2 Background information about criminal cases and their first appearance in criminal courts
In order to explain the results in this publication, it is important to begin first by providing context on what happens when someone is accused of a crime and a criminal case is called.
2.1 How criminal cases progress
Figure 1 shows how crimes progress through the criminal justice system in Scotland, from the point of the incident being reported all the way through to a possible conclusion of the case in criminal courts.
Not all cases proceed to court - some conclude at the police stage without being reported to the Crown Office and Procurator Fiscal Service (COPFS), and, for some cases that are reported to COPFS, a decision may be taken not to prosecute in criminal courts. If cases are prosecuted in court, this will be either a summary prosecution (starting with a new case calling in the Sheriff or Justice of the Peace court) or a solemn prosecution, which begins with a new “Solemn Petition” case calling in the sheriff court. Solemn prosecutions are for more serious criminal charges and would involve a jury if heard at trial.
Figure 1 - How crime flows through the Justice System
Crime classified & suspect charged
The incident is reviewed by Police to determine if it is a crime. If a crime, the Police will charge the suspect (where possible) and:
- issue a Fixed Penalty Notice or Recorded Police Warning,
- issue a report to COPFS, or,
- decide on no further action.
Police report the case to COPFS
The accused will be:
1. Kept in custody - the case will be called the next court day.
2. Released on an Undertaking - the accused will be told when to appear and may have bail conditions.
3. At liberty - if prosecuted, the accused will receive a citation stating the charge and when to appear.
Report marked by COPFS
The prosecutor decides if the accused will be prosecuted:
1. No action - e.g. not enough evidence.
2. Direct Measure - an alternative to prosecution, e.g. Fiscal Fine or warning letter.
3. Summary prosecution - JP or Sheriff Court (no jury).
4. Solemn prosecution - Sheriff or High Court (with jury).
Case heard & court outcomes
If the accused is found guilty in court, or tendered a guilty plea, then they can be given:
- Custodial sentence
- Community sentence
- Monetary penalty
- 'Other' disposal
2.2 How cases begin in criminal courts
When a criminal case is called for the first time in court the accused may or may not be present in court. If the accused is present, the circumstances of their appearance in court is usually one of the following:
- Appearance from police custody: This means the accused has been brought to court directly from being detained in police custody,
- Appearance on an Undertaking: This means the accused was previously released by the police on an Undertaking to appear in court at a later date, and in the time up to their court appearance they have been required to adhere to certain conditions in the community.
- Appearance after an Initiating Warrant: This means that the court has issued an initiating warrant in order for the police to bring the accused before the court. However, appearances after an initiating warrant have been excluded from this analysis due to the differing ways in which warrants are executed.
- Another type of appearance: The accused may have been previously “cited” to appear in court, and in the time up to their court calling remained in the community without having to adhere to specific undertaking conditions.
An accused can also appear from prison custody, for example if they are remanded on another case, or they are serving a prison sentence for another case and are brought to court from prison to answer a new case that has been commenced by the COPFS.
These appearance types are illustrated on the left hand side of Figure 2.
At the first bail decision point the case may conclude immediately (for example via guilty plea). If not, and the case is continued, a decision is made on whether the accused should be:
- Remanded in custody in a Scottish prison,
- Released to the community subject to bail conditions,
- “Ordained to appear” at a later date (i.e., at liberty in the community and not subject to any bail conditions),
- Some other outcome.
This can be seen on the right hand side of Figure 2, and this publication is focussed on these outcomes.
Figure 2 - First bail decision points of cases in sheriff courts and decisions about remand and bail (orange indicates cases excluded from this analysis).
The accused can appear at their first bail decision point in one of four ways:
- Accused appears from police custody,
- Accused appears on an undertaking,
- Accused appears after an Initiating Warrant (excluded from this analysis),
- Other first hearing type (e.g. accused is "cited").
The case will either conclude at the first decision point, or continue to further stages on the case in one of five ways:
- Case continues with accused remanded in prison,
- Case continues with accused released on bail,
- Case continues with accused "ordained" to appear,
- Case continues with a non-appearance warrant issued for the accused,
- Case continues with another outcome for the accused.
Remand means that accused individuals are held in prison custody while awaiting trial. Scotland’s remand population has risen dramatically over the pandemic and accounts for an increasingly large proportion of Scotland’s prison population. Currently, around 30 per cent of the total prison population – i.e. over 1 in 4 people in prison have either not been convicted or sentenced, which compares to around 20 per cent on remand pre-pandemic.
In part, the current level of remand has been driven by the pandemic and the constraints on court activity which have caused a backlog in proceeding cases. However, Scotland’s remand population was rising pre-pandemic despite a reduction in the number of arrivals since 2009-10. The remand population is influenced both by the number of people being remanded by courts and by the amount of time they then spend on remand. The paper examines the number of people being remanded while awaiting Sheriff and High court trials.
2.4 Release into the community
The accused individual may instead be released into the community, with or without conditions. If no conditions are attached, this is known as being ordained to appear at a future hearing. If conditions are attached to the release, this is known as bail.
Bail conditions include appearing at all future court hearings and not committing further offences.
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