Scottish Law Officers: roles and functions research report

Chapter 4 Head of the systems of criminal prosecution and investigation of deaths in Scotland

Introduction

4.1 The Lord Advocate is the head of the systems of criminal prosecution and investigation of deaths in Scotland and in that capacity she takes decisions independently of any other person. It is a constitutional principle of fundamental importance that a decision in relation to a prosecution is taken by the prosecutor independently of any other person. A key statement on the independence of decisions in relation to prosecutions was made by the Prime Minister, Harold Macmillan, in the House of Commons on 16 February 1959:

“It is an established principle of government in this country, and a tradition long supported by all political parties, that the decision as to whether any citizen should be prosecuted, or whether any prosecution should be discontinued, should be a matter, where a public as opposed to a private prosecution is concerned, for the prosecuting authorities to decide on the merits of the case without political or other pressure. It would be a most dangerous deviation from this sound principle if a prosecution were to be instituted or abandoned as a result of political pressure or popular clamour.”^[35]

4.2 This statement arose out of the public controversy surrounding the decision of the Lord Advocate not to institute criminal proceedings against two constables of the Caithness police force who were alleged to have violently assaulted a youth in Thurso in December 1957.^[36]

4.3 The Lord Advocate’s function as head of the system of criminal prosecution in Scotland includes responsibility for the prosecution of crime under matters reserved to the UK in terms of the Scotland Act 1998, as well as under devolved law. All proceedings on indictment run in her name. Procurators fiscal are obliged to act in accordance with her policies and directions. Further, the system of criminal prosecution in Scotland includes investigation of crime. As in many other European jurisdictions, the police in Scotland investigate crime subject to direction from the relevant prosecutor. The Lord Advocate has Ministerial responsibility for these functions and is accountable to the Scottish Parliament for their exercise, subject to the exceptions in section 27(3) of the Scotland Act 1998. Section 27(3) provides that the Lord Advocate or the Solicitor General for Scotland may, in any proceedings of the Parliament, decline to answer any question or produce any document relating to the operation of the system of criminal prosecution in any particular case if they consider that answering the question or producing the document might prejudice criminal proceedings in that case, or would otherwise be contrary to the public interest.

4.4 The Lord Advocate is assisted in these functions by her officials in the Crown Office and Procurator Fiscal Service (COPFS), who are civil servants employed by the Scottish Ministers; and by Advocate Deputes, to whom she grants warrants enabling them to exercise her prosecution functions. The functions that the Law Officers exercise in this capacity were held by the Lord Advocate before devolution and continue to attach to the office today as “retained functions” in terms of the Scotland Act 1998, section 52(5) to (7).

4.5 The constitutional principle that decisions taken by the Lord Advocate as the head of the systems of criminal prosecution and investigation of deaths are taken independently of any other person is recognised and enshrined in the Scotland Act 1998, in sections 48(5) and 52(5) to (7). These provisions include the requirement that such decisions are taken independently from Scottish Ministers.

Law Officers and COPFS: Senior COPFS Officials and their roles

4.6 The Crown Agent is the permanent Civil Service Head of the Crown Office and Procurator Fiscal Service (COPFS) acting in three distinct capacities – (i) as principal advisor on all prosecutions and deaths investigation to the Lord Advocate, (ii) as Civil Service Head and Chief Executive of the Service and (iii) as Head of Profession for the lawyers within COPFS.

4.7 In addition, the Crown Agent also holds office ex officio as the King’s and Lord Treasurer’s Remembrancer, overseeing the claiming of bona vacantia and the operation of the Treasure Trove system in Scotland.^[37] As the Accountable Officer designated under the Public Finance and Accountability (Scotland) Act 2000 for COPFS,^[38] the Crown Agent is answerable to the Scottish Parliament for the regularity and propriety of COPFS finance and the stewardship of public monies.

Scottish Law Officers: strategy and priorities

4.8 The Scottish Law Officers set the strategic priorities for COPFS, and they set prosecutorial priorities and approve the Strategic Plan and Objectives for COPFS.

Relationship between Lord Advocate and procurator fiscal

4.9 At common law, the Lord Advocate is responsible for the investigation and prosecution of crime and the investigation of all sudden, suspicious and unexplained deaths in Scotland.

