Domestic Abuse and the Criminal Law
Police Scotland take domestic abuse very seriously, from 1st April 2019 a new offence of Domestic Abuse will come into force, previous offences such as stalking, threatening & abusive behaviour, assault, rape & sexual assault will also continue to be against the law.
If you need to contact the police in an emergency you should call 999, otherwise you can make a report to 101.
What happens if I contact the police?
If you contact the police they will investigate to see if a crime has been committed. This may involve taking a statement from you and from any others who may have seen or heard what happened. They will also gather other forms of evidence which will help them show that your partner did what you have said (this can include copies of emails, text messages, screenshots from social media, voicemails, photos of bruises).
If the police gather enough evidence to show that your partner/ex-partner has committed a crime, he will be charged with an offence and may be held in custody to appear in court or he could be released on police bail to appear in court at a later date. The police will send a report to the Procurator Fiscal (PF) who will decide if there is enough evidence to proceed with the case.
Is it my choice whether my partner is prosecuted?
It is the PFs decision whether your partner is prosecuted not yours. The PF will make this decision based on whether it is in the public interest to proceed and whether there is enough evidence. The PF will also decide whether the case should be heard before a sheriff, before a sheriff and jury or in the high court this will depend on the seriousness of the crime.
What happens if my partner is prosecuted?
If the PF believes there is enough evidence your partner will have to appear before the sheriff and enter a plea of guilty or not guilty. If he pleads not guilty he may be released on bail until the case comes to trial. Whether your partner is bailed to appear or held on remand (in prison) will depend on his history and the crime he is alleged to have committed.
If he is bailed there will be certain things he will be told he’s not to do such as have no contact with you, if he does then he would be in breach of bail which is a crime. If he is bailed the police will check on you after this and ensure you aware of the bail conditions.
What happens if my partner pleads guilty?
If he pleads guilty the sheriff may sentence him then and there or they may ask for court reports before they make a decision about the sentence; sentences for domestic abuse can include deferred sentences to be of good behaviour, fines, unpaid work, non-harassment orders (where he will be told he’s not allowed to behave in a certain way towards you), orders to work with criminal justice social work to help them change their behaviour and sometimes jail.
What happens if my partner pleads not guilty?
If he pleads not guilty two dates will be set one for an intermediate diet which you don’t have to attend and one for the trial which you would have to attend. You will receive a citation to attend court to give evidence, you don’t need your own lawyer for this as you are part of the evidence that the PF will provide to the court.
If you receive a citation you must attend court as it is a legal order not doing so could result in the case being continued and a warrant for your arrest being issued for you to explain your non-attendance to the sheriff. If you or your children need to give evidence in court you ae entitled to give evidence behind a screen so you don’t have to see your partner/ex-partner (they will be able to see you on a video screen) and to have a supporter with you as you give evidence (this will normally be someone from the witness service who you will meet on the day of trial). In certain situations you may be allowed to give evidence by video but this would need to be agreed by the sheriff and there would need to be reasons for this.
A visit to the court before the day of trial can be arranged for you so you know what to expect on the day.
You are allowed to see the statement you gave to the police to refresh your memory before the case comes to trial.
Cases before a sheriff are usually heard within 12 weeks (although trial dates can be set and then rearranged), cases before a sheriff and jury can take over a year to be heard and High Court cases can take over 2 years, unless your partner is on remand then the cases normally have to be heard within 140 days of them being ‘fully committed’.
When the case comes to trial your partner/ex-partner can still plead guilty prior to you giving evidence, this can happen at the intermediate diet or on the day of trial. This may happen due to a plea deal being agreed between the PF and the defence solicitor this may result in your partner/ex-partner pleading guilty to a lesser charge or just some of the charges they have been accused of.
If they are found not guilty then the case ends and the any bail conditions will stop, if they are found guilty then the sheriff may ask from reports before they decide on a sentence, bail conditions will normally remain in place until the sentence has been decided.
I’m worried about giving evidence what will happen?
If you need to give evidence in the case you will firstly be asked questions by the PF who will take you through the statement you gave to the police, you will then be asked questions by the defence solicitor (it is their job to provide a defence for your partner/ex-partner so they may ask you if you are telling the truth or suggest you are mistaken). The sheriff or the jury will then make a decision about whether your partner/ex-partner is guilty or not guilty of the crimes they are accused