Section 4: The criminal prosecution
4.1 Attending court
You can attend all court proceedings except when the accused:
- first appears in court ("appears on petition") and
- appears for "full committal" (if remanded in custody at their first appearance).
Both of these hearings are held in the Sheriff Court in private. More information about this is given in section 4.2.
There may be times when you, and others attending the case, may be asked to leave the court. For example, the Judge may clear the court (except for legal staff) when there are legal arguments that need to be discussed in private, or a child witness is giving evidence.
You may hear things during the course of the trial that are difficult to listen to, or that you disagree with and want to say something about. However difficult you may find this, the people watching the trial (including you, your family and friends, and the family and friends of the accused) are expected to listen quietly to proceedings. You can leave the courtroom if you become distressed.
If you are a witness in the case, you will not be able to sit in the public gallery of the courtroom until after you have given your evidence. You will also be asked not to attend the preliminary hearing (explained in section 4.2) as this could harm the case.
The Judge can ask anyone to leave the court if their behaviour is disruptive. They can also restrict movement to and from the courtroom during their "charge to the jury" (see paragraph 4.5).
The accused's first appearance in court
When an accused person is charged with murder or culpable homicide their first appearance in court will be in private. This is called "appearing on petition" and it will take place in the Sheriff court in the area where the crime was committed. The Judge in this court is called a Sheriff.
The petition sets out the charges for which there appears to be evidence and asks for the court's approval to take the next steps in investigating the crime. These next steps involve gathering all the evidence, interviewing all witnesses and arranging for expert witnesses to prepare reports.
At this first appearance, the solicitor for the accused will usually state that the accused "makes no plea or declaration". The Procurator Fiscal (PF) will normally then ask the Sheriff to "commit the accused for further examination" and for the accused to be remanded in custody (kept in prison or a young offenders institution).
At this stage, the court will make a decision on whether the accused is released from custody until the trial. This is called bail. You may be surprised that bail is considered but, even in the most serious crimes, the accused has the right to ask for bail. The Sheriff will hear from the PF and from the accused's solicitor before making a decision on bail. The Sheriff has a duty to release the accused except where there are good reasons for not doing so. In reaching a decision, the Sheriff will always take into consideration the individual circumstances of each case These are explained more fully at section 4.3.
If bail is granted, the accused will be released (on conditions, as explained at section 4.3) and their next appearance will be at a preliminary hearing in the High Court. The preliminary hearing must take place within 11 months of their first appearance in court. The trial must take place within 12 months from the date of the first appearance.
Appearing for full committal
If bail is not granted at the first appearance before the Sheriff, the accused will be remanded in custody and must be brought back to court between 7 and 11 days later to be "fully committed" for trial. This hearing is also in private.
The accused can apply again for bail even if this was refused at the first appearance. If bail is refused, the accused's next appearance will be at a preliminary hearing in the High Court. This must be within 110 days of "full committal". The trial must begin within 140 days.
The time limits of 110 days, 140 days and 12 months can be extended by the court.
If a suspect is arrested and you have any concerns about the possibility of them being granted bail, you should immediately tell the police Family Liaison Officer (FLO) or Victim Information and Advice (VIA) officer. This will ensure that your concerns are taken into account when any decision is made. The PF can ask for special conditions to be attached to the bail order, to take account of your concerns.
At the preliminary hearing, the prosecution and the defence will tell the Judge whether they are ready for the case to go to trial. If they are, the court will set a date for the trial. If they are not ready, the case will be "continued". Another date will then be set to find out if the prosecution and defence are ready to go to trial. The trial date will only be set once both parties are fully prepared.
Preliminary hearings are held in public. But witnesses who might be called to give evidence during the case will be asked not to attend as this could prejudice the case.
The accused can plead guilty at the preliminary hearing. If VIA find out the accused intends to do this, they will do their best to let you know. But the accused may decide on this plea at the last minute. They can also change their mind about pleading guilty up until the time the plea is made in court.
Considering bail and bail conditions
Section 4.2 explained the times when bail will usually be considered. It can, however, be applied for at different stages of the case, even if it has been refused earlier. VIA will keep you informed about this.
