Scottish courts and the law
Scottish courts and the law

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Scottish courts and the law

3 Criminal court procedure

Box 2 summarises the procedure that is generally followed in a Scottish criminal case. The verdicts reached at the end of a case are unique in the UK as there are three possible outcomes:

  • Guilty, which means the evidence has been enough to prove 'beyond reasonable doubt' that the individual accused and charged with a criminal offence committed the crime or part of the crime. The judge may sentence the accused immediately or postpone sentencing for reports.
  • Not proven, which means that there is evidence against the defendant but it is insufficient to convict. The accused is then free to leave the court.
  • Not guilty, which means there wasn't enough evidence to prove the case 'beyond reasonable doubt' or there were other reasons why the accused wasn’t found guilty. The accused is then free to leave the court.

There have been several attempts to change these verdicts, including the Criminal Verdicts (Scotland) Bill 2016 which failed to pass on 25 February 2016. There have also been reviews on the majority verdict. Scotland is one of the few jurisdictions to use a simple majority verdict. This simple majority has been questioned as to whether it can be reconciled with the burden of proof required in criminal cases and whether it leads to miscarriages of justice. Reviews are on-going.

Box 2 Criminal court procedures

Making a plea

At the start of a case the accused is asked to plead to the charge or charges they face. If the plea is not guilty, a date will be fixed for a trial when evidence in the case will be heard. This date may be several weeks ahead. The accused can plead guilty to the charges at any stage in the proceedings. Where the accused pleads not guilty a hearing, in summary cases called an intermediate diet, is set down a couple of weeks before the trial. This is to confirm that the trial is ready to go ahead on the allocated date. If for any reason the trial cannot go ahead as planned, a new date may be fixed at this stage.

The trial

At the trial, where the accused still wishes to plead not guilty to the offence, both the prosecutor and the accused can call witnesses to give evidence. Sometimes the trial cannot go ahead on the arranged day. This can happen for a number of reasons, many of which are outwith the court’s control, for example where a witness or the accused falls ill.

After all the evidence has been presented by both the prosecutor and the defence, a decision is taken on the guilt of the accused. In a jury trial, where 15 people hear the evidence, the jury makes this decision. This happens in High Court cases and in solemn cases in the sheriff court. In all other trials the sheriff or Justice of the Peace makes that decision on the basis of the evidence which has been presented.

The sentence

If the accused has pled guilty, or has been found guilty after the trial, the court will consider the question of sentence. This might not happen on the same day. The case might be continued for several weeks for a number of reasons, for example, so that the court can ask for background reports. These reports will provide the court with additional information on the offender which will help when deciding on the most appropriate method of dealing with the case. Where a case is continued, the court will decide whether the accused is to be detained in custody, released on bail or allowed to remain at liberty with no conditions attached.

Various sentences can be imposed by the court. These may include a sentence of imprisonment, the imposition of a fine or the issue of a community payback order, a restriction of liberty order or a drug treatment and testing order. More information about how a judge decides a sentence, and what sentences can be given in Scotland, is available on the Scottish Sentencing Council website.

(Scottish Courts and Tribunals n.d.)

You should now watch the following video which provides an example of criminal court proceedings.

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Transcript: Criminal court proceedings

