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Prosecution process

This section explains how a crime is investigated once the police complete their report to the Procurator Fiscal. It also tells you what you can expect to happen at different stages of the investigation and about the support you will get.

The Crown Office and Procurator Fiscal Service ( COPFS) is responsible for investigating and prosecuting crime. The Procurator Fiscal (the fiscal) is a lawyer who is employed by COPFS. (In the rest of this section, where we refer to the fiscal, this means the Procurator Fiscal or a member of their staff).

The police investigate crime on behalf of the fiscal. They work closely together and are in regular contact during the investigation.

COPFS investigates cases of rape and sexual assault very carefully. Members of the fiscal's staff will be in close contact with you, will keep you informed and will tell you what they think about the strength of the case and possible outcomes.

Victim Information and Advice ( VIA)

Victim Information and Advice ( VIA) is part of COPFS. VIA staff give information and advice to victims of serious crimes whose cases are being dealt with by the fiscal or courts. VIA will contact you once COPFS decides to bring criminal proceedings (see below) and will keep in touch with you until these proceedings (including any trial or appeal) are finished. VIA staff can tell you how the court system works and about progress in the case, for example, court dates, bail applications and any decisions taken.

If there is a trial, VIA staff can also help arrange support for you, for example, arranging with the Witness Service ( see here) for you to visit a court before the trial, or talking to you about applying for any special measures needed at court ( see here).

VIA liaises with others involved in the investigation and court process to ensure that there are no barriers preventing you from giving your best evidence in a trial. This includes having an interpreter or any safety concerns.

Your safety during the investigation

When someone is suspected of rape or serious sexual assault (the accused), they will normally be arrested by the police and brought to court. Their first appearance in court is in private. The fiscal presents a document (petition) to the court which sets out the charge(s) and informs the court that the crime is being investigated. The accused can apply for bail. Bail means that the accused is released from custody until the trial. The law states that a person is innocent until proven guilty in a court and so very good reasons are needed to keep a person in prison before a trial.

It is up to the judge to decide whether or not to grant bail. They will normally grant bail unless they think the accused:

• May not attend their trial or earlier court appearance
• May commit an offence while on bail
• May behave in a way which causes or is likely to cause alarm to witnesses
• May disappear (abscond)

or the accused has previously been convicted of a serious offence.

The fiscal can oppose bail and will tell the judge if there is any concern for your safety if the accused is released. This may result in the accused being kept in prison (remanded in custody) until the trial or in special conditions being attached to the bail, for example not approaching or contacting you.

If you are worried about your safety, tell the police, the fiscal or VIA. If the accused breaches their bail conditions, for example by phoning or coming near you, contact the police immediately. The fiscal can ask the court to review the bail order.

You should also tell the police, the fiscal or VIA if you have any reason to be frightened or worried by any of the accused's friends or relatives.

You may need help to ensure your safety during this time. This could include finding a safe place to stay or other practical support. The agencies listed in section 4 can help with this.

If the accused is under 18

If an accused is 16-17 years old, they are dealt with in the adult system unless they are under social work 'supervision'. If they are being supervised, the fiscal will liaise with the Children's Reporter to discuss whether they should be prosecuted in the adult system or dealt with by the children's hearing system. Given the nature of rape and sexual assault, they will usually go through the adult system.

If the accused is under 16, the fiscal and the Children's Reporter will discuss what action to take. Usually, they are dealt with by the Children's Reporter but, in serious cases, the fiscal will ask for approval from the Lord Advocate to prosecute the young person in the adult system.

Considering the police report

The fiscal uses the report from the police to make an initial decision about starting the formal court process and investigating the case further. The fiscal considers the police report very thoroughly and can ask the police to carry out further enquiries.

The fiscal bases this initial decision on two main points:

1. Whether there is enough evidence in law and

2. Whether it is in the public interest to prosecute

The fiscal also takes into account anything else which may affect the likelihood of getting a conviction in court.

