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Information for Bereaved Families and Friends Following Murder or Culpable Homicide

Section 4 The criminal prosecution

4.1 Attending court
4.2 Accused's appearance in the Sheriff Court
4.3 Bail
4.4 The High Court
4.5 The trial
4.6 If you are asked to be a witness
4.7 Support from the Witness Service (including pre-trial visits)
4.8 What to expect from a court case
4.9 Witness intimidation
4.10 Special measures for vulnerable or intimidated witnesses
4.11 Expenses to attend court
4.12 Verdicts
4.13 Sentencing
4.14 Mentally disordered offenders
4.15 Victim statements
4.16 Appeals by a convicted person
4.17 Appeals by the prosecution
4.18 Bringing a private prosecution
4.19 Civil action

4.1 Attending court

As next-of-kin, you can attend all court proceedings except when the accused "appears on petition" in the Sheriff Court. More information about this stage (which may involve 2 separate appearances) is given in section 4.2 below. But if you are a witness in the case, you will not be able to sit in the public gallery of the courtroom until after you have given your evidence.

There may be other times when you, and others attending the case, may be asked to leave the court. For example, the Judge may clear the court (except for legal staff) when there are legal arguments that need to be discussed in private, or a child witness is giving evidence.

You may hear things during the course of the trial that are difficult to listen to, or that you disagree with and want to say something about. However difficult you may find this, those watching the trial (including next-of-kin and the family and friends of the accused) are expected to listen quietly to proceedings. You may leave the courtroom at any time if you become distressed. The Judge can ask anyone to leave the court if their behaviour is disruptive. They can also restrict movement to and from the court room during their charge to the jury ( see paragraph 4.5).

4.2 Accused's appearance in the Sheriff Court

When an accused person is charged with murder or culpable homicide their first appearance in court will be in private.This is called "appearing on petition" and it will take place in the sheriff court in the area where the crime was committed. The Judge in this court is called a Sheriff.

The petition sets out the charges for which there appears to be evidence and asks the court for authority to take the next steps in investigating the crime. These next steps involve gathering all the evidence, interviewing all witnesses and arranging for expert witnesses to prepare reports.

At this first appearance, the solicitor for the accused will usually state that the accused "makes no plea or declaration". The Procurator Fiscal will normally then ask the Sheriff to "commit the accused for further examination" and for the accused to be remanded in custody. At this stage, the accused's solicitor can ask for bail. You may be surprised that bail is considered but, even in the most serious crimes, the accused has the right to ask for bail. The Judge has a duty to release the accused unless there are good reasons for not doing so ( see section 4.3).

If bail is granted, the accused will be released and their next appearance will be at trial. The trial must take place within 12 months of their first appearance in court. If bail is not granted, the accused will be remanded in custody and must be brought back to court within 8 days to be "fully committed" for trial.

The full committal is also held in private. The accused's solicitor can again ask for bail at this stage, even if it was refused at the accused's first appearance. As with the first appearance, if the accused is granted bail, the trial must take place within 12 months of their first appearance in court. If they are kept in custody, the trial must start within 110 days of full committal.

Both these time limits can be extended by the court. New time limits will be introduced in 2005. This will mean that where the accused is kept in custody, the trial must start within 140 days of full committal.

4.3 Bail

The section above explained the times when bail will usually be considered. It can, however, be applied for at different stages of the case, even if it has been refused earlier. Your VIA Officer will keep you informed about this.

This section explains what factors will be taken into account when deciding whether bail should be granted or not.

The Sheriff will consider the nature of the charge and any other factors raised by the PF. The accused will be granted bail unless the court has good reason to believe that they:

• may not attend their trial or earlier court appearance
• may commit an offence while on bail
• may interfere with witnesses, or
• may obstruct the course of justice e.g. by absconding (disappearing).

These issues reflect standard conditions linked to bail. Special conditions may also be sought such as limiting where the accused can live or preventing them coming near you, your family and/or your home.

