Attending Court as a Witness
Attending court as a witness
If you have been asked to attend court as a witness in a domestic abuse criminal trial, whether the trial is in relation to an incident involving you or someone else, it can be helpful to know what to expect.
If you have been sent a witness citation letter to give evidence at a trial, you will be expected to attend.
If you can’t attend court for medical reasons, you can ask your GP to provide you with a statement to this effect, called a “Soul and Conscience Certificate”, which you send to the Procurator Fiscal, for them to ask the court to excuse you from giving evidence. It can take some time for this letter to reach the Procurator Fiscal so it is important to ask your GP for this as soon as possible. Note that your GP may charge a fee for this and that they are under no obligation to provide this certificate which should be issued only where there are very good medical grounds for excusing attendance. Similarly, simply submitting the Certificate to the court does not mean you are excused and the decision on whether or not to accept this is solely for the court.
If you are unable to attend because of prior commitments, for example flights booked for a holiday, you should let the court know as soon as possible in writing or via phone. If you are cited to attend court, and have already booked a holiday for your cited date, do not cancel your holiday until you have spoken to a Procurator Fiscal, as COPFS will not refund your holiday costs
In some cases, the police will come to your door with your citation and ask you to sign it in their presence. If this is something that you do not want to happen, you can phone the court and ask specifically for your citation to be delivered via post. You can also phone Police Scotland on 101 and request that you pick up your citation from your local Police station, this is not always a guaranteed option but can be explored on the phone with the police.
In some cases when witnesses don’t show up for court without notifying the court, the Sheriff may, but not always, issue a Witness Warrant. A Witness Warrant is a court order that gives police the power to arrest a witness and hold them in police custody for the purpose of bringing the witness to give evidence in court.
Witness Warrants are generally more common in the more serious Sheriff and Jury and High Court Trials where non-appearance of witnesses can have serious consequences in delaying trials, but they be used in Summary Trials.
You are entitled to claim certain expenses in relation to getting to court to give evidence, such as rail and bus fares, car allowance and accommodation. You can also claim expenses for loss of earnings and food. However, it is important to remember that expenses can only be claimed up to a certain amount. The COPFS can advise you on this and there will be information about this on the back of your citation letter and on the COPFS website.
Expenses are normally claimed after you have attended court but it is occasionally possible to ask the COPFS to pre-arrange travel and accommodation on your behalf. To request this, you should contact VIA (Victim Information and Advice) in the first Instance. Doing this with as much advance notice as possible is very important. If you have a disability or mobility issue, speak to the COPFS about hiring a taxi for your journey to and from court as this must be agreed beforehand.
It is also important to arrange childcare in advance of attending trial. Children under the age of 14 are not permitted to be in court if they are not giving evidence. You may be able to get limited help with childcare expenses, if you contact the Procurator Fiscal in advance.
If you are a carer for someone, and you need to make alternative arrangements in order to attend court, you can make a similar claim. Again, see the information on the COPFS website.
If you have a been sent a citation, the court will expect you to give evidence in person.
The COPFS Victim Information and Advice (VIA) service may be able to help vulnerable witnesses, for instance, in cases that involve domestic abuse, hate crime, and sexual crime.
It is really important that you link in with the COPFS’s VIA service as soon as possible to discuss any concerns you have around giving evidence, including possible safety issues; what the court can do to help you with this and in giving your evidence; whether you may need additional support such an interpreter or translator if English is not your first language; and any access issues.
Most courts provide facilities for elderly and disabled witnesses, for instance, to allow wheelchair access. Some have a loop system for people with hearing difficulties. If you have a disability or other needs, you should tell the Procurator Fiscal.
Victims of domestic abuse, sexual offences and stalking are ‘deemed vulnerable witnesses’ and are automatically entitled to give evidence using what are called ‘special measures’ - giving evidence via CCTV, having a supporter in court with them and giving evidence from behind a screen.
Some courts are equipped with private rooms from which you can give evidence via CCTV or this may be done in premises outside the court. However, a CCTV link has to be requested well in advance and is not always a guarantee. Screens are available in most trials involving domestic abuse supporter for witnesses, meaning you can give evidence from behind a screen and you don’t have to look at the accused. Bear in mind that the accused will be able to see you through a small TV monitor when you give evidence as by law they have to be able to see the person giving evidence against them
Although you can ask the court through the Procurator Fiscal to use a family member, friend or support worker as a supporter, this service is normally provided through the in-court Witness Service.
If you are concerned that the accused and/or their friends and family may harass, follow or intimidate you outside or even within the court premises, tell VIA beforehand and also ask to come in through a difference entrance.
In Scotland there are two different types of criminal court; The Sheriff Court and the High Court. If the case you are a witness in is a Summary Trial, or a Sheriff and Jury Trial you will be asked to attend the Sheriff Court. If you are involved in a petition or High Court case, you will be asked to attend the High Court.
In most circumstances with High Court cases, they will not be held in the same area as where the incident happened. For example, if the incident that the trial involves happened in Edinburgh, it is likely that the trial will take place in another part of Scotland, for example Livingstone or Glasgow. This is to ensure that jurors do not have personal connections to the case and can remain impartial.
Summary trials are held in open court rooms with a Sheriff, Prosecutor, and Defence Solicitor. The Sheriff will make the decision about conviction, sentencing and any protective measures such as a Non-Harassment Order.
