Publication - Advice and guidance

Information and help after rape and sexual assault

Published: 22 Feb 2016
Part of:
Equality and rights, Law and order
ISBN:
9781785449895

Information pack for women and men over 16 who have been raped or sexually assaulted.

134 page PDF

323.7 kB

134 page PDF

323.7 kB

Contents
Information and help after rape and sexual assault
Section 3: Investigating and prosecuting rape and sexual assault

134 page PDF

323.7 kB

Section 3: Investigating and prosecuting rape and sexual assault

  • Legal definitions
  • Diagram of police and prosecution process
  • Police process
  • Prosecution process
  • Going to court
  • Sentencing and after
  • Private prosecution
  • Civil action

Legal definitions

Rape and sexual assault are crimes of violence. For full details of how the law defines these see Section 5 - Meanings.

All sexual offences are frightening, intimidating and can be violent.

Some people may experience more than one form of sexual violence in the course of their lives. This can affect how they react to and cope with separate incidents.

Legal definition of consent

The law defines consent as 'free agreement'.

For rape and sexual assault to be proved in court, it has to be shown that the assault took place without the consent (agreement) of the victim that the person responsible did not reasonably believe that the victim consented. Someone can withdraw consent at any stage even if they consented at first.

The circumstances of what happened may mean that a victim is incapable of 'free agreement'. Examples would be if the victim was asleep or unconscious; agreed or submitted because the attacker harmed or threatened to harm them; or the attacker would not let them go. The law also protects people with limited or no capacity to consent because of their young age or a mental disorder.

In many situations, a person might not struggle against an attacker through fear or shock or might be asleep or unconscious at the time. It may be possible to prove in court that the person responsible knew that the victim did not consent or did not reasonably believe the victim consented even when there was no other physical violence or force.

A man can be found guilty of raping his wife, even if they were living together at the time of the offence, if it can be proved that the intercourse took place without her consent.

It can sometimes be difficult to prove in court that the victim did not consent. By law, there must be two independent pieces of evidence to corroborate (prove) that the victim did not consent and that the attacker knew or disregarded this.

Because such crimes often take place in private, it can be difficult to get enough evidence to prove to a court that the crime took place, that the victim did not consent and that the attacker knew or disregarded this.

If you have been raped or sexually assaulted:

  • You are not to blame. The person who raped or assaulted you is to blame
  • You do not have to cope alone
  • There are many support services which can help you. They know how difficult it is for people to come forward. They will respect you and believe you

Diagram of police and prosecution process

Diagram of police and prosecution process

If you decide to involve the police, do this as soon as possible so that forensic evidence can be gathered from your clothes and body. The section below tells you more about what you should and shouldn't do before a medical examination.

Once the case reaches the Procurator Fiscal, and preliminary investigations begin, Victim Information and Advice should contact you and keep you informed of developments. Contact them ( see below) at any time for information.

Discussions about special measures ( see below) and applications to discuss sexual and character history ( see below) can come up at any time between precognition and any trial.

There is no time limit on how long it can take from first reporting the assault until the accused is charged or first appears in court.

After the accused has first appeared in court, the trial should take place within one year if they are released on bail or within 140 days if they are remanded in custody. But the judge can extend this.

Police process

What the police do

The main role of the police is to investigate what happened. They do this by gathering evidence. This may include tracing witnesses. Depending on the evidence available, they will arrest and charge the suspect(s). If a suspect is charged, the police will send a report to the Procurator Fiscal who will decide what action should be taken next.

The police also provide initial support to people who have been raped or sexually assaulted. This includes making sure people get medical assistance; giving them information and advice; and telling them about other agencies which can help.

All police forces have staff who are specially trained to deal with rape and sexual assault.

When you report to the police

Your first contact could be with any officer but you will very quickly be seen by a police Sexual Offences Liaison Officer ( SOLO). These officers are specially trained to work with people who have been raped or sexually assaulted. They know that rape and sexual assault is distressing and traumatic, and they will be as sensitive as possible while continuing to investigate the crime.

If you need emergency medical help, the police will arrange for you to get this.

Recent assault

When you report rape or sexual assault, the police gather as much evidence as possible. This is used to prove what happened. So, if the incident has just happened try not to:

  • Wash yourself (but if you do, wipe yourself with tissues first and keep these; don't use household cleaning products to wash yourself)
  • Clean your teeth
  • Clean your fingernails
  • Change or wash any clothes you were wearing
  • Eat or drink anything
  • Take any alcohol or drugs
  • Go to the toilet (if you do keep any tissues you use; also keep any sanitary protection)
  • Change or wash your bedclothes if the assault took place there

If you do these things it can destroy important evidence such as the attacker's semen, saliva or blood.

But, if you do any of these things, this does not mean that there is no evidence for the police to find.

It may also be helpful to keep any text messages from your attacker and to use your mobile phone to take pictures of anything which could be useful to show what happened.

Where you will be seen

The police can see you in your own home, in another location where you feel comfortable or in a police station.

If you are in the police station

Some police stations have special facilities for people who have been raped or sexually assaulted. These are designed to be as comfortable and private as possible. They are not available everywhere in Scotland, but each police force area has a facility and you may be taken there.

You can have someone with you (a supporter). But if your supporter is a witness to the incident, they will not be able to stay with you while you give your statement ( see below).

The police will carry out their procedures as soon as possible but sometimes people have to wait in the police station for several hours while their statement is taken and any forensic examination arranged ( see below). If you are having a forensic examination, it is helpful not to eat or drink anything until it is known whether or not samples from your mouth are needed as evidence may be damaged or lost.

