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Scottish courts and the law
Scottish courts and the law

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1.3.7 The role of a Procurator Fiscal

How does the process work?

The police (or other Specialist Reporting Agencies, e.g. Customs and Excise) carry out an initial crime investigation and submit a report to the local Procurator Fiscal.

The Procurator Fiscal considers this report and decides whether to take any action in relation to this case. This decision is taken in the public interest.

Where there is enough evidence in the case, the Procurator Fiscal will consider a number of additional factors when deciding whether criminal proceedings should take place. These are set out in full in our Prosecution Code, but include:

  • seriousness of the offence
  • length of previous time since the offence took place
  • lnterests of the victim and other witnesses
  • age of the offender, any convictions and other relevant factors
  • local community interests or general public concern
  • any other factors at his discretion, according to the facts and circumstances of the case.

Reasons for decisions:

  • Victims

    Where a Procurator Fiscal decides to take no criminal proceedings in a case or to accept an adjusted plea of guilty, the victim can ask for an explanation of the decision and this will be provided.

  • Accused persons

    It is not the policy of the Crown Office and Procurator Fiscal Service to automatically inform accused persons where a decision is taken not to take court action.

    It is, however, open to an accused person who has been reported for alleged offences to contact the Procurator Fiscal's office, either directly or through their lawyer, to enquire as to the decision of the Procurator Fiscal

    In taking this decision, the Procurator Fiscal will consider if there is sufficient evidence in the case

    If there is sufficient evidence, the Procurator Fiscal will then decide what action is appropriate, eg. to prosecute, offer a direct measure (such as a fiscal fine) or to take no action in the case. The Procurator Fiscal considers a number of factors in coming to this decision. (As outlined above)

    In cases which will be considered by a jury, the Procurator Fiscal will interview witnesses and gather and review the forensic and other evidence before a decision to prosecute is taken. S/He will then make a report to Crown Counsel to take a decision on whether to prosecute.

Alternatives to prosecution 

In some less serious cases, although the Procurator Fiscal may consider that it is in the public interest to take action, prosecution may not be the most appropriate course of action. In those cases there are a number of direct measures available.

80/110/140 Day Rules

Under Scots law, the Department must prepare the prosecution in the most serious custody cases under one of the strictest legal time limits in the world. The indictment, which details the charges which the accused will face, must be served on him within 80 days of the accused being fully committed in custody.

Sheriff Court cases

Where the proceedings are taken before a jury in the Sheriff Court, the trial must start within 110 days of full committal. A First Diet must take place not less than 10 days before the trial. That calling of the case gives the Sheriff an opportunity to ascertain the state of preparation of the parties generally, and he will only allow the matter to proceed to trial when the parties are ready.

High Court cases

The procedure and time limits which apply are slightly different in High Court cases. There, the next step after full committal is the preliminary hearing which must occur within 110 days from the point of full committal. This Hearing gives the judge, among other things, a chance to ascertain the state of preparation of the parties, and he will only allow the matter to proceed to trial when the parties are ready. As with the time limits in Sheriff court cases, this helps to provide a degree of certainty as to when the trial will take place and avoids witnesses turning up at court only to find that the trial has been adjourned to another date. The trial in custody cases must begin within 140 days.

What is Crown Office and Procurator Fiscal Service's (COPFS) relationship with the police?

The COPFS works closely with Police Scotland. The roles of COPFS and the police are complementary, and regular dialogue and co-operation enables problems and issues to be dealt with efficiently and effectively.

The Procurator Fiscal in Scotland has an investigative role and can provide instructions and directions to the police in connection with their investigations. This happens particularly in serious cases, where the police work very closely with the Procurator Fiscal. In cases of sudden, suspicious and unexplained deaths, the Procurator Fiscal has responsibility during the early stages of the investigation to arrange a post mortem examination by forensic pathologists.

(Crown Office & Procurator Fiscal Service, n.d.)