This section explains what factors will be taken into account when the Sheriff decides whether bail should be granted or not.
The Sheriff will consider the nature of the charge and any other factors raised by the PF. It is important that you raise any concerns you may have about the possibility of an accused being granted bail with the FLO or VIA officer immediately. This is to ensure that your concerns are passed on to the PF before any decisions on bail are made. The accused will be granted bail unless the court has good reason to believe that they may:
- not attend their trial or earlier court appearance
- commit an offence while on bail
- interfere with witnesses
- obstruct the course of justice, e.g. by absconding (disappearing)
- behave in a manner which causes, or is likely to cause, alarm or distress to witnesses.
These issues reflect standard conditions linked to bail. The PF may also ask for other, special conditions to be applied - for example, limiting where the accused can live or preventing them coming near you, your family and/or your home.
All decisions about bail are taken by the Judge. If bail is granted, the prosecution may, in certain circumstances, appeal against the decision. The accused may also appeal against a refusal to grant bail. If bail is still refused on appeal, the accused can ask for the decision to be reviewed, but only where there is good reason.
VIA will tell you whether the accused has been given bail, and any special conditions which apply. If the accused person is granted bail and causes you any concern, you should report this to the police and VIA immediately and keep a diary of any incidents.
4.4 The High Court
Murder and culpable homicide charges are always heard in the High Court by a Judge and jury of 15 people chosen at random.
The evidence for the prosecution is presented by an Advocate Depute (who is a senior lawyer). A separate advocate, called "Counsel" or a Solicitor Advocate (a solicitor who has a right of audience in the High Court) will act for each accused person. Counsel will speak on behalf of the accused at the trial and before sentence is passed. When in court, the Judge and advocates wear wigs and gowns, and Solicitor Advocates wear gowns but not wigs.
The accused person will state their plea of "guilty" or "not guilty".
If the accused person pleads guilty, there is no need for anyone to give evidence in court. The Advocate Depute will tell the Judge the facts of the case and the Judge may then pass sentence or may choose to do so at a later date. If sentencing is deferred (to be passed at a later date), VIA will inform you when and where this will happen.
If the accused person pleads not guilty, then a trial will take place and witnesses will be called to give evidence.
As explained in section 4.2, a "preliminary hearing" may be held before the trial to deal with issues (such as the availability of witnesses) that might otherwise delay the trial. You are entitled to attend the preliminary hearing if you wish. Witnesses are advised not to attend as this may prejudice the case. The trial should go ahead on the date fixed at the preliminary hearing.
The High Courts are in Edinburgh, Glasgow and Aberdeen. High Court cases are also heard in Sheriff Court buildings across Scotland. Your case may not be heard in the court closest to you. Preliminary hearings are only held in Glasgow and Edinburgh.
4.5 The trial
Both the prosecution and defence may call witnesses to give evidence and question them. As well as eye witnesses and police officers, expert witnesses such as forensic scientists may be called to give evidence. Photographs, videos and diagrams may be shown to the jury.
After all the prosecution (Crown) evidence has been presented, the Judge will consider if there is sufficient evidence in law to allow the case to continue. If there is, the defence will then present their evidence. If there is not enough evidence, the case will be dismissed and the jury will not be allowed to consider a verdict.
The accused can choose whether or not to give evidence. If the accused does give evidence, they can be cross-examined by the Advocate Depute.
Once all the evidence has been presented, the lawyer for each side gives a speech to the jury to sum up the evidence. It is up to the prosecution to prove the case "beyond reasonable doubt". The Judge will also give a speech to the jury (known as 'the charge'). In this, the Judge directs the jury in the law relevant to the case and his/her understanding of points of evidence they may wish to consider when deciding on a verdict.
In certain cases you may be asked to be a witness to give evidence at a criminal trial.
If you are to be a prosecution witness, you may be required to attend a pre-trial interview (precognition) with the Procurator Fiscal or a precognition officer who works for the PF. The defence lawyer - or a precognition agent working for the defence - may also contact you to take a statement from you. See section 3.8 for more information about these "precognition investigation" interviews.
