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Defendants (criminal proceedings)


This factsheet and its sub-factsheets deal with the procedure used during the investigation of a crime. They also tell you what happens after the investigation has ended and before the criminal trial takes place.

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Powers of arrest in Scotland are derived from the Criminal Justice (Scotland) Act 2016. The purpose of an arrest is to bring a person who is suspected of having committed an offence punishable by imprisonment to justice, or to prevent a person who has committed an offence from continuing to commit that offence or from obstructing the course of justice in any way. Prior to the Criminal Justice (Scotland) Act 2016, powers of arrest and detention in Scotland were derived from common law and the Criminal Procedure (Scotland) Act 1995.

What are the stages of a criminal investigation?

A criminal investigation begins when the police are told that a crime may have been committed. In the first stage, the police make inquiries to discover if a crime has been committed and who committed it.

The police conduct the investigation. In serious cases the police will make an initial report to the prosecutor, who may issue instructions for further investigation.

If the police identify you as a suspect they will make further inquiries. If the police consider that you may have committed a crime, you may be arrested. The police will make a report to the prosecutor. After the arrest, the police may release you but you must later appear in court. This could either be done by a summons after the Procurator Fiscal has read the police report or it could be done by you signing an undertaking issued by the police for you to appear at a specified time and date. If the police keep you in custody you will be taken to a court.

What procedure takes place before the trial?

If the police report you to the prosecutor, the prosecutor decides if any further proceedings are to be brought against you. If there are to be further proceedings you will receive a formal document setting out the crime charged against you. This is known as a copy complaint or, in serious cases, an indictment.

There will be court hearings before the trial. At these hearings the court will ask your lawyer how you wish to answer the charge against you.

How are preparations made for my trial?

Both the prosecutor and your lawyer will take steps to get your case ready for trial. Before the trial, you will discuss your case with your lawyer. Your lawyer will gather information to be used in evidence for your defence.

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Investigation (1)

Will the police ask me questions?

If the police think that you may have committed a crime or that you may have information about a crime, the following will happen:

  • If you are a suspect, you will be questioned.
  • If you are a witness, the police may ask for a statement on what you witnessed.
Must I go to a police station?

You can be questioned in the street or any other public place. If asked, you should tell the police your name and address. If the police think you may have useful information about a crime as a witness, they can ask you to go to a police station. You do not have to go, but you must give them your name, address, date of birth, place of birth and nationality.

If the police suspect that you have committed a crime, they may ask you to go to a police station voluntarily. They also have the power to take you to a police station. They must tell you that they are using this power.

Am I free to leave the police station?

If you have not been arrested and are there voluntarily, the police must tell you that you can leave when you wish.

If the police want to keep you in the police station, they must arrest you.

What is arrest?

The police can arrest you when they think that there is a basis for a case against you, or if they suspect that you have committed a crime. If you have been arrested in the street or somewhere else, the police can take you to a police station and hold you in custody.

What happens once I am arrested?

The police must tell you the reason for arresting you. The police can continue to question you. They can also search you, take your DNA and fingerprints, and may apply for a warrant to conduct more intrusive physical searches.

What happens if I don't speak the language?

In this case, the police must get an interpreter for you. The interpreter will be free and will translate the police questions and your replies.

Can I have a lawyer?

If you are arrested you have the right to have a lawyer informed. You also have the right to a private consultation with a lawyer before the police ask you questions and at any time during questioning unless there are exceptional circumstances. This is free. The police must tell you about these rights when you arrive at the police station. The police must also give you a letter telling you your rights. It is known as a letter of rights and translations of it are available if English is not your first language.

If you do not know a lawyer in Scotland you will be able receive advice from a duty solicitor or contact one through the Scottish Legal Aid Board's (SLAB) Solicitor Contact Line (SCL).

You can ask the police to contact someone else, e.g. a relative or friend, so that they know where you are.

Must I answer the police's questions?

You do not have to answer any questions but you do have to tell the police your name, address, date of birth, where you were born and nationality. If you are a suspect the police have to give you a formal warning (a caution) before they ask questions. This explains that you do not have to answer questions but if you do say anything, what you say can be used as evidence in court. Your failure to answer police questions cannot be used as evidence against you.

There are exceptions to this rule. For example, in terrorist legislation, there are occasions when you must provide the police with certain information and it is an offence not to do so. The police will explain when you must provide information and when you have the right to remain silent.

Can the police search me?

