240.Sections 80 and 81 deal with the transfer of cases to or from the Sexual Offences Court. Section 80 inserts a new section 288BZA into the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”). This section is for proceedings which have been raised in the High Court of Justiciary or the sheriff court. Subsection (4) allows either the prosecutor, or the prosecutor jointly with the accused person, to make an application for the case to be transferred to the Sexual Offences Court. Section 38 will apply here to ensure that only cases where the Sexual Offences Court has jurisdiction can be transferred under this section.
241.If an application is made under subsection (4), then the High Court or the sheriff court in which the proceedings were raised may make an order transferring proceedings to the Sexual Offences Court. Subsection (5) provides that if there is an accused person in the proceedings who was not party to the application to transfer, then the court must allow that person the opportunity to make representations about whether or not the case should be transferred.
242.Section 288BZA(6) sets out the timescales for an application for transfer to the Sexual Offences Court. The application can be made at any time after the accused person has been served with an indictment to the court, up until the day the court first sets a date for the trial diet. This time limit does not change if that trial diet is later changed to a different date. However, under subsection (6)(b), applications to transfer can continue to be made up until the day before the trial diet actually commences, if the person making the application can demonstrate a reason for making the application late.
243.Subsection (9) of section 288BZA provides that section 74 of the 1995 Act applies to decisions to either make, or not make, an order transferring proceedings to the Sexual Offences Court, regardless of when that decision was made. The application of section 74 means that a decision to make, or not make, a transfer order can be subject to an appeal to the High Court of Justiciary by a party to the case who is not satisfied with the decision.
244.Subsection (10) of section 288BZA provides for a first diet or preliminary hearing in the court in which the proceedings were raised to be treated as the preliminary hearing of the Sexual Offences Court, for the purpose of section 65 of the 1995 Act. This means that the time limits which apply in cases by virtue of that section will continue to apply to proceedings which are transferred, and the case is treated as continuing rather than starting again in the Sexual Offences Court.
245.Section 81 deals with the transfer of cases out of the Sexual Offences Court, to either the High Court of Justiciary or a sheriff court. The procedure for the transfer of proceedings from the Sexual Offences Court is essentially the same as the procedure for transfer to the Sexual Offences Court.
Crown Application Part 7 – Sexual Offences Court Transfer of cases Sections 80 and 81 – transfer of cases to the Sexual Offences Court, and from the Sexual Offences Court