Crown Office and Procurator Fiscal Service

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Frank Mulholland, Lord Advocate for Scotland, speaking at the 2011 remembrance ceremony for the 1988 Lockerbie air disaster
Lockerbie MP David Mundell and Lord Advocate Frank Mulholland at Arlington National Cemetery for Pan Am Flight 103's 25th Anniversary

The Crown Office and Procurator Fiscal Service (COPFS) is the independent public prosecution service for Scotland, and is a Ministerial Department of the Scottish Government. The department is headed by Her Majesty's Lord Advocate, who under the Scottish legal system is responsible for prosecution, along with the area Procurators Fiscal.

The Service's responsibilities extend to the whole of Scotland, and include:

  • Investigation and prosecution of criminal offences;
  • Investigation of sudden or suspicious deaths;
  • The investigation and prosecution of criminal conduct by the police;
  • Assessment and possession of bona vacantia; and,
  • Assessment and possession of treasure trove.

On 9 October 2013, Emeritus Professor of Lockerbie Studies Patrick Haseldine demanded of COPFS on Twitter:

"Why aren't you prosecuting Pik Botha, Craig Williamson and Eeben Barlow for the Lockerbie bombing?"[1]

History

The history of the Lord Advocate, and the resulting department of the Crown Office, is somewhat obscure. There are references on record to a King's procurator-fiscal in 1434 and 1457, and a Queen's advocate in 1462. An office of King's advocate dates from 1478 but between 1478 and 1494 there are references to "advocates" (unnamed) and it is only from 1494 that one can be sure that there was a single King's advocate as the normal representative of the King in treason trials and in civil litigation. The office thus dates back to Medieval times, with the earliest Lord Advocate being John Ross of Montgrenan whom the King appointed as his Commissioner at a hearing in Stirling in 1476, then as procurator for another case in Edinburgh in the following year.[2]

The history of the Procurator Fiscal is similarly difficult to set down with exactness, though the role has developed significantly over time. The first document reference appears in the Records of the Scottish Parliament for 22 August 1584, naming several Procurators Fiscal in Edinburgh. The Fiscal was an officer appointed by, and accountable to, the Sheriff, who by the 18th Century was responsible for most prosecutions in local areas. By the nineteenth century Advocates Depute were first appointed, to assist him in conducting cases in the High Court of Justiciary and the Crown Office was first established. This became the centre of the prosecution system, and it was to the Lord Advocate now to whom the Procurators Fiscal were responsible, evidenced by the "Book of Regulations" issued by him to Procurators Fiscal providing instructions about how to conduct their business.[3] The Book of Regulations is still used today in providing the framework for local prosecution in Scotland.[4]

Prosecutors in Scotland

The Lord Advocate and Solicitor General

Scotland's Solicitor General, Lesley Thomson

As well as departmental management responsibility, the Lord Advocate is directly responsible for prosecuting the most serious crimes, in the High Court of Justiciary at first instance and the Court of Criminal Appeal. Unless the cases are of especial importance, such as the Lockerbie trial held at Camp Zeist in the Netherlands, the prosecutions are normally (but not always) led by Advocates Depute who are known collectively as Crown Counsel and are experienced members of the Faculty of Advocates normally appointed for a limited period of three years. Their decision to prosecute in this way is taken in the light of the Procurator Fiscal's recommendations and a report prepared by the police, and any such reports are subject to the direction of the Lord Advocate.[5] This prosecutorial role cannot be removed from the Lord Advocate by the Scottish Parliament.

The Lord Advocate is the senior of the two Scottish Law Officers, and is the chief legal adviser to the Scottish Government as well as representing its ministers in civil proceedings.[6] He is also responsible, under the Scotland Act 1998 for ensuring that each Act of the Scottish Parliament is within the competence of that Parliament. Additionally, the Lord Advocate, along with the Solicitor General for Scotland are ex-officio Members of that Parliament. The Solicitor General can act as the deputy for the Lord Advocate.

The Lord Advocate and Solicitor General are two Great Officers of State in Scotland, the Lord Advocate being a Scottish Government Minister, though since 23 May 2007 the Lord Advocate has seldom attended cabinet meetings of the SNP Government. In October 2013, it was reported that Elish Angiolini had attended just 28 cabinet meetings over a four-year period. After Frank Mulholland became Lord Advocate in 2011, appearances have surged to 45 only two-and-a-half years into his term of office.[7]

Lords Advocate (from 1989)

Crown Agent, QLTR and Chief Executive

The Crown Agent is the principal legal adviser to the Lord Advocate on prosecution matters. He also acts as Chief Executive for the Department. He acts as solicitor in all legal proceedings in which the Lord Advocate appears as representing his or her own department. He issues general instructions from and on behalf of the Lord Advocate for the guidance of Crown Counsel, Procurators Fiscal, Sheriff clerks and other public officials, transmits instructions from Crown counsel to Procurators Fiscal about prosecutions, and, subject to the direction of the Principal Clerk of Justiciary, arranges sittings of the High Court of Justiciary. At trials in the High Court in Edinburgh, the Crown Agent attends as instructing solicitor.

