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Most of us manage through life without having to ever darken the door of a police office or court. However, some of us may find ourselves in the criminal justice system for a variety of reasons. It might be you are charged by the police, cited as a witness or called to jury service.
Whatever the reason, it is important you understand the procedures employed within the criminal justice system, wherever in Scotland you may have been charged or involved (Glasgow, Aberdeen, Edinburgh, Paisley, Dundee, Dumfries, Perth, Ayrshire, Inverness, Kirkcaldy or elsewhere)
Our comprehensive and clear legal guide to criminal law in Scotland below will explain everything you need to know, from charge through to sentencing. And If you require representation or criminal defence advice about a criminal charge in Scotland contact us here or call us on 01415529193 today. We only recommend the best criminal defence solicitors and advocates in Scotland.
Sadly, most members of the public understand little about Scots criminal law. They are confused about the role of judges, what solicitors do, what procedures are adopted in court and what an Advocate is.
This guide will set out some of the most important issues you need to know about the Scottish criminal justice system, from being arrested by the police to the role of a jury in a solemn trial.
Most crimes are reported by an individual to the police. The police will attend the place where the incident has taken place, take statements from any witnesses to events and seize any potentially relevant evidence. Evidence can take the form of objects such as weapons, documents and even bodily fluids and tissues.
If the police believe there is sufficient evidence to form a case, they will send a report to the Procurator Fiscal.
The Procurator Fiscal acts on the authority of the Lord Advocate - one of two Law Officers who head up the Crown Office and Procurator Fiscal Service in Scotland. In turn, Procurator Fiscal Deputes act on behalf of the Procurator Fiscal.
When a police report is received by a Procurator Fiscal or their Depute, they will consider whether there is enough evidence to prosecute the individual. If there is not, they might ask the police to investigate matters further or decide not to take matters any further.
Where there is enough evidence, the Procurator Fiscal Depute will then decide in which court the prosecution should take. The least serious matters may be dealt with by way of a Fiscal Fine and not have to go to court.
Generally speaking, the least serious crimes requiring prosecution, such as minor road traffic offences, will be dealt with by the Justice of the Peace Court (formerly the District Court).
More serious crimes will be prosecuted in the Sheriff Court and the most serious crimes (murder, rape etc.) will be prosecuted in the High Court.
Police may detain you if they wish to speak with you about a suspected incident. Police can detain an individual for up to 12 hours. This can be extended to a total of 24 hours following authorisation from a senior police officer.
Any suspect detained by police will be cautioned. This means they will be told that they do not need to answer any questions during the course of police interview. They will also be told that if they do answer questions, those answers will be noted down and may be used in evidence against them. Police Scotland usually record interviews on both audio CD and visual DVD. These recording mediums are utilised at trial if the matter proceeds that far.
Police can arrest individuals without having first detained them. In order to do so, there must be sufficient evidence so to do.
Individuals may be detained for a number of statutory reasons. In all cases, an individual may only be detained if there are reasonable grounds for suspecting that they have committed or are committing an offence punishable by imprisonment (section 14(1) of the Criminal Procedure (Scotland) Act 1995). Following detention you need only tell police your name, address and date of birth.
Following the case of Cadder in 2010, the UK Supreme Court held that a detained person is entitled to have a lawyer provide advice ahead of interview by the police. The lawyer may attend at the police station or may provide advice by phone. This means that everyone is entitled to legal advice throughout the interview process and a lawyer is permitted to attend at interview. It is strongly advised that you exercise your right to legal advice if you are detained by police.
You are entitled to reasonable breaks, rest and food, if necessary, during your period of detention.
Samples such as mouth swabs may only be taken if they are necessary to the investigation of the case.
Once the period of detention has expired (12 hours), the police must arrest or release you. If you are arrested, you will either be kept in custody until the next court day (a Monday if you are arrested on a Friday, Saturday or Sunday), or you will be released and ordered to appear at court on a specified future date. You may also be released while a report is sent to the Procurator Fiscal, who will decide whether to prosecute you. If they decide to start criminal proceedings, you will be notified and given dates when you must attend court.
If you are arrested, it is important that you seek legal advice from a solicitor as soon as possible. If you have declined legal advice for interview, you should seek it as soon as you can after being released. If you are kept in custody, the police will contact a solicitor on your behalf. You can either request a solicitor you know or they will arrange for the duty solicitor to meet with you.