Under new arrangements for High Court cases to be introduced from April 2005, these conditions may include electronic tagging of the accused. All decisions about bail are taken by the Judge.

If bail is granted, the prosecution may, in certain circumstances, appeal against the decision. The accused may also appeal against a refusal to grant bail. If bail is still refused on appeal, the accused can ask for the decision to be reviewed, but only where there is good reason.

Your VIA Officer will be able to tell you whether the accused has been given bail, and any special conditions which apply. If the accused person is granted bail and causes you any concern, you should keep a diary of any incidents and report this to the police and PF immediately.

4.4 The High Court

Murder and culpable homicide charges are always heard in the High Court by a Judge and jury of 15 people chosen at random from the community.

The evidence for the prosecution is presented by an Advocate Depute (who is a senior lawyer). A separate advocate, called 'Counsel' will act for each accused person. Counsel will speak on behalf of the accused not only at the trial but before sentence is passed. When in court, the Judge and advocates wear wigs and gowns.

The accused person will state their plea of 'guilty' or 'not guilty'.

If the accused person pleads guilty, there is no need for anyone to give evidence in court. The Advocate Depute will tell the Judge the facts of the case and the Judge may then pass sentence or may choose to do so at a later date. If sentencing is deferred (passed at a later date), VIA will inform you when and where this will happen.

If the accused person pleads not guilty, then a trial will take place and witnesses will be called to give evidence.

At present, High Court cases are organised around "sittings" which last between 2 and 3 weeks. Each case is allocated to a particular sitting. You may be given 2 dates - one when the sitting starts and one when the case is expected to begin. If you are called as a witness, both of these dates will appear on your citation.

From 1 April 2005, a number of changes are to be introduced to arrangements for High Court cases, including murder and culpable homicide. These changes aim to provide greater certainty about when trials will proceed, prevent unnecessary delays, and make court proceedings less traumatic for families.

There will be a new hearing (called the 'preliminary hearing') before the trial to deal with issues (such as the availability of witnesses) that might otherwise delay the trial. You will be entitled to attend the preliminary hearing if you wish. It is likely that cases of murder and culpable homicide will be given priority and that trial dates for these cases will be fixed. This means that your case should go ahead on the date fixed at the preliminary hearing.

Your VIA Officer and staff in the Procurator Fiscal's Office will keep you informed about the new arrangements and how they may affect your case.

4.5 The trial

Both the prosecution and defence may call witnesses to give evidence and question them. As well as eye witnesses and police officers, expert witnesses such as forensic scientists may be called to give evidence. Photographs, videos and diagrams may be shown to the jury.

After all the prosecution (Crown) evidence has been presented, the Judge will consider if there is sufficient evidence in law to allow the case to continue. If there is, the defence will then present their evidence. If there is not enough evidence, the case will be dismissed and the jury will not be allowed to consider a verdict.

The accused can choose whether or not to give evidence. If the accused does give evidence, they can be cross-examined by the Advocate Depute.

Once all the evidence has been presented, the lawyer for each side gives a speech to the jury to sum up the evidence. It is up to the prosecution to prove the case "beyond reasonable doubt". The Judge will also give a speech to the jury (known as the charge). In this, the Judge directs the jury in the law relevant to the case and his/her understanding of points of evidence they may wish to consider when deciding on a verdict.

4.6 If you are asked to be a witness

In certain cases you may be asked to be a witness to give evidence at a criminal trial. This may or may not require you to give evidence in court.

Where you are to be a prosecution witness, you will usually be required to attend a pre-trial interview (precognition) with the Procurator Fiscal or a precognition officer who works for the PF. The defence lawyer - or a precognition agent working for the defence - may also contact you to take a statement. See section 3.8 for more information about these "precognition" interviews.

You should co-operate with any request for precognition, whether from the prosecution or the defence. It is an essential part of the criminal proceedings and helps the PF understand the evidence you are providing. You can claim reasonable expenses when you are asked to attend for precognition.

