

Provision of services and accommodation for certain patients under 18

32 Wherever possible, where a child is to be admitted to hospital for medical treatment, it would be best practice to admit that child to a unit specialising in child and adolescent psychiatry.

33 Practitioners are reminded of the requirement which section 23(1)(b) of the 2003 Act places on Health Boards to provide "such services and accommodation as are sufficient for the particular needs of that child" who is either detained or voluntarily admitted to hospital for the purposes of receiving treatment for a mental disorder. The provision of services and accommodation must be sufficient for the particular needs of that child patient.

34 A child should only be admitted to an adult ward in exceptional circumstances, for example where no bed in a child or adolescent ward is immediately or directly available. If the detained child cannot be admitted to a unit specialising in child and adolescent psychiatry, special consideration should always be given to the environment to which they are to be admitted, and what impact that may have on the child concerned. Any risks to them should be identified in advance and a plan put in place to minimise such risks. For example, the allocation of a single room, with en-suite facilities may be prioritised, or special arrangements put in place to monitor the child's general well-being within the ward environment. Particular consideration should be given to the likely impact on the child of the behaviour of other patients on the ward and also the need to protect them from exposure to distressing experiences. Other ward policies, such as visiting may also need modified to apply to children. Every effort should be made to provide for the child's needs as fully as possible. Nursing staff with experience of working with children should also be available to provide direct input to care, and support and guidance to ward staff.

35 In the event of a child patient being admitted to an adult ward, it would be best practice for the hospital managers to notify the Mental Welfare Commission to enable the Commission to monitor the general provision of age-appropriate services under the Act.

Education

36 Education authorities have a duty to make arrangements for the education of pupils unable to attend school because they are subject to measures authorised by the 2003 Act or, in consequence of their mental disorder, by the 1995 Act. (Section 277 of the 2003 Act amends the Education (Scotland) Act 1980 to that effect).

Definition of "mental disorder"

37 The 2003 Act and the provisions which it inserts into the 1995 Act refer to a person who has or appears to have a mental disorder. Section 328 of the 2003 Act provides that "mental disorder" means any mental illness, personality disorder, or learning disability however caused or manifested.

38 The definition of mental disorder has been drawn widely to ensure that the services provided for in the 2003 Act are available to anyone who needs them. A person with mental disorder will only be subject to compulsory measures under the 1995 Act and the 2003 Act if he/she meets the specific criteria for those measures as set out in those Acts. However sections 25 to 27 of the 2003 Act also provide for a range of local authority duties in relation to the provision of services for any person who has or has had a mental disorder.

39 Section 328(2) of the 2003 Act specifically states that a person is not mentally disordered by reason only of any of the following:

• sexual orientation;
• sexual deviancy;
• trans-sexualism;
• transvestism;
• dependence on or use of alcohol or drugs;
• behaviour that causes or is likely to cause harassment, alarm or distress to any other person;
• or by acting as no prudent person would act.

40 No person who suffers from mental disorder but who also falls within any of the above categories should be excluded from consideration for assistance treatment or services under the 2003 Act. For example, the provisions which the 2003 Act inserts into the 1995 Act may be imposed by the court in respect of persons with mental disorder involved in criminal justice proceedings who also have alcohol problems or misuse drugs. Section 328(2) of the 2003 Act ensures that a person is not regarded as mentally disordered by reason only of their sexual orientation, deviancy, trans-sexualism, transvestism or dependence on drugs and alcohol or by their behaviour.

Definition of "medical treatment"

41 Section 329 of the 2003 Act defines "medical treatment" as "treatment for mental disorder" and for this purpose "treatment" includes-

(a) nursing;
(b) care;
(c) psychological intervention;
(d) habilitation (including education, and training in work, social and independent living skills); and
(e) rehabilitation (read in accordance with (d) above).

42 "Medical treatment" includes pharmacological interventions as well as other physical interventions (such as electro-convulsive therapy (" ECT")) in addition to psychological and social interventions (including occupational therapy) made with respect to mental disorder. Any references to "medical treatment" in the 2003 Act, the provisions which it inserts into the 1995 Act and this Code of Practice should be read in light of the definition given at section 329 as outlined in the paragraph above.

43 Medical treatment for an unrelated physical disorder is not authorised by the 2003 Act. However, medical treatment for a physical disorder which is directly causing the mental disorder would be authorised. For example, where a patient has delirium (as a mental disorder secondary to a chest infection), then the administration of antibiotics would be a medical treatment (indirectly) for the mental disorder and so authorised by the 2003 Act. Other medically induced mental disorders could include starvation-induced depression, or hypothyroidism-induced depression. Self-harm (including overdose) as a result of a mental disorder may also be treated under the 2003 Act.

44 Where medical treatment for an unrelated medical disorder is required, and the patient is an adult and incapable of giving consent, then treatment under the Adults with Incapacity (Scotland) Act 2000 should be considered.

45For further information on "medical treatment" refer to Part 16 of the 2003 Act and Chapter 10 of Volume 1, of this Code of Practice.

