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APPENDIX.

moving the Court, in case the charge against him shall be found to be proved, in whole or in part, to deal with him under the provisions of section 9 of the said Act.

(Signature of Accused or of his Agent.)

Names and Designations of Witnesses whom the said A. B. proposes to call for the purpose above mentioned. J. A. CLYDE.

ACT OF ADJOURNAL RELATIVE TO THE SEX DISQUALIFICATION (REMOVAL) ACT 1919 (9 & 10 GEO. V. CAP. 71) AND THE JURORS (ENROLMENT OF WOMEN) (SCOTLAND) ACT 1920 (10 & 11 GEO. V. CAP. 53).

At Edinburgh, the second day of February one thousand nine hundred and twenty-one. Present

The Right Hon. The Lord Justice-
General.

The Right Hon. The Lord Justice-
Clerk.

The Hon. Lord Dundas.

The Hon. Lord Salvesen.

The Hon. Lord Mackenzie.

The Hon. Lord Skerrington.

The Hon. Lord Cullen.
The Hon. Lord Ormidale.
The Hon. Lord Hunter.
The Hon. Lord Anderson.
The Hon. Lord Sands.

THE Lord Justice-General, Lord Justice-Clerk, and Lords Commissioners of Justiciary, considering that by section 1 of the Sex Disqualification (Removal) Act (9 & 10 Geo. V. cap. 71) it is, inter alia, provided that "a person shall not be disqualified by sex or marriage from the exercise of any public function . . . . and a person shall not be exempted by sex or marriage from liability to serve as a juror provided that. . . . (b) any judge, chairman of quarter-sessions, recorder or other person before whom a case is or may be heard may, in his discretion, on an application made by or on behalf of the parties (including in criminal cases the prosecution and the accused) or any of them, or at his own instance, make an Order that the jury shall be composed of men only or of women only as the case may require, or may, on an application made by a woman to be exempted from service on a jury in respect of any case by reason of the nature of the evidence to be given or of the issues to be tried, grant such exemption"; and that by the same section it is further, inter alia, provided that "Rules of Court may be made:

"(a) Prescribing the manner in which jurors are to be summoned and to be selected from the panel; and

"(b) Exempting from attendance as jurors any women who are for medical reasons unfit to attend; and

"(c) As to the procedure to be adopted on any application under this section relating to service on juries":

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and that by section 4 (2) of the said Act it is provided that any other enactment, Order in Council, Royal Charter, or provision, so far as inconsistent with the provisions of this Act, shall cease to have effect, and any enactment relating to juries shall have effect so as to accord with the provisions of this Act": and further considering that by virtue of section 14 of the Interpretation Act 1889 (52 & 53 Vict. cap. 63) the expression "Rules of Court" as regards Scotland includes, inter alia, Acts of Adjournal:

And further considering that by the Jurors (Enrolment of Women) (Scotland) Act 1920 (10 & 11 Geo. V. cap. 53) it is, inter alia, provided by section 1 (i) that "the enactments relating to the qualification of jurors and the manner of making up any roll or list of persons who are qualified and liable to serve as jurors in Scotland shall apply to women in like manner as they apply to men," and that provision is made accordingly in the manner set forth in the said Act for the preparation of Jury Lists; and that it is further provided by section 2 of the said

APPENDIX.

Act that "without prejudice to the powers conferred by section one of the Sex Disqualification (Removal) Act 1919, the High Court of Justiciary by Act of Adjournal, . . . . may make any regulations necessary to carry this Act into effect as regards criminal. . . . jury trials, and may by such regulations adapt the provisions of any enactment so as to make them conform with this Act":

And finally considering that by an Act of Adjournal dated sixth December one thousand nine hundred and twenty, the said Lords made and enacted certain Regulations for the purpose of adapting such enactments accordingly and for regulating the preparation of Jury Rolls in manner therein set forth; and that for the carrying into effect of the said recited Acts it is necessary and expedient to make provision further regarding the matters specified in section one of the said Sex Disqualification (Removal) Act 1919, hereinbefore first recited (hereinafter referred to as "The Act"):

