Increasing we find that we are being asked to help clients who have matters before the Scottish courts. Sometimes it is a simple speeding on the way to the Ferry Terminal or it's a country lines rather than a county lines drug operation targeting Aberdeen, Dundee or the like.
We often have to try to work out what goes where in the Scottish system always knowing that we are never going to be able to represent our clients in person because we haven't qualified through the Scottish system.
We are very grateful to our friends at Keith Tucks for the following, extremely clear and helpful guide to Scottish Criminal Procedure. Our contact with Tucks has always been positive and we wouldn't hesitate to recommend them to anybody finding themselves before the caledonian courts, they can be contacted on 01414719296.
Please see the below guide published by Keith Tucks:
Increasing we find that we are being asked to help clients who have matters before the Scottish courts. Sometimes it is a simple speeding on the way to the Ferry Terminal or it's a country lines rather than a county lines drug operation targeting Aberdeen, Dundee or the like.
We often have to try to work out what goes where in the Scottish system always knowing that we are never going to be able to represent our clients in person because we haven't qualified through the Scottish system.
We are very grateful to our friends at Keith Tucks for the following, extremely clear and helpful guide to Scottish Criminal Procedure. Our contact with Tucks has always been positive and we wouldn't hesitate to recommend them to anybody finding themselves before the caledonian courts, they can be contacted on 01414719296.
Please see the below guide published by Keith Tucks:
Being charged with a crime can be a stressful and confusing time, particularly if the experience is new to you. There’s lots of information out there about what happens in court. Most of it is misleading or just plain wrong. A lot of what is assumed to be common knowledge about criminal trials relates to English criminal courts (which are very different to Scottish court) or the result of sensationalised TV drama.
Remember, you are innocent until you are proven guilty, and the onus is on the prosecution to prove that you are guilty – not on you to prove your innocence. What’s more, they must prove your guilt beyond all reasonable doubt. As such, a properly prepared defence is vital to giving you the best chance of success at trial.
Keith and the team have produced this guide to give you as much information ahead of time as possible to allow you to prepare yourself mentally for what is to come.
The truth is that there is a large amount of procedure involved before anything of substance happens. This guide will explain:
The difference between pleading guilty and not guilty
Attending Court
The initial hearing
Bail & Court Orders
How we will prepare your defence
How we investigate prosecution evidence
The ‘intermediate diet’
The trial diet
The verdict
Guilty verdicts & sentencing
Pleading Not Guilty or Pleading Guilty
Regardless of how you intend to plead, the starting point for your case will be when you receive a citation to attend court. This is a letter which will tell you of the date and time of your trial, and which court to attend. This letter will come from the Crown Office and Procurator Fiscal service who are the prosecuting authority in Scotland.
The initial court hearing is known as the ‘pleading diet’ (Court hearings are known as ‘diets’). At this diet, you must enter your plea. Often, there is no need for you to attend court – Keith or one of his team will attend on your behalf and inform the court as to how you to intend to plead. If your case is serious such as murder, serious assault, certain drugs offences, rape or serious fraud then you may, in fact, have to attend. If this is the case, Keith or one of the team will accompany you.
What do you have to do at this stage?
At this stage, you should obviously inform us of how you to intend to plead. As the court will set dates for the later hearings, you should also inform us of any travel plans or holidays that may affect your ability to attend later hearings. Failure to attend these hearings can have serious consequences.
Attending court
When attending the court, it goes without saying that you should dress smartly and attend promptly. Ask at the desk and you will be informed of the court in which your case is to be heard. At this point, your allocated solicitor will meet you to confirm your instructions.
While this hearing is very brief, there can be a long wait before your case is called. There may be a large number of cases before yours. We’ll do all we can to keep you informed but we are in the hands of the court at this point.
What happens in court?
When it’s time for your case to call, the Clerk of the court will call your name. When this happens, you must enter the dock and face the Sheriff or Judge. The Clerk will ask you to confirm your name and address and you will be allowed to sit down. Your solicitor will tell the court that Keith J. Tuck are representing you and how you intend to plead. The court will record this and confirm dates for your intermediate diet and your trial. You are obliged to attend these hearing.
In most cases, the court will state that you are ‘ordained’. This means that you are bound to attend court on these dates. If, as mentioned above, you will be unavailable on these dates, we will inform the court but you should note that they may be unable to accommodate you. Criminal courts are busy places and have many cases to accommodate.
If you are accused of a serious crime, then the court may serve you with a ‘bail order’. This order grants you freedom during the duration of your trial. You will be ordered to adhere to certain conditions which will include:
Attending court on the relevant dates;
That you do not commit any criminal offences;
That you do not approach or interfere with witnesses;
That you comply with the preparation of reports.
If there are any other conditions, your solicitor will keep you informed.
You should note that breaching your bail order is a criminal offence in itself and may result in a further prosecution.
It’s important to note that nothing is decided at this stage and there WILL be further hearings, often many months away.
The next stage is to prepare your defence.