Once the police have reported matters to the Procurator Fiscal and a decision has been made to prosecute, you will either be appearing from custody or ordered to appear on a future date.
If you appear from custody, the question of bail will be considered by the Sheriff. The crown may oppose bail and will give reasons for this. Your lawyer will then be permitted to address the court on your behalf requesting that bail be granted. In Scotland, bail requires agreement by the accused to adhere to certain rules. These include not interfering or contacting potential crown witnesses.
Sometimes special bail conditions are added such that prohibit you from entering certain streets or areas of a town or city, or ordering that you attend for an Identification Parade. You must accept these conditions before you are released from custody. Any breach of these conditions will most likely see you back in custody and less likely to secure release until the end of your case.
If you are released from custody, you will receive a charge sheet or an indictment providing details of the crimes you are charged with and a date for when you must appear in court. If the matter is charged at Summary Level (heard before a Sheriff only) you will be appearing at a ‘Pleading Diet’ to tender your plea. You can appear personally at that diet, arrange for a solicitor to appear for you on that date, have your solicitor provide a letter to the court intimating your plea or send in such a letter yourself.
If you have plead 'Not Guilty' you will be given dates for an intermediate diet and trial diet by the clerk of court. You must ensure you attend at all diets assigned by the court. Failure to do so could result in a warrant being issued for your arrest.
If the charge is more serious, you will be ordered to appear in the High Court in either Glasgow or Edinburgh for a Preliminary Hearing within 30 days of being released from custody.
You must be represented by someone with rights of audience in the High Court. Solicitors do not have such rights and must instruct an Advocate or a Solicitor-Advocate to appear on behalf of their client. Once instructed, an Advocate or a Solicitor- Advocate will appear for you until the conclusion of your case.
Sheriff Courts are the busiest courts in Scotland. Due to its territorial scope, Glasgow Sheriff Court is one of the busiest courts in Europe. Although it also deals with civil matters, the business of a Sheriff Court is mainly criminal cases.
More minor matters will be heard before a Sheriff who will decide the outcome of a trial. More serious matters will be tried before a jury. It is the job of the jury to return a verdict having heard all the evidence and submissions in a case (see below). However, it is the job of the Sheriff to pass sentence on anyone who pleads guilty or is convicted after trial.
The maximum sentence afforded to the Sheriff court is 5 years custody. However, if a Sheriff feels the offence merits a higher sentence, they can remit the case to the High Court where there is no upper limit on a custodial sentence.
Sheriff Courts in Glasgow and Edinburgh also have dedicated drugs courts and domestic abuse courts which specialise in dealing with these types of crimes. Specialist prosecutors deal with these cases and those courts run on a frequent basis. There are also dedicated Sheriffs to deal with such matters.
See also our guide to Finding the Best Hamilton Sheriff Court Criminal Lawyers or East Kilbride Justice of the Peace Court Defence Solicitors (more local Sheriff Court guides to follow).
The most serious of all crimes are dealt with in the High Court of Justiciary. These include murder, rape, serious sexual offences, high value drug cases and firearms.
The High Court sits permanently in Glasgow and Edinburgh. It also travels on circuit, sitting at cities such as Perth, Aberdeen, Livingston and Paisley.
All trials in the High Court are heard before a jury.
The sentencing powers of a High Court Judge is unlimited and people can be given Orders for Lifelong Restrictions (OLR) which effectively means they will always be subject to control by authorities. To date, no-one placed on an OLR has been released from custody. You can also see our new guide to Serious Crime Defence in Scotland here.
The origin of the Scottish Jury is somewhat obscure but it is thought to have developed around the same time, albeit in a different form, to the English Jury system. It is believed that it was formally established in the 11th and 12th century following after the Norman style of government.
Every person who is registered on the electoral role and is aged between 18 and 65 years is eligible to serve on a jury.
A citation to attend will be sent to their home and they must attend court at the allocated time.
Fifteen members make up a jury. There must be a majority of 8 jurors in favour of a guilty verdict to convict an accused. If members of a jury require to be excused for good reason after commencement of the trial, their number cannot reach below 11. There must be a majority of those left in favour of a guilty verdict in order for such a verdict to stand.