There may be delays, for example, depending on how soon the doctor can attend.

Your statement needs to be as detailed as possible so it may take a long time to complete.

If there is anything you are unsure or unhappy about, tell someone in the police station.

Giving information to the police (statement)

The police officer will ask you questions about the assault. This is to build up a picture of what happened, find out about your attacker and check if you think anyone else saw or heard anything. Some questions may seem awkward and difficult but are necessary for the police to take the case to the next stage. You should not be asked questions about your sex life that do not relate to the incident. But, the police may need to ask you if you had recent consensual (agreed) sex with someone as that may affect any forensic examination ( see below). If you are not sure of the reasons for any questions, you can ask for an explanation.

It is best to be as open and honest as you can. If you can remember what happened, it is better to be upfront from the start rather than change the details later. For example, some people are reluctant to say that they were drunk or had taken drugs at the time of the assault. But, it is important to remember that the attacker is responsible for the assault and not you. Rape and sexual assault are never OK, in any circumstances. The police should not judge you or blame you.

You may find it difficult to remember anything much. This is not unusual and a normal response when something traumatic happens. You may not remember anything if you were raped or assaulted when you were asleep or unconscious.

The information you give is written up into a statement. This will be in your own words and in your first language. It will be read back to you. You can change or add to this before you sign it. The police may contact you the next day to go over the statement, and you can add to it then.

You can take as much time as you need. You can ask for a break at any time. You can also add information later if other details come back to you some time afterwards.

Tell someone in the police station if you are unsure or unhappy about what is happening.

Forensic examination

If the assault was recent, you may be asked if you are willing to have a forensic examination by a doctor who works with the police. This is to gather evidence and note any injuries to help investigate what happened. You can choose whether or not to agree to this.

Forensic examinations are done by ordinary doctors with special training. You can ask to be seen by a male or female doctor and the police will do their best to provide this. The doctor will do everything they can to make you feel as comfortable as possible. You can ask for the examination to stop at any time.

You will be asked to drop any items of clothing touched by the attacker into a bag. This involves you undressing. If necessary, you will be given a gown to wear.

The doctor will ask you what happened and where on your body so that they know where to look for any evidence. Depending on what happened, the doctor will examine you. They may take samples of anything which may contain the attacker's DNA such as semen or saliva.

The doctor may ask for a police photographer to take photos of any bruising or injuries. You can choose whether or not to agree to this. You can ask for a male or female photographer.

After the forensic examination, a police officer may want to go over your statement with you as there may be information to add or change.

If the police keep your clothes, they will arrange to have other clothes brought to you. You will get your clothes back once the case is over. This may take some time.

You may be asked to attend further examinations although this is rare. This is to gather more evidence such as bruising which might not show at first.

Other evidence

The police may gather other evidence. For example, if you were assaulted in your home, the police may come to your house to look for evidence. If you were attacked outside, the police may take you there so you can show them exactly where it happened. There may be CCTV images from any cameras in the area.

The police will also trace and interview any witnesses.

You may be asked to go back to the police station to look at photographs or attend an identification parade. This is done by viewing a DVD, usually in the police station.

What the police are looking for

The police are looking for evidence which shows what happened. This is to help confirm that the assault took place and that you did not consent to it. This can be difficult as rape and sexual assault often happen when no one else is around and there may be little evidence. Your statement is one piece of evidence. But, the law states that there must be other evidence for a case to go to court. So, if the police do not charge someone, it does not mean they do not believe you or that they have not taken the assault seriously.

Finding the attacker

Your statement is passed onto the police Criminal Investigation Department ( CID), and a detective will try to identify and find the attacker. If the attacker is identified, detective officers will interview them at a police station. After this interview, they may be charged or released without charge. If they are charged, the police will report to the Procurator Fiscal (fiscal). The fiscal will examine the evidence the police have gathered and decide what action to take next ( see below).

Detaining and arresting the attacker

If the police suspect someone has committed a crime but do not have enough evidence to arrest, they can keep (detain) them in the police station to allow for further enquiries and to interview them. They must then let them go unless they have enough evidence to arrest them. But they can still investigate the crime.

If the police have enough evidence that someone has committed a serious crime, they can arrest them and take them to a police station. The police will decide whether to keep them in the police station (custody) until going to court the next day or may release them (on undertaking) pending a report to the fiscal. The 'undertaking' means that the person must agree to appear at court when told to do so. This is generally within two weeks. The court may place certain restrictions on them such as not contacting you or coming anywhere near you. If they break these restrictions, contact the police immediately.

Whether a person is kept in custody or released from the police station depends on each case. If the assault happened some time ago, then they are more likely to be released. However, if the police think that you or someone else is at serious risk, then they are more likely to be kept in custody.

The officer in charge of the police station makes this decision. The police must be very sure about keeping someone in custody because the law states that a person is innocent until proven guilty by a court.

If you are at all worried about what might happen to you or someone else if your attacker is released, tell the police immediately.

The police will tell you what they decide and what will happen next.

If the police cannot find enough evidence or identify the attacker

If the police cannot find enough evidence or identify the attacker, they will record that the assault took place and keep any evidence and information they have gathered. They will tell you if no further action can be taken. If this happens, it does not mean that you were not believed or that the assault was not taken seriously. It means the police could not meet the legal test for taking the case forward. Many people find this upsetting and difficult. It may help to talk this over with a support agency.