You should co-operate with any request for precognition, whether from the prosecution or the defence. It is an essential part of the criminal proceedings and helps the PF understand the evidence you are providing. You can claim reasonable expenses when you are asked to attend for precognition.
It may be possible for a relative or friend to sit with you during a precognition interview to offer support. If you want to be accompanied, ask the PF or defence lawyer if this is possible. You are not allowed to be accompanied by another witness and your supporter cannot participate in the interview.
4.7 Support from the Witness Service
The Witness Service, run by Victim Support Scotland (VSS), provides emotional and practical support to all victims and witnesses attending court, and their families.
The Service is managed by paid staff and provided by trained volunteers. They can tell you about court procedures but cannot discuss evidence with you. They can also discuss any concerns you have. If the Witness Service cannot answer all your questions, they will try to put you in touch with someone who can help.
The Victim Information and Advice service (see section 1.3) will give you information about your local Witness Service. Or you can get the number of the Service from the Victim Support Scotland national office on 0131 668 4486, the VSS helplines on 0845 603 9213 or 0845 30 30 900, the website (www.victimsupportsco.org.uk) or your local victim support service (number in the local phone directory under "victim support").
If you are a witness in the case, you may find it helpful to be shown a court before you attend the trial so that you know what to expect. This may be particularly useful if you are a witness at the trial. VIA will explain in a letter to you that they will refer you to the Witness Service for this "court familiarisation visit" unless you tell them you do not want it. Or you can ask the Witness Service about it yourself.
Criminal cases are nearly always held in public. But, as indicated in section 4.1, the Judge may order members of the public to leave the courtroom. This can include you and your family.
If you are not a witness in the case you can sit in the public gallery. Other people in the gallery may be journalists, the public, or the family and friends of the accused.
If you are a witness you will not be able to discuss the case or what you can say with other witnesses, or listen to court proceedings, until you have given evidence.
A friend or relative can sit with you before you give evidence (as long as they have not been in court, either listening to the trial or giving evidence in the case).
If the accused pleads guilty before or during the trial, efforts will be made to ensure you are present if you want to be in court when this happens, even if you are a witness in the case.
In some cases, the prosecution lawyer may, after discussions with the defence, consider accepting a plea of guilty to a lesser charge (see section 3.7). In murder or culpable homicide cases, the decision to accept a plea to a lesser or amended charge is always taken by the Lord Advocate or the Solicitor General. The Lord Advocate is Scotland's most senior prosecutor, with overall responsibility for the prosecution of crime. The Solicitor General assists the Lord Advocate in heading the prosecution service.
If you do attend court, it may help to be accompanied by someone. The police will be there to give evidence and they cannot discuss your evidence with you. The Witness Service and your VIA officer can help explain what is happening.
It may be possible to arrange seating in the courtroom so that you do not have to sit near relatives or friends of the accused. Let the Witness Service or VIA know if you are concerned about this and they will try to arrange this for you.
It may also help you to know in advance that:
- A VIA officer can meet you when you attend court. The VIA High Court officer will keep in touch with you during the trial to help you with any questions or concerns, and to update you on any key stages
- Court hearings may start late, be cut short or postponed, or moved to another court
- You may have to wait for some time before going into court to give your evidence. This may be because of the time it takes other witnesses to give their evidence
- The defence lawyer may ask you questions about your evidence. This might feel probing but it is not personal - it is a normal part of the defence role and is intended to test the evidence
- Evidence presented in court is for the benefit of the Judge and jury. Sometimes you may not be able to see evidence being discussed (such as diagrams or videos)
- Some courts are modern and have good facilities, others don't. It may help to check, in advance, where the toilets and refreshment facilities are, and find out if there is a quiet room where you can sit
- If you tell the court officer or Witness Service volunteers who you are, they can offer help, inform you of any court changes and show you where the witness room is
- The first time that you see the accused may be in court
- You may see the accused and defence witnesses elsewhere in the court building, for example where refreshments are served.
