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Reporting to the police and court process

Rape Crisis Christmas campaignReporting to police can be an overwhelming prospect. We are here to support you through the process and can attend court with you if your case goes to court.

You can report sexual violence that has happened to you at any time in the past. If you are considering speaking to the police you can have support from a support worker from the WRASAC.

You can choose whether or not to report what has happened to the police.

Rape Crisis Scotland has prepared a video guide to the Scottish Justice System when reporting a rape or sexual assault.

Should I report to the police?

We will provide support whether or not it’s been reported.

In making your decision, it may be helpful to think about the following:

If you report:

  • This may stop your attacker from harming you again or from harming someone else
  • You may feel better by taking control and doing what you can to ensure your attacker accounts for the crime
  • You may be able to claim compensation for any injury
  • The police will carry out an investigation. If, at a later date, you do not want to go ahead, your wishes would be taken into account but the police may continue the investigation
  • The police are committed to providing a sensitive service which takes account of the trauma of sexual violence
  • The law provides various ways to help victims of sexual violence who are involved in the prosecution process

If you choose not to report:

  • It is not your fault if your attacker harms someone else
  • The attacker is responsible for what they do
  • They always have a choice
    But, if you do not want to report because your attacker or someone else has threatened to harm you if you do, it is better that the police know this so they can take measures to make sure that you are not at risk.

If you are thinking of reporting to the police, it might take a few hours to make the report.

If you do not wish report the incident straight away you could be supported to access the Sexual Assault Referral Network (SARN). This is available to you if you are 16 years old or over and have been raped or sexually assaulted within the last 7. The SARN is a joint project between the Women’s Rape and Sexual Abuse Centre, Dundee and Angus (WRASAC) and NHS Tayside. Click here to view a leaflet explaining this process.

The SARN offers the opportunity for women to be referred for forensic medical examination following a rape and/or sexual assault who do not wish to report the incident to the police at that time. Having a forensic medical examination can mean that if you later (within 8 years) decided to make a report to Police Scotland that any valuable forensic evidence will have been stored.

Usually you are asked to make a statement when you report but you can ask to speak with an officer first and then decide if you want to report.
If you do not remember everything don’t worry, you can add to the statement the following day. It can be a good idea to take the name and number of police officer who you see in case you do wish to add to your statement.

If you want to report what has happened contact the Police. In Dundee you would be taken to West Bell Street where your statement and a forensic examination would take place. You may want to take a trusted friend, family member or partner with you.

If you do not report the incident at the time it does not prevent you from making a complaint later however valuable evidence may be lost.

It may be possible for a support worker from WRASAC to support you through making a complaint, contact our helpline for information.

If the attack or abuse that you experienced happened some time ago, you will be asked to give a statement but you will not be asked to have an examination.

If you have recently been raped or sexually assaulted, you will be asked to have a medical examination. You can ask for a female doctor but depending on the area you live in this might not be possible. The timescale can be quite important as the examination is looking for forensic evidence. The timescales for forensic evidence from an internal source are within the first 72 hours, however other forensic evidence such as a hair or stains to clothing can be detected for between 5 and 7 days.

If you have recently been raped or sexually assaulted it is very natural to want to wash, or to take a drink to help with shock. This can destroy evidence, however, so police advice is to try not to wash or eat or drink anything before going to the police. If you have changed out of the clothing you were wearing at the time of the assault, you should take this with you to give to the police.

If it has been a recent attack it is likely that you will be asked to return to where it happened so that further evidence can be gathered. It is also possible that you will be asked to return to the police station a couple of days after you report in case bruising has become visible.

Whether the attack has been recent or happened a long time ago it is entirely your own decision to report. It can however, be helpful to talk it through or to get some support. You can take a friend or relative to the police station to wait for you and give support, or you can contact us and one of our staff may be able to go with you.

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Reporting to the police

If you have just been raped and want to report you should go to the police as soon as you can after the assault as it is important for them to gather evidence as soon as possible. Here are some things to consider:

  • Think about taking a friend or relative with you for support.
  • If the incident has just happened, try not to wash or change your clothing as this can destroy evidence. The police will probably keep what you are wearing so take a change of clothes with you.
  • Depending on where the incident took place, the police may want to gather other evidence such as bed clothes.
  • The police will take a statement from you. Read it before you sign it, to make sure it is correct.
  • If the assault is recent you will be given a medical examination by the police surgeon. They will photograph injuries. You may be asked to go back the next day, as some bruising does not show up immediately.
  • Write your own notes on what happened when you leave the station. It could take up to a year for a case to go to court, and your notes will remind you what you said.
  • If you remember anything after you leave the police station, phone them and let them know.