Your safety

If it is not safe for you to return home or if you are in any way worried, the police will help to make sure that you are not at further risk. This might include finding somewhere safe for you to stay such as local authority emergency accommodation or organising an alarm service for your home.

Support

The police will keep you updated about the case and explain any decisions made. If you are over 16 and you agree, they will pass your details onto Rape Crisis Scotland ( see Section 4). Someone from Rape Crisis Scotland will contact you within three days to offer you support. The police officer you give your statement to is likely to be your contact throughout. Before you leave the police station, make sure you get a note of their name and phone number.

You have a right to be treated sensitively and with respect and to be kept informed while you are in the police station and during the police investigation.

You have a right to complain if you are not treated sensitively and with respect and kept informed.

If your first language is not English or if you have a sensory impairment or other additional communication need, interpreters and other assistance will be given so you can tell the police the details of what happened.

You can ask to speak to a male or female police officer.

It may be difficult to remember what happened and to answer all the questions. This is very common. You may remember more at a later date.

Tell the police if you are worried about your safety or the safety of someone close to you.

Police contact details: see Section 1 - Contact

Prosecution process

This section explains how a crime is investigated once the police complete their report to the Procurator Fiscal. It also tells you what you can expect to happen at different stages of the investigation and about the support you will get.

The Crown Office and Procurator Fiscal Service ( COPFS) is responsible for investigating and prosecuting crime. The Procurator Fiscal (the fiscal) is a lawyer who is employed by COPFS. (In the rest of this section, where it refers to the fiscal, this means the Procurator Fiscal or a member of their staff.)

The police investigate crime on behalf of the fiscal. They work closely together and are in regular contact during the investigation.

COPFS investigates cases of rape and sexual assault very carefully through trained specialist sexual offences teams and a National Sexual Crimes Unit. Staff will be in close contact with you, will keep you informed and will tell you what they think about the strength of the case and possible outcomes.

To find out about COPFS commitments to victims and prosecution witnesses see online in the 'publications' section at www.copfs.gov.uk.

Victim Information and Advice ( VIA)

Victim Information and Advice ( VIA) is part of COPFS. VIA staff give information and advice to victims of serious crimes whose cases are being dealt with by the fiscal or courts. VIA will contact you once COPFS decides to bring criminal proceedings ( see below) and will keep in touch with you until these proceedings (including any trial or appeal) are finished. VIA staff can tell you how the court system works and about progress in the case, for example, court dates, bail applications and any decisions taken.

If there is a trial, VIA staff can also help arrange support for you, for example, arranging with the Witness Service ( see Section 4) for you to visit a court before the trial, or talking to you about applying for any special measures needed at court ( see below).

VIA liaises with others involved in the investigation and court process to ensure that there are no barriers preventing you from giving your best evidence in a trial. This includes having an interpreter or any safety concerns.

Your safety during the investigation

When someone is suspected of rape or serious sexual assault (the accused), they will normally be arrested by the police and brought to court. Their first appearance in court is in private. The fiscal presents a document (petition) to the court which sets out the charge(s) and informs the court that the crime is being investigated. The accused can apply for bail. Bail means that the accused is released from custody until the trial. The law states that a person is innocent until proven guilty in a court and so very good reasons are needed to keep a person in prison before a trial.

It is up to the judge to decide whether or not to grant bail. They will normally grant bail unless they think the accused:

  • May not attend their trial or earlier court appearance
  • May commit an offence while on bail
  • May behave in a way which causes or is likely to cause alarm to witnesses
  • May disappear (abscond)

or the accused has previously been convicted of a serious offence.

The fiscal can oppose bail and will tell the judge if there is any concern for your safety if the accused is released. This may result in the accused being kept in prison (remanded in custody) until the trial or in special conditions being attached to the bail, for example not approaching or contacting you.

If you are worried about your safety, tell the police, the fiscal or VIA. If the accused breaches their bail conditions, for example by phoning or coming near you, contact the police immediately. The fiscal can ask the court to review the bail order.

You should also tell the police, the fiscal or VIA if you have any reason to be frightened or worried by any of the accused's friends or relatives.

You may need help to ensure your safety during this time. This could include finding a safe place to stay or other practical support. The agencies listed in section 4 can help with this.

If the accused is under 18

If an accused is 16-17 years old, they are dealt with in the adult system unless they are under a supervision requirement through the Children's Hearing system. If they are being supervised, the fiscal will liaise with the Children's Reporter to discuss whether they should be prosecuted in the adult system or dealt with by the Children's Hearing system. Given the nature of rape and sexual assault, they will usually go through the adult system.

If the accused is under 16, the fiscal and the Children's Reporter will discuss what action to take. Usually, they are dealt with by the Children's Reporter but, in serious cases, the fiscal will ask for approval from the Lord Advocate to prosecute the young person in the adult system.

Considering the police report

The fiscal uses the report from the police to make an initial decision about starting the formal court process and investigating the case further. The fiscal considers the police report very thoroughly and can ask the police to carry out further enquiries.

The fiscal bases this initial decision on two main points:

1. Whether there is enough evidence in law; and

2. Whether it is in the public interest to prosecute

The fiscal also takes into account anything else which may affect the likelihood of getting a conviction in court.

Evidence

By law, there must be enough evidence to prove 'beyond reasonable doubt' in court:

  • That the rape or sexual assault happened;
  • The accused was the person responsible;
  • That you did not consent; and
  • The accused did not reasonably believe that you consented [1]

Because rape and sexual assault often take place in private, with no witnesses, it can be difficult to find enough evidence.