Some people who are witnesses find it helpful to visit a court before the trial begins to get a better idea of what to expect. Section 4.7 explains how this can be arranged. Even if you do not want to visit the court before the trial, it might still be worth talking to a member of the Witness Service to discuss any concerns you have.
4.9 Witness intimidation
It is a criminal offence to try to frighten or intimidate a witness, juror, or anyone helping the police in an investigation.
If you are harassed or threatened in any way before or during the trial, tell the person who cited (called) you as a witness, or the police, so they can take the appropriate action. Or, if you feel threatened when at court, tell the security staff on duty. If you are harassed or threatened after the trial, you should contact the police.
4.10 Special measures for vulnerable or intimidated witnesses
Being a witness in court is a new experience for most people. As a witness, you may feel particularly anxious for a number of reasons - the circumstances of the case, or because of your age, the kind of evidence you will have to give, or your health. Or you may feel so distressed at the thought of giving evidence that this makes you feel vulnerable.
If you are cited (called) as a witness, you can discuss any concerns you have about giving evidence with the person who asked you to be a witness (sent the citation letter). Or you can speak with your Victim Information and Advice (VIA) contact. They can give you information about the court process and support arrangements to help you be better prepared for giving your evidence. They will also discuss your individual circumstances with you and whether to make an application to the court for what are called "special measures". These are different ways to help you give your evidence.
Special measures generally apply to:
- all child witnesses under the age of 16 (under 18 in human trafficking cases)
- adult witnesses where there is a significant risk that the quality of their evidence will be diminished because of mental disorder, or fear and distress in connection with giving evidence.
The standard special measures automatically available to a child witness are:
- a screen so that you cannot see the accused
- using a live television link (in another part of the court building) so that you can give your evidence away from the courtroom
- having a support person along with either of the above standard special measures. They can keep you company before you give your evidence and provide a reassuring presence in the courtroom while you give your evidence. But they can't discuss your evidence with you.
Special measures (allowed at the discretion of the court) for child or adult vulnerable witnesses are:
- using a prior statement as your main evidence. This is a video or audio interview between you and the police, or a written statement you gave before the trial. It will be played or read out in court and you will be asked questions about what you said
- in certain limited circumstances, having your evidence taken by a "commissioner" (a Judge or Sheriff) appointed by the court. This means giving your evidence in the same way as you would in a trial but at a different time or place. The evidence you give would be recorded and played at the trial.
- a screen
- using a live television link either in another part of the court building or in a suitable place outwith the court building
- having a support person
You may be allowed to use one or more special measures. If you are, it is important that you know a few things.
You can still be cross-examined about your evidence - that is, asked questions by the defence lawyer - even if you use a special measure.
If you give evidence using a screen in the courtroom, this will mean that you cannot see the accused, but they will be able to see and hear you on a TV monitor while you give your evidence. The accused will also be able to see and hear you on the same sort of monitor if you give evidence by a live TV link.
If you give your evidence by prior statement, you will probably still have to attend the trial (be at court or give your evidence or use a live TV link). That is unless your evidence is agreed by the prosecution and defence lawyers in advance.
If your evidence is taken by a commissioner, your evidence is visually recorded (for example by DVD) and the accused will be able to see and hear your evidence as it is being taken. They will not normally be in the room where your evidence is being taken unless the court has agreed that they can be.
Applications are made to the court in advance of the hearing in which you are due to give evidence. The applications may or may not be approved, and you will be told what the court has decided by the person who made the application on your behalf.
If you have any questions, speak to the person who sent you the citation (letter) to be a witness or to VIA. They will be able to tell you how these measures might apply to you. They can let you have a booklet which explains special measures in more detail. They may also show you a CD-ROM about going to court, who you are likely to meet there and what they do, and how the special measures work. You can also find out more about being a witness from www.witnessesinscotland.com and www.crownoffice.gov.uk/Witnesses/Being-Witness-Court.
4.11 Expenses to attend court
You are entitled to expenses if you are cited to attend court as a witness. Bereaved nearest relatives are also entitled to expenses when required by the Crown to provide a precognition (see section 3.8), or when requested by the Procurator Fiscal or VIA to attend a meeting at their premises.