Evidence

By law, there must be enough evidence to prove the crime. There must be two independent pieces of evidence which show (corroborate):

1. That the rape or sexual assault happened and

2. The accused was the person responsible

These have to be proved 'beyond reasonable doubt' in court. Because rape and sexual assault often take place in private, with no witnesses, it can be difficult to find enough evidence.

Public interest

Public interest means that the fiscal looks at a case from all angles and not only from the point of view of the victim. However, for rape and serious sexual assault, there is a strong presumption that prosecuting is in the public interest.

Investigation by the fiscal

The fiscal investigates the case mainly by interviewing (precognoscing) any witnesses. This includes you as the person who was raped or sexually assaulted.

As well as speaking to witnesses, the fiscal looks at documents such as forensic reports and other evidence (productions) gathered by the police. This may include items of clothing.

If the fiscal wants to interview you, you will receive a letter (citation for precognition) with an appointment to go to the fiscal's office. If you cannot manage to keep the appointment, you can ask for this to be changed. Otherwise, you must attend when asked. You are entitled to expenses for attending the interview. These cover travel, care costs, subsistence and loss of earnings. You will be given information about how to claim these. If you think you would find it helpful to have a supporter with you, let the fiscal know before the interview that you would like this and who you wish to bring with you. The fiscal will discuss this with you and let you know whether this is possible.

You can have an interpreter if your first language is not English or you have a hearing impairment. Fiscal or VIA staff will ask if you need documents to be translated into your preferred language or provided in a certain format.

If you need any special arrangements, for example because of disability, to help you get to or take part in the interview, let the fiscal or VIA know.

The interview (the precognition investigation)

At this interview, the fiscal will ask you about what happened. They will be as sensitive as possible. Interviewers are experienced in cases of rape and sexual assault. They know how hard it is for people to have to go through what happened and that there are things that you might not want to say.

You may find the questions difficult and upsetting. Or, you may be asked what seem like daft questions. The reason they are asking these questions is to check information and to test how strong the evidence is against your attacker. Although it might seem insensitive, it is better that the fiscal knows the answer to these questions from the start.

It is very important to be honest and to say exactly what happened. Try to remember that what happened to you was a crime and that the fiscal is not there to judge you but to prosecute crime. If you try to hide information because you feel ashamed, embarrassed or want to protect another's feelings, it could weaken the case and may come out in court anyway.

You may find it difficult to remember what happened. This is very common. It may help to write down anything you do remember. If the case goes to court, it may take many months.

If you have remembered anything about the assault since you spoke to the police, it is important to tell the person interviewing you.

You can ask the interviewer any questions you want. It is fine to phone back later if you think of any others. At any time, you can tell the fiscal or VIA if there is anything that you are worried about, for example your own or someone else's safety.

You can see your VIA officer before or after the interview.

Sexual history and character evidence

In many cases, the defence will apply to the judge to be allowed to ask you questions at trial about your sexual history or your character (past behaviour). The prosecution may also want to ask you about this if they think it is relevant to the case.

If the defence makes an application about this, VIA will let you know and will tell you whether the judge is going to allow the questions or not. The fiscal will have to ask you about these issues as part of the precognition investigation. If the defence applies after you have already met the fiscal, you may have to meet with them again (re-precognition).

Decision about whether to prosecute or not

The aim of the precognition investigation is to decide if there is enough evidence to prosecute the case and if it is in the public interest to do so. It also helps to get an accurate picture of the evidence which would be presented to a court if the case is prosecuted.

Once the fiscal has completed these investigations, they send a report with recommendations to the Crown Office in Edinburgh. The final decision about whether the case should go to court and what the accused should be charged with is taken by senior prosecutors (Crown Counsel).

Decision not to proceed ('no pro')

The fiscal may decide that the case will not proceed or Crown Counsel may decide it will not go to trial. If so, you will get a letter telling you this. It may not give you detailed reasons as this information is confidential. But the fiscal should offer you a meeting, and they will explain as much as they can.