Public interest

Public interest means that the fiscal looks at a case from all angles and not only from the point of view of the victim. However, for rape and serious sexual assault, there is a strong presumption that prosecuting is in the public interest.

Investigation by the fiscal

The fiscal investigates the case mainly by interviewing (precognoscing) any witnesses. This includes you as the person who was raped or sexually assaulted.

As well as speaking to witnesses, the fiscal looks at documents such as forensic reports and other evidence (productions) gathered by the police. This may include items of clothing.

If the fiscal wants to interview you, you will receive a letter (citation for precognition) with an appointment to go to the fiscal's office. If you cannot manage to keep the appointment, you can ask for this to be changed. Otherwise, you must attend when asked. You are entitled to expenses for attending the interview. These cover travel, care costs, subsistence and loss of earnings. You will be given information about how to claim these. If you think you would find it helpful to have a supporter with you, let the fiscal know before the interview that you would like this and who you wish to bring with you. The fiscal will discuss this with you and let you know whether this is possible.

You can have an interpreter if your first language is not English or you have a hearing impairment. Fiscal or VIA staff will ask if you need documents to be translated into your preferred language or provided in a certain format.

If you need any special arrangements, for example because of disability, to help you get to or take part in the interview, let the fiscal or VIA know.

The interview (the precognition investigation)

At this interview, the fiscal will ask you about what happened. They will be as sensitive as possible. Interviewers are experienced in cases of rape and sexual assault. They know how hard it is for people to have to go through what happened and that there are things that you might not want to say.

You may find the questions difficult and upsetting. Or, you may be asked what seem like daft questions. The reason they are asking these questions is to check information and to test how strong the evidence is against your attacker. Although it might seem insensitive, it is better that the fiscal knows the answer to these questions from the start.

It is very important to be honest and to say exactly what happened. Try to remember that what happened to you was a crime and that the fiscal is not there to judge you but to prosecute crime. If you try to hide information because you feel ashamed, embarrassed or want to protect another's feelings, it could weaken the case and may come out in court anyway.

You may find it difficult to remember what happened. This is very common. It may help to write down anything you do remember. If the case goes to court, it may take many months.

If you have remembered anything about the assault since you spoke to the police, it is important to tell the person interviewing you.

You can ask the interviewer any questions you want. It is fine to phone back later if you think of any others. At any time, you can tell the fiscal or VIA if there is anything that you are worried about, for example your own or someone else's safety.

You can see your VIA officer before or after the interview.

Sexual history and character evidence

In many cases, the defence will apply to the judge to be allowed to ask you questions at trial about your sexual history or your character (past behaviour). The prosecution may also want to ask you about this if they think it is relevant to the case.

If the defence makes an application about this, VIA will let you know and will tell you whether the judge is going to allow the questions or not. The fiscal will have to ask you about these issues as part of the precognition investigation. If the defence applies after you have already met the fiscal, you may have to meet with them again (re‑precognition).

Decision about whether to prosecute or not

The aim of the precognition investigation is to decide if there is enough evidence to prosecute the case and if it is in the public interest to do so. It also helps to get an accurate picture of the evidence which would be presented to a court if the case is prosecuted.

Once the fiscal has completed these investigations, they send a report with recommendations to the Crown Office in Edinburgh. The final decision about whether the case should go to court and what the accused should be charged with is taken by senior prosecutors (Crown Counsel).

Decision not to proceed ('no pro')

The fiscal may decide that the case will not proceed or Crown Counsel may decide it will not go to trial. If so, you will get a letter telling you this. The fiscal has a duty to explain the reasons for this on request.

It is important to remember that a case must be proved to a very high standard (beyond reasonable doubt) to secure a criminal conviction. A decision to take no proceedings does not mean that you were not raped or sexually assaulted.

The fact that the accused had a first appearance in court (on petition) does not guarantee that there will be a full trial. Its purpose was for the fiscal to set out the charge against the accused, and advise the court that they were investigating the crime.

If Crown Counsel decides the case will go to trial

You will get a letter (citation) saying that you will need to go to court to say what happened to you (give evidence). If the accused pleads guilty, you will not have to give evidence in court.

For the court case, you do not need a lawyer as you have done nothing wrong. COPFS prosecutes the case on behalf of the Crown. You are a witness for the prosecution.

VIA will give you information about the trial process, the Witness Service ( see Section 4) and can refer you to other agencies which offer practical and emotional support.

Decision about the court procedure

The fiscal decides how the case will be prosecuted. Cases of rape and serious sexual assault are prosecuted in front of a judge and jury (solemn procedure). Rape cases are always prosecuted in the High Court. Other serious sexual offences are prosecuted either in the High Court or the Sheriff Court before a jury.

The difference between the two courts is in the maximum sentences they can impose. The High Court can sentence up to life in prison. A Sheriff Court can sentence up to five years in prison but may refer the case to the High Court if they think the sentence should be longer.

This information pack describes solemn procedure in the High Court and Sheriff and Jury Court ( see Section 5 - Court procedures) as this is always used for rape and serious sexual offences. Some sexual offences may be prosecuted using summary procedure in the Sheriff Court (judge but no jury; sentence of up to 12 months in prison, unless the law states otherwise).

VIA will send you an information leaflet about procedures in the type of court that your case will be heard in.

Defence investigation

Before the case goes to trial, the lawyer (defence lawyer) for the accused may want to interview you. This is a normal part of the legal process. You do not have to agree to the interview but the fiscal will encourage you to take part. The interview gives the defence lawyer a better idea of the case and helps them advise the accused whether they should plead guilty or not guilty. This sometimes means that a trial can be avoided.