Do therefore, by virtue of the powers conferred upon them by the said recited Acts, and of all other powers to that effect vested in them, hereby enact, provide and declare as follows:

A. SUMMONING OF JURORS. LISTS OF ASSIZE.

I. Where according to the existing law and practice a List of Assize falls to be returned upon requisition of the Clerk of Justiciary for a criminal trial or trials in which the second diet is to be held before the High Court of Justiciary, or falls to be prepared by the Clerk of the District where the second diet is to be held in cases in which the second diet is to be in a Sheriff Court, the following provisions shall apply, viz. :—

(i) Where according to the existing law and practice the number of jurors in any list to be requisitioned by the Clerk of Justiciary would not exceed 65 in the case of a list for a sitting of the High Court in Edinburgh, or 45 in the case of a list for a sitting of the High Court on Circuit, the Clerk shall in future make requisition for a return of such a number of jurors not exceeding double the number requisitioned by him according to the present law and practice, and not fewer than 90 in the case of a trial at Edinburgh falling under the provisions of the Act of Adjournal of 22nd June 1831, nor fewer than 60 where 45 would presently be requisitioned, and in the like proportion in other cases-as he may deem requisite and the Sheriffs responsible for making the return shall return such increased number accordingly, returning as nearly as possible the names of men qualified according to the law in force prior to the passing of the said Acts to the number of one-half of the total number requisitioned and the names of women now correspondingly qualified to the

extent of the remainder of such total number.

(ii) Where according to the present law and practice a number of jurors in excess of the numbers specified in the preceding subsection is in use to be requisitioned, the Act of Adjournal or the Lord Commissioner of Justiciary making the direction for the return shall specify the number of jurors to be returned and of the number so specified, men and women respectively shall be returned as nearly as may be equally.

(iii) of the total numbers of men and women respectively included in any such return, the proportion of those of each sex qualified to be special jurors shall be the same as that of men so qualified according to the law and practice heretofore in use.

(iv) The provisions of any existing Acts of Parliament or Acts of Adjournal regulating the proportions in which jurors are to be drawn from the various districts included in any area for which a return is made by a Sheriff, shall extend to and be observed in the return of women as well as of men.

(v) In making his return the Sheriff shall group the men and women respectively returned by him separately, by placing their names in different columns,

APPENDIX.

or in some other convenient manner; and in each case he shall distinguish between special and common jurors in the manner at present in use. (vi) The Clerk charged with the preparation of any List of Assize for a trial or trials of which the second diet is appointed to be held in a Sheriff Court, shall, in preparing the same, include such equal number of women as of men therein as shall seem to him to be reasonably sufficient to ensure the attendance of a number of jurors of each sex so as to provide a jury of that sex only, if such should be required for the trial of such

case or cases.

(vii) A husband and wife shall not be returned in any case on the same List of Assize.

B.-JURY OF MEN ONLY, OR OF WOMEN ONLY.

II. Any application by a prosecutor or by a person accused in terms of subsection (a) of the proviso to section 1 of the Act for a jury of men only, or of women only, must be made at the first (pleading) diet immediately after the recording of a plea or pleas of "not guilty" (or where no plea is taken because of preliminary objections held by the Sheriff not to be frivolous, then immediately after such objections have been certified by the Sheriff under section 29 of the Criminal Procedure (Scotland) Act 1887, or otherwise disposed of by him). An entry recording the making of the application shall be entered on the record copy of the indictment, and signed by the presiding Sheriff.

III. If the second diet is appointed to be held in the Sheriff Court, and the judge presiding at the first diet is a Sheriff having jurisdiction to try the case, he may, if so advised, forthwith deal with the application in the manner in which as hereinafter provided it may be dealt with by a judge of the Court of the second diet, or he may at his own instance make an order as to the composition of the jury in respect of sex conform to the said subsection, and in that case his decision shall be recorded as aforesaid and shall be final; or he may reserve consideration of the question to be dealt with as aftermentioned.