We have trained workers who can support you through the process and advocate on your behalf to help reduce the impact.

Police Scotland have specially trained officers, Sexual Offences Liaison Officer (SOLO), that can assist you with reporting to the police. You should have a SOLO who will keep you informed of progress with you complaints.

Police Scotland has established a National Rape Task Force which includes Rape Investigation Units in each of the 14 local divisions across Scotland. These units are led by Detective Inspectors and staffed by specially trained officers.

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The police process

What the police should do

The main role of the police is to investigate what happened. They do this by gathering evidence. This may include tracing witnesses. Depending on the evidence available, they will arrest and charge the suspect(s). If a suspect is charged, the police will send a report to the Procurator Fiscal who will decide what action should be taken next.

The police also provide initial support to people who have been raped or sexually assaulted. This includes making sure people get medical assistance; giving them information and advice; and telling them about other agencies which can help.

All police forces have staff who are specially trained to deal with rape and sexual assault.

When you report to the police

Your first contact could be with any officer but you will very quickly be seen by a police Sexual Offences Liaison Officer (SOLO). These officers are specially trained to work with people who have been raped or sexually assaulted. They know that rape and sexual assault is distressing and traumatic, and they should be as sensitive as possible while continuing to investigate the crime.

If you need emergency medical help, the police will arrange for you to get this.

Where you will be seen?

The police can see you in your own home, in another location where you feel comfortable or in a police station.

You can have someone with you (a supporter). But if your supporter is a witness to the incident, they will not be able to stay with you while you give your statement.

Giving your statement

The police officer will ask you questions about the assault. This is to build up a picture of what happened, find out about your attacker and check if you think anyone else saw or heard anything. Some questions may seem awkward and difficult but are necessary for the police to take the case to the next stage. You should not be asked questions about your sex life that do not relate to the incident.

But, the police may need to ask you if you had recent consensual (agreed) sex with someone as that may affect any forensic examination (see page 62). If you are not sure of the reasons for any questions, you can ask for an explanation.
It is best to be as open and honest as you can. If you can remember what happened, it is better to be upfront from the start rather than change the details later. For example, some people are reluctant to say that they were drunk or had taken drugs at the time of the assault. But, it is important to remember that the attacker is responsible for the assault and not you. Rape and sexual assault are never OK, in any circumstances. The police should not judge you or blame you.

You may find it difficult to remember anything much. This is not unusual and a normal response when something traumatic happens. You may not remember anything if you were raped or assaulted when you were asleep or unconscious.
The information you give is written up into a statement. This will be in your own words and in your first language. It will be read back to you. You can change or add to this before you sign it. The police may contact you the next day to go over the statement, and you can add to it then.

You can take as much time as you need. You can ask for a break at any time. You can also add information later if other details come back to you some time afterwards.

Tell someone in the police station if you are unsure or unhappy about what is happening.

What happens next?

If the police find and charge the attacker, a report is passed to the Procurator Fiscal (PF). The PF will decide whether or not to take things further. It is the PF who actually brings the charges, not you.

Detaining and arresting the attacker If the police suspect someone has committed a crime but do not have enough evidence to arrest, they can keep (detain) them in the police station to allow for further enquiries and to interview them.
They must then let them go unless they have enough evidence to arrest them. But they can still investigate the crime.

If the police have enough evidence that someone has committed a serious crime, they can arrest them and take them to a police station. The police will decide whether to keep them in the police station (custody) until going to court the next day or may release them (on undertaking) pending a report to the fiscal. The ‘undertaking’ means that the person must agree to appear at court when told to do so. This is generally within two weeks. The court may place certain restrictions on them such as not contacting you or coming anywhere near you. If they break these restrictions, contact the police immediately.

Whether a person is kept in custody or released from the police station depends on each case. If the assault happened some time ago, then they are more likely to be released. However, if the police think that you or someone else is at serious risk, then they are more likely to be kept in custody.

The officer in charge of the police station makes this decision. The police must be very sure about keeping someone in custody because the law states that a person is innocent until proven guilty by a court.

If you are at all worried about what might happen to you or someone else if your attacker is released, tell the police immediately.