You can ask for this interview to take place at a time and a place that suit you. You should be contacted in advance to arrange this. This could be at your home or in a police station, for example. You can have a supporter with you at the interview as long as they are not a witness in the case. The interviewer should treat you sensitively and with respect. It is best to be open and honest at the interview.

If there is more than one accused, you may need to speak to more than one defence lawyer.

You can have an interpreter if your first language is not English or you have a sensory impairment. Let the defence lawyer know if you need any assistance to take part in the interview so they can make any necessary arrangements.

Your details

The names and addresses of all witnesses are given to the defence lawyer. This lawyer is not allowed to give your address or phone number to the accused. Your address, and all other civilian witnesses' addresses, will be given care of the police station.

Any statement you gave to the police may also be given (disclosed) to the defence lawyer. This is so that the defence lawyer can represent the accused fairly. Statements given to the defence are considered by the fiscal and may be edited so that only relevant information about the crime is included.

The defence lawyer is usually allowed to get details of any convictions or pending court cases you may have. The court may allow the defence lawyer to refer to this at trial if it is thought to be relevant to your evidence.

What information the fiscal can give you

The fiscal and VIA will tell you as much as possible. Sometimes, you may be given less information than you think you should get. This is because you are a witness and to protect the case. By law, the fiscal cannot coach you, for example advise you what to say in court or what to wear in court. This could lead to claims that an accused has not had a fair trial.

Sometimes a decision may be taken which you do not understand. If you are unsure about anything, ask the fiscal or VIA to explain.

Length of time before trial

It may take some time before there is a trial.

If the accused has been remanded in custody, the trial has to begin within 140 days. If the accused is on bail, the trial has to begin within a year. There are sometimes delays, for example because more time is needed to prepare the case or witnesses are not available.

Before the trial, there are various procedural hearings at court. These are to sort out any legal details before the trial. Witnesses should not attend court (including procedural hearings) until they have given their evidence. Procedural hearings are a standard part of the process, and do not mean that the case is being delayed.

Preparing for the trial

You will be told when the trial is due to start. You will receive a letter (citation) which tells you where and when to attend. Once the date is set, it usually starts then. But it might change at short notice, for example, if the case before takes longer than expected. If you cannot attend on this date, contact the fiscal or VIA immediately as it may be possible to make other arrangements.

If anything has changed, for example your health, since you were last in touch with the fiscal, let VIA or the fiscal know so that any necessary arrangements can be made to help you.

Changing your mind

You may have second thoughts about going to court during the investigation process. Some people worry about having to give intimate details in court. Some people don't want to have to remember and go over what happened to them or are frightened they might be harmed if they give evidence. The fiscal will take your feelings and what you say into account and will encourage you to get advice and practical help to deal with any concerns and fears. However, the decision about prosecuting the case is taken on the basis of the public interest and not your wishes alone. So, it is likely that, if there is sufficient evidence that the offence was committed and the accused was the person responsible, the prosecution will continue.

You cannot refuse to go to court to give evidence.

If you are in any way worried or scared contact VIA, the fiscal or any of the support agencies listed in section 4.

Plea negotiation

Sometimes the accused will offer to plead guilty to an amended charge, for example from rape to indecent assault or attempted rape. Sometimes an amended plea is accepted. This can save victims from the stress of having to go to court, and it means there will be a guaranteed conviction. Sometimes the plea is not acceptable, and the prosecutor will decide to continue with the prosecution. The prosecutor will ask for your views and take these into account when making a decision. Unless circumstances prevent this, the prosecutor will tell you if they intend to accept a reduced plea and their reasons before the plea is accepted in court.

Not guilty plea

Sometimes the prosecutor might consider accepting a not guilty plea. Unless circumstances prevent this, the prosecutor will tell you if they intend to do so and their reasons. They will try to speak to you about this before the plea is accepted in court.

Support through the process

There may be times when you feel as if you have no control over what is happening, that important decisions are being made for or about you, and that you are not getting all the information you expect. This can be upsetting. There are things you can do to help feel more in control:

  • Ask someone if there is anything you do not understand or want to know. You have the right to ask questions at any stage of the process. If an official such as the fiscal is not able to give you certain information, then they should tell you why
  • It may help to write down what you tell the police, the fiscal and the defence. This may help you keep things clear in your mind. It may also be a good memory aid if the case goes to court as this can take a long time
  • If you feel at all worried, anxious or distressed, tell the police or the fiscal or talk through your worries with a support agency
  • Take up VIA's offer to arrange for you to visit to the court so you can see it before you have to go to give evidence and so you can ask any questions about what happens in court

There are various support agencies which can help you at this time. Details of these are in section 4.

Remember

The legal process is complicated and can be confusing. This can be difficult to cope with on top of the actual assault.

There are people who can support you at all stages of the process.

There may be things you do not understand about the case or how the law works. Ask Victim Information and Advice ( VIA) or the Procurator Fiscal if there is anything you are not sure about.

Tell VIA or the fiscal if there is anything that is worrying you or if you have any information which might help the case.

You are entitled to be treated sensitively and with respect and to be kept informed about the case. You have a right to comment or complain if you are not.

Decisions always depend on the evidence available and, if the case goes to trial, whether a jury thinks that the case has been proved beyond a reasonable doubt.

If the case does not go to court or the outcome of the case is disappointing, it does not mean that you were not raped or sexually assaulted.