IV. In all cases in which such an application shall be made as herein before provided for, but not dealt with by the judge presiding at the first diet in terms of the immediately preceding section-after transmission of the record copy of the indictment in terms of sections 28 or 29 of the Criminal Procedure (Scotland) Act 1887, or on receipt of the telegraphic intimation of the presentation of an application hereinafter provided for, the Clerk of Justiciary, or the Clerk of the Court of the second diet shall, on the third lawful day after the date of the first diet, submit the report of the proceedings at the first diet to a Lord Commissioner of Justiciary, or, where the second diet is in a Sheriff Court, to a Sheriff having jurisdiction to try the case, who shall deal with it as follows:

(i) The application shall be disposed of by him summarily in Court, or in Chambers, after such intimation to parties, enquiry, or hearing (if any) as to him shall seem just, by Order granting or refusing the same, which Order shall be entered on the record copy of the indictment and signed by the judge making it, and shall be final: provided, however, that if any party (including any person accused in the same indictment as the applicant) shall have given notice, either at the time of making the application or by letter received by the Clerk before the proceedings are reported to the judge, intimating that he desires to be heard in support of or against the application, then the judge shall not proceed to dispose of the application without giving the party who has so given notice, or his agent, such intimation and opportunity of being heard by counsel or by an agent qualified to practise in the Court of the second diet as shall seem to him to be reasonable in the circumstances. But nothing herein contained shall confer any right on an accused person to be personally present at the disposal of the application.

of

(ii) Where owing to defective postal facilities or other cause the record copy the indictment appointed under the Criminal Procedure (Scotland) Act

APPENDIX.

1887 to be transmitted to the Clerk of Justiciary or the Clerk of the
District of the Court of the second diet shall not be in the hands of
the said Clerk on the morning of the third lawful day after the first
diet, the procedure herein before directed to be taken before a judge
on said third lawful day may competently proceed upon telegraphic or
telephonic intimation given to the Clerk of Court of the proceedings at
the first diet bearing upon (a) the plea recorded (if any); (b) any applica-
tion then made for a jury of one sex only; and (c) any special defence
of which notice may have been given; and in that case any Order by
the judge may, pending receipt of the record copy of the indictment, be
made and signed by the judge making it on a separate copy of the indict-
ment or in the books of Court, but shall afterwards be endorsed on the
record of the indictment.
copy

(iii) Where having regard to the usual course of post, or to any exceptional circumstances existing at the time, there is reason to believe that the record copy of the indictment may not reach the said Clerk by the morning of the third day after the first diet, it shall be the duty of the Clerk of the Court of the first diet to send to the said Clerk for the second diet by telegraph or telephone intimation in terms of the preceding subsection immediately after the first diet.

V. Notwithstanding anything herein contained, it shall nevertheless be competent, in any case in which no such application has been made and disposed of as hereinbefore provided for, for the judge appointed to preside at the trial of the case, at any stage prior to the empannelling of the jury to make an Order, if in his discretion he shall think proper so to do, that the jury for trial of the case shall be composed of men only or of women only, subject always to the condition that no such Order shall be made or take effect unless there are a sufficient number of men or women (as the case may be) on the Assize List and present and available to form a jury of the composition contemplated.

C.-SUMMONING OF JURORS.

CITATION.