The police will tell you what they decide and what will happen next.

If the police cannot find enough evidence or identify the attacker

If the police cannot find enough evidence or identify the attacker, they will record that the assault took place and keep any evidence and information they have gathered. They will tell you if no further action can be taken. If this happens, it does not mean that you were not believed or that the assault was not taken seriously.

It means the police could not meet the legal test for taking the case forward. Many people find this upsetting and difficult. It may help to talk this over with a support agency.

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Will I have to get a medical examination?

If the attack or abuse that you experienced happened some time ago, you will be asked to give a statement but you will not be asked to have an examination.

If you have recently been raped or sexually assaulted and you wish to report to the police you will be asked to have a medical examination. You can ask for a female doctor but depending on the area you live in this might not be possible. The timescale can be quite important as the examination is looking for forensic evidence. The timescales for forensic evidence from an internal source are within the first 72 hours, however other forensic evidence such as a hair or stains to clothing can be detected for between 5 and 7 days.

If you have recently been raped or sexually assaulted it is very natural to want to wash, or to take a drink to help with shock. This can destroy evidence, however, so police advice is to try not to wash or eat or drink anything before going to the police. If you have changed out of the clothing you were wearing at the time of the assault, you should take this with you to give to the police.

However, you may also be able to have a forensic examination through the If you do not wish report the incident straight away you could be supported to access the Sexual Assault Referral Network (SARN). This is available to you if you are 16 years old or over and have been raped or sexually assaulted within the last 7. The SARN is a joint project between the Women’s Rape and Sexual Abuse Centre, Dundee and Angus (WRASAC) and NHS Tayside.

The SARN offers the opportunity for women to be referred for forensic medical examination following a rape and/or sexual assault who do not wish to report the incident to the police at that time. Having a forensic medical examination can mean that if you later (within 8 years) decided to make a report to Police Scotland that any valuable forensic evidence will have been stored. (Click here for more information).

Usually you are asked to make a statement when you report but you can ask to speak with an officer first and then decide if you want to report.

If you do not remember everything don’t worry, you can add to the statement the following day. It can be a good idea to take the name and number of police officer who you see in case you do wish to add to your statement.

If you want to report what has happened contact the Police. In Dundee you would be taken to West Bell Street where your statement and a forensic examination would take place. You may want to take a trusted friend, family member or partner with you.

If you do not report the incident at the time it does not prevent you from making a complaint later however valuable evidence may be lost.

It may be possible for a support worker from WRASAC to support you through making a complaint, contact our Helpline: 0300 365 2001 for information.

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The 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 it refers 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 through trained specialist Rape Investigation Units . 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.

To find out about COPFS commitments to victims and prosecution witnesses see online in the ‘publications’ section at www.copfs.gov.uk

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 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 for you to visit a court before the trial, or talking to you about applying for any special measures needed at court.

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 – we can support you 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 a supervision requirement through the Children’s Hearing system. 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 ‘beyond reasonable doubt’ in court:

  • That the rape or sexual assault happened
  • The accused was the person responsible
  • That you did not consent and *
  • The accused did not reasonably believe that you consented *

Because rape and sexual assault often take place in private, with no witnesses, it can be difficult to find enough evidence.

* This does not apply to a victim who is under 13 as they are not thought of to be capable of consenting.

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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. The fiscal will offer to meet you to explain the reasons for this.

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 page 101) 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 in prison. 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 pages 120-123) as this is always used for rape and serious sexual offences. Some sexual offences may be prosecuted using summary procedure in the Sheriff Court (judge but no jury; sentence of up to 12 months in prison, unless the law states otherwise).

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 do not have to agree to the interview but the fiscal will encourage you to take part. 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. It is best to be open and honest at the interview.

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 can the fiscal 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.

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. The prosecutor will ask for your views and take these into account when making a decision. 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.

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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

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.

Their contact details are:

VIA, Procurator Fiscal’s Office
Caledonian House
Greenmarket
Dundee
DD1 4QA

Telephone: 01382 342568 Fax: 0844 561 4447

E-mail: viatayside@copfs.gsi.gov.uk
Also covers Arbroath, Forfar and Perth

www.copfs.gov.uk

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What happens when it gets to court?

This section tells you about going to court, your role, the support you can get and what to expect.

If the accused pleads guilty then you will not have to give evidence in court. They might not plead guilty until the last minute.