The Procurator Fiscal Service will refund reasonable travel expenses, loss of earnings, childcare expenses and the cost of a carer. Your witness citation will explain what you are entitled to claim.
Bereaved relatives who are not cited as witnesses can also get help with expenses incurred when attending court. This includes reasonable travel, accommodation and carer and/or child-minding expenses. It does not include loss of earnings. This support is normally limited to 3 individuals per family. VIA will be able to provide more details.
The accused may be found guilty or not guilty. Alternatively, the jury may reach a "not proven" verdict which is also a verdict of acquittal.
For the accused to be found guilty of a charge, a majority of the jury (at least 8) must choose this verdict.
For verdicts of not guilty and not proven, a majority (at least 8), must choose this verdict. These verdicts have the same effect and mean that the accused is free to go. For information about double jeopardy, see section 4.17.
It is worth noting that:
- If someone is found guilty of murder, the court must impose a sentence of life imprisonment. The Judge has to state the minimum period to be served before the person can apply for parole (early release from a prison sentence). This minimum period is called the "punishment part".
- If someone is found guilty of culpable homicide, the maximum penalty open to the court is life imprisonment. But the court rarely imposes the maximum sentence and may impose a much lower penalty.
- Sometimes courts find the accused not guilty of a serious charge but guilty of a lesser charge, such as assault.
If you are unsure about anything that happened in court, VIA may be able to explain.
Before sentence is passed, Counsel for the accused will advise the Judge about any factors which they think might reduce the sentence. This is called a "plea in mitigation". Sometimes the Sheriff asks for background information about the guilty person before deciding on the sentence. It is the Judge alone who decides what the sentence should be - the prosecutor is not involved in sentencing.
An accused who is found guilty of murder will normally be kept in custody until the sentence is passed. This is a decision for the Judge. Sentencing normally happens within 4 weeks of the end of the trial.
If an accused pleads guilty to an offence, the Judge is required by law to consider passing a lesser sentence than might otherwise have been the case (you may hear this referred to as a sentence discount). The Judge will consider all of the circumstances of an individual case to ensure offenders receive an appropriate sentence for their offending behaviour. The Judge decides how much, if any, of the sentence will be discounted. The Sheriff should state in court how much of the sentence has been discounted.
If you do not understand or are unhappy about the sentence passed, VIA or the Procurator Fiscal may be able to explain more about this. They will also advise you about any appeal by the prosecutor (called a Crown Appeal - see section 4.17).
4.14 Mentally disordered offenders
What happens if the offender is mentally ill?
Mentally disordered offenders are people, who, as a result of mental illness, have been found by the court to have diminished responsibility, or have been found not guilty on account of mental illness or found to be unfit for trial. In these instances, the court can order a person to be detained in hospital for treatment. For restricted patients (people the court consider a serious risk to the public), this detention will be "without limit of time".
If a prisoner is moved from prison to a secure psychiatric hospital during their sentence, the original sentence still stands. Whilst in hospital, they are subject to the same arrangements as restricted patients.
Restricted patients cannot be given leave of absence (suspension of detention) or be transferred without Government (Scottish Ministers') consent. Such recommendations are made to Scottish Ministers by the patient's Responsible Medical Officer and involve a full risk assessment by the clinical team. This includes a full evaluation of potential risk to the public. Family and victim considerations are also taken into account.
All restricted patients are subject to the Multi Agency Public Protection Arrangements (MAPPA) which is the framework that joins up the agencies who establish arrangements for the assessment and management of risks posed by offenders. The fundamental purpose of MAPPA, is public safety and the reduction of serious harm. A MAPPA referral must also be made before any consideration of unescorted leave and at other key stages in a restricted patient's rehabilitation.
Decisions on discharge of restricted patients are made by the Mental Health Tribunal for Scotland. Tribunal panels which consider restricted patient cases are convened by a Sheriff (or the President of the Tribunal) and have a medically qualified and a general member. The Mental Health Tribunal for Scotland may give any person it considers to have an interest in a case the opportunity to make representations (either orally or in writing) and to lead and produce evidence. The Tribunal decides in any case who such a person might be. If you wish to make representations please contact the Scottish Government at the address below and they will bring your interest to the attention of the Tribunal.