4.10 The procurator fiscal is the representative of the Lord Advocate at a local Sheriff Court level. The procurator fiscal derives their authority from a commission given by the Lord Advocate. Traditionally, the role of the procurator fiscal was to lead the local investigation and prosecution of offences and investigation of all relevant deaths. Under a modern, specialist approach, a number of these functions e.g., the investigation of relevant deaths is carried out by national, specialist COPFS Units. However, the procurator fiscal remains responsible for the prosecution of offences at local Sheriff Court level.

4.11 In summary proceedings, a complaint in the Justice of the Peace Court and the Sheriff Court runs at the instance of the procurator fiscal and is signed by the fiscal or one of their deputes. Although a summary case proceeds at the instance of the procurator fiscal, the procurator fiscal prosecutes in their jurisdiction subject to any directions by the Lord Advocate. This is made clear in the COPFS Book of Regulations that all procurators fiscal are bound by.

4.12 Procurators fiscal must be appointed by the Lord Advocate as the Lord Advocate is the only person with title to institute criminal proceedings in Scotland (save for the rare practice of private prosecutions).

4.13 The procurator fiscal serves as the Lord Advocate’s representative in both summary and solemn proceedings. This was confirmed in Starrs v Ruxton ^[39] where Lord Justice-Clerk Cullen observed that: ‘While the procurator fiscal has a separate legal persona from the Lord Advocate he or she represents him in both solemn and summary proceedings.’. This was accepted by the Solicitor General who appeared before the Appeal Court. The Lord Justice-Clerk developed this theme commenting: ‘Further, the Solicitor General informed the court that the Lord Advocate expected the procurator fiscal to be bound by the Convention as he is, and he would not take any point that something which was done by the procurator fiscal was not his act as Lord Advocate and as a member of the Scottish Executive.’^[40]

4.14 In terms of section 307(1) of the Criminal Procedure (Scotland) Act 1995 the procurator fiscal is defined:

“‘procurator fiscal” means the procurator fiscal for a sheriff court district and includes assistant procurator fiscal and procurator fiscal depute and any person duly authorised to execute the duties of the procurator fiscal.’

4.15 In the same section, ‘prosecutor’ is also described:

(a) for the purpose of proceedings other than summary proceedings, includes Crown Counsel, procurator fiscal, any other person prosecuting in the public interest and any private prosecutor, and

(b) for the purpose of summary proceedings, includes procurator fiscal, and any other person prosecuting in the public interest and complainer and any other person duly authorised to represent or act for any public prosecutor.

4.16 The Lord Advocate alone is responsible for prosecution policy.^[41] The Lord Advocate’s power to amend or rescind prosecution policy, or change instructions or guidance issued by predecessors is unfettered.

4.17 Prosecution policy was historically set out in the Book of Regulations and Crown Office Circulars. The modern practice is to set out prosecution policy in subject matter specific guidance including “Operational Instructions” approved by the Lord Advocate. Operational Instructions are confidential. Operational Instructions provide individual offence instruction to prosecutors including the required evidence to prove the offence and the appropriate prosecutorial action disposals. For example, whether the use of an alternative to prosecution may be appropriate or the forum for any criminal proceedings. Guidance, the Book of Regulations, Crown Office Circulars and Operational Instructions require to be read together by prosecutors where relevant.

Duty to prosecute

4.18 The duty to prosecute exists in a number of criminal contexts. It has a high profile in certain interpretations of international human rights law as discussed in the Encyclopaedia of Global Justice: “The “duty to prosecute” refers to the claim by proponents of international criminal justice that the international community has a moral and legal obligation to investigate and punish the most serious abuses of human rights in the aftermath of war or repressive rule”.^[42]

4.19 In domestic contexts, a number of jurisdictions require their prosecution service to initiate proceedings where evidence of a crime has been established. This contrasts to the models in the UK, the US and other similar countries whereby prosecutors have a considerable amount of discretion about whether or not it is in the public interest to prosecute an alleged crime.

4.20 The International Criminal Court in 2019 produced a paper which compares many jurisdictions around the world.^[43] It divides them into those with “Mandatory Prosecution Jurisdictions” (such as Russia, Spain, Bulgaria), “Mandatory Prosecution Jurisdictions with Residual Prosecutorial Discretion” (such as Germany, Poland and the Netherlands), and “Opportunity Principle Jurisdictions” (such as England and Wales, New Zealand and the USA).