What is expected of you

Your job is to tell the court what you remember (give evidence).

The thought of giving evidence in court can make people feel anxious. There are things which can be done to make this easier for you and to help you give the best evidence you can. These are explained below. There are also people who can help you such as VIA and the Witness Service. They will give you information about being a witness. You can also find out about going to court and being a witness at www.witnessesinscotland.com and from this link.

The crime is prosecuted by the Crown against the accused. You are a witness for the Crown. The Crown is not acting for you but for the ‘public interest’. You do not need your own lawyer as you have done nothing wrong.

It is against the law for the prosecution to coach witnesses. That means that they cannot advise you what you should say in court, how you should behave or what you should wear.

Unless circumstances prevent this, the Advocate Depute (High Court) or the Procurator Fiscal (Sheriff Court) will meet with you before the trial to introduce themselves to you. This is so you know who will be asking you questions in the courtroom. They will not discuss your evidence with you.

Support attending court

Before you are to give evidence, you can have a court familiarisation visit. VIA will refer you to the Witness Service for this unless you ask them not to. Many people find these visits very helpful. They let you see what a court looks like, who will be in court and who may ask you questions. You can have someone with you during a court familiarisation visit.

You can also apply to have a supporter with you while you are at court giving evidence. As long as they are not a witness in the case, they can sit in the court with you when you are giving evidence (but cannot talk to you). Think about who you want this person to be. While it may be very reassuring to have a close family member with you, you may not want them to hear very intimate details about you in court. You might prefer somebody from WRASAC or the Witness Service to accompany you.

Expenses are payable for court familiarisation visits, for attending court and to supporters. These can help with the costs of travel, loss of earnings, child or other care costs and meals/snacks while you are in court. The fiscal will send you details about these allowances and how to claim them.

Your safety

It is a criminal offence for anyone to try to frighten a witness, jury member or anyone helping the police with an investigation. If you are in any way frightened by the accused or other witnesses before or during the trial, tell the police, VIA or the Witness Service.

You can ask VIA or the Witness Service to arrange for you to be met at the court and to enter and leave the court from a different door to the accused or witnesses for the accused. You will be able to sit in a separate waiting area, and someone from the Witness Service can sit with you.

Feeling more comfortable about giving evidence

You may be anxious about giving evidence and the fiscal is aware that this could affect your ability to do so. There are various ways to help you to give the best evidence you can.

The nature and circumstances of rape and other serious sexual offences mean that the fiscal can apply for you to be allowed to use special measures to help you give your evidence. If you are 16 or 17 you can apply for special measures and will be treated as a vulnerable adult.

Examples of special measures are giving evidence by live television link, sitting behind a screen in the courtroom or having a supporter with you in court. If you use a screen or give evidence by a television link, you will not see the accused but they will be able to see and hear you through a TV monitor.

It may be possible for you to give your evidence through a prior statement. This means that you do not have to explain in court what happened, though you may be questioned in court about your statement. Another option is to give your evidence to a commissioner before the trial.

VIA will discuss these options with you and the fiscal will apply to the court for measures to be put in place. It is up to the judge to decide whether or not to approve special measures and if so, which one(s).

The judge can agree to clear the court of everyone except essential court staff and the jury when you give evidence. If you want this to be considered, speak to VIA or the fiscal before the trial so that they can ask the judge.

The press are allowed to stay but they will ensure that details of victims are not included in reports of rape and sexual offences.

Usually witnesses stand to give evidence. But you can arrange to give evidence while sitting if it is difficult for you to stand for long periods. You should discuss this beforehand with VIA or the Witness Service.

People often worry about what will happen if they cry when giving evidence or if they need to go to the toilet. If you need a glass of water, a seat or a break, ask the judge. Questioning can take some time and can be very tiring.

You have a right to an interpreter if your first language is not English. This will be arranged before the trial takes place.

If you have a disability, you may need certain arrangements to be made to get into court and give evidence. These will be arranged before the trial takes place.

Length of time in court

It is not possible to say how long you will have to wait until you are called into the courtroom or how long you will be in court giving evidence.

It may be possible to call you to court around the time you will be needed to give evidence, rather than having you waiting at courtall day. If you would like to do this, speak to VIA or the fiscal. You will need to let them have your phone/mobile number so they can contact you in time for you to get to court.

