The police will charge you if they believe they have enough evidence to prove:
- a crime has been committed
- you committed the crime
The police will decide if:
- you can go home until your first court hearing – you can agree to follow certain rules, known as an 'undertaking'
- you can go home while the procurator fiscal decides whether your case will go to court – you'll get a letter with the court date
- you'll be kept in police custody until you're taken to court for your hearing – this will be the next day unless it is a weekend or public holiday
- they'll give you a Recorded Police Warning or fixed penalty notice
- no further action will be made against you
The police can question you after they charge you, but only if they find new evidence and a court agrees. This is a new police power which began on 25 January 2018.
What happens may be different if you're under 18 and have been charged with a crime. This depends on your age and how serious the crime is.
The procurator fiscal is the lawyer who presents the case against you at court. They're also known as prosecutors.
Deciding whether your case goes to court
The police will send a report to the procurator fiscal who will decide:
- if there is enough evidence to prosecute (officially accuse) you in court
- if prosecuting you is 'in the public interest' – they'll consider how the case affects you, any victims and the wider community
- what court the case will be heard in
If you're charged with a less serious crime, the police or the procurator fiscal can give you a direct measure such as a warning or fine. This could mean your case won't go to court or be on your police record.
If the procurator fiscal decides there isn't enough evidence, they can decide not to prosecute or ask the police to find more evidence.
Being released on an undertaking
After the police charge you with a crime, you might be asked to agree to an undertaking. This means you can go home until your first court hearing at a later date.
You'll be given details of the charges and your court date.
You can speak to a solicitor before accepting an undertaking and before your court date.
You'll need to agree to conditions like:
- attending court when your case is called
- not committing any crimes
- not interfering with any witnesses or evidence
You might have to agree to further conditions like:
- being at a particular address at certain time periods
- giving your passport to the police so you can't leave the UK
You can appeal to a court if you don't agree with your 'further' undertaking conditions. The procurator fiscal may revoke or relax your conditions, separate to any appeal being made.
If the police release you without an undertaking, you'll be sent a letter telling you the date of your court hearing.
Being held in police custody
If the police keep you in custody after they charge you, they must take you to court for your hearing the next day (except for weekends and public holidays).
You'll probably be held in police custody if:
- you've been charged with a serious crime
- you've been convicted (found guilty) of a serious crime in the past
- the police think you may not go to your court hearing
- the police think you may commit another crime
- the police think you are a danger to the pubic
- the police think you are likely to interfere with witnesses or evidence
- you are of no fixed abode
- you have existing bail conditions in place
- you have previously failed to comply with conditions of your release
- you are on license from prison or subject to a Restriction of Liberty Order or subject to a Community Payback Order
- your identification is in doubt
You'll get papers from the court telling you what you've been charged with. You're entitled to speak to a solicitor before appearing at court, for example to discuss what your plea (eg guilty, not guilty) is going to be.
The court hearing
The procurator fiscal decides which court your case will be heard in. This depends on how serious the crime is.
Your lawyer will explain what will happen at your first court hearing and give you advice about your case.
You might be able to get help with your legal costs if you can't afford them. In most criminal cases you won't be asked to pay anything towards the cost of your case, but your solicitor can tell you about any exceptions when you may have to pay something.
Find out more about what happens when your case goes to court.