If you have been stopped, for example, in the street and the police suspect you of having committed an offence, the police can search your clothes and bags. If arrested, the police can also take your fingerprints and can get permission to take samples such as blood or saliva or other body tissues.

Your DNA and fingerprints can be kept if you are convicted after a trial. If you are prosecuted, but not convicted of a sexual or violent offence, your DNA and fingerprints can be kept for 3 years.

In some cases, where the Chief Constable believes it to be necessary, this might be extended by a further 2 years. There is no limit to how many 2-year extensions the Chief Constable can apply for. Relevant provisions are set out in section 18A of the Criminal Procedure (Scotland) Act 1995.

Otherwise, if you are not prosecuted or convicted, the police must destroy your DNA or fingerprints.

Must I take part in an identification parade?

If you have been arrested the police can require you to take part in an identification parade. You can have the assistance of the duty solicitor.

Can the police search my car or premises?

The police can search your car and premises and remove any of your property if it is relevant to the investigation but normally they must get authority from a judge.

Can I see a doctor if I need one?

If you need medical help you have the right to see a doctor. You should tell the police why you need medical help.

I am from another Member State. Can I contact my Embassy?

If you are from another country, you have the right to contact your Embassy. In some cases, this is automatic. A representative from the Embassy will come to the police station or contact you to see if you need help.

What happens if I am arrested on a European Arrest Warrant?

If a European Arrest Warrant is issued by one Member State, you can be arrested in another Member State and sent back to the country concerned after a hearing before a judge (unless exceptions apply). You are entitled to have a lawyer and an interpreter if you need one.

When will the police charge me?

The police will charge you if they think they have enough evidence against you. The charge will contain details of the crime. Once you have been charged the police cannot ask any more questions about that crime. However, when you go to court the prosecutor may change the offence to a different one. For example, after a charge, a person may give a voluntary statement to the police.

When will the police release me from custody?

If the police don't charge you, they must tell you that you can leave the police station. If you are charged with a serious crime, you will be kept in custody but the police must take you to court on the next possible day.

If the crime is less serious, the police may release you. They may ask you for an undertaking to appear in court at a later date. You will be told the date of the court hearing. If you are not asked to give an undertaking, the prosecutor will serve you with a document telling you the date of the hearing.

How do I make a complaint against the police?

If you think that the police have treated you inappropriately, you may complain to the Chief Constable of Police Scotland. If, following the Chief Constable's response, you remain dissatisfied, you may refer to the independent Police Investigations and Review Commissioner who can review the way your complaint was handled.

Court appearances before the trial (2)

When do I first appear in court?

If you have been held in custody by the police, the police must take you to a court on the next day when the court is sitting.

Do I have the right to a lawyer?

You have the right to a lawyer when you appear in court. If you do not have your own lawyer, the duty solicitor will act for you.

Will there be an interpreter if I don't speak the language?

If you don't speak the language then an interpreter will be provided for you. The services of the interpreter are free. The interpreter will translate the charges against you and all of the proceedings in court.

Can I be released from custody?

If you are held in custody you can apply to the court to be released on bail. You can apply for bail no matter what crime you have been charged with. If the court grants you bail in nearly all cases you do not have to deposit any money.

If you do not have a criminal record and the court thinks you are not a risk to society, the court will normally grant you bail. If the court does not grant you bail you will be taken to prison until the trial.

If the court gives you bail, some conditions - the "standard conditions" - will always apply. You must appear at court hearings, you must not commit an offence, and you should not interfere with, or cause distress to, witnesses. The court may also impose further conditions.

Can I appeal against the decision to keep me in prison until the trial?

You have the right to appeal against this decision. You can also appeal against conditions which are not the standard conditions. Your lawyer will advise how to make any appeal and on what grounds.

Will I appear in court again before the trial?

Before the trial you may attend court on one or more occasions. At these hearings you will tell the court how you plead and of any legal objections to the charges against you. Your lawyer will advise you what to do.

How long can I be held in prison before the trial?

If you have been held in prison, your trial must ordinarily take place within certain time-limits. In serious cases (which are tried by a judge and a jury), the trial must start within 140 days from the date you were sent to prison. If it doesn't, you will be released on bail.

In less serious cases (tried by a judge alone), the trial must take place within 40 days. If it doesn't, you will be released and the case against you will be dropped.

These time limits may, however, be extended by the courts. There is no limit on the extensions which may be obtained but the court will be increasingly reluctant to grant longer extensions.