Relationship between the Lord Advocate and the Police Service of Scotland

4.21 Section 12 of the Criminal Procedure (Scotland) Act 1995 empowers the Lord Advocate to direct the police regarding the reporting of cases to the procurator fiscal for consideration of prosecution. Section 17 of the Police and Fire Reform (Scotland) Act 2012 requires the Chief Constable to comply with any such lawful instruction given by the Lord Advocate. The Lord Advocate has no power to instruct the police about other matters that relate, for example, to security or the maintenance of law and order.

4.22 In accordance with section 12 of the 1995 Act, the Lord Advocate has published guidelines on matters that range from liberation from custody to the reporting of offences that occurred during sporting events. The issuing of such guidelines is significant in terms of both individual cases and the criminal justice system. The guidelines have a direct impact on what offences are reported to COPFS and the status of accused persons at the time of the report.

4.23 The Lord Advocate also has statutory duties in relation to codes of practice – see section 164 of the Criminal Justice and Licensing (Scotland) Act 2010 in relation to disclosure and section 57 of the Criminal Justice (Scotland) Act 2016 in relation to police investigative interviews and identification parades.

The Lord Advocate’s relationship with the Police Investigation and Review Commissioner

4.24 The role of the Police Investigation and Review Commissioner (PIRC) was introduced in 2013 at the same time as wider policing reforms. The Commissioner is appointed by the Scottish Ministers. The organisation is led by a single Commissioner, often referred to as “the PIRC”. The functions of the PIRC are provided for in the Police and Fire Reform (Scotland) Act 2012, section 62, which amended the Police, Public Order and Criminal Justice (Scotland) Act 2006 (the 2006 Act) by inserting section 33A. These functions are:

• To secure the maintenance by the Scottish Police Authority (SPA) and the Chief Constable of suitable arrangements for the handling of relevant complaints.
• To examine the handling of relevant complaints and the reconsideration of such complaints.
• To investigate, where directed to do so by the appropriate prosecutor, any circumstances in which there is an indication that a person serving with the police may have committed a crime, or the circumstances of any death involving a person serving with the police which the procurator fiscal is required to investigate under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (the 2016 Act) (the 2016 Act).
• To determine whether to investigate, where requested to do so by the SPA or the Chief Constable, certain serious incidents involving the police; and
• To investigate other matters relating to the SPA or the police service where the Commissioner considers that it would be in the public interest to do so.

4.25 PIRC investigate all policing bodies in Scotland. This includes Police Scotland (police officers and civilian staff), Scottish Police Authority, British Transport Police, British Transport Police Authority, Civil Nuclear Constabulary, Civil Nuclear Police Authority, Ministry of Defence Police, the National Crime Agency, the Home Office and HM Revenue and Customs. They can also investigate immigration officers and general customs officials or any person carrying out specified enforcement functions in Scotland. PIRC do not investigate actions of members of the public, retired police officers or police staff or members of Home Office police forces or the Police Service of Northern Ireland (PSNI). PIRC Officers have the powers of a constable in Scotland including powers of arrest, questioning, reporting for prosecution and power to seize productions in terms of Schedule 4, paragraph 7B, of the Police, Public Order and Criminal Justice (Scotland) Act 2006.

4.26 The role of the PIRC is to provide independent oversight, investigating incidents involving the police and reviewing the way the police handle complaints from the public.

4.27 The Scottish Parliament’s Justice Committee considered the constitutional relationship between the Lord Advocate and the PIRC as the Police and Fire Reform (Scotland) Bill, which became the 2012 Act, made its way through Parliament. The Justice Committee sought clarity from the Scottish Government as to how the relationship between the Lord Advocate and the PIRC would function regarding criminal investigations, particularly as to the role of the PIRC in relation to serious incidents involving the police. The response from the Scottish Government was in the following terms:

“The relationship between the Lord Advocate/prosecutors and the PIRC is similar to the current relationship that exists between the Lord Advocate/prosecutors and the police when investigating criminal complaints against the police. The only difference is that the PIRC’s role only relates to investigating any circumstances in which there is an indication that a person serving with the police may have committed a serious criminal offence. Currently such investigations may be dealt with by asking a different police force to investigate. As with the police, prosecutors will direct the PIRC and the PIRC must comply with any lawful instructions issued by that prosecutor.”^[44]

4.28 It is clear, regarding the terms of the response from the Scottish Government, that the intention of the legislation was to replicate the constitutional relationship the Lord Advocate has with the Police Service of Scotland. Amendments made to the 2006 Act by the Police and Fire Reform (Scotland) Act 2012 refer to the PIRC being “directed” by the prosecutor.

