How a Trial Works

What actually happens during a criminal trial in Scotland

What a trial actually looks like

Most people's understanding of what a trial looks like comes from television. Courtroom dramas are compelling precisely because they compress, dramatise and simplify something that in reality is considerably more procedural, more uneven and more human than any script allows for.

A real Scottish criminal trial is not a single moment of revelation. It is a structured process that unfolds over days or weeks, during which evidence is presented, tested and argued over, and at the end of which a verdict is reached. Understanding the shape of that process before it begins makes it significantly easier to follow when it is happening.

This page covers what a solemn trial in Scotland looks like from beginning to end. Summary trials follow a similar structure but without the jury.

Before the trial begins

By the time a trial date arrives a considerable amount of work has already taken place. The Crown has prepared its case and served the indictment. The defence has reviewed the prosecution evidence through the disclosure process. Any applications that need to be made before trial, including any section 275 applications in sexual offence cases, will have been dealt with at a preliminary hearing or first diet.

A preliminary hearing in the High Court or a first diet in the Sheriff Court is a procedural step that takes place before the trial itself. It exists to ensure the case is ready to proceed, to resolve any outstanding legal issues, and to confirm the accused's plea. If the accused intends to plead not guilty the case is assigned a trial date.

What the jury is and is not permitted to hear has already been determined before a single juror takes their seat.

Jury selection

In solemn cases the trial begins with the selection of a jury. Fifteen jurors are selected from a larger pool of people cited for jury service. In Scotland there is no equivalent of the extensive jury selection process used in some other jurisdictions. Jurors are selected by ballot. Both the Crown and the defence have a limited right to object to individual jurors without giving a reason, known as a peremptory challenge, although the rules around this are tightly constrained.

Once fifteen jurors are selected and sworn in the trial begins.

The Crown case

The Crown presents its case first. This reflects the fundamental principle that the burden of proof lies with the prosecution. The accused does not have to prove anything. The Crown must prove the charge beyond reasonable doubt.

The Crown calls its witnesses one by one. Each witness is examined in chief by the prosecutor, meaning the prosecutor asks them questions to draw out their account. The defence then has the opportunity to cross examine each witness, testing their account, challenging inconsistencies, and exploring anything that may undermine the Crown's case. The prosecutor may then re-examine the witness to address anything that arose during cross examination.

In sexual offence cases the complainer is almost always the most significant Crown witness. Their evidence is central to the case and cross examination of a complainer is one of the most carefully regulated parts of the entire trial. What can and cannot be asked is governed by the court's earlier decisions on section 275 applications. A defence solicitor or advocate cannot simply ask whatever they consider relevant. They are confined to what the court has permitted.

Productions and documentary evidence

As well as witness evidence the Crown may introduce documentary evidence, forensic material, digital records, photographs, medical reports and other productions. Each production must be formally introduced through a witness who can speak to it. A document does not become evidence simply by being listed on the indictment. It must be produced, identified and admitted during the course of the trial.

In practice many productions listed on the indictment are never produced in evidence at all. The indictment represents what the Crown might use, not what it will use. The jury decides the case on what is actually placed before them, not on what appears on a list.

The no case to answer submission

Once the Crown has presented all its evidence the defence has the opportunity to make a submission of no case to answer. This is an argument that the Crown has not presented sufficient evidence to justify the case going to the jury at all. If the submission succeeds the accused is acquitted without the defence having to present any evidence.

In practice successful no case to answer submissions are relatively uncommon in serious cases. The Crown will generally have ensured there is at least a sufficiency of evidence before proceeding to trial. But the submission exists and in some cases it is the right strategic move.

The defence case

If the no case to answer submission fails or is not made the defence then has the opportunity to present its own case. This may involve calling witnesses, introducing evidence, or simply relying on the cross examination of Crown witnesses without calling any additional evidence at all.

The accused has the right to give evidence but cannot be compelled to do so. Whether an accused person should give evidence is one of the most significant decisions in any criminal trial and one that must be made carefully with legal advice. An accused who gives evidence can be cross examined by the prosecutor. An accused who does not give evidence cannot be compelled to explain themselves, and the jury must not draw any adverse inference from the decision not to testify.

In practice this decision depends entirely on the circumstances of the individual case. There is no universal answer.

Closing speeches

Once all the evidence has been heard both the Crown and the defence make closing speeches to the jury. These are the advocates' opportunities to draw the evidence together, highlight what they consider significant, challenge what they consider unreliable, and address the standard of proof.

The defence speaks last. This is a deliberate feature of Scottish procedure, reflecting the principle that the burden of proof lies with the Crown and the accused has the final word before the jury retires.

The judge's charge

After closing speeches the judge or sheriff gives what is called a charge to the jury. This is a set of legal directions explaining to the jury what they must decide, what the law requires, and how they should approach their task.

The charge covers the standard of proof, the meaning of reasonable doubt, the elements of each charge that the Crown must establish, and any specific legal directions relevant to the evidence in the case.

In sexual offence cases the charge will include specific directions about how to approach the evidence of the complainer and other witnesses. Since the introduction of the Victims Witnesses and Justice Reform Scotland Act 2025 there have been changes to the directions judges are required to give in these cases, some of which remain contested in terms of their compatibility with fair trial principles.

The charge to the jury is a critical part of the trial. Errors or omissions in the charge can form the basis of an appeal if a conviction follows.

The verdict

The jury retires to deliberate in private. There is no time limit on deliberations. The jury may take hours or days to reach a verdict.

In Scotland a jury of fifteen reaches its verdict by simple majority. Eight votes are sufficient to convict or acquit. The jury does not have to be unanimous. It does not have to explain its reasoning. It returns one of two verdicts, guilty or not guilty, on each charge.

When the jury returns the foreperson delivers the verdict in open court. If the verdict is not guilty the accused is acquitted and discharged. If the verdict is guilty the case moves to sentencing.

Sentencing

In some cases sentencing takes place immediately after conviction. In others, particularly where background reports are required, sentencing is adjourned to a later date. The judge or sheriff will order whatever reports are considered necessary, which may include a criminal justice social work report, a risk assessment, or medical or psychiatric reports.

Sentencing in serious sexual offence cases almost always involves a custodial sentence. The length of that sentence depends on the nature and number of offences, the circumstances of the case, any aggravating or mitigating factors, and the sentencing guidelines applicable to the specific offences.

At the point of sentencing the accused is also notified of any ancillary orders that apply, including notification requirements under the Sex Offenders Register and any non-harassment orders or other civil orders that the court considers appropriate.

What happens after conviction

Conviction is not necessarily the end of the process. The options available after conviction are covered in the next pages in this section, including the appeal process and the role of the Scottish Criminal Cases Review Commission.

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.