The accused in court

If you are granted special measures such as a screen or CCTV, you will not be able to see the accused. They will be able to see you but this will be through a monitor.

What happens when you give evidence

Witnesses cannot go into the courtroom before they give evidence. You will wait to be called in a waiting room. Your supporter can stay with you.

You will be taken into the courtroom to the witness box.

The judge will ask you to promise to tell the truth. You can give this promise in a way that fits with your religion, language or culture.

The prosecution (fiscal or Advocate Depute) will ask you questions. You may hear this referred to as ‘examination in chief’. First, they will ask you your name, age and occupation. You will then be asked to tell the court about the assault.

Your address will only be mentioned in court if it was the address where the offence took place. But it may become evident if, for example, the incident was viewed from the address or an item was recovered from it. But care will be taken to make sure that, if possible, your privacy is respected.

The defence will then ask you questions (called cross examination). They have a duty to defend the accused and you may find some of the questions upsetting. They may accuse you of lying or try to undermine you. It is difficult, but try not to take it personally. It is part of their job. It is up to the judge and the jury to decide what they think of your evidence. You cannot refuse to answer questions but the judge can allow or disallow questions. The judge should prevent any abusive, aggressive or inappropriate questions and the prosecution has a duty to object to them. If you are asked a question which is objected to, you may be asked to leave the courtroom while there is a legal argument about whether you need to answer the question.

You should not be asked about your past sexual behaviour unless it is relevant to the court case and the court has agreed to it being raised. If a defence application was successful, an accused’s previous convictions for sexual offences can be disclosed to the court.

The prosecution may ask you further questions (re-examination)in case they need to clarify anything which has come up from the defence cross examination.

The judge may ask you questions at any time.

The accused cannot ask questions.

You should answer the questions truthfully and as best you can. This is so that the court can see that you are reliable and credible. If you do not understand a question you can ask for it to be
explained.

After giving evidence

After you have given your evidence, the judge will ask you to remain in court or tell you that you can leave. If you want, you can sit on the public benches and watch the rest of the trial. Be aware that what you see and hear during the rest of the trial may make you feel very upset or angry. You cannot say anything or shout out.

How the case is decided

A jury (normally 15 members of the public) listens to all the evidence and to the information the judge gives about the law. They then decide on the result (verdict). The decision can be unanimous (all the jury members agree) or by majority (at least 8 of the jury agree).

The jury can decide that the accused is ‘guilty’ or ‘not guilty’ or that the case is ‘not proven’.

If the accused is found ‘guilty’ they are sentenced by the judge. This may happen there and then or may be delayed so that background reports on the accused can be prepared. The court may remand the accused in custody or grant bail until they are sentenced.

If the accused is found ‘not guilty’ or ‘not proven’ they are free to leave the court. It is not possible to appeal ‘not guilty’ or ‘not proven’ verdicts by a jury. However, the fiscal has the right of appeal if the judge has made an error in law. If the verdict is ‘not guilty’ or ‘not proven’ it does not necessarily mean that the jury did not believe you. It may be that the jury did not feel able to find the accused guilty ‘beyond reasonable doubt’.

It is not possible to find out the reasons for a jury’s decision.

The accused cannot usually be tried on the same charge again, but in 2011, the Scottish Parliament voted to change the law to permit a new trial in certain serious cases where important new evidence comes to light after the first trial.

Whatever the verdict, you are likely to have very strong feelings and it may be helpful for you to speak to your support worker.

Finding out the result of the case

If you are not in court to hear the verdict, VIA will contact you to let you know what it is or you can contact VIA or the fiscal’s office.

Newspapers and television

Some cases of rape or sexual assault are reported by the newspapers and TV. There is little that can be done about this unless the victim or the accused is under 16. But there is an agreement that the press will not give out the names of victims.

If you are not happy about press reports, you can complain to the Press Complaints Commission. You can get details from their helpline on 0131 220 6652 or at www.pcc.org.uk.

You have the right to speak to the press after any trial if you want. But, remember you have no control over what is printed. If you want to speak to the press, it is best to speak to an adviser before you do this.

Scottish Court Service

The Scottish Court Service is responsible for running the courts. It works closely with VIA and the Witness Service. It produces several useful booklets to help victims and witnesses. These are available in court buildings and online at www.scotcourts.gov.uk.