4.29 The PIRC is directed by the “appropriate prosecutor” to:

1. investigate any circumstances in which there is an indication that a person serving with the Police may have committed an offence; and

2. investigate on behalf of the relevant prosecutor the circumstances of any death involving a person serving with the Police which that procurator fiscal is required to investigate under section 1 of the Fatal Accident and Sudden Deaths Inquiry (Scotland) Act 1976 (repealed and replaced by the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016) where a FAI is mandatory.

PIRC and investigation of deaths

4.30 In relation to the investigations of deaths, PIRC may receive an instruction from the procurator fiscal or a request from Police Scotland. PIRC may receive a dual referral in relation to the same incident from both the procurator fiscal and the police. In such a scenario the referral from the procurator fiscal takes primacy and the procurator fiscal is the recipient of the PIRC investigation report.

4.31 Scenarios where a FAI would be mandatory are set out in the 2016 Act. These include where there has been:

• a death in police custody.^[45]
• a death of a police officer or member of police staff as the result of an accident while acting in the course of employment.^[46]

It should be noted that PIRC may be directed to investigate any death involving a person serving with the police where COPFS is required to conduct further investigations with a view to considering whether there should be a recommendation to the Lord Advocate to hold a discretionary FAI in terms of section 4 of the 2016 Act.

4.32 If the procurator fiscal instructs a PIRC investigation:

• The Crown defines the remit of the PIRC investigation.
• A PIRC Family Liaison Officer (FLO) will be appointed to communicate with the bereaved and their nearest relatives.
• The final PIRC report is provided directly to COPFS.
• The final report is not published and is not shared automatically with Police Scotland.
• Approval will be sought by PIRC for any proposed media lines; and
• With the approval of COPFS, the PIRC may share aspects of the report with His Majesty’s Inspectorate of Constabulary in Scotland (HMICS) to assist them in carrying out their function.

4.33 Amendments made by the Police and Fire Reform (Scotland) Act 2012 make it clear that, when PIRC is carrying out an investigation as a result of a direction issued by a prosecutor under section 33A(b) of the 2006 Act, PIRC must comply with any lawful instruction given by a prosecutor and comply with any direction issued by the Lord Advocate in relation to the reporting to her for the consideration of the question of prosecution. The terms of section 41A of the 2006 Act as inserted by section 63 mirror the terms of section 12 of the Criminal Procedure (Scotland) Act 1995 Act relating to the ability of the Lord Advocate to direct the Police. On that basis, it is clear the Lord Advocate has a similar constitutional relationship with PIRC as she has with Police Scotland. PIRC has published guidance for the benefit of police and police staff. This guidance states at page 3:

“In the case of a death or alleged criminal act, the senior PIRC investigator is under the direct instruction of the procurator fiscal”.^[47]

Investigation of Deaths

4.34 The Lord Advocate is the head of the system of investigation of all sudden, accidental and suspicious deaths in Scotland.

4.35 The historical position was described by Bell as:

“There being no coroner in Scotland, it is the duty of the sheriff and his procurator fiscal in cases where there is reason to suspect that any individual has met his death by violence, or from other than natural causes, immediately to have the body examined by medical men, and to take a precognition regarding the circumstances of the case. Although appointed by the sheriffs, the procurator fiscal…are accountable to the Crown Counsel for the proper discharge of their duties, and in all cases of difficulty it is their duty to communicate with the Crown Agent, for the advice of the Crown Counsel; all the correspondence being through the Crown Agent”.^[48]

4.36 The common law position of the Lord Advocate was reflected in the Fatal Accidents Inquiry (Scotland) Act 1895:

“Nothing in this Act contained shall alter the existing law and practice relative to the duties of procurators fiscal to inquire and report to the Crown Agent in regard to cases of death from accident, or relative to any powers at present vested in the Lord Advocate to cause public inquires to be held, or the existing law and practice with reference to criminal proceedings against any person or persons criminally responsible for any death”.

4.37 As already noted, the Lord Advocate’s responsibility for the systems of both criminal prosecution and the investigation of deaths was again reflected in the Scotland Act 1998, section 48(5) which states.

“Any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person.”

4.38 The Lord Advocate’s responsibility for the investigation of deaths advances a number of public interests. These were explained by the Lord Advocate as follows^[49]:

1. That the medical cause or causes of any death should be accurately identified and recorded. As a result, any death where a medical practitioner is unable to certify a cause of death will be reported to the procurator fiscal for further investigation.

