Healthcare professionals - supporting adults who present having experienced rape or sexual assault: clinical pathway

Appendix D: The Criminal Justice Process

Key points

• A police investigation is likely to involve gathering evidence from a range of sources including the FME
• In the majority of cases which involve a report of rape, the accused will be reported to the Procurator Fiscal whilst held in police custody assuming that there is sufficient evidence to prove the charge
• Trials in all cases which involve a charge of rape and in which a prosecution is raised take place in the High Court of Justiciary

Outline of the Criminal Justice Process

On receipt of a report that an offence of rape or sexual assault has been committed, the police will carry out an investigation into the circumstances. Increased access to self-referral services may mean that there will increasingly be cases where a police report is not made prior to forensic examination. Police investigation is likely to involve: statements being obtained from the person who has experienced rape or sexual assault and witnesses; FME of the person who has experienced rape or sexual assault; exploration of relevant technological evidence (e.g. CCTV footage, social media messages) and arrest and interview of the suspect if they are identified.

The Senior Investigating Officer (SIO) is the person in charge of the inquiry. If the SIO forms the view that there is sufficient evidence that an offence has been committed and that the accused person committed it, a report will be submitted to the Procurator Fiscal. In the majority of cases, which involve a report of rape, the accused will be reported to the Procurator Fiscal while held in police custody.

The Procurator Fiscal will consider the content of the report in order to decide: if the report identifies that a crime has been committed; if there is sufficient admissible, credible and reliable evidence; and if prosecution is in the public interest. If all three questions are answered affirmatively then the accused person will appear in court. If any of the questions is answered negatively then it is very likely that the accused person will not appear in court. Further investigations may be carried out by Police Scotland and/or the Procurator Fiscal before a final decision about what should happen to the case.

In cases involving a report of rape or particularly serious sexual assault, accused persons will firstly appear ‘on petition’ in the Sheriff Court with jurisdiction over the place where the offence is alleged to have taken place. If the accused person is granted bail the prosecutor is required to serve an indictment on the accused person within 10 months and the trial must commence within 12 months. If the accused person is remanded in custody the indictment must be served within 80 days and the trial must commence within 140 days. These timescales may extend dependant on court adjournments under Section 65 of the Criminal Procedure (Scotland) Act 1995.

All trials that include a charge of rape are required by law to be heard in the High Court of Justiciary. A jury of 15 members of the public will decide if the accused person committed the offence. If the accused person is convicted the judge will pass sentence on the offender. The offence of rape carries a maximum sentence of life imprisonment.

Trials that involve a charge of serious sexual assault may be heard in the Sheriff Court by a sheriff sitting with a jury. The jury will decide if the accused is guilty and the sheriff will pass sentence. The maximum sentence that can be imposed by the Sheriff Court is 5 years’ imprisonment.

Other trials that involve a charge of sexual assault may be heard in the Sheriff Court by a sheriff sitting alone. If an accused person is remanded in custody when they first appear in court the trial must commence within 40 days. The sheriff will decide if the accused person is guilty of the offence and will pass sentence. The maximum sentence that can be imposed is 12 months’ imprisonment. Other sentencing powers include Community Payback Order, Fine, Compensation Order, Admonishment at his/her disposal, and these apply equally in the High Court, Sheriff, Jury Court and Sheriff Summary Court.

Increased access to self-referral services may mean that there will increasingly be cases where a police report is not made prior to forensic examination. Further information on self-referral can be found in section 3.

Rape Crisis Scotland has produced an online video resource featuring NHS, police, COPFS, which provides information for people who have experienced rape or sexual assault of the journey through the justice process, including the FME^[124]