Cameras are not allowed inside courtrooms. And so what happens inside one is, to most of us, a complete mystery. But many of us may at some point have to attend court. We might be there as a witness, or a victim of crime, perhaps to serve on a jury. You may even find yourself in court on trial as the accused.
A courtroom is a very formal and traditional place which can at first appear frightening and very complicated, filled with people wearing strange wigs and gowns, and using words and language which most of us don't know or understand. Well, this programme will unravel some of the mysteries, explain the procedures, and reveal what happens behind these doors as we follow the progress of the case through the Scottish criminal justice system.
A case typically goes through four main stages-- Stage 1, the arrest and court appearance, Stage 2, preparing for court appearance, Stage 3, attending court, the trial, Stage 4, sentencing.
In Scotland, criminal cases can be prosecuted either summarily or in solemn procedure. Summary trials are conducted before a judge. The judge decides on all questions of fact and law. And they alone decide on guilt. There is no jury. Summary trials are the most common form of trial in Scotland and are a quick and efficient means of administering justice.
Solemn trials involve a jury of 15 people, randomly selected from the community, and are conducted for more serious crimes such as robbery or murder. Darren's trial will be conducted on solemn procedure with a jury and will take place in a sheriff court.
Many people are involved in a solemn trial. A sheriff will be appointed to preside over the case. A procurator fiscal will lead the case for the prosecution, a defence solicitor, who will represent the accused. Witnesses are required, and members of the public, who may become members of the jury.
With only a few exceptions, everyone in Scotland aged between 18 to 65 may be asked to sit in a jury. Jury service is an interesting and important public duty. It gives ordinary members of the public the opportunity to make a vital contribution to the administration of justice in Scotland.
The Scottish court system provides courts at three levels to administer criminal justice. The district court deals with the most minor cases such as traffic offences or shoplifting. All cases at the district court are conducted on summary procedure. No jury trials are possible at the district court. Most large towns in Scotland will have a district court, which are run by local councils.
The sheriff court deals with more serious crimes such as drug offences and housebreaking. The sheriff court can hear criminal cases, either with or without a jury. The judge who presides over cases is known as a sheriff. We'll tell you a little more about the sheriff and their duties a little later on.
The most serious of criminal cases, such as murders, are held in the high court. All trials in the high court are heard with a jury.
This programme has looked at the first two stages of the criminal justice system in Scotland, the arrest and preparing for trial. In the next programme, we'll take a look at what actually happens inside the court as Darren's trial begins.
Come in.
Good morning, Sheriff.
Morning, John.
How are you this morning?
I'm very well. Did you have a good weekend?
Not bad at all.
You ready for me?
The people waiting in the courtroom and the sheriff are currently fairly relaxed and able to chat informally.
--at 4 o'clock in the morning.
This will all change as soon as the sheriff enters the courtroom.
There we are. Could you get these for me right here?
Sure. All rise.
As acknowledgement of the important position that the sheriff represents, everyone must stand when the sheriff enters or leaves the courtroom. As a mutual mark of respect, the sheriff bows to the court, and the court officials bow in return.
The clerk of the court will now officially call the case. And Darren will tender a plea.
Call [INAUDIBLE] advocate against Darren Ballantine. Can you come forward please, Mr. Ballantine?
An accused person may decide to change their plea from not guilty to guilty, even at this late stage. If they do, no jury or trial will be needed.
Have you filed a complaint?
Have a seat.
The process would proceed to the sentencing stage.
Yes, Milady. I appear for Darren Ballantine, who pleads not guilty to the charge on the indictment.
Milady, I'd be advised if the court could proceed to trial.
[INAUDIBLE] Milady. OK, ladies and gentlemen, when I call your name, if I could ask you to come forward and take a seat in the jury box. Number 12 on the list, David Wilson. Number two, Christine Nox.
In Scotland, 15 people are required to serve on a jury. Some people are exempt or disqualified from jury duty, including those involved in the administration of justice, such as police officers or lawyers, and those who have been convicted of a serious criminal offence.
Number 21, Suzanne Senior. Number 27, Duncan Robertson.
Once all 50 members of the jury have been chosen, or impanelled, the clerk of the court will read out the indictment, or charges against Darren, and the sheriff will address the jury.
Ladies and gentlemen, I'll now read the indictment to you. And after that, I'll ask you to stand and raise your right hand. And at that stage, I'll administer the oath to you. And I'll look for you to say, I do, once I've done that.
"The charge against the accused is Darren Ballantine of 4 Main Street, Edinburgh, indicted at the instance of Colin Boyd, Lord Advocate. The charge against him is that he did on 13th of June, on the premises at the High Street, Edinburgh, occupied by Superstore Groceries, you did assault Mary Jenkins, shop assistant, by slapping her in the face and rob her of 250 pounds."
Can I ask you to stand please and raise your right hand? Do you swear by Almighty God that you will well and truly try the accused and give a true verdict according to the evidence?
I do.
Have a seat, please.
Mr. Gilmore, would you hand copies of the indictment out to the members of the jury please?
Each member of the jury will now receive a copy of the indictment. Throughout the trial, the jurors may receive further copies of important documents, such as witness statements or pieces of evidence. The sheriff will also receive a copy. The copies are often on colour paper to distinguish the copies from the original.
Now, ladies and gentlemen, you may not be familiar with the practises in this court. And it may be of some assistance if I outline the procedure that will be followed. Now, the case for the Crown is presented by the procurator fiscal. And that's the lady sitting on my right, facing you. The case for the defence is presented by Mr. Scott, who is the gentleman at the desk on my left, sitting with his back to you.
In Scotland, there are no opening speeches. The trial officially begins when the first witness for the prosecution takes their place in the witness box and takes the oath. As the procurator fiscal, or Crown, has brought the case to court, the whole of the prosecution case is heard first.
The witness box is where each of the witnesses will stand to give their evidence. It directly faces the jury to allow them to see the witness clearly. Although a chair is provided, most witnesses are required to give their evidence standing up to allow the jury to see the whole of the witness's body.