Victim Information and Advice contact details

You can phone VIA at any time to check progress. There may be periods when nothing seems to be happening. This is normal and it does not mean that the case is delayed or that there are problems with it. It takes time to sort out all the formal legal procedures before a case goes to court.

VIA provides a service throughout Scotland with staff based in 20 Procurator Fiscal offices across the country.

For further information and details of your nearest office contact the COPFS Enquiry point at:

Email: EnquiryPoint@copfs.gsi.gov.uk

Postal address:

The Crown Office,
25 Chambers Street,
Edinburgh
EH1 1LA

Telephone: 01389 739 557, rates from mobile telephones may vary by provider.

Calls can be made through RNID Typetalk. Please prefix our telephone number with 18001.

Deaf sign language users should text on 07825 280346, specifying if you would prefer your reply by sms, text or email.

Website: www.copfs.gov.uk.

Going to court

This section tells you about going to court, your role, the support you can get and what to expect.

If the accused pleads guilty then you will not have to give evidence in court. They might not plead guilty until the last minute.

What is expected of you

The procurator fiscal depute or advocate depute will ask you to tell the court what you remember (give evidence).

The thought of giving evidence in court can make people feel anxious. There are things which can be done to make this easier for you and to help you give the best evidence you can. These are explained below. There are also people who can help you such as VIA and the Witness Service ( see Section 4). They will give you information about being a witness. You can also find out about going to court and being a witness at www.mygov.scot/crime-justice-and-the-law/ and from the booklet the fiscal's office gives you when you are called to be a witness (see also 'Are you a witness?' at www.crownoffice.gov.uk).

The crime is prosecuted by the Crown against the accused. You are a witness for the Crown. The Crown is not acting for you but for the 'public interest'. You do not need your own lawyer as you have done nothing wrong.

It is against the law for the prosecution to coach witnesses. That means that they cannot advise you what you should say in court, how you should behave or what you should wear.

Unless circumstances prevent this, the Advocate Depute (High Court) or the Procurator Fiscal (Sheriff Court) will meet with you before the trial to introduce themselves to you. This is so you know who will be asking you questions in the courtroom. They will not discuss your evidence with you.

Support attending court

Before you are to give evidence, you can have a court familiarisation visit. VIA will refer you to the Witness Service for this unless you ask them not to. Many people find these visits very helpful. They let you see what a court looks like, who will be in court and who may ask you questions. You can have someone with you during a court familiarisation visit.

You can also apply to have a supporter with you while you are at court giving evidence. As long as they are not a witness in the case, they can sit in the court with you when you are giving evidence (but cannot talk to you). Think about who you want this person to be. While it may be very reassuring to have a close family member with you, you may not want them to hear very intimate details about you in court. You might prefer somebody from the Witness Service or an agency such as Rape Crisis. They are experienced in working with people who have been raped or sexually assaulted and they also know how the court system works.

Expenses are payable for court familiarisation visits, for attending court and to supporters. These can help with the costs of travel, loss of earnings, child or other care costs and meals/snacks while you are in court. The fiscal will send you details about these allowances and how to claim them. There is information about this in the 'Being a Witness' booklet which you will get when you are called (cited) by the fiscal to be a witness in the case.

Your safety

It is a criminal offence for anyone to try to frighten a witness, jury member or anyone helping the police with an investigation. If you are in any way frightened by the accused or other witnesses before or during the trial, tell the police, VIA or the Witness Service.

You can ask VIA or the Witness Service to arrange for you to be met at the court and to enter and leave the court from a different door to the accused or witnesses for the accused. You will be able to sit in a separate waiting area, and someone from the Witness Service can sit with you.

Feeling more comfortable about giving evidence

You may be anxious about giving evidence and the fiscal is aware that this could affect your ability to do so. There are various ways to help you to give the best evidence you can.

The nature and circumstances of rape and other serious sexual offences mean that you are automatically entitled to use standard special measures to help you give your evidence.

The standard special measures are giving evidence by live television link, sitting behind a screen in the courtroom or having a supporter with you in court. If you use a screen or give evidence by a television link, you will not see the accused but they will be able to see and hear you through a TV monitor.

It may be possible for you to give your evidence through a prior statement. This means that you do not have to explain in court what happened, though you may be questioned in court about your statement. Another option is to give your evidence to a commissioner before the trial.

VIA will discuss these options with you and the fiscal will apply to the court for measures to be put in place. It is up to the judge to decide whether or not to approve special measures, other than those standard special measures mentioned above which are automatic, and if so, which one(s).

The judge can agree to clear the court of everyone except essential court staff and the jury when you give evidence. If you want this to be considered, speak to VIA or the fiscal before the trial so that they can ask the judge.

The press are allowed to stay but they will ensure that details of victims are not included in reports of rape and sexual offences.

Usually witnesses stand to give evidence. But you can arrange to give evidence while sitting if it is difficult for you to stand for long periods. You should discuss this beforehand with VIA or the Witness Service.

People often worry about what will happen if they cry when giving evidence or if they need to go to the toilet. If you need a glass of water, a seat or a break, ask the judge. Questioning can take some time and can be very tiring.

You have a right to an interpreter if your first language is not English. This will be arranged before the trial takes place.

If you have a disability, you may need certain arrangements to be made to get into court and give evidence. These will be arranged before the trial takes place.

Length of time in court

It is not possible to say how long you will have to wait until you are called into the courtroom or how long you will be in court giving evidence.

It may be possible to call you to court around the time you will be needed to give evidence, rather than having you waiting at court all day. If you would like to do this, speak to VIA or the fiscal. You will need to let them have your phone/mobile number so they can contact you in time for you to get to court.