2. Where an unexpected death occurs, the reasons why that death has occurred should be identified, to allow the bereaved family of the deceased to be informed as to what led to the unexpected death of their relative.

3. Where a death has occurred as a result of circumstances which could reasonably have been avoided, those circumstances may be identified, and, if possible, lessons learned, with a view to avoiding similar deaths in the future; and

4. Where an individual has died at the hands of the state, or while in the custody of the state, the circumstances of that death should be investigated independently, as part of the state’s arrangements for securing respect for the right to life, protected by Article 2 of the European Convention on Human Rights.

4.39 As part of the role in relation to the investigation of deaths, the Lord Advocate has specific functions in relation to Fatal Accident Inquiries (FAIs). This role is under the Inquiries into Fatal Accidents and Sudden Deaths (Scotland) Act 2016.

4.40 Under the 2016 Act a FAI needs to be held where the death occurs in Scotland whilst the deceased was in the course of his employment, in custody, or in secure accommodation in the case of a child. The Lord Advocate has the power under the 2016 Act not to hold an FAI if they are satisfied the circumstances of the death have been established during the course of other proceedings, for example a criminal trial or public inquiry. The Lord Advocate also has the power to instruct an FAI is carried out if the death was sudden, suspicious or unexplained, or occurred in circumstances giving rise to serious public concern, and that it is in the public interest for an inquiry to be held into the circumstances of the death.

4.41 The modern practice is that deaths will be investigated by the relevant specialist Unit on behalf of the Lord Advocate – the Scottish Fatalities Investigation Unit (SFIU), the Homicide Team or Health and Safety Investigation Unit. The specialist Unit will then report qualifying deaths to Crown Counsel. In the majority of cases, Crown Counsel will then make a decision on behalf of the Lord Advocate on whether or not an FAI should be held. The Lord Advocate may make this decision personally.

Criminal Allegations against the Police

4.42 Since 2012 criminal complaints against on- duty police officers, including those arising from a PIRC investigation, have been investigated and prosecuted by a specialist department within COPFS named the Criminal Allegations against the Police Division (CAAP-D). This is headed by a senior prosecutor who leads an experienced team of investigators. Prior to 2012 all criminal allegations against on duty police officers were investigated and reported by senior local procurators fiscal, and all qualifying cases were reported to Crown Office and considered by a Law Officer as opposed to Crown Counsel. This practice reflected the high level of responsibility and importance that was placed on COPFS in the investigation of such cases, and the public interest in police constables being held to a high standard of conduct. Police Regulations that all police constables are subject to have also required the reporting of criminality to COPFS, irrespective of there being a sufficiency of evidence. This is an important distinction from reports relating to civilians where the police do not normally submit a report unless there is a sufficiency of evidence.

4.43 CAAP-D may instruct the Police Service of Scotland via their Professional Standards Department to investigate an allegation of criminality or, alternatively, the PIRC may be instructed to investigate the allegation. The decision will depend on the nature of the allegation, including the seriousness of the alleged offence and the required investigation.

4.44 The current prosecution policy is that criminal proceedings will not be taken against an accused who was acting as an on-duty police officer at the time of the offence unless an instruction to that effect has been issued from either the Lord Advocate or the Solicitor General. The exact origins of this policy are difficult to find - it is not reflected in statute nor case law. It is understood to reflect an undertaking given by a previous Law Officer to the Scottish Police Federation. It is an agreement that is still in place.

4.45 In practice, CAAP-D will investigate the case, collate witness statements and productions, instruct expert evidence if necessary and then set out the facts of the case and an analysis of the relevant law. This report will then be submitted to Crown Office to be reviewed by Crown Counsel. Crown Counsel may then instruct CAAP-D to carry out further enquiries. Once those further enquiries are complete, the report will be re-submitted to Crown Counsel to consider. Crown Counsel will provide an assessment and an initial instruction. The individual Advocate Depute will then refer the case to the Lord Advocate for final instruction in terms of the agreement set out above with the Scottish Police Federation.

4.46 Offences committed by off- duty police officers are reported to COPFS in the same manner that any other civilian would be reported. It will usually be highlighted in the Standard Prosecution Report (the reports submitted by the Police setting out the facts of the alleged offence) that the accused is a serving police officer.