The procurator fiscal will prosecute the case, or present the case for the Crown. The accused is considered to be innocent until proven guilty. The prosecution has the burden of proof, which means that they need to present enough strong evidence to convince the jury that the accused is guilty of the crime.
The defence solicitor sits on the right. It's the job of the defence team to test the prosecution case. The defence does not need to prove anything. Remember, it is the prosecution who has to prove guilt. The defence does not need to prove innocence. The defence may choose to present evidence to the court to support the defence case, but they don't need to.
The clerk of the court is responsible for writing up procedural steps in each case and advising the sheriff on procedure. Other duties include tape recording the proceedings, safeguarding the tapes, and ensuring whenever possible that the court runs smoothly.
The court officer is responsible for bringing people in and out of the courtroom. He brings pieces of evidence to witnesses and generally helps the courtroom run smoothly.
The sheriff is the master of the law. It is the sheriff's function to regulate the procedure of the case and to explain the law to the jury.
You will notice that all these people are dressed in black gowns and that the sheriff is wearing a wig. This is a tradition that dates back many hundreds of years.
The purpose of the jury is to judge the facts of the case. It is said that the jury is the master of the facts. They must decide if they find witnesses reliable and believable and whether they think the Crown has provided enough evidence to prove that the crime was committed by the accused beyond reasonable doubt.
It is extremely important that each member of the jury pays careful attention to all the evidence. Their verdict must be based on the evidence presented in court and nothing else. They are provided with pens and paper to allow them to take notes.
Jurors must not talk about the case to anyone except their fellow jurors, and only then in the privacy of the jury room. No juror should have any contact with an accused person. And it is a serious offence for anyone to try to obtain information from a juror about any of the matters discussed by the jury, even long after the trial has ended.
Trials can often last many days, perhaps weeks, and in very complex cases, even months. Jurors are paid travelling expenses and an allowance for any money they might lose whilst not at work.
Members of the public, family, and those interested in the case sit here in the gallery. Some courtrooms have special areas for the press to sit.
The accused sits here in the dock. The dock is directly connected to the cells underneath. For security reasons, police officers sit either side of Darren. No one is allowed to touch him or give him anything unless they've had permission from the sheriff.
In the next programme, we will look more closely at the role of the witness and the juror and watch as the trial reaches its conclusion.
This was a very serious matter, Mr. Ballantine. But as you are a first offender, I will require to call for a social inquiry report and a community service report.
The sheriff cannot impose a gaol sentence on a person who has never been in gaol before without requesting background reports. These reports help the sheriff decide what would be the best and most appropriate sentence for the public and for the offender.
Darren may be given bail, which means he's free to leave, but must return to the court to be sentenced. Or he may be held in custody, which means he will be kept in prison until the date of the sentencing hearing.
Sentence will require to be adjourned. Therefore, for a period of three weeks in order that these reports can be obtained, bail is continued.
Mr. Ballantine, [INAUDIBLE] adjourned in your case till the 18th of December for the purpose of obtaining social inquiry and community service records. Bail will be continued as previously granted. That's all. Thank you.
Mr. Scott.
Yes, Milady. I appear again for Darren Ballantine. There is a report now available. And the factors I would simply wish to emphasise is that he is only 19. He's in full-time employment. He comes from an extremely supportive family, and they've attended again today, as they did during the course of the trial. He has never been in trouble at all before, apart from this matter. And the terms of the social inquiry report are extremely favourable. Community service is available at a direct alternative to custody. And on the strict understanding that it is as an alternative to custody, I would invite your ladyship to place him on a period of community service.
Stand up, Darren Ballantine. As you now know, assault and robbery is a serious crime. And your appalling behaviour on the 13th of June clearly has had a very distressing and frightening effect on the victim, Mrs. Jenkins, and also on the child.
Normally, you could expect to be sentenced to a lengthy period of detention for a crime such as this. However, I've read the terms of the social inquiry report. I've taken account of your previous good record. And I've taken account too of your genuine remorse as well as the other factors referred to by Mr. Scott in mitigation.
I am therefore prepared on this occasion to impose a non-custodial sentence. I propose to make a community service order requiring you to perform 300 hours of community service. This means that you are required to carry out 300 hours of unpaid work in the community. This work will be carried out under the supervision of the local authority. And you must carry this work home at such times as your supervising officer instructs. You must report to that officer when required to do so, inform him or her of any change in your address or times of employment. You'll have 12 months from today's date within which to carry out the 300 hours of community service.
If you fail to comply with this order, you may be brought back to court. The community service order will then be revoked and you may be dealt with as no such order had been made. Accordingly, it will be open to the court to imprison you. And you should bear in mind that community service is an alternative to a prison sentence.
Now, do you understand what's been said to you?
And do you agree to comply with all these conditions?
Very well, 300 hours community service.
Darren Ballantine, 300 hours community service order is imposed. A copy of the order will be sent to you. And a social worker will be in touch with you in due course. That's all. Thank you.
Throughout these programmes, we have tried to explain the procedures and traditions of the courts. And hopefully, you now have a better understanding of how a court operates, who's involved, and the roles we all play in the Scottish criminal justice system. Without members of the public coming forward as witnesses or to serve on a jury, it would not be possible for the Scottish legal system to maintain the high standards which have been achieved for hundreds of years.


End transcript: Criminal court proceedings
Criminal court proceedings
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