The Crown Agent also holds the office of Queen's and Lord Treasurer's Remembrancer (QLTR), and all property that falls to the Crown as a result of bona vacantia in Scotland is his responsibility, as is treasure trove. The post of QLTR was created in 1837 by the amalgamation of two existing posts created in 1707 - the King's/Queen's Remembrancer and the Lord Treasurer's Remembrancer, and has been held for some time by the holder of the office of Crown Agent.[8]

Advocates Depute

At the High Court of Justiciary prosecutions are brought by the Crown Office, who are represented in Court by Advocates Depute. Advocates Depute are either advocates or solicitor advocates to whom rights of audience in the High Court have been given by that Court.

Procurators Fiscal

For the majority of crimes in Scotland a Procurator Fiscal or Fiscal Depute presents the case for the prosecution in the Sheriff Court and Justice of the Peace Courts, and the case for the defence is presented either by the accused's own solicitor or by one from the Public Defence Solicitors' Office, a part of the Scottish Legal Aid Board.

Procurators Fiscal make preliminary investigations into criminal cases, take written statements from witnesses (known as Precognition) and are responsible for the investigation and prosecution of crime. This includes the power to direct the police in their investigation, but except for serious crimes such as murder the police normally complete their enquiries before involving the Procurator Fiscal.[9][10][11] Once someone has been charged with an offence and remanded in custody, the Crown must bring the case to trial within 110 days or the accused will be admitted to bail. Otherwise, in serious cases (known as solemn procedure with a jury as opposed to summary procedure without) the trial must commence within 12 months of the date of first appearance in court.[12]

Procurators Fiscal work in the local Sheriffdom and most of the Fiscal offices in Scotland are either in or near the Sheriff Court. The Procurator Fiscal is also responsible for the investigation of all sudden, suspicious and unexplained deaths in Scotland. This includes the decision to call a Fatal Accident Inquiry. He or she is also responsible for the independent investigation of criminal police complaints made in that Sheriffdom (administrative complaints are handled by the Police Complaints Commissioner for Scotland).

Prosecution of crimes

The law in Scotland does not say that a crime must be prosecuted and the public prosecutors have considerable discretion over what action to take. They can chose the level at which to prosecute (either through solemn or summary procedure) with the accused having no right to choose a jury trial or for a victim to decide whether or not to press charges, as the decision on whether to try and by which method belongs to the prosecutor as "Master of the Instance".[13][14] Until 1987, however, their discretion only extended to the degree to which they should prosecute, if at all; there were no alternatives to prosecution. The Criminal Justice (Scotland) Act 1987 gave Procurators Fiscal the power to offer fixed penalties instead of prosecution (a fiscal fine), at the time limited to a maximum of £25 and subsequently increased to £300.[15][16][17]

Since then these options have expanded to giving a warning, fiscal fines, compensation orders, work orders, road traffic fixed penalties or diversion from prosecution into social work, psychological counselling or psychiatric treatment.[18]

COPFS Federations

COPFS is organised into three geographic Federations led by Procurators Fiscal for the North, East and West of Scotland. Within the Federations, there is a network of 48 Procurator Fiscal offices, one for each Sheriff Court district.[19]

Victim Information and Advice Service

Victim Information and Advice Service (VIA) is a dedicated and specialised victim information and advice service within COPFS. VIA was created to provide information to victims, bereaved next of kin and keeping them informed about the progress of a case. It also has a duty to advise on and facilitate referral to other agencies for specialist support and counselling as required.[20] VIA works closely with other statutory agencies, such as the Police and the Courts and with voluntary organisations, such as Court Witness Service, Women's Aid and Victim Support, and is a unique service in the Scottish criminal justice system.

See also

References

  1. ↑ "Why aren't you prosecuting Pik Botha, Craig Williamson and Eeben Barlow for the Lockerbie bombing?"
  2. ↑ "History of the Office of the Lord Advocate"
  3. ↑ "Historical development of the Office of Procurator Fiscal"
  4. ↑ "Book of Regulations"
  5. ↑ "Criminal Procedure (Scotland) Act 1995 (c.46)"
  6. ↑ "The role and functions of the Lord Advocate"
  7. ↑ "Lord Advocate role 'increasingly political'"
  8. ↑ "Bona Vacantia"
  9. ↑ "When a crime is committed it is the responsibility of the Procurator Fiscal to investigate it."
  10. ↑ "Role of the Procurator Fiscal"
  11. ↑ "Procurator Fiscal - Powers"
  12. ↑ "110-day rule"
  13. ↑ "Summary Justice Reform Thematic Report on the Use of Fiscal Fine"
  14. ↑ "Procurator Fiscal Powers"
  15. ↑ "Where a procurator fiscal receives a report that a relevant offence has been committed he may send to the alleged offender a notice under this section (referred to in this section as a conditional offer)"The Criminal Justice (Scotland) Act 1987 s.56"
  16. ↑ "Conditional offer of fixed penalty by procurator fiscal"
  17. ↑ "Penalties as alternative to prosecution"
  18. ↑ "Alternatives to prosecution"
  19. ↑ "COPFS Structure"
  20. ↑ "VIA counselling"

External links

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