The accused in court

If you are granted special measures such as a screen or CCTV, you will not be able to see the accused. They will be able to see you but this will be through a monitor.

What happens when you give evidence

Witnesses cannot go into the courtroom before they give evidence. You will wait to be called in a waiting room. Your supporter can stay with you.

You will be taken into the courtroom to the witness box.

The judge will ask you to promise to tell the truth. You can give this promise in a way that fits with your religion, language or culture.

The prosecution (fiscal or Advocate Depute) will ask you questions. You may hear this referred to as 'examination in chief'. First, they will ask you your name, age and occupation. You will then be asked to tell the court about the assault. Your address will only be mentioned in court if it was the address where the offence took place. But it may become evident if, for example, the incident was viewed from the address or an item was recovered from it. But care will be taken to make sure that, if possible, your privacy is respected.

The defence will then ask you questions (called cross examination). They have a duty to defend the accused and you may find some of the questions upsetting. They may accuse you of lying or try to undermine you. It is difficult, but try not to take it personally. It is part of their job. It is up to the judge and the jury to decide what they think of your evidence. You cannot refuse to answer questions but the judge can allow or disallow questions. The judge should prevent any abusive, aggressive or inappropriate questions and the prosecution has a duty to object to them. If you are asked a question which is objected to, you may be asked to leave the courtroom while there is a legal argument about whether you need to answer the question.

You should not be asked about your past sexual behaviour unless it is relevant to the court case and the court has agreed to it being raised ( see above). If a defence application was successful, an accused's previous convictions for sexual offences can be disclosed to the court.

The prosecution may ask you further questions (re-examination) in case they need to clarify anything which has come up from the defence cross examination.

The judge may ask you questions at any time.

The accused cannot ask questions.

You should answer the questions truthfully and as best you can. This is so that the court can see that you are reliable and credible. If you do not understand a question you can ask for it to be explained.

When you give evidence in court:

  • Tell the truth
  • Speak clearly and take your time
  • Answer only the questions you have been asked
  • Say if you do not understand a question
  • Do not interrupt or jump in
  • Tell the judge if you feel ill or upset or need a break

After giving evidence

After you have given your evidence, the judge will ask you to remain in court or tell you that you can leave. If you want, you can sit on the public benches and watch the rest of the trial. Be aware that what you see and hear during the rest of the trial may make you feel very upset or angry. You cannot say anything or shout out.

How the case is decided

A jury (normally 15 members of the public) listens to all the evidence and to the information the judge gives about the law. They then decide on the result (verdict). The decision can be unanimous (all the jury members agree) or by majority (at least eight of the jury agree). The jury can decide that the accused is 'guilty' or 'not guilty' or that the case is 'not proven'.

If the accused is found 'guilty' they are sentenced by the judge. This may happen there and then or may be delayed so that background reports on the accused can be prepared. The court may remand the accused in custody or grant bail until they are sentenced.

If the accused is found 'not guilty' or 'not proven' they are free to leave the court. It is not possible to appeal 'not guilty' or 'not proven' verdicts by a jury. However, the fiscal has the right of appeal if the judge has made an error in law.

If the verdict is 'not guilty' or 'not proven' it does not necessarily mean that the jury did not believe you. It may be that the jury did not feel able to find the accused guilty 'beyond reasonable doubt'.

It is not possible to find out the reasons for a jury's decision.

The accused cannot usually be tried on the same charge again, but in 2011, the Scottish Parliament voted to change the law to permit a new trial in certain serious cases where important new evidence comes to light after the first trial.

Whatever the verdict, you are likely to have very strong feelings and it may be helpful for you to speak to your supporter or one of the agencies listed in section 4.

Finding out the result of the case

If you are not in court to hear the verdict, VIA will contact you to let you know what it is or you can contact VIA or the fiscal's office.

Newspapers and television

Some cases of rape or sexual assault are reported by the newspapers and TV. There is little that can be done about this unless the victim or the accused is under 16. But there is an agreement that the press will not give out the names of victims.

If you are not happy about press reports, you can complain to the Independent Press Standards Organisation ( IPSO). You can get details from their helpline on 0300 123 2220 or at www.ipso.co.uk.

You have the right to speak to the press after any trial if you want. But, remember you have no control over what is printed. If you want to speak to the press, it is best to speak to an adviser (for example from a support agency such as Rape Crisis or Victim Support) before you do this.

Scottish Court Service

The Scottish Courts and Tribunals Service is responsible for running the courts. It works closely with VIA and the Witness Service. It produces several useful booklets to help victims and witnesses. These are available in court buildings and online at www.scotcourts.gov.uk.

Sentencing and after

Sentences

The sentence for rape, sexual assault, incest and rape of a young child is up to life imprisonment. In practice, the length and type of sentence imposed is up to the judge. The judge will take into account how severe they think the crime was and the accused's previous record. The counsel for the accused will tell the judge about any factors which they think might reduce the sentence. This is called a 'plea in mitigation'.

If the accused pleads guilty, the judge is required by law to consider passing a shorter sentence than otherwise would have been the case. This is called a sentence discount. The judge decides how much, if any, of the sentence will be discounted. It might depend on when the guilty plea was made. The discount should not normally be more than a third of the maximum sentence available. The judge will state in court how much of a sentence has been discounted.

If you do not understand the sentence passed, VIA or the fiscal will try to explain more about this.

