After Conviction

What happens immediately after a guilty verdict in Scotland

After a guilty verdict

A conviction changes everything, and it changes it immediately. Whatever life looked like before the verdict, it looks different afterwards. Understanding what happens in the hours, days and weeks following conviction does not make that easier to absorb, but it does mean that the practical consequences are less likely to arrive as a complete surprise.

This page covers what follows a guilty verdict in a solemn case in Scotland, from the moment the verdict is returned through to the beginning of sentence. The appeal process and the role of the Scottish Criminal Cases Review Commission are covered in the pages that follow.

The immediate aftermath of conviction

When a jury returns a guilty verdict the accused is convicted in open court. In most serious cases, particularly where a custodial sentence is anticipated, the accused will be taken into custody at that point if they are not already on remand. Bail is usually withdrawn immediately on conviction for serious offences.

This can happen very quickly. A person who arrived at court that morning as an unconvicted accused may leave it that afternoon in custody. The practical consequences for family members present in the public gallery are immediate and often severe. It is worth knowing that this is the normal sequence of events in serious cases so that practical arrangements, if any can be made in advance, are considered beforehand.

Remanded for reports

In many cases sentencing does not happen on the same day as conviction. The judge or sheriff will adjourn sentencing to allow for the preparation of reports. The most common of these is a criminal justice social work report, sometimes called a background report, which is prepared by a social worker and covers the convicted person's background, circumstances, attitude to the offence, and any relevant personal factors.

In sexual offence cases additional reports are frequently ordered. These may include a risk assessment report examining the likelihood of reoffending, a psychological or psychiatric report, or other specialist assessments depending on the circumstances.

The period between conviction and sentencing can last several weeks. During this time the convicted person will ordinarily be held in custody unless exceptional circumstances justify continued bail, which is rare in serious cases.

The sentencing hearing

When the reports are complete a sentencing hearing is fixed. At this hearing the advocate or solicitor for the convicted person has the opportunity to make a plea in mitigation. This is not an opportunity to relitigate the trial or challenge the verdict. It is an opportunity to place before the court any factors that should be taken into account in determining the length and nature of the sentence.

Relevant factors might include personal circumstances, mental health, the absence of previous convictions, remorse, the impact of the sentence on dependent family members, or any other matter the court considers relevant to the appropriate disposal.

The Crown may also address the court on sentencing, including any victim impact statements that have been submitted. A victim impact statement allows the complainer to describe the effect the offence has had on their life. The court takes this into account when determining sentence but it does not determine the sentence.

Types of sentence

In serious solemn cases the most common sentence is imprisonment. The length of the sentence depends on the nature and number of offences, the sentencing guidelines applicable to those offences, any aggravating factors such as a position of trust or the involvement of multiple complainers, and any mitigating factors raised in the plea in mitigation.

The court will specify a headline sentence and an earliest release date. In Scotland the automatic early release provisions have changed in recent years and the rules around when a prisoner becomes eligible for release depend on the length of the sentence and when it was imposed. This is a complex area and one where legal advice is essential.

In some cases a non-custodial sentence may be available even in serious cases, depending on the specific offence and circumstances. However in rape and serious sexual offence cases a custodial sentence is almost always imposed.

Ancillary orders

Alongside the principal sentence the court will impose a number of ancillary orders that have their own significant consequences.

The Sex Offenders Register applies automatically on conviction for qualifying sexual offences. Registration requires the convicted person to notify the police of their name, address and other specified personal details within a set period of time and to keep that information updated. The duration of registration depends on the sentence imposed. For sentences of thirty months or more registration is indefinite.

A non-harassment order may be imposed prohibiting any contact with the complainer or other named individuals. Breach of a non-harassment order is a criminal offence.

A sexual offences prevention order or a risk of sexual harm order may also be imposed depending on the circumstances and the risk assessment. These orders can place significant restrictions on where the convicted person can live, work or travel.

Disqualification from working with children and vulnerable adults is automatic on conviction for many sexual offences and may also be imposed by the court in other cases where it considers it appropriate.

Notification to other agencies

Following conviction a number of agencies will be notified automatically. This includes the Disclosure and Barring Service in relation to employment checks, relevant professional regulatory bodies if the convicted person works in a regulated profession, the local authority in relation to housing if applicable, and other agencies depending on the circumstances.

The practical consequences of these notifications for employment, housing and professional status can be as significant as the sentence itself. In some cases they are more so.

The impact on family members

Conviction does not only affect the person convicted. The consequences ripple outward immediately and continue to do so for years.

Partners, children, parents and other family members face their own consequences. Financial consequences where a household income disappears overnight. Practical consequences around housing, childcare and daily life. Social consequences where relationships and community connections are affected by the conviction. Emotional consequences that are rarely acknowledged in any formal process.

Support for families in this situation is limited but it does exist. The Support and Organisations section of this site lists organisations that work specifically with families affected by conviction and imprisonment.

Maintaining innocence after conviction

For some people conviction does not end the question of guilt. People who maintain their innocence after conviction face a particular set of challenges. The appeal process is the first avenue available. Beyond that the Scottish Criminal Cases Review Commission exists specifically to consider cases where questions about the safety of a conviction remain.

It is worth saying clearly at this point that maintaining innocence after conviction is not the same as being in denial about an offence. Wrongful convictions happen. Scottish legal history contains examples of convictions that were later overturned, sometimes years after the event. The existence of an appeal process and the existence of the SCCRC are formal acknowledgements by the system itself that convictions are not infallible.

What to take from this page

Conviction in a serious solemn case almost always means immediate custody, a period on remand for reports, a sentencing hearing, a custodial sentence, and a range of ancillary orders with their own long-term consequences. The impact extends well beyond the convicted person to everyone close to them.

For those who maintain their innocence the process does not end at conviction. The appeal process and the SCCRC are both covered in the pages that follow.

This page is information only and does not constitute legal advice. Law changes and individual cases vary. Anyone facing criminal proceedings in Scotland should seek advice from a qualified Scottish solicitor at the earliest opportunity.