In Sheriff and Jury trials there will be both a judge, in this case a Sheriff and a Jury. The role of the jury is to agree an impartial verdict in the case, namely guilty, not guilty or not proven. They do this having heard and considered the facts according to the evidence given and the instructions given by the judge. Where the accused is found guilty, the Sheriff will make the decision about sentencing. Similarly, to the summary trials, the accused will have a Defence Solicitor representing them and the Procurator Fiscal will conduct the case for the prosecution.
In High Court trials there will be a judge and a jury who will make an impartial decision about whether the accused is guilty, not guilty or if the case cannot be proven. The Judge will make the decision about sentencing if the accused is found guilty.
Generally, in High Court trials the charges are very serious and a High Court trial can last a long time, sometimes weeks until completion. The court process can be unpredictable and it is not unusual for trial dates to be changed at the last minute. However, the VIA and the COPFS should always inform you of this.
On the day that you attend you will wait in the prosecution witness room until you are required.
When arriving at the court there will be a lot of police officers and court staff around. If you are unsure of where the witness room is, you can ask them to direct you.
You may have a long wait before you are called to give evidence. During this time, you must not discuss the trail with any of the other witnesses who may be in the room with you. You are allowed to take drinks and snacks in to the witness room or to use the cafeteria, if there is one. If you are concerned that the accused and/or their friends and family may harass, follow or intimidate you when visiting the cafeteria or toilet while waiting to give evidence, ask the police or court staff if the can accompany you.
It is useful to know that, in some cases, you may not be required to give evidence, as on the day of the trial, the accused may speak with their Defence Solicitor and agree to what is referred to as a ‘plea bargain’, meaning that they may agree to plead guilty to certain charges but not others, in order to conclude the case. In most cases, this means that they will plead guilty to an amended charge. A plea deal is normally agreed between the Procurator Fiscal and the defense. The accused can also plead guilty on the day of the trial without having done this.
If this occurs, a court officer will come and tell you that you are free to go. The Sheriff will still need to decide on sentencing, which may happen at a later date, and the court should notify you about the outcome.
When you are required to give evidence, a court officer or a bar officer will come and tell you that the trial is going ahead and will take you from the witness room to the court. If you are concerned about having to walk past the accused, you can ask the court official to make sure that they are not in the court corridors. Again, if you are concerned that the accused and/or their friends and family may harass, follow or intimidate you within the court premises, tell the police and court staff.
You will be brought into the court room when the court is ready to hear your evidence and you will be address by the Sheriff or Judge and asked to repeat the Oath or the Affirmation. This is a promise you make to the court to tell the truth about the evidence you are about to give.
Once you have done this, the prosecutor will be the first person to address you and they will ask you questions about the case the accused is being prosecuted for. It is very important that you are as honest as you possibly can be about what you can remember. If there is something you can’t remember, it is always better to say you don’t remember than try to make something up.
Once you have been questioned by the Procurator Fiscal, the accused’s defense solicitor will address you and ask you about the evidence you have given. It is important to remember that the accused’s solicitor is there to do a job, which is to try and have their client acquitted of the crime they have been charged with. In order to do this, they might ask probing questions. Remaining calm and confirming that you are telling the truth is the best thing you can do in this situation.
There is a big difference between sentencings in high court trials, sheriff and jury trials and summary trials as sheriffs in summary cases have lesser sentencing powers than judges in jury and High Court trials. ‘Sentencing’ does not always mean that the court will impose a prison sentence; it essentially means the punishment that the Sheriff or Judge will give to the accused for committing the charge that they have pled or been found guilty of. This is subject to the limits of the Sheriff or Judge’s sentencing powers and the sentence that can be imposed for that particular offence.
This can include fines, a community payback order, or a prison sentence. Alternatively, the Sheriff or Judge can give an ‘absolute discharge’, which is not a sentence or punishment and in summary cases, no conviction is recorded. They can also give a warning, called ‘an admonition’, to the offender which means that no punishment is given but the crime is recorded as a conviction on a criminal record.
Under the Domestic Abuse (Scotland) Act 2018, if a perpetrator is found guilty of domestic abuse, the court must consider issuing a Non-harassment Order as an additional protection. It is important that you let your court advocacy worker know your views on having a Non-harassment Order so that they can pass them onto the COPFS and the court. However, be aware that this is only part of the information that the court will consider and the final decision is for them. VIA may ask you your views on this or can take them if you don’t have access to court advocacy.
Who else can help?
ASSIST is a specialist independent advocacy service that can support victims of domestic abuse after an incident where a person has been charged or is likely to be charged with a domestic abuse related crime. They are available in: Glasgow City, East Dunbartonshire, East Renfrewshire, West Dunbartonshire, Argyll and Bute, Inverclyde, Renfrewshire, North Lanarkshire, South Lanarkshire, North Ayrshire, South Ayrshire, East Ayrshire. They are also available in Edinburgh for male victims only.
EDDACS is a support and advocacy service for female victims of domestic abuse crimes going through the court process in Edinburgh.
Victim Support Scotland provide support, practical assistance, and information to victims and witnesses of crime in Scotland. Their service is free and confidential, and they have an office in every local authority area.
Women’s Aid specialise in supporting women, children, and young people who have experienced domestic abuse. They may be able to help with both emotional and practical support, including support around attending court as a witness.