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Sentencing and after

The sentence for rape, sexual assault, incest and rape of a young child is up to life imprisonment. In practice, the length and type of sentence imposed is up to the judge. The judge will take into account how severe they think the crime as and the accused’s previous record. The counsel for the accused will tell the judge about any factors which they think might reduce the sentence. This is called a ‘plea in mitigation’.

If the accused pleads guilty, the judge is required by law to consider passing a shorter sentence than otherwise would have been the case. This is called a sentence discount. The judge decides how much, if any, of the sentence will be discounted. It might depend on when the guilty plea was made. The discount should not normally be more than a third of the maximum sentence available. The judge will state in court how much of a sentence has been discounted.

If you do not understand the sentence passed, VIA or the fiscal will try to explain more about this.

Telling the court how the crime has affected you

When there is a trial with a judge and jury, the victim can choose to prepare a written statement which tells the court, in their own words, how the crime has affected them – physically, emotionally and financially. This is known as a victim statement.

Victim statements are only given to the judge if the accused is found guilty. A copy of the victim statement is usually given to the defence at the same time. The judge must consider the victim statement when deciding the sentence.

The victim statement is not read out in court or given to the press. You do not have to make a victim statement. Choosing not to make a statement will not influence the trial in any way. The prosecution can still tell the court during the trial how the crime has affected you.

The fiscal or VIA will send you an information pack about victim statements. This includes a victim statement form and contact numbers for support agencies which can help or advise you about making the statement. It also explains what the statement can and cannot cover and how it will be used.

Appeals

A convicted person can appeal against the conviction and/or the sentence. They can also apply for bail (interim liberation) while waiting for the appeal.

If they pleaded guilty, they can appeal against their sentence. The court may impose a different sentence (higher or lower).

If they pleaded not guilty but were found guilty at trial, they can appeal against the conviction and/or the sentence. The court may refuse or allow the appeal. If the appeal is allowed, the court may order a retrial or acquit (free) the person.

Appeals are decided by three judges in the Appeal Court in Edinburgh.

Appeals for High Court and Sheriff and Jury trials (solemn procedure) should be lodged within 14 days.

The prosecution can appeal against a sentence which it thinks is ‘unduly lenient’. To succeed, the prosecution has to argue that the sentence was unreasonable given the nature of the offence and the record of the accused. Because of this, it does not happen very often. This type of appeal must be lodged within 28 days.

The prosecution cannot appeal ‘not guilty’ or ‘not proven’ verdicts by a jury.

VIA will keep you informed about any appeal.

Length of time in prison

Offenders do not usually serve the whole of their sentence in prison. Most are released before the end of their sentence on strict conditions.

If someone is sentenced to life imprisonment, the court will specify how long they must spend in prison (the ‘punishment part’) before they can be considered for release. If they are released, they are subject to special conditions (life licence) and can be sent back to prison at any time for the rest of their life if they break the conditions. The Parole Board decides when a prisoner serving a life sentence will be released. They will only agree to release an
offender if they think the offender is not a risk to the public.

If someone is sentenced to four years or more in prison, they are considered for release at the halfway point, and are entitled to automatic release at the two-thirds point of the sentence. They will be released subject to conditions (on licence). If they break these conditions they can be sent back to prison.

If you want to be notified about the offender’s release

If the offender has been sentenced to 18 months or more in prison, you can choose to be notified when the offender is released by registering with the Victim Notification Scheme. There are two parts to the scheme which you can opt into.
If you opt into part 1, you will be told when the offender is released; if the offender dies before release; has been transferred out of Scotland; is eligible for temporary release; or absconds or escapes and also when the offender is returned to prison following an escape or abscond.

If you opt into part 2, you will get the chance to send written comments to the Parole Board before the possible release of an offender on licence. You will be sent more information, nearer the time, about the type of information that can be considered in these comments. You will be told whether the Parole Board recommends or directs the release of an offender and whether any conditions have been attached to the licence that relate to you or your family.

If you are eligible for the scheme, the Crown Office will get in touch with you. You can choose whether or not to opt in. It may be difficult to make a decision about this immediately after the court case and you may want to speak to a support agency first. You can change your mind and opt in or out of the scheme at a later date (but before the offender is due for release).

You can get more information on the scheme from the Scottish Prison Service at www.sps.gov.uk or 0131 244 8670.

