Overview of the Act Part 3 – Solemn Procedure Section 78 – Proceedings on petition
183.Section 78 changes the procedure to be followed at what are usually the first court appearances of a person being prosecuted under solemn procedure, when the person appears on petition.
184.The purpose of these provisions is to abolish the procedure (commonly known as judicial examination) whereby the prosecutor can, at the commencement of a case being prosecuted under solemn procedure, question the accused in the presence of the sheriff. In addition, section 78 removes the rarely-used option for the accused to make a declaration – broadly, a statement of his or her position in respect of the charge or charges on the petition – at that stage in proceedings.
185.Subsection (1) inserts a provision into the 1995 Act which removes the accused’s common-law right to be given the opportunity to make a declaration at the commencement of a case being prosecuted under solemn procedure.
186.Subsection (2) both removes from statute various provisions which relate to declarations, and abolishes the procedure known as judicial examination.
187.Subsection (2)(a) removes, from the 1995 Act, provisions which govern the making of declarations, and the right of the prosecutor to question the accused on extra-judicial confessions.
188.Subsection (2)(b) removes from the 1995 Act three sections which enable and regulate procedure at judicial examinations. By so doing, it abolishes the procedure.
189.Subsections (2)(c), (2)(d), and (2)(e) remove from the 1995 Act various provisions in respect of any records made of a judicial examination. These changes are consequential to the abolition of the judicial examination procedure by subsection (2)(b).