Telling the court how the crime has affected you

When there is a trial with a judge and jury, the victim can choose to prepare a written statement which tells the court, in their own words, how the crime has affected them - physically, emotionally and financially. This is known as a victim statement.

Victim statements are only given to the judge if the accused is found guilty. A copy of the victim statement is usually given to the defence at the same time. The judge must consider the victim statement when deciding the sentence.

The victim statement is not read out in court or given to the press.

You do not have to make a victim statement. Choosing not to make a statement will not influence the trial in any way. The prosecution can still tell the court during the trial how the crime has affected you.

The fiscal or VIA will send you an information pack about victim statements. This includes a victim statement form and contact numbers for support agencies which can help or advise you about making the statement. It also explains what the statement can and cannot cover and how it will be used.

Appeals

A convicted person can appeal against the conviction and/or the sentence. They can also apply for bail (interim liberation) while waiting for the appeal.

If they pleaded guilty, they can appeal against their sentence. The court may impose a different sentence (higher or lower).

If they pleaded not guilty but were found guilty at trial, they can appeal against the conviction and/or the sentence. The court may refuse or allow the appeal. If the appeal is allowed, the court may order a retrial or acquit (free) the person.

Appeals are decided by at least three judges when hearing appeals against conviction and two when hearing sentence appeals. They are heard in the Appeal Court in Edinburgh.

Appeals for High Court and Sheriff and Jury trials (solemn procedure) should be lodged within 14 days.

The prosecution can appeal against a sentence which it thinks is 'unduly lenient'. To succeed, the prosecution has to argue that the sentence was unreasonable given the nature of the offence and the record of the accused. Because of this, it does not happen very often. This type of appeal must be lodged within 28 days.

The prosecution cannot appeal 'not guilty' or 'not proven' verdicts by a jury.

VIA will keep you informed about any appeal.

Length of time in prison

Individuals do not usually serve the whole of their sentence in prison. Most are released before the end of their sentence and many will have strict conditions in place. However, if someone is released early with conditions, they can be returned to custody if they breach those conditions.

If someone is sentenced to life imprisonment, the court will specify how long they must spend in prison (the 'punishment part') before they can be considered for release. If they are released, they are subject to special conditions (life licence) and can be sent back to prison at any time for the rest of their life if they break the conditions. The Parole Board decides when a prisoner serving a life sentence will be released. They will only agree to release an offender if they think the offender is not a risk to the public.

If an individual is sentenced to four years or more in prison, before 1 February 2016, they are considered for release at the halfway point, and are entitled to automatic release at the two-thirds point of the sentence. They will be released subject to conditions (on licence). If they break these conditions they can be sent back to prison.

An individual sentenced, on or after 1 February 2016, to four years or more will automatically be released when they have six months remaining of their sentence. Where the court imposed additional supervision ( e.g. they have an extended sentence), they will not receive automatic early release at any point in their custodial sentence.

For all individuals sentenced to four years or more, both those with an extended sentence and those without an extended sentence, the Parole board will continue to be able to consider discretionary early release ( i.e. licence condition release) from the halfway point of their sentence.

If you want to be notified about the offender's release

If the offender has been sentenced to 18 months or more in prison, you can choose to be notified when the offender is released by registering with the Victim Notification Scheme. There are two parts to the scheme which you can opt into.

If you opt into part 1, you will be told when the offender is released; if the offender dies before release; has been transferred out of Scotland; is eligible for temporary release; or absconds or escapes and also when the offender is returned to prison following an escape.

If you opt into part 2, you will get the chance to send written comments, or in certain circumstances provide them orally, to the Parole Board before the possible release of an offender on licence. You will be sent more information, nearer the time, about the type of information that can be considered in these comments. You will be told whether the Parole Board recommends or directs the release of an offender and whether any conditions have been attached to the licence that relate to you or your family.

If you are eligible for the scheme, the Crown Office will get in touch with you. You can choose whether or not to opt in. It may be difficult to make a decision about this immediately after the court case and you may want to speak to a support agency first. You can change your mind and opt in or out of the scheme at a later date (but before the offender is due for release).

You can get more information on the scheme from the Scottish Prison Service at www.sps.gov.uk or 0131 244 8745.

Your safety

The police are told when a prisoner is released from prison. If you are worried about your safety contact the police. If you have been threatened or frightened by the offender, you can apply to the court for an interdict or a non-harassment order to prevent them from coming near you, your home or your work. You need to ask a solicitor to apply to the court on your behalf. The support agencies in section 4 can give you advice on how to go about this. You can find details of solicitors at www.lawscot.org.uk.

Your reactions

Whether your attacker is found guilty or not guilty, you may have strong feelings and physical reactions at the end of the court case. Up to now, you may have focused all your attention on getting through the court case. You may not have had much of a chance to think about anything else. Remember that you do not need to cope alone. There are agencies which you can contact for support as often as you need ( see section 4).

Private prosecution

If the Crown Office decides not to prosecute the case, in theory, you could go to a solicitor and ask them to prosecute the case for you (private prosecution). To bring a private prosecution you must have the Lord Advocate's consent. This process is very expensive and you cannot claim legal aid, so it is very rare. There has only been one 'recent' private prosecution. It was for rape and was in the early 1980s.

Civil action

If your attacker is found not guilty by the court, you can take civil action against them. 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 proof 'beyond reasonable doubt'. You would not be making a criminal allegation, but making a claim for damages. This can be a very long and expensive process and there is no guarantee that you would get legal aid. If you are considering civil action you should get advice from a solicitor. You can find details of solicitors at www.lawscot.org.uk.


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