It is important to remember that a case must be proved to a very high standard (beyond reasonable doubt) to secure a criminal conviction. A decision to take no proceedings does not mean that you were not raped or sexually assaulted.

The fact that the accused had a first appearance in court (on petition) does not guarantee that there will be a full trial. Its purpose was for the fiscal to set out the charge against the accused, and advise the court that they were investigating the crime.

If Crown Counsel decides the case will go to trial

You will get a letter (citation) saying that you will need to go to court to say what happened to you (give evidence). If the accused pleads guilty, you will not have to give evidence in court.

For the court case, you do not need a lawyer as you have done nothing wrong. COPFS prosecutes the case on behalf of the Crown. You are a witness for the prosecution.

VIA will give you information about the trial process, the Witness Service ( see here) and can refer you to other agencies which offer practical and emotional support.

Decision about the court procedure

The fiscal decides how the case will be prosecuted. Cases of rape and serious sexual assault are prosecuted in front of a judge and jury (solemn procedure). Rape cases are always prosecuted in the High Court. Other serious sexual offences are prosecuted either in the High Court or the Sheriff Court before a jury.

The difference between the two courts is in the maximum sentences they can impose. The High Court can sentence up to life imprisonment. A Sheriff Court can sentence up to five years in prison but may refer the case to the High Court if they think the sentence should be longer.

This information pack describes solemn procedure in the High Court and Sheriff and Jury Court ( see here) as this is always used for rape and serious sexual offences. Some sexual offences may be prosecuted using summary procedure (judge but no jury; sentence up to three months for a first offence and six months for a second or subsequent offence of this nature).

VIA will send you an information leaflet about procedures in the type of court that your case will be heard in.

Defence investigation

Before the case goes to trial, the lawyer (defence lawyer) for the accused may want to interview you. This is a normal part of the legal process. You cannot refuse to be interviewed. You should be open and honest at the interview. The interview gives the defence lawyer a better idea of the case and helps them advise the accused whether they should plead guilty or not guilty. This sometimes means that a trial can be avoided.

You can ask for this interview to take place at a time and a place that suit you. You should be contacted in advance to arrange this. This could be at your home or in a police station, for example. You can have a supporter with you at the interview as long as they are not a witness in the case. The interviewer should treat you sensitively and with respect.

If there is more than one accused, you may need to speak to more than one defence lawyer.

You can have an interpreter if your first language is not English or you have a sensory impairment. Let the defence lawyer know if you need any assistance to take part in the interview so they can make any necessary arrangements.

Your details

The names and addresses of all witnesses are given to the defence lawyer. This lawyer is not allowed to give your address or phone number to the accused. Your address, and all other civilian witnesses' addresses, will be given care of the police station.

Any statement you gave to the police may also be given (disclosed) to the defence lawyer. This is so that the defence lawyer can represent the accused fairly. Statements given to the defence are considered by the fiscal and may be edited so that only relevant information about the crime is included.

The defence lawyer is usually allowed to get details of any convictions or pending court cases you may have. The court may allow the defence lawyer to refer to this at trial if it is thought to be relevant to your evidence.

What information the fiscal can give you

The fiscal and VIA will tell you as much as possible. Sometimes, you may be given less information than you think you should get. This is because you are a witness and to protect the case. By law, the fiscal cannot coach you, for example advise you what to say in court or what to wear in court. This could lead to claims that an accused has not had a fair trial.

Sometimes a decision may be taken which you do not understand. If you are unsure about anything, ask the fiscal or VIA to explain.

Length of time before trial

It may take some time before there is a trial.

If the accused has been remanded in custody, the trial has to begin within 140 days. If the accused is on bail, the trial has to begin within a year. There are sometimes delays, for example because more time is needed to prepare the case or witnesses are not available.

Before the trial, there are various procedural hearings at court. These are to sort out any legal details before the trial. Witnesses should not attend court (including procedural hearings) until they have given their evidence. Procedural hearings are a standard part of the process, and do not mean that the case is being delayed.