It may be possible for a relative or friend to sit with you during a precognition interview to offer support. If you want to be accompanied, ask the PF or defence lawyer if this is possible. You are not allowed to be accompanied by another witness and your supporter cannot participate in the interview.

4.7 Support from the Witness Service (including pre-trial court visits)

The Witness Service, run by Victim Support Scotland, provides emotional and practical support to all victims and witnesses attending court, and their families. The Service is managed by paid staff and provided by trained volunteers. They can tell you about court procedures but cannot discuss evidence with you.

The Victim Information and Advice service ( see section 1.3) will give you information about your local Witness Service. VIA can refer you to them for a pre-trial court visit. This may help you find out what to expect, particularly if you will be a witness at the trial. They can also discuss any concerns that you have. If the Witness Service cannot answer all your questions, they will try to put you in touch with someone who can help.

You can also get the number of the Witness Service from the Victim Support Scotland Helpline on 0845 603 9213, the website ( www.victimsupportsco.demon.co.uk) or your local victim support service (number in the local 'phone directory under "victim support").

4.8 What to expect about a court case

Criminal cases are nearly always held in public. But, as indicated in section 4.1, the Judge may order members of the public to leave the courtroom. This can include you and your family.

If you are not a witness in the case you can sit in the public gallery in a courtroom. Other people in the gallery may be journalists, the public, or the family and friends of the accused.

If you are a witness you will not be able to discuss the case or your evidence with other witnesses, or listen to court proceedings until you have given evidence. A friend or relative can sit with you before you give evidence (as long as they have not been in court, either listening to the trial or giving evidence in the case).

If the accused pleads guilty before or during the trial, you are entitled to be in court when this happens, even if you are a witness in the case.

Criminal cases sometimes do not go ahead at the first trial date and can be adjourned on a number of occasions. This may be for a variety of reasons, such as the need to trace witnesses or obtain documents prior to a court hearing.

In some cases, the prosecution lawyer may consider accepting a plea of guilty to a lesser charge, after discussions with the defence ( see section 3.7). In murder or culpable homicide cases, the decision to accept a plea to a lesser or amended charge is always taken by the Lord Advocate (Scotland's senior prosecutor, with overall responsibility for the prosecution of crime) or the Solicitor General (who assists the Lord Advocate in heading the prosecution service).

If you do attend court, it may help to be accompanied by someone. The police will be there to give evidence and they cannot discuss your evidence with you. The Witness Service and your VIA officer can help explain what is happening.

It may be possible to arrange seating in the courtroom so that you do not have to sit near relatives or friends of the accused. Let the Witness Service or VIA know if you are concerned about this and they will try to arrange this for you.

It may also help you to know in advance that:

• Court hearings may start late, be cut short or postponed, or moved to another court
• You may have to wait for some time before going into court to give your evidence. This may be because of the time it takes other witnesses to give their evidence
• The defence lawyer may ask you questions about your evidence. This might feel probing but it is not personal - it is a normal part of the defence role and is intended to test the evidence
• Evidence presented in court is for the benefit of the Judge and jury. Sometimes you may not be able to see evidence being discussed (such as diagrams or videos)
• Some courts are modern and have good facilities, others don't. It may help to familiarise yourself, in advance, with the location of toilets and refreshment facilities and find out if there is a quiet room where you can sit
• If you tell the court officer or Witness Service volunteers who you are, they can offer help, inform you of any court changes and show you where the witness room is
• The first time that you see the accused may be in court
• You may see the accused and defence witnesses elsewhere in the court building, for example where refreshments are served.

4.9 Witness intimidation

It is a criminal offence to try to frighten or intimidate a witness, juror, or anyone helping the police in an investigation. If you are harassed or threatened in any way before, or during, the trial you should tell the police, who will take appropriate action.

4.10 Special measures for vulnerable or intimidated witnesses

As a witness, you may feel vulnerable for a number of reasons - it could be to do with your age, the circumstances of the case or your health.