Your safety

The police are told when a prisoner is released from prison. If you are worried about your safety contact the police. If you have been threatened or frightened by the offender, you can apply to the court for an interdict or a non-harassment order to prevent them from coming near you, your home or your work. You need to ask a solicitor to apply to the court on your behalf. We can provide you with advice on how to go about this. You can find details of solicitors at www.lawscot.org.uk.

Your reactions

Whether your attacker is found guilty or not guilty, you may have strong feelings and physical reactions at the end of the court case. Up to now, you may have focused all your attention on getting through the court case. You may not have had much of a chance to think about anything else. Remember that you do not need to cope alone – we can support you.

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I’ve just received a letter from the Procurator Fiscal saying that my case won’t be tried in court. Why didn’t they believe me?

The Procurator Fiscal receives the police investigation after the accused is caught. Their job is to look at the evidence and decide if it will stand up in court. Scots law requires corroborative evidence – that is at least 2 pieces of evidence which back each other up. Usually, your statement is one piece of evidence and the other/s can be forensic evidence, witnesses or in some cases of abuse, other survivors who have also reported against the same abuser.

If the Procurator Fiscal does not have enough evidence to proceed, the case is dropped. This is not your fault and it does not mean that you have not been believed.

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I've reported to the police and he was arrested but I haven't heard anything for weeks. Has it been dropped?

It is common not to hear. Often the legal process can take quite a long time. If the accused is held in custody, the case has to be heard in court within 140 days. The accused is often released on bail unless he has previous convictions for sexual violence, is on parole or is wanted for another crime. If the accused has been released on bail, the case should be heard within 1 year, although this can be extended to 18 months at the judge’s discretion.

If you want to check what is happening with the case, contact your local Victim Support Service. They office should make contact with you after the accused’s first appearance in court.

If your case does go to court then you will be able to get support from the Witness Service which can organise a pre-court visit and support you on the day.

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Private prosecution and civil action

Private prosecution

If the Crown Office decides not to prosecute the case, in theory, you could go to a solicitor and ask them to prosecute the case for you (private prosecution). To bring a private prosecution you must have the Lord Advocate’s consent. This process is very expensive and you cannot claim legal aid. So it is very rare. There has only been one ‘recent’ private prosecution. It was for rape and was in the early 1980s.

Civil action

If your attacker is found not guilty by the court, you can take civil action against them. A civil action is based on a different level of proof (on the balance of probabilities). A decision in a criminal case is based on proof ‘beyond reasonable doubt’. You would not be making a criminal allegation, but making a claim for damages.

This can be a very long and expensive process and there is no guarantee that you would get legal aid. If you are considering civil action you should get advice from a solicitor. You can find details of solicitors at www.lawscot.org.uk.

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Can I claim compensation?

You may be able to claim compensation under the Criminal Injuries Compensation Scheme.

This is a financial award to compensate for the pain and suffering caused by violent crime such as rape/sexual assault. In some cases, an additional payment can be made for lost earnings or special expenses directly resulting from the injury. The injury can be physical or mental. It does not matter whether the attacker is someone you know or a stranger.

To claim, you must report the assault to the police and cooperate fully with them. The attacker does not have to be caught or prosecuted for you to claim.

You apply to the Criminal Injuries Compensation Authority (CICA). CICA advises that you apply as soon as possible after the assault. You must apply within two years of the assault (except in certain circumstances).

You can get free advice and help to apply from CICA by phoning the customer service centre. You can also get free help to apply from WRASAC or an agency such as Victim Support Scotland or Citizens Advice.

You do not need a solicitor (or other paid representative) to apply. If you choose to pay a solicitor or other representative to apply for you, you have to pay for this yourself. CICA will not meet those
costs.

If you are on welfare benefits, these could be affected by any money you receive. An adviser from CICA or one of the above agencies can tell you more about this.

If your application is not successful or the award is less than you expect, you can ask for a review. If you are not happy with the review, you can appeal to an independent body, the Tribunal Service – Criminal Injuries Compensation. If you would like any help with this, you may wish to contact Victim Support Scotland or Citizens Advice.

You can get further information or apply online at: www.cica.gov.uk

Criminal Injuries Compensation Authority customer service centre free helpline: 0800 358 3601 (open from 8.30am to 8pm on Mondays, Tuesdays, Thursdays and Fridays; 10am to 8pm on Wednesdays and from 9am to 1pm on Saturdays).

Criminal Injuries Compensation Authority
Alexander Bain House
Atlantic Quay
15 York Street
Glasgow
G2 8JQ

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