National Crime Agency

4.47 The relationship between the Lord Advocate and the National Crime Agency (NCA) is set out in the Crime and Courts Act 2013. NCA Officers who operate in Scotland must comply with any direction given by the Lord Advocate or the procurator fiscal in terms of Schedule 1, Part 1, paragraph 6, to the 2013 Act. The NCA can only carry out activities in Scotland with the agreement of the Lord Advocate and must report to the procurator fiscal as soon as is practicable if they suspect that an offence has been committed.

4.48 Agreement to the NCA undertaking activities in Scotland can only be given by Crown Counsel – namely the Lord Advocate, the Solicitor General or by Advocate Deputes holding a commission from the Lord Advocate which encompasses this specific function as per the terms of the Memorandum of Understanding between the Director General of the NCA and COPFS. The Memorandum also makes it clear that the Lord Advocate’s constitutional position must be respected (para 13.i) and it gives the Law Officers a wide discretion to enter into protocols with the NCA in order to provide standing agreement to the NCA carrying out specific categories of activity over a period of time (para 13.iii). Specific categories of activity would likely relate to organised crime, people trafficking, and large-scale drug supply.

Terrorism

4.49 UK security agencies have a statutory responsibility to protect national security from a number of threats including terrorism. The Security Services, Police Scotland, and other UK wide police services such as the British Transport Police work together and share information. Irrespective of the particular police force that is leading on a particular terrorism related operation in Scotland, the command, management, and investigation of terrorist incidents, operations, and offences would be under the direction of the Lord Advocate in terms of the relevant protocol for the Command and Control of CT Operations in Scotland.

Specialist Reporting Agencies

4.50 The relationship the Lord Advocate enjoys with the Police Service of Scotland, the NCA, and the PIRC is regulated by legislation. This can be contrasted with Specialist Reporting Agencies (SRAs). SRAs are bodies other than the police with responsibility for the investigation and enforcement of specific criminal offences in Scotland. SRAs may be a UK wide organisation e.g., HMRC, or a Scotland only organisation e.g., a Scottish Local Authority. COPFS is Scotland’s sole prosecution authority. Where SRAs assess that relevant offences in Scotland should be considered for criminal proceedings, they report the matter to COPFS.

4.51 The Lord Advocate has no analogous legislative power to direct SRAs regarding the investigation or reporting of crimes in the same way as there is in relation to the police. This position is reflected in chapter 2.1.5 of the Book of Regulations which states:

“The procurator fiscal has no concomitant power to direct and control the investigation and reporting of crimes by non-police reporting agencies.”

4.52 Such agencies should be aware of the importance of early communication with the procurator fiscal in relation to major or serious investigations. This is made clear in the Book of Regulations at paragraph 2.

4.53 The relationship between the Lord Advocate, procurators fiscal and SRAs may be governed by an SRA specific protocol or memorandums of understanding. The investigative duties and powers of an SRA are organisation specific. However, these duties and powers do not limit the Lord Advocate’s common law position as the head of the system of investigation and prosecution of crime.

4.54 The relationship between the Lord Advocate and SRAs may be illustrated with reference to the Health and Safety Executive (HSE).

The Health and Safety Executive

4.55 The specialist department within COPFS that investigates Health and Safety offences and fatalities at work is the Health and Safety Investigation Unit (HSIU). A protocol between COPFS and the Health and Safety Executive (HSE) has been agreed.^[50] The Protocol regulates the working relationship between the HSE and COPFS, the investigation of offences, the reporting of cases, arrangements for liaising with bereaved families and witnesses, and the disclosure of evidence.

4.56 The HSE protocol emphasises the importance of good and effective liaison in the investigation and prosecution of offences that fall within the remit of the HSE. The HSE protocol expressly states that the HSE cannot be directed by the procurator fiscal but will attempt to assist the procurator fiscal where they have the skills, competencies and resources to do so (paragraph 1.8).

Proceeds of Crime Act 2002

4.57 The Proceeds of Crime Act 2002 (POCA) governs the recovery of property obtained through criminal activity. POCA brings together the criminal and civil provisions relating to the proceeds of crime. The Act implemented a three-tier system designed to take the profit out of crime. Those tiers are confiscation following criminal conviction; non-conviction based civil recovery; and criminal taxation.

4.58 Criminal confiscation (as an established element of the criminal prosecution process) is dealt with by the Serious and Organised Crime Unit of COPFS on behalf of the Lord Advocate. Civil recovery is a collective Scottish Ministers’