Selection of the jury is as simple as placing their names in a glass bowl or vase and selecting them at random. The juror will be assigned a seat within the jury box and must keep that seat throughout the trial.
Jurors will be told at the start of a trial that they must decide their verdict according to the evidence. They also swear an oath to do just that.
Evidence is led first by the crown. After each witness has given their ‘evidence in chief’, the defence, if they so wish, are entitled to cross examine each crown witness. Once all crown witnesses have been led, the crown will close their case. As part of the crown case, a joint minute may be read. This is simply a written agreement of evidence between the crown and defence. The jury must accept what is written in that document as proved facts.
After the close of the crown case, the defence may, if they wish, lead evidence of their own. There is no duty on the defence to lead any evidence or to prove anything. The onus of proof lies with the crown throughout the trial. They must prove the charges against the accused by way of corroborated evidence. This means evidence from more than one source. This could be eye witnesses (direct evidence), circumstantial evidence or a mixture of both.
The crown must prove the case beyond a reasonable doubt. A reasonable doubt is not a fanciful or hypothetical doubt but something that would make you hesitate in considering something of importance in your own affairs. The crown witnesses must be accepted by the jury to be both credible and reliable.
After all the evidence has been led at trial, the crown address the jury with a closing speech. The defence then have the opportunity to do likewise. Finally, the Judge will give the jury directions in law. The jury are then told there are three verdicts open to them: guilty, not guilty and not proven. Not guilty and not proven are both verdicts of acquittal.
The jury are then instructed to retire and consider their verdict. They are told to appoint one of their number as spokesperson to deliver the verdict in court. Jurors are allowed as much time as is required to come to a verdict.
Some jurors are excused from jury service for life if they have been involved in a particularly difficult or upsetting trial. Many people are daunted by the thought of jury duty but without members of the public attending court, even if they are not selected for jury duty, our courts would simply not function.
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Although the jury are the masters of the facts during trial and decide the guilt or innocence of the accused, it is for the Sheriff or Judge to sentence the accused if convicted. The jury will be specifically told that they should not concern themselves as to the sentence to be imposed should they find the accused guilty. The judge alone deals with that issue.
Very often various reports are obtained before sentence is passed. If that is the case, the matter will be deferred for a period of at least 4 weeks while these reports are obtained. During that time the accused may be released on bail but an application must be made by his solicitor or Advocate to secure it.
As discussed above, sentencing powers vary between the Sheriff and High Court. The High Court has unlimited sentencing powers, while the maximum custodial sentence imposed by a Sheriff Court is currently 5 years.
Sentences and convictions can be appealed to the Criminal Appeal Court in Edinburgh. Formal applications must be made by your legal team seeking leave to appeal.
Sentence appeals are heard before a bench of two Judges in the Appeal Court. Appeals against conviction have a bench of at least three Judges.
Advocates are members of the Faculty of Advocates and have status akin to that of Barristers in England & Wales. The Faculty of Advocates was founded in 1532 as an independent body of lawyers. They have usually been solicitors in private practice or in public office prior to calling to the Scottish Bar.
The period of training an Advocate undertakes is called 'Deviling". This is a period of at least 9 months where the Advocate in training (Devil) attends formal training seminars, shadows practising members of Faculty and is required to pass numerous Faculty exams in order to be deemed fit to call as an Advocate.
Advocates are independent, self-employed expert lawyers. Solicitors require to instruct Advocates to represent their clients in the Supreme Courts (the High Court of Justiciary for criminal matters and the Court of Session for civil matters).
Advocates wear wigs and gowns to court as part of the traditional dress. Some believe that the wig and gown demonstrates the 'putting on' of an independent, impartial self which leaves emotions behind as it enters the court room. Impartiality is extremely important in the appointment of an Advocate to deal with your case.
Instruction of your Advocate comes through your solicitor. Selection of counsel is a very important decision in your case. Choosing wisely ensures the proper preparation and presentation of your case at trial. The decision of whom you wish to represent you at trial is one you are entitled to make yourself. Whilst your solicitor may offer some suggestions, you are entitled to the Advocate of your choice.
Nothing in this guide is intended to constitute legal advice and you are strongly advised to seek independent advice on matters that affect you.
For more legal information & advice on Scottish criminal law and criminal defence in Scotland please click here.