VI. (i) If prior to the date of citation of the jurors for any diet according to use
and wont, an Order or Orders shall have been made directing that all
the cases appointed for trial at such diet shall be tried by a jury or
juries composed of men only, or of women only, as the case may be,
the Clerk of Court may reduce the List of Assize by striking out
the names of the persons of the other sex from the List of Assize,
and it shall not be necessary to cite any of these persons as jurors.
(ii) Where no such application as is hereinbefore provided for in respect of
any of the cases appointed for trial at a sitting to which any List of
Assize applies has been made at the first diet, the Clerk of Court
may forthwith reduce the List of Assize to such number as would
fall to be cited according to the law and practice heretofore in
use. This he shall do by striking out of the List of Assize the
names of men and women, in equal numbers so far as may be,
commencing with the names lowest on the list returned for each
district; and only the assizors whose names remain on the list when
Provided, however, that if intimation
so reduced shall be cited.
shall have been given of any special defence which shall appear to
the Clerk of Court to be of such a nature as to involve enquiry into
an issue which may be suited for trial before a jury of persons of one
sex only, he shall, before proceeding to reduce the List of Assize, take
the instructions of a judge competent to try the case.

(iii) Where applications have been made at the first diet as herein before
provided for in any cases appointed for trial at any such sitting and
these applications shall all have been dealt with and refused prior to
the date of citation of the jury, the Clerk of Court shall, upon the refusal
of said applications, proceed as provided in the preceding subsection.

APPENDIX.

(iv) In all other cases (subject to the provisions of the Criminal Procedure (Scotland) Act 1887, section 39, as to summoning only so many jurors

as may be necessary), the persons whose names appear on the List of Assize shall be summoned, men and women equally.

(v) Where, owing to change of circumstances, by reason of the withdrawal of charges or otherwise, after the citation of jurors the conditions are found to be such that if they had existed prior to the citation the provisions of subsections (i), (ii), or (iii) of this section would have been applicable, the Clerk of Court may thereupon, notwithstanding citation, proceed to reduce the List of Assize as in these subsections provided for, and to countermand the citations of those jurors whose names are struck out of the list when reduced.

(vi) "Clerk of Court" in this section shall mean and include the Clerk of Court of the second diet, and in cases in which the second diet is before a Sheriff, the Sheriff Clerk of the District of the Court of the Second Diet, and in any case falling to be tried in the High Court of Justiciary, the Clerk of Justiciary.

(vii) Jurors whose names are struck out in reducing the List of Assize, or whose citations are countermanded as above provided for shall be liable to future service as jurors as if their names had not been included in the particular List of Assize.

D.-SELECTION OF JURORS FROM THE PANEL.

VII. (i) Where any case shall be remitted to an Assize in which an Order shall have been made as aforesaid that it shall be tried before a jury composed of men only or of women only, then in balloting for the jury in that case there shall be placed in the box or glass used for containing the slips of the names of special and common jurors respectively (as provided in the Act of 6 Geo. IV. cap. 22, section 17) the slips containing the names of all the jurors, common or special as the case may be, who have been summoned; but in balloting for the jury, persons whose names shall be drawn who are not of the sex of which the jury has been directed to be composed, shall be passed over and not called on to serve on that particular jury; but the jury shall consist of the fifteen persons of the sex of which it has been ordered to be composed whose names shall be first drawn and who shall not be successfully challenged, in the usual proportion of common and special jurors. The slips containing the names of persons passed over under this provision shall be laid aside and returned to the ballot glasses before another jury is balloted for.

(ii) Where no Order such as is mentioned in the preceding subsection shall have been made, then the names of all the persons appearing on the List of Assize and summoned to attend shall be placed in the appropriate box or glass according as they are special or common jurors, but irrespective of whether they are men or women: and the ballot shall be carried through according to the method heretofore in use without distinguishing between men and women.

E. EXEMPTIONS.

VIII. Any woman summoned to serve on a jury shall be entitled to apply to be exempted from service on account of pregnancy or other feminine condition or ailment, subject to the following conditions:

(i) Application for exemption shall be made by her to the Clerk of Court in which the second diet is to be called, or in any case in the High Court of Justiciary to the Clerk of Justiciary, as soon as may be after receipt of the citation, and unless on special cause shewn not later than the third day before the date of said diet, and the same shall be supported

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