Overview of the amendments made to the 1995 Act by the 2003 Act

46 The diagrams on pages 27 and 28 show an overview of procedures for mentally disordered offenders as set out under the 1995 Act as amended by the 2003 Act.

Pre-trial

47 Previously at the pre-trial stage, a person could be remanded to hospital for assessment under section 52 of the 1995 Act or transferred from prison to hospital under section 70 of the 1984 Act. Following the amendments made to the 1995 Act by the 2003 Act the court can impose an assessment order (sections 52B to J) or a treatment order (sections 52K to S) whether the person is appearing in court as part of the criminal justice process or at a hearing specifically requested by the prosecutor or the Scottish Ministers (for persons already remanded in custody). The assessment order may be followed by a treatment order, or a treatment order may be imposed without an initial assessment order having been made. An assessment order can only last up to 28 days (extendable by a further 7 days), whereas a treatment order may last for the whole pre-trial period (section 52R).

48For further information about an assessment order or a treatment order imposed at the pre-trial stage refer to Part 1, Chapter 2 of this Volume of the Code of Practice.

Insanity

49 A person may be found insane in bar of trial (sometimes referred to as unfit to plead) before or during a trial (section 54). A temporary compulsion order may then be imposed until there is an examination of facts (section 55) to determine whether he/she committed the offence(s) libelled. If this is not established to the usual criminal standard of proof beyond reasonable doubt, the person is acquitted. In an examination of facts the court will also consider, on a balance of probabilities whether there are any grounds for acquittal. Where a person is found to have committed the offence(s) but on a balance of probabilities it appears to the court that the accused was insane at the time, the accused will be acquitted on that ground.

50 At trial a person may also be acquitted on the grounds of insanity at the time of the offence. The legal criteria for insanity in bar of trial and acquittal on the grounds of insanity are not statutory, and are set out in common law.

51 The disposals available in cases where a person is found insane in bar of trial and the examination of facts finds that he/she committed the offence, or where there is an acquittal on the grounds of insanity at the time of the offence (as listed in subsection 57(2)) are: a compulsion order, a compulsion order and a restriction order, an interim compulsion order, a guardianship order, a supervision and treatment order or no order.

52For further information about the insanity procedures refer to Part 1, Chapter 3 of this Volume of the Code of Practice.

Conviction

53 Most mentally disordered offenders are not found to be insane in bar of trial, or at the time of the offence. Where a mentally disordered offender is convicted at trial, a number of procedures are available to the court to allow for further assessment and for final mental health disposals to be made, as set out in paragraphs 56 to 64 below.

Acquittal

54 If a person is acquitted (other than on account of insanity) but recommendations had been made in the case for a mental health disposal, then at this time the person may be kept in a place of safety for a period of 6 hours (section 60C) to allow for further medical examination to determine if emergency detention (section 36 of the 2003 Act) or short-term detention (section 44 of the 2003 Act) should be applied.

55For further information about this process refer to Part 1, Chapter 6 of this Volume of the Code of Practice.

Post-conviction/Pre-sentence assessment

56 Assessment orders (under sections 52B to J) and treatment orders (under sections 52K to S (see paragraphs 28 to 29 above) are available pre-sentence, as well as pre-trial, to allow further assessment prior to the court making an ultimate disposal.

57 In cases where the offence is serious and/or the person may pose a significant risk such that consideration is being given to a compulsion order with a restriction order or a hospital direction, then an interim compulsion order (section 53) may be imposed (for an initial period of 12 weeks but is then capable of being extended up to a total period not exceeding 12 months) to allow for a period of detention in hospital for the purpose of assessing whether the patient meets the criteria set down in section 53(5). Medical treatment may be given in accordance with Part 16 of the 2003 Act (which includes medication, psychological and social interventions).

58 In cases where mental disorder has not so far been raised, or sufficiently addressed, as an issue following conviction, a remand for inquiry into the mental condition of the person continues to be available after conviction under section 200. However given that assessment orders and treatment orders are available post conviction, it would be expected that section 200 would only be used to remand a person on bail for reports on an outpatient basis.

59For further information about post-conviction/pre-sentence assessment refer to Part 1, Chapter 4 of this Volume of the Code of Practice.

Sentencing

60 A compulsion order (section 57A) replaces the hospital order (previously section 58). Like the compulsory treatment order in civil cases, compulsion can be in hospital or in the community.

61 A restriction order (section 59) remains available, and may be imposed where a compulsion order authorising the detention of a person in hospital is made, in cases where it is necessary for the protection of the public from serious harm. This allows for the person to be subject to additional scrutiny and strict supervision as they progress through the mental health system.

62 A hospital direction (section 59A) allows for a prison sentence to be combined with initial detention in hospital. It may be imposed, like restriction orders, in serious cases where there is not a close relationship between the mental disorder and the offence or where treatment of the mental disorder may not address the risk of further offending.

63 A guardianship order (section 58(1A)) may be imposed and confer powers set out in the Adults with Incapacity (Scotland) Act 2000, to appoint a welfare guardian.