If you are cited as a witness, you can discuss any concerns you have about giving evidence with your VIA Officer or the Procurator Fiscal (PF).

Some very vulnerable witnesses may be allowed to use what are called "special measures" when giving evidence at court. Generally, this applies to witnesses with certain mental disorders or impairments, or child witnesses under the age of 16. Special measures are usually screening the accused from the witness at court, or use of a CCTV link to give evidence so that the witness is not in the courtroom.

If appropriate, the PF can ask the Judge if specific special measures can be put in place for you. This usually involves the PF making an application in advance. The request may or may not be approved.

Sometimes witnesses can be accompanied at court by a support person. They can provide a reassuring presence in the courtroom but will not be able to talk with you and the Judge will decide where they sit. If you would like to have a support person at court, you can discuss this with the PF who can ask the court if this would be possible.

From 1 April 2005, all child witnesses in High Court cases will automatically be able to benefit from special measures designed to help them give their best evidence. This will include measures like use of a live television link, of a supporter, of a screen in court, and ways of giving evidence which may avoid a child having to appear in court.

Similar assistance will be available to a wider range of vulnerable adult witnesses from spring 2006.

The PF or VIA Officer will be able to advise how these measures might apply to your case.

4.11 Expenses to attend court

Next-of-kin are entitled to expenses when required by the Crown to provide a precognition ( see section 3.8), or when requested by the Procurator Fiscal or VIA to attend a meeting at their premises. You will also get expenses if you are cited to attend court as a witness.

The Procurator Fiscal Service will refund reasonable travel expenses, loss of earnings, childcare expenses and the cost of a carer. Your witness citation will explain what you are entitled to claim.

If you are not a witness and going to the trial may cause you financial difficulties, Victim Support Scotland may be able to help you find access to sources of financial support. Your local Victim Support service, or the Witness Service at the relevant court, can give you more information ( see contact details in section 4.7).

4.12 Verdicts

The accused may be found guilty or not guilty. Alternatively, the jury may reach a ' not proven' verdict which is also a verdict of acquittal.

For the accused to be found guilty of a charge, a majority of the jury (at least 8) must choose this verdict.

For verdicts of not guilty and not proven, a majority (at least 8), must choose this verdict. These verdicts have the same effect and mean that the accused is free to go and cannot be tried on the same charges again.

It is worth noting that:

• if someone is found guilty of murder, the court must impose a sentence of life imprisonment. The sentence has to include the minimum period to be served before the person can apply for parole (early release from a prison sentence). This is called the 'punishment part'.
• if someone is found guilty of culpable homicide, the maximum penalty open to the court is life imprisonment. But the court rarely imposes the maximum sentence and may impose a much lower penalty.
• sometimes courts find the accused not guilty of a serious charge but guilty of a lesser charge, such as assault.

If you are unsure about anything that happened in court, your VIA Officer may be able to explain.

4.13 Sentencing

Before sentence is passed, Counsel for the accused will advise the Judge about any factors which they think might reduce the sentence. This is called a "plea in mitigation". Sometimes the Judge asks for background information about the guilty person before deciding on the sentence. It is the Judge alone who decides what the sentence should be - the prosecutor is not involved in sentencing.

An accused who is found guilty of murder will normally be kept in custody until the sentence is passed. This is a decision for the Judge. Sentencing normally happens within four weeks of the end of the trial.

If you do not understand or are unhappy about the sentence passed, your VIA Officer or the Procurator Fiscal may be able to explain the basis on which this is decided. The PF will also advise you about any appeal by the prosecutor (called a Crown Appeal - see section 4.17).

4.14 Mentally disordered offenders

What happens if the offender is mentally ill?

Mentally disordered offenders are people, who, as a result of mental illness, have been found by the court to have diminished responsibility, or have been found not guilty on account of insanity. In both instances, the court can order a person to be detained in hospital for treatment. For restricted patients (people the court consider a serious risk to the public) this detention will be "without limit of time".

