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Scottish courts and the law
Scottish courts and the law

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5 Procurator Fiscal

There is a long tradition of the public prosecutor in Scotland, which dates back many centuries. The Crown Office and Procurator Fiscal Service (COPFS) is the sole public prosecution service in Scotland. The police and over 50 other specialist agencies report criminal cases to them. The service is headed by the Lord Advocate who is assisted by the Solicitor General for Scotland. They are responsible for prosecuting the most serious criminal cases in the High Court of Justiciary but this is carried out by Advocates Depute who are Crown counsel. Both are appointed by the First Minister. The Lord Advocate is a member of the Scottish cabinet and also advises the Government on legal issues.

The COPFS is arranged into regions. Each region has an Area Procurator Fiscal who is in charge of the management of that region. Each region has a number of Procurators Fiscal working within it. They are responsible for the overall investigation of crimes. They direct police as to the reporting and investigation of offences. Usually the police will investigate, charge the individual and send a report to the Procurator Fiscal who makes the final decision about whether to prosecute and how it will be dealt with. There are strict time limits within which decisions must be taken. In suspicious deaths the Procurator Fiscal will attend the scene of the death. They will also arrange and attend the post-mortem examination.

Box 5 Role of the 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 the Prosecution Code, but include:

  • seriousness of the offence
  • length of time since the offence took place
  • interests of the victim and other witnesses
  • age of the offender, any previous 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, e.g.. 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. She or 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.

(The Crown Office and Procurator Fiscal Service, n.d.)