Preparing your Defence
This is the critical stage. If this stage is properly prepared and a strategy put in place then you have a far greater chance of mounting a successful defence. Deciding which tack we want the case to take at this stage is far more likely to result in an acquittal. As such, it’s in your interest to assist your solicitor as much as possible to ensure we can present the best possible defence to the court.
We’ll ask you to provide:
As detailed an account of the incident as you can;
A summary of the impact a conviction would have on you, your job, your family and the likely long-term effect of being found guilty;
Details of witnesses who can support your case;
Any material that may support your case
At this point, we’ll begin to prepare your defence. This is where our expertise really comes to the fore. We’ll explore the facts and circumstances of your case. We may, for example:
Visit the scene of the alleged crime;
Negotiate your plea with the Procurator Fiscal;
Instruct expert witnesses such as DNA experts, Firearm experts, Drug experts,
Prepare and submit documents to the court.
While we’re preparing your trial, the Procurator Fiscal will provide us with a copy of the evidence against you. When this happens, we’ll meet face-to-face to discuss this with you.
Investigating the Prosecution Evidence
This is one of the most crucial stages in preparing your defence. The prosecution is obliged to provide us with a copy of the evidence against you. You may also receive evidence directly from the Police or the Procurator Fiscal – if this is the case you must bring it to our attention immediately as certain items might be time-sensitive and need to be handled immediately. We’ll assess and analyse this evidence to ensure we’re preparing a robust and comprehensive defence. We’ll advise you of what the evidence means for your defence, what impact it may have on your case. We’ll also ask you for your thoughts on the evidence. We’ll give you our thoughts on the likely outcome at this stage and advise you on whether we recommend pleading guilty or not guilty.
The Intermediate Diet
This is a procedural hearing ahead of the main trial diet. The purpose of this hearing is for us to advise the court of whether you are continuing with your original plea of not guilty or changing it in light of the evidence.
If you intend to continue pleading not guilty then both your solicitor and the prosecution are obliged to inform the court as to whether or not we are prepared for trial. If both parties are ready then the court will confirm that we are proceeding to trial. If one of the parties is not fully prepared, then the trial can be postponed or a further intermediate diet scheduled if there’s a chance that matters may still require being settled.
At the intermediate diet, we will provide the court with a list of witnesses and lists of the items we intend to refer to in evidence.
What happens if I plead guilty at this stage?
If you do decide to alter your plea, then the Sheriff will ask you to stand and confirm this to the court. At this point, you will be allowed to sit down while the prosecution read out a summary of the facts to the court. Your solicitor will then deliver what is known as a ‘plea in mitigation’. This is a list of things the court may wish to take into account when passing sentence. Once this is complete, the court will pass sentence.
Regardless of how you intend to plead, this diet is similar to the initial hearing in that we can’t be certain about the exact time of the hearing and it is likely to be very brief.
The Trial Diet
This is the formal hearing we have been working towards since the outset. This hearing is more formal than the preceding hearings and, as such, will last longer. You should set aside at least a day for this hearing.
It is at this hearing that evidence will be heard and the court will decide whether you are guilty or not guilty or, alternatively, if the case against you has not been proven. If the case has not been proven, then you will be acquitted – same as with a finding of not guilty.
As with all diets in all criminal trials, there is likely to be delay, overlap, more serious cases to be heard and last-minute circumstances which prevent cases going ahead. As such, you should be prepared for a long wait and for the possibility of a further postponement, should the court run out of time.
Once your trial begins, the Clerk will call your case and confirm your identity. By now, this part should be familiar. The case then begins.
Once underway, the prosecution will call their witnesses and ask them questions. This is known as ‘examination-in-chief’. Once the prosecution has finished asking each witness questions, your solicitor will be given the opportunity to ask questions of their own and to test the witnesses evidence. This is known as ‘cross-examination’. Once your solicitor has completed his questioning, the prosecution will have another opportunity to ask the witness questions. This will be repeated until all witnesses have been questioned.
The prosecution will then close their case. At this stage, we’ll decide whether or not to make submissions to the court. Remember, the onus is on the prosecution to prove their case against you, not on you to defend it. As such, you are not required to give evidence or say anything in court. If you decide to give evidence then you will be asked to enter the witness box and to swear an oath.
Your solicitor will then question you, followed by the prosecution, followed by your solicitor again. If there are any witnesses for the defence, they will be questioned in the same fashion. The format is similar to the above with the main difference being that it is the defence who ask questions first.
Throughout the trial, physical or documentary evidence (photos, videos, objects etc) may be produced. Once we have presented all the evidence to the court we will close our case. Both the prosecution and the defence will be allowed to make submissions to the court.
At this stage, the court will make its decision and confirm its verdict. In Scotland, we have three verdicts:
Guilty
Not Guilty
Not Proven
The latter two have the same effect. You are acquitted and are free to go – nothing is entered on your criminal record. To all intents and purposes, it is as though the incident never happened.
Being found guilty and sentencing
If you are found guilty then your conviction will be recorded. The court may choose to defer sentence for reports. Your solicitor will advise you of the likely sentence at the earliest opportunity.