Commentary on Sections Part 2 - Solemn Proceedings Generally Section 14 - Objections to admissibility of evidence raised without due notice
127.Subsection (1) amends section 71 of the 1995 Act in relation to proceedings at the first diet in the sheriff court. It provides that the court shall ascertain if there is any objection to the admissibility of any evidence which any party wishes to raise despite not having given due notice. If this is so then the court shall decide whether to grant leave to allow the objection to be raised and if leave is granted dispose of the objection unless it considers it inappropriate to do so at that diet. Where the court decides not to dispose of the objection at the first diet, it may appoint a further diet to be held before the trial diet for the purpose of disposing of the objection or appoint the objection to be disposed of at the trial diet.
128.Subsection (2) introduces a new section 79A into the 1995 Act which concerns objections to the admissibility of evidence raised after the first diet, or the preliminary hearing.
129.New section 79A(2) provides that the court shall not, under section 79(1), grant leave for an objection to be raised unless the party seeking to raise it has given notice in writing to the other parties.
130.Subsection (3) provides that the court may dispense with the requirement for written notice to be given where the party seeks to raise the objection after the commencement of the trial However, subsection (4) goes on to provide that the court shall not grant leave for the objection to be raised after the commencement of the trial unless it considers it could not reasonably have been raised before that time.
131.Subsection (5) provides that where a party wishes to raise an objection before the commencement of the trial and the court under section 79(1) grants leave for it to be raised the court may if it considers it appropriate to do so appoint a diet before the trial diet for the purpose of disposing of the objection or dispose of the objection at the trial diet. Subsection (7) directs that the accused shall appear at any diet appointed under this subsection.
132.Subsection (6) provides that the court may postpone the trial diet for such period as appears appropriate and may if it thinks fit direct that such period or some part of it shall not count towards any time limit applying in the case.
133.Subsection (8) provides that for the purpose of this section the trial shall commence when the jury is sworn.