Preparing for the trial

You will be told when the trial is due to start. You will receive a letter (citation) which tells you where and when to attend. Once the date is set, it usually starts then. But it might change at short notice, for example, if the case before takes longer than expected. If you cannot attend on this date, contact the fiscal or VIA immediately as it may be possible to make other arrangements.

If anything has changed, for example your health, since you were last in touch with the fiscal, let VIA or the fiscal know so that any necessary arrangements can be made to help you.

Changing your mind

You may have second thoughts about going to court during the investigation process. Some people worry about having to give intimate details in court. Some people don't want to have to remember and go over what happened to them or are frightened they might be harmed if they give evidence. The fiscal will take your feelings and what you say into account and will encourage you to get advice and practical help to deal with any concerns and fears. However, the decision about prosecuting the case is taken on the basis of the public interest and not your wishes alone. So, it is likely that, if there is sufficient evidence that the offence was committed and the accused was the person responsible, the prosecution will continue.

You cannot refuse to go to court to give evidence.

If you are in any way worried or scared contact VIA, the fiscal or any of the support agencies listed in section 4.

Plea negotiation

Sometimes the accused will offer to plead guilty to an amended charge, for example from rape to indecent assault or attempted rape. Sometimes an amended plea is accepted. This can save victims from the stress of having to go to court, and it means there will be a guaranteed conviction. Sometimes the plea is not acceptable, and the prosecutor will decide to continue with the prosecution. Unless circumstances prevent this, the prosecutor will tell you if they intend to accept a reduced plea and their reasons before the plea is accepted in court.

Not guilty plea

Sometimes the prosecutor might consider accepting a not guilty plea. Unless circumstances prevent this, the prosecutor will tell you if they intend to do so and their reasons. They will try to speak to you about this before the plea is accepted in court.

Support through the process

There may be times when you feel as if you have no control over what is happening, that important decisions are being made for or about you, and that you are not getting all the information you expect. This can be upsetting. There are things you can do to help feel more in control:

• Ask someone if there is anything you do not understand or want to know. You have the right to ask questions at any stage of the process. If an official such as the fiscal is not able to give you certain information, then they should tell you why
• It may help to write down what you tell the police, the fiscal and the defence. This may help you keep things clear in your mind. It may also be a good memory aid if the case goes to court as this can take a long time
• If you feel at all worried, anxious or distressed, tell the police or the fiscal or talk through your worries with a support agency
• Take up VIA's offer to arrange for you to visit to the court so you can see it before you have to go to give evidence and so you can ask any questions about what happens in court

There are various support agencies which can help you at this time. Details of these are in section 4.

Remember

The legal process is complicated and can be confusing. This can be difficult to cope with on top of the actual assault.

There are people who can support you at all stages of the process.

There may be things you do not understand about the case or how the law works. Ask Victim Information and Advice ( VIA) or the Procurator Fiscal if there is anything you are not sure about.

Tell VIA or the fiscal if there is anything that is worrying you or if you have any information which might help the case.

You are entitled to be treated sensitively and with respect and to be kept informed about the case. You have a right to comment or complain if you are not.

Decisions always depend on the evidence available and, if the case goes to trial, whether a jury thinks that the case has been proved beyond a reasonable doubt.

If the case does not go to court or the outcome of the case is disappointing, it does not mean that you were not raped or sexually assaulted.

Victim Information and Advice contact details

You can phone VIA at any time to check progress. There may be periods when nothing seems to be happening. This is normal and it does not mean that the case is delayed or that there are problems with it. It takes time to sort out all the formal legal procedures before a case goes to court.

VIA offices are based within local Procurator Fiscal offices, providing a service in:

• Argyll & Clyde
• Ayrshire
• Central
• Dumfries & Galloway
• Fife
• Glasgow
• Grampian
• Highlands & Islands
• Lanarkshire
• Lothian & Borders
• Tayside

For further information and for details of your local office contact VIA at:

Tel: 0844 561 3701
Email: vianationalteam@copfs.gsi.gov.uk

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