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Criminal proceedings

Domestic abuse is a crime. If your partner physically or sexually assaults you, you have a right to report them to the police. If the police charge them with an offence, they may be tried and imprisoned or fined.

What can the police do?

If your partner is threatening or assaulting you, you can call the police. This applies to all relationships, whether you are married or unmarried, or a same sex couple. In an emergency situation (for example, if your partner attacks you), you can call 999 and ask the police to come out and help you. Otherwise you can contact your local police station and ask to speak to an officer to report a crime.

The police can:

What happens if I go to the police?

The police should take allegations of domestic abuse very seriously, which means that when you contact them, they should investigate your complaint. To do this, they'll need to interview you and take a statement detailing as much information as possible about the abuse. The police may visit you at home or at the place where you're staying, or you can come in to your local police station. You can ask to talk to a police officer of either sex. The interview may take some time, and if you find it distressing, you can ask to take a break.

Will I need to have a medical examination?

Depending on the type of abuse you're reporting, you may need to have a medical examination so the police can get evidence of the abuse. Again, you can ask to see a doctor of either sex and they will try to make you feel as comfortable as possible during the process. This may seem embarrassing and invasive and you can refuse to go through with it, but it's important that the police have as much evidence as possible if they are to charge your partner with abuse.

Will my partner be arrested?

Once you have contacted the police, they can bring your partner in for questioning and detain them for up to six hours before arresting them. If you call the police out in an emergency situation, they can arrest your partner straight away. If there is enough evidence, they will charge them with an offence, usually assault and/or breach of the peace.

Your partner will probably be held in a police cell until they can appear in court. If the police don't think you will be at risk, your partner may be released before the court date. They will have to sign an 'undertaking' promising to keep to certain conditions (for example, that they will stay away from you). Your partner won't be released if the police believe this could put you in any danger.

Will my partner be prosecuted?

The police will then send a report to the procurator fiscal. The procurator fiscal works in the Crown Office and Procurator Fiscal Service and is responsible for deciding whether or not to prosecute someone who has been charged with committing a crime. They will prosecute your partner if they believe that:

  • there is enough evidence for them to be tried in court, and
  • it will be in the 'public interest' to do so.

The Crown Office takes domestic abuse very seriously, so provided there is sufficient evidence, the procurator fiscal will usually decide that it is in the public interest to prosecute someone accused of this crime. However, they may decide not to take the case any further, or to issue a written warning or a fine.

If the procurator fiscal decides not to go ahead with the case, you may be able to get a private prosecution with the consent of the Lord Advocate. However, this only happens in exceptional circumstances. Speak to your lawyer if you're in this situation.

If the procurator fiscal decides to prosecute, your partner will have to appear in court and plead 'guilty' or 'not guilty'. If they plead guilty, the judge can sentence them then and there. This means you won't have to go to court to give evidence.

If they plead not guilty, a date will be set for a trial. This means you probably will have to appear in court as a witness. If you're worried about this, you can get support from Scottish Women's Aid or another local women's group, or from Victim Support Scotland

Victims of Crime in Scotland also has more information on the justice process in Scotland.

Will my partner get bail?

Your partner may request bail. If bail is granted, it will probably be conditional. For example, your partner won't be able to contact you or any witnesses in the case, or come near you or your children. If they break these conditions, you should contact the police immediately. The police can arrest them for breach of bail conditions. If the case is very serious, bail may be refused and your partner will have to stay in prison until their trial date. If there is a bail condition, you can still apply for an interdict or non-harassment order to prevent your partner from distressing or harming you.

If you're worried about what your partner may do to you if they get bail, tell the police, your lawyer and/or the procurator fiscal about your fears.

Can I drop the charges?

It is the procurator fiscal who is prosecuting your partner, not you. This means that you won't be able to withdraw your complaint or drop the charges once the decision to prosecute them has been made. You should be able to withdraw your statement, but this may mean that you're charged with wasting police time.

Will I have to appear in court?

If the case goes to trial, you will probably have to appear as a witness for the prosecution, to give evidence against your partner. You'll receive a letter (called a citation) telling you when and where you have to go. You can claim expenses to cover your travel fare and any loss of wages. If you are called as a witness, it's vital that you attend. If you do not attend then you too could be arrested.

Anyone else who saw or heard the abuse or the effects of the abuse may be called as a witness as well. This may include your children. They won't be asked to give evidence in court, but bear in mind that this may still be a traumatic experience for them.

Before the court date, you may have to speak to the procurator fiscal and your partner's defence lawyer or their agent about what happened to you. This is known as 'precognition'.

You can find out more about being a witness at the Witnesses in Scotland website.

Can I make a vulnerable witness application?

If you are very scared of appearing in court and think you won't be able to give evidence properly as a result, you may be able to make a vulnerable witness application, provided that the police reported your case to the procurator fiscal after 1 April 2008. In your application, you need to explain why you think you are particularly vulnerable, and what special measures you would like to help you give evidence. For example, you could ask to have a supporter with you, or to give evidence via a television link, or from behind a screen.

You can find out more about vulnerable witness applications at the Scottish Government website.

What happens at court?

When you go to give evidence in court, your partner will be there in the courtroom. However, you shouldn't have to speak to them, and they won't be told where you are living or staying.

Because this is a criminal case, the prosecution will have to prove 'beyond all reasonable doubt' that the abuse took place in order for your partner to be convicted. Your word alone will probably not be enough to convict them: there will have to be additional evidence, for example physical evidence of injuries or witness reports from friends or neighbours who have heard or seen the abuse taking place or seen the after effects.

Your partner will then be found 'guilty' or 'not guilty', or the case will be 'not proven'. If the charge is not serious, the sheriff will make the decision alone. If the charge is serious, a sheriff and a jury or a judge and jury will make the decision.

What if my partner is found guilty?

If the verdict is guilty, your partner will be sentenced by the sheriff or judge. The sentence they receive will depend on the nature of the offence. If they are not given a prison sentence, they may have certain conditions imposed on them, for example, that they do not come near you or your children.

In criminal proceedings involving any form of harassment, the procurator fiscal can apply to the court for a non-harassment order (this is in addition to any other decision which might be made by the court). If your partner is convicted, the criminal court can grant a non-harassment order to prevent them harassing you further. They can be arrested and fined and/or imprisoned if they break the order.

What if the verdict is not guilty or not proven?

If your partner is found not guilty or the case is not proven, they will be released. If you are worried about what they can do to you, you can apply to the civil court for an interdict or a non-harassment order.

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This content applies to Scotland only.
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