Restricted patients cannot be given leave of absence, transferred or discharged without government (Scottish Ministers') consent. Any decision to approve leave, transfer or discharge must take account of security and supervision arrangements, and the impact on you or your family.

If a prisoner is moved from prison to a secure psychiatric hospital during their sentence, the original sentence still stands.

From April 2005, decisions on discharge of all patients, including restricted patients, will pass to Mental Health Tribunals. These tribunal panels will be convened by a Sheriff and its members will be experts in mental health law and treatment of people with mental disorders.

If you have any concerns you would like to bring to Scottish Ministers' attention in relation to a restricted patient, you can write to The Scottish Executive, Mental Health Division, Room 3E.06, St Andrew's House, Edinburgh, EH1 3DG.

Disclosure of Information

Section 5.1 explains how you can register to receive information under the Victim Notification Scheme about an offender serving a prison sentence. Before the end of 2004, the Scottish Executive will consult on the potential implications of releasing information about restricted patients and how this scheme might operate in practice.

4.15 Victim statements

A new scheme is currently being piloted to enable victims or their relatives to make a statement about the effect of certain categories of crime on them. The pilot schemes began in November 2003 and will run for 2 years. A decision on whether the victim statement scheme will be extended across Scotland will depend on an evaluation of the pilot scheme.

Murder and culpable homicide are included in the categories of crime covered by the pilot scheme. If the murder or culpable homicide of your relative or partner took place in one of the pilot areas - Ayr, Edinburgh or Kilmarnock - you will be given the opportunity to make a victim statement. This written statement gives you the chance to tell the court in your own words how the crime has affected you - physically, emotionally and financially.

The Procurator Fiscal or VIA officer for the area where the crime took place will send you an information pack. This will include a victim statement form and contact numbers for support agencies if you want extra help or advice about making the statement.

You do not have to make a victim statement. If you choose not to, no conclusion will be drawn by the court about this. Information about the impact of the crime will still be brought out during the prosecution case.

If you do make a victim statement, it will normally be given to the court if the accused pleads guilty, or is found guilty after a trial, and before the accused is sentenced. A copy of your victim statement will be given to the defence at the same time. The Judge must consider your victim statement and decide what weight should be given to it.

4.16 Appeals by a convicted person

Following a criminal case, a convicted person may appeal against their conviction or sentence. They can also apply for bail (interim liberation) and may be released while waiting for the appeal.

An accused found guilty at trial can appeal against the conviction or sentence or both. The court may refuse the appeal or may allow the appeal in full or part. If the appeal is allowed in full, the court may order a retrial or may acquit the accused.

If the accused pleaded guilty they can appeal against the sentence. All appeals are heard by 3 Judges in the Appeal Court which is based in Edinburgh. The court is able to impose a higher or lower sentence, or may confirm the original sentence.

VIA will tell you if there is an appeal and how it progresses. In particular, they will tell you:

• if the offender is granted bail before the appeal
• the date of the appeal, and
• the outcome of the appeal.

4.17 Appeals by the prosecution

As indicated in section 4.13, the Crown has a limited right of appeal against sentence, but only where a sentence is ' unduly lenient'. Because of this, such appeals are rare. If an appeal is lodged, you will be kept informed of progress.

The prosecution cannot appeal against a 'not guilty' or a 'not proven' verdict.

4.18 Bringing a private prosecution

In certain circumstances an individual may seek to prosecute another person for a criminal offence. This is called a private prosecution. To bring a private prosecution you must have the Lord Advocate's consent. This process is very costly and you cannot claim legal aid. It is therefore very rare.

4.19 Civil action

If you are dissatisfied with an acquittal verdict, you can raise a civil action against the acquitted person. A civil action is based on a different level of proof - "on the balance of probabilities" (a decision in a criminal case requires proof "beyond reasonable doubt").

Raising a civil action can be a very long and expensive process. There is no guarantee that you will be granted legal aid. Before proceeding with a civil action, you should seek advice from a solicitor.

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