Preparation of the case before the trial (3)

What happens before the trial?

In the period before the trial, the prosecutor gathers the evidence against you to ensure that the case is strong enough to justify going to court. The prosecutor must disclose evidence to your lawyer which would materially weaken or undermine the evidence that is likely to be led by the prosecution; materially strengthen your case; or be likely to form part of the evidence to be led by the prosecutor in the proceedings against you.

I am from another Member State. Do I have to be present in Scotland before the trial?

If you have not been held in custody or have been released on bail, you are free to go back to your own country. However you may not be granted bail if the prosecutor requires you to remain in Scotland while the investigation continues. The court may grant you bail on the condition that you remain in Scotland. It is an offence if you break this condition. If you are released on bail in these circumstances you must give an address in the United Kingdom where you can be contacted. This can be the address of your lawyer. It may also be possible for the court to consider an application for a European Supervision Order. This would allow bail granted by the court in Scotland to be monitored in another Member State under the terms of Framework Decision 2009/829/JHA. This Framework Decision provides for mutual recognition between Member States of the European Union, of decisions on supervision measures applied as an alternative to provisional detention.

If I have gone back to my own Member State, do I have to go back to Scotland before the trial?

If you have been allowed to go back to your own country, then you must come back for every court hearing before the trial. However your lawyer can ask the court for permission for you not to attend some pre-trial hearings.

Can I participate by video link?

If you are in prison in Scotland you may participate by a television link but not if you are in another Member State. This only applies to court hearings before the trial.

Will my case always go to trial?

Your case will not always go to a trial. The prosecutor can decide to drop the case altogether, or to dispose of the case by giving you a written warning. Alternatively the prosecutor may suggest that instead of going to trial, you can pay a fine. If you agree to pay the fine you will not be able to appeal and the fact that you have paid such a fine may be revealed in some circumstances.

What kind of evidence will the prosecution collect?

The prosecutor will interview witnesses in the case and may also collect physical and forensic evidence. For example, the prosecution might collect documents from your home or place of work; they might search your car or collect samples of your DNA (e.g. hair, saliva, etc.). A warrant from the court is needed to be able to search for and take evidence except in very limited circumstances (e.g. where there is a risk of the evidence being destroyed).

Can I prevent the prosecution from collecting certain evidence?

You can challenge a warrant for the collection of evidence if the police do not respect the terms of the warrant. Usually warrants have to be specific about what can be searched and why. If the police search in places not specified in the warrant, then the evidence that they collect may not be allowed in the trial.

Will information be requested about my criminal record?

The prosecution will gather information about your criminal record. This may include convictions for crimes which you have committed outside Scotland.

Will I find out about the evidence against me?

Your lawyer will be told about evidence against you that would materially weaken or undermine the evidence of the prosecution; materially strengthen your case; or be likely to form part of the evidence to be led by the prosecutor in the proceedings against you. Your lawyer will have an opportunity to interview the witnesses against you and to examine the physical evidence.

Will my lawyer find evidence to help my case in court?

Your lawyer will look for evidence to help your case, for example by interviewing possible witnesses. Your lawyer may also ask for an expert to make a report on scientific or technical matters.

Can I use a private detective to obtain evidence for me? Is such evidence admissible?

You can use a private detective to obtain evidence which will help your case. Usually this evidence will be admissible at your trial. However, you may have to pay the cost of using a private detective, even if you are receiving legal aid.

How will I find out what crimes I am being prosecuted for?

The prosecutor must send you a document which tells you the crime or crimes you are being charged with at your trial. It is possible that the charges may not be the same as the crimes which the police had charged you with earlier.

Can the charges against me change before the trial?

The charges may change before the trial takes place, depending on the evidence which the prosecution finds. It is also possible for the charges to be dropped before the trial, again depending on the evidence.

What happens if I have been tried for the same offence in another Member State?

If a final decision on the same facts has been issued by a court in one Member State, you cannot be tried again on the same facts in another Member State.

Can I plead guilty before the trial?

In most cases, if you decide that you want to plead guilty to the charges during the investigation process, you can do so. You might have to go to court to do this, depending on how serious the crime is. If you plead guilty you will normally get a lighter sentence than if there had been a trial against you. If you decide to plead guilty, normally you cannot appeal against the conviction in the future and it will appear on your criminal record.

Last update: 05/02/2020

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