When pursuing a personal injury claim, there may be other legal procedures ongoing at the same time, such as criminal proceedings. If that is the case, one of the questions you might ask is how those proceedings will impact your civil claim.
In this article, we will explain:
- The role of both the Crown Office and Procurator Fiscal Service and Police Scotland, and the decision-making process involved in considering whether to prosecute an individual;
- The timescales involved in criminal proceedings; and
- What support is available for victims and witnesses during the criminal process.
There is an important distinction between criminal and civil law. While criminal law deals with crime and the punishment of offenders, civil law deals with disputes between parties, and the conclusion of that process may be an award of financial compensation, also known as damages.
What is the role of COPFS?
The Crown Office and Procurator Fiscal Service (COPFS), also known as the Crown, is Scotland’s prosecution service and death investigation authority. It plays an integral role in Scotland's justice system by working with others to make the country safe. The Crown becomes involved in a case once it receives reports from Police Scotland and other reporting agencies, and it then decides what action to take, including whether to prosecute someone. It is important to note that the Crown has independent decision-making powers. This means that the decision on whether to prosecute an individual lies solely with the Crown, not with Police Scotland. In reaching that decision, prosecutors must consider all the facts and circumstances of the case.
When considering whether to prosecute, the Crown will first assess whether there is enough evidence to proceed. There must be evidence from at least two separate sources to establish that: a) a crime was committed, and b) the accused was the one who committed it. This is known as corroboration, and without it, the prosecution cannot prove its case. In some circumstances, the prosecutor may instruct the police to conduct further investigations before making a decision.
The second consideration for the Crown is whether it is in the public interest to prosecute or whether alternative action should be taken. Alternative actions may include offering a fixed penalty fine or issuing a Fiscal warning. If there is corroboration and it is in the public interest to prosecute, the next significant step for the prosecutor is to determine the appropriate charges and which court the case will be prosecuted in.
All criminal cases begin in the Justice of the Peace Court, but some offences can only be heard in the Sheriff Summary Court, some in the Sheriff Solemn Court, and others in the High Court of Justiciary. Sheriff Solemn proceedings are more serious than Summary proceedings and are heard by a sheriff and a jury. The seriousness of the offence, the circumstances of the case, and an individual's criminal record all influence which court will hear the case. For example, in road traffic offences, dangerous driving is ordinarily heard in the Sheriff Summary Court, but causing death by dangerous or careless driving will be heard in the Sheriff Solemn Court or even the High Court of Justiciary.
What are the timescales in criminal cases?
The court in which a case is prosecuted will affect how long it takes to proceed to trial. In Solemn and High Court cases, the Crown has 12 months from the accused's first appearance to bring the case to trial. These time limits are significantly reduced if the accused is remanded in custody. If that is the case, a trial must be fixed within 110 days from the date the accused is remanded in custody, and it must commence within 140 days of that date.
These time limits do not apply to cases heard in the Justice of the Peace Court and Sheriff Summary Court. In those courts, a case will generally reach trial within six months or less from the accused's first appearance. However, several factors can delay a case, including lack of disclosure of evidence by the police or Crown, difficulties with witnesses, or lack of court time.
Will this result in a delay to a civil claim?
The timescales in criminal cases may cause delays to personal injury claims, as the outcome of the criminal case may influence the civil claim and determine what further investigations are required. For example, in a road traffic collision, a personal injury claim may be brought by a pursuer (i.e. claimant) against the driver of the vehicle that caused the collision (i.e. the defender). If the defender does not admit fault, the pursuer may need to await the outcome of the criminal case.
If the defender is found guilty of the crime, this will improve the prospects of a successful personal injury claim. If the defender is not prosecuted successfully, further legal advice should be sought, as it may still be possible to succeed in a personal injury claim. This is because the burden of proof is higher in a criminal case than in a civil claim. In a criminal case, the prosecution must prove the accused's guilt beyond reasonable doubt, whereas in a civil claim, the claimant must prove their case on the balance of probabilities (i.e. that it is more likely than not).
If it is necessary to await the outcome of the criminal case, the pursuer may 'sist' the court action. This means pausing the case until the criminal case concludes, at which point the pursuer can decide how to proceed.
The relationship between Police Scotland and the Crown
Police Scotland and the Procurator Fiscal must work closely together from the investigation stage through to the conclusion of the case. The prosecution may instruct the police to conduct further investigations, particularly if there is a lack of corroboration or in more serious cases where additional background information is needed.
Even after a decision to prosecute has been made, the police remain involved. The Crown or defence solicitors may request additional investigations be carried out. In some cases, the Crown may rely solely on police evidence to prove its case, making credible and reliable police testimony essential.
Support available to witnesses giving evidence at trial
A key part of the prosecutor's role is to communicate with and support victims and witnesses involved in criminal proceedings. This support also extends to victims' families. It is important for the prosecution to understand the full story and provide information and assistance to make the trial and giving evidence as manageable as possible.
The Crown provides the Victim Information and Advice (VIA) service for victims and witnesses who need extra support. This includes individuals under 18, those of state pension age, those involved in sheriff and jury trials, family members of deceased victims, or anyone assessed as needing additional support.
VIA helps victims and witnesses understand what to expect from the criminal process and provides updates on their case. It also helps arrange special measures for vulnerable individuals, such as the use of a screen or supporter, live television link, or closed court, to make giving evidence less daunting. More information on victim services can be found at Victim Services COPFS.
Conclusion
While criminal and civil cases are separate, the outcome of a criminal case may influence the outcome of a civil claim.
If you are pursuing a personal injury claim alongside ongoing criminal proceedings, it is important to understand the roles of the Crown and Police Scotland, as well as the relevant timescales. Given the three-year limitation period for raising a personal injury action, it may not always be possible to wait for the criminal case to conclude before starting a civil claim. Therefore, it is essential to seek advice from an experienced solicitor at an early stage.
At Morton Fraser MacRoberts, our dedicated Personal Injury Team brings extensive experience in navigating court procedures. Once we’ve discussed the facts and circumstances of your case, we’ll provide clear, practical advice to ensure your claim is handled efficiently and effectively.
Our experienced Personal Injury team will take the time to get to know you, assess your claim and support you in recovering compensation. Contact us today on 0131 247 1000 or through our personal injury compensation enquiry form.