64 Probation with a condition of treatment under section 230 remains available in cases where: a person's mental disorder is not such as to warrant a compulsion order or a compulsory treatment order; the local authority supervising officer is willing to supervise the person; and the person is agreeable to submit to the conditions of the order.

65For further information on these disposals refer to Part 1, Chapter 5 of this Volume of the Code of Practice.

66 If a person with a mental disorder receives a prison sentence, or if a person who receives a prison sentence develops a mental disorder, section 136 of the 2003 Act allows for the transfer of sentenced prisoners to hospital for treatment. For further information about these provisions refer to Part 2, Chapter 5 of this Volume of the Code of Practice.

Stages of the criminal justice process

Overview

67 The pre-conviction stage covers the period from a person's arrest until they are convicted (either following a guilty plea or trial), acquitted or proceedings are abandoned. The stages of the criminal justice process will depend on whether the offence is being dealt with under summary or solemn procedure and the prosecutor decides the forum in which the case should be prosecuted. (In some cases the prosecutor may not instruct a prosecution, but as an alternative, he/she may divert the case to a local Mental Health diversion scheme, if available.) The flowcharts on pages 32 and 33 set out the stages of the solemn and summary procedures. Not all cases will pass through all the stages.

68 Where a person has been charged in a district court with an offence punishable by imprisonment and it appears to the court that the person has a mental disorder, the district court must remit the person to the sheriff court in accordance with section 7(9) and (10) of the 1995 Act.

Summary procedure

69 Summary procedure applies in the sheriff and district courts in which less serious offences are prosecuted. The prosecutor arranges for service of a complaint setting out the relevant charge(s) on the accused person. At the first calling of the case, the person may appear from police custody, or following release on a police undertaking, or may simply be cited (by postal or personal citation) to appear.

70 At the first calling of the case the person may enter a plea of guilty or not guilty. If he/she pleads not guilty dates are fixed for intermediate and trial diets. The court will require to consider the status of the accused person pending trial. The court may simply ordain him/her to appear at future diets or alternatively remand him/her on bail or in custody. Where he/she is remanded in custody the trial must commence within 40 days from the date of the remand.

71 At the intermediate diet the prosecution and the defence are required to advise the court of their state of preparation and the case will then proceed on the trial date. In some circumstances it may be necessary to adjourn the trial at this stage, and fix new intermediate and trial dates.

72 At any stage in the proceedings the accused person may choose to change a plea of not guilty to one of guilty. However where the case proceeds to trial, at the conclusion of evidence the judge (the sheriff in the sheriff court, or a lay justice or stipendiary magistrate in the district court) is required to reach a verdict of guilty, not guilty or not proven. Whether following a plea of guilty or a conviction after trial, the court may immediately proceed to sentence the person or alternatively adjourn the case for pre-sentence reports.

Solemn procedure

73 Solemn procedure applies in the prosecution of more serious cases. The accused person will first appear in the sheriff court and at this stage the prosecutor will arrange for service of a petition containing the charge(s) against him/her. At the first calling of the case the accused person may make a declaration (which may include admitting to or denying the charge) but may not enter a plea. In some cases the prosecutor may decide to question him/her before the sheriff. This is known as a judicial examination and must be restricted to clarifying any statement made by the person and to establishing whether a special defence is likely to be advanced at trial. The prosecutor will usually ask for the person to be committed for further examination. The court will then remand him/her either in custody or on bail.

74 Where the accused person is remanded in custody, he/she must appear again in the sheriff court within eight days. At this stage the prosecutor will ask for him/her to be fully committed for trial and the court will again either remand him/her in custody or on bail. Where the accused person is remanded in custody the trial must commence in the sheriff court within 110 days from the date of full committal and in the High Court within 140 days from the date of full committal.

75 Prior to the trial, the prosecutor further investigates the case, which may involve interviewing witnesses, and assesses the available evidence and whether it is appropriate to proceed with a prosecution. These findings and recommendations are considered by Crown Counsel who decide whether to continue the proceedings further or not.

76 When solemn proceedings are taken in the sheriff court or High Court, an indictment is served on the accused person, which is the document containing details of the charge(s) and is presented in the name of the Lord Advocate.

77 Preliminary diets are held in all solemn cases prior to the date of the trial. These provide the court an opportunity to assess the state of preparation of the prosecution and defence for the trial and also allows an accused person to raise any legal challenge to the proceedings if he/she so wishes. In solemn proceedings in the sheriff court, this diet is called a "First Diet" and in the High Court it is called a "Preliminary Hearing".

78 The accused person can intimate by letter his intention to plead guilty at an early stage and he can tender his/her plea of guilty at an accelerated diet, making the trial unnecessary. Where the case proceeds to trial, at the conclusion of the evidence, the jury are required to reach a verdict of not guilty, guilty or not proven. Subsequent to a plea of guilty or a conviction, as in summary proceedings, the court may immediately proceed to sentence the person, or alternatively adjourn the case for pre-sentence reports.