When You Are Accused

What happens from allegation to charge in Scotland

Most people who find themselves accused of a criminal offence in Scotland did not see it coming. One day life is ordinary. The next, something has been said, a complaint has been made, and the process has begun. Understanding what that process looks like from the very beginning can make an enormous difference, not just practically but psychologically. Knowing what is happening and why does not make it easier exactly, but it makes it less disorienting.

This page covers what happens between the point an allegation is made and the point at which a person is formally charged. It does not cover every possible variation, because no two cases are identical. What it covers is the general shape of how things unfold in Scotland and what rights exist at each stage.

The allegation

Everything begins with an allegation. Someone tells the police that a crime has taken place. In sexual offence cases this is almost always a direct complaint from an individual. In other cases it may come from a third party, an institution, or from something police themselves have observed or investigated.

The making of an allegation does not mean a crime has occurred. It means someone has said one has. That distinction matters enormously, although in practice the early stages of an investigation do not always feel as though it is being respected.

Once an allegation is received, Police Scotland will assess it and decide whether to investigate. In serious cases, particularly sexual offences, the presumption is almost always that an investigation will proceed.

The investigation

During the investigation phase the person who has been accused may not know they are being investigated at all. Police gather information, take statements from the complainer and any witnesses, review any available digital or forensic material, and build a picture of what they believe happened.

At some point during this process, or at the end of it, the police will want to speak to the accused. This is one of the most important moments in the entire process and one of the most misunderstood.

Police interviews in Scotland are conducted under caution. The standard caution makes clear that you do not have to say anything but that anything you do say may be used in evidence. That caution means exactly what it says.

In practice, police interviews in serious cases are often lengthy, detailed and carefully structured. The person being interviewed may feel pressure to explain themselves, to correct what they see as misunderstandings, or to demonstrate cooperation. Those instincts are understandable. They are also, without legal advice, potentially dangerous. A solicitor's job at this stage is partly to ensure that the interview is conducted properly and partly to advise their client on what to say and what not to say.

Arrest and police custody

In Scotland, a person is arrested when police have reasonable grounds to suspect they have committed an offence. Arrest does not mean charge, and it does not mean guilt.

Once arrested, a person can be kept in police custody for the purpose of investigation. The initial period is twelve hours, which a senior police officer can authorise extending by a further twelve hours, to a maximum of twenty-four hours in total. Many people are released within that period without being charged. (Criminal Justice (Scotland) Act 2016, ss.1 and 9.)

Phones, computers, and digital material

In many cases, particularly those involving allegations of a sexual or domestic nature, police will seize phones, computers, or other devices belonging to the accused as part of the investigation. This is a routine step in this type of case, not a sign that the allegation is considered especially strong.

Devices are usually sent for digital forensic examination, which can take a considerable amount of time, sometimes many months, given the volume of material that needs to be processed across police forces generally. The accused is not normally given a copy of the device or its contents while the examination is ongoing, and not having a phone or computer for an extended period can itself be a significant practical disruption, separate from the underlying allegation.

If a device is needed for work or for caring responsibilities, it is worth raising this directly with the investigating officer or the solicitor, since arrangements can sometimes be made, although there is no guarantee of an early return. Material extracted from a device, if any becomes relevant to the case, falls under the same disclosure obligations covered elsewhere on this site.

After interview

Once police have completed their investigation, including any interview with the accused, the case is passed to the Crown Office and Procurator Fiscal Service. The COPFS is Scotland's prosecution service. It is entirely separate from the police. Its job is to decide whether the evidence justifies prosecution and, if so, on what charges.

This decision can take time. In complex cases, particularly those involving sexual offences or historical allegations, it is not unusual for months to pass between the end of a police investigation and a decision from the COPFS. That period of waiting is one of the most difficult parts of the process for many people. Life continues but in a state of suspension, not knowing what is coming or when.

The decision to prosecute

The COPFS applies two tests before deciding to prosecute. First, is there sufficient evidence in law to establish that a crime was committed and that the accused committed it. Second, is it in the public interest to prosecute.

In Scotland, sufficient evidence requires corroboration. That means there must be at least two independent sources of evidence supporting the essential facts. This is one of the most important and distinctive features of Scots law and it has significant implications for how cases are built and how they are defended. The Understanding the Law section of this site explains corroboration in more detail.

If the COPFS decides not to prosecute, a letter is sent to that effect. This is sometimes called a no pro letter. It does not mean the allegation has been found to be false. It means the prosecution service has decided not to proceed, for whatever reason.

If the COPFS decides to prosecute, the accused will be formally charged and the court process begins.

Being charged

Being charged means the Crown has decided to bring a case. The accused will either be cited to appear in court on a specified date or, in more serious cases, may be arrested and brought before a court. What happens at that first court appearance depends on whether the case proceeds under solemn or summary procedure, which is covered in its own page in this section.

From the point of charge, the accused has a defence solicitor, if they do not already have one, and that solicitor begins the formal work of understanding the case, reviewing the evidence, and advising on how to respond.

A note on timing

The Scottish criminal process moves slowly. Between allegation and trial, months or years can pass. During that time the accused may be living under bail conditions, unable to work in certain settings, separated from family members, or simply suspended in a state of profound uncertainty.

What to do if this is happening to you now

Get a solicitor as soon as possible. Not after the police interview. Before it if at all possible. If you cannot afford one, contact the Scottish Legal Aid Board or ask for the duty solicitor. Do not speak to police without legal advice regardless of how informal the conversation is presented as being.

Keep records of everything. Dates, times, what was said, what you were told and by whom. These details matter and they are easy to lose track of when everything feels overwhelming.

Tell the people closest to you what is happening, if it is safe to do so. Isolation makes this process significantly harder. Support organisations exist for families as well as for the accused, and some of them are listed in the Support and Organisations section of this site.