Scotch law and its judicial system
When a crime is reported, the police or another reporting agency begins an investigation. If there is sufficient evidence, a report may be submitted to COPFS for review.
A procurator fiscal (a prosecutor working for COPFS) will examine the evidence. If sufficient evidence exists, the procurator fiscal will decide what action, if any, should be taken in the public interest.
If the procurator fiscal determines that court proceedings are necessary, they will determine which court will hear the case.
If a case goes to trial, a Judge, Sheriff, Justice of the Peace, or a jury (depending on which court hears the case) will hear all of the evidence and render a decision on whether the accused person is guilty or not. If an accused person is found guilty, the Judge, Sheriff, or Justice of the Peace will decide on a sentence.
If you have been a victim of a crime or have witnessed one, you should contact Police Scotland.
Police Scotland's website contains information on how to report a crime to them as well as the investigation of a reported crime.
You have the right to request information about your case as a victim or witness. There are organizations that can help you if you need it. View information about support organizations.
Court bail and remand
If a court proceeding is initiated against an accused and the accused appears in court, the court will decide whether the accused should be released on bail, remanded in custody, or "ordained" or instructed by the court to attend future court hearings. Those accused of a crime have the right to apply for bail, and the prosecutor has the right to inform the court whether bail is opposed or not.
The court makes the decision whether to grant bail or remand the accused in custody.
If you are concerned that an accused will be released on bail,
If you are concerned about an accused being released on bail, contact COPFS, your police liaison, or your lawyer.
In some cases, an accused may be granted bail with special conditions, such as not approaching or contacting a specific witness.
When COPFS receives a report about a crime from the police or another reporting agency, the prosecutor will determine whether there is sufficient evidence before deciding what action to take, if any, in the public interest.
To establish that a) a crime known to Scottish law was committed and b) the accused was the perpetrator, evidence from at least two separate sources (corroboration) must be presented:
Examples of evidence include:
- eyewitness testimony
- DNA/fingerprint evidence
- CCTV evidence
In some cases, the prosecutor may direct the police to conduct additional investigations before making a decision.
The prosecutor makes the decision on how to proceed in a case. Prosecutors will consider all of the facts and circumstances of a case when making that decision. The published Prosecution Code outlines the decision-making criteria and the range of options available to prosecutors.
The prosecutor has the following options:
- In court, there is a prosecution.
- A Warning
- Fiscal penalties
- A conditional offer of a Fixed Penalty (for certain traffic violations)
- Offers of compensation
- Orders for Fiscal Work
- Diversion from prosecution
- The Scottish Children's Reporter Association is referred to.
- There will be no proceedings.
- There will be no proceedings in the meantime.
For certain offenses, the police can issue Fixed Penalty Notices or warnings without referring the case to COPFS.
If the prosecutor determines that an alternative to prosecution is in the best interests of the public, the accused may be given:
- the procurator fiscal's warning
- a financial penalty of up to £500
- a monetary award of up to £5,000
- A fiscal work order means that the accused is given the option of performing between 10 and 50 hours of unpaid work as an alternative to going to court.
- a fixed penalty for traffic violations
- Diversion from prosecution entails referring the accused to the supervision of a social worker, psychologist, psychiatrist, or mediator for the purposes of support, treatment, or other action as an alternative to prosecution. Diversion from prosecution may be granted if the accused has a demonstrable need and it is in the public interest.
In less serious cases, an alternative to prosecution is considered. While the Procurator Fiscal may believe that taking action is in the public interest, prosecution may not be the best option.
The accused accepts responsibility for the crime but does not have a formal criminal conviction recorded against their name, witnesses are not required to appear in court to give evidence, and courts are freed up to deal with more serious cases.
It can take time to prepare a case for court. It is critical for everyone involved in the case that everything is properly prepared and accurate.
Interviews with witnesses
COPFS may be required to interview witnesses about a case in order to assist prosecutors in preparing for a court hearing.
Defence attorneys may also request that witnesses be interviewed.
The statement made during this interview is known as the 'precognition statement.'
Learn more about precognition statements.
If a case goes to trial and you are called as a witness,
If you are summoned to testify as a witness in a criminal court case, you will receive an official letter, known as a 'citation,' from either:
- a defence lawyer – the lawyer who represents the accused person
Learn more about being a court witness.
At the start of a criminal case, the accused will be asked how they intend to plead to the charges against them. The accused, usually through their defense attorney, will:
- Accept the charge and enter a guilty plea
- deny the charge and enter a not guilty plea
- continue the charge without a plea for a limited time in order to conduct additional investigations
If the accused enters a not guilty plea, a trial date will be set during which the evidence in the case will be heard.
The High Court of Justice hears the most serious cases, including all rape and murder cases.
There are no restrictions on the length of a prison sentence or the amount of fine that the High Court can impose.
A judge and a jury hear trials. The sentence is decided by the judge.
The High Court also hears all criminal appeals.
Other criminal cases heard in sheriff courts include:
- solemn proceedings are those conducted by a sheriff and a jury.
- Only a sheriff can conduct summary proceedings.
In a serious case, the court has the authority to sentence an accused person to up to 5 years in prison or impose a fine of any amount.
In a summary case, the court has the authority to sentence an accused person to up to 12 months in prison or a fine of up to £10,000.
The following are some examples of the types of cases that the Sheriff court may hear:
- driving while impaired by alcohol or drugs
- violations of the peace
Courts of justice of the peace
Justice of the peace courts deal with less serious offenses, such as minor traffic violations, that cannot be dealt with by the police or prosecutor through a fixed penalty.
A justice of the peace is a judge. There is no jury.
A JP can impose a fine of up to £2,500 or send someone to prison for up to 60 days.
The Scottish Courts and Tribunals Service website has more information about courts.
If an accused pleads not guilty and a trial is scheduled, the Judge, Sheriff, Justice of the Peace, or jury must reach a decision after hearing all of the evidence:
In a criminal court case the possible verdicts are:
This means that there was sufficient evidence to prove 'beyond a reasonable doubt' that the crime occurred and that the accused person committed the crime or a portion of the crime.
If the accused is found guilty after trial or pleads guilty, the Judge, Sheriff, or Justice of the Peace will determine the appropriate sentence.
Sentences are not always carried out immediately. The case is sometimes adjourned, also known as sentence deferred, to allow the Judge, Sheriff, or Justice of the Peace to gather more information to aid in their sentencing decision. This could be additional information about the crime or about the accused.
Whether not proven or not guilty
Both verdicts have the same effect and mean that the accused has been acquitted of the charge.
Finding out the outcome
If you were not present at the court case, as a victim or witness, you can request information about what happened in court.
When an accused pleads guilty or is found guilty after a trial, the Judge, Sheriff, or Justice of the Peace must decide what sentence to impose.
The court is in charge of sentencing. More information about the sentencing options available to the court can be found on the mygov.scot website.
In solemn proceedings, if you are the victim of a crime, you may be entitled to make a victim statement for the Judge or Sheriff to consider before sentencing the accused.
Learn more about what happens following the verdict.
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