If you have any questions about restricted patients, or have views or concerns you would like to bring to Scottish Ministers' attention in relation to a restricted patient, you can contact The Restricted Patient Team Leader at the Scottish Government, Mental Health and Protection of Rights Division, Room 2N.02, St Andrew's House, Edinburgh EH1 3DG (telephone 0131 244 2510).
Disclosure of Information
Section 5.1 explains how you can register to receive information under the Victim Notification Scheme about an offender serving a prison sentence. The Scottish Government has considered the responses to their consultation on the introduction of a Victims Notifications Scheme for victims of Mentally Disordered Offenders and intends to bring forward draft proposals on this matter in due course
4.15 Victim statements
Victims or relatives affected by serious crimes (including murder or culpable homicide) can make a written statement that tells the court how the crime affected them - physically, emotionally and financially.
Victim statements will normally be given to the court if the accused pleads guilty, or is found guilty after a trial and will be considered before the accused is sentenced. A copy of any victim statement will be given to the defence at the same time. The Judge must consider your victim statement and decide what weight should be given to it.
The statement will not be read out in court or released to the press.
VIA will send you an information pack about victim statements. This includes a victim statement form and contact numbers for support agencies who can give you help or advice about making the statement. It will also explain what the statement can (and cannot) cover and how it will be used.
You do not have to make a victim statement. If you choose not to, information about the impact of the crime can still be brought out during the prosecution case.
4.16 Appeals by a convicted person
Following a criminal case, a convicted person may appeal against their conviction or sentence. They can also apply for bail and may be released while waiting for the appeal (this is called "interim liberation").
An accused found guilty at trial can appeal against the conviction or sentence or both. The court may refuse the appeal or may allow the appeal in full or part. If the appeal is allowed in full, the court may order a retrial or may acquit the accused.
If the accused plead guilty they can appeal against the sentence. All appeals are heard by Judges in the Appeal Court which is based in Edinburgh. The court is able to impose a higher or lower sentence, or may confirm the original sentence.
VIA will tell you if there is an appeal and how it progresses. In particular, they will tell you:
- if the offender is granted bail before the appeal
- the date of the appeal and
- the outcome of the appeal.
4.17 Appeals by the prosecution
As indicated in section 4.13, the Crown has a limited right of appeal against sentence, but only where a sentence is "unduly lenient". Because of this, such appeals are rare. If an appeal is lodged, you will be kept informed of progress.
If the High Court Judge decides that there is insufficient evidence to convict the accused, then the Crown may appeal this decision. If such an appeal is lodged, you will be kept informed of the progress.
The prosecution cannot appeal against the decision of the jury to return a "not guilty" or a "not proven" verdict.
In most cases, the rule against "double jeopardy" means that an acquitted person cannot be retried. However, there are some strictly limited circumstances where it may be possible for a new trial to occur, for example if there is new evidence which, had it been available before, would have been highly likely to have led to a conviction.
All appeals under "solemn procedure" (where a trial takes place with a Judge and jury) must be lodged 14 days after a court's decision, unless the court gives permission for this time limit to be extended. The time limit for the Crown lodging an appeal against an unduly lenient sentence is 4 weeks. VIA will keep you informed whether or not an appeal has been lodged and about the progress of any appeal.
4.18 Bringing a private prosecution
In certain circumstances an individual may seek to prosecute another person for a criminal offence. This is called a private prosecution. To bring a private prosecution you must have the Lord Advocate's consent. This process is very costly and you cannot claim legal aid. It is therefore very rare.
If you are dissatisfied with an acquittal verdict (see section 4.12), you can raise a civil action against the acquitted person. A civil action is based on a different level of proof - "on the balance of probabilities" (a decision in a criminal case is based on "beyond reasonable doubt").
Raising a civil action can be a very long and expensive process. There is no guarantee that you will be granted legal aid. Before proceeding with a civil action, you should seek advice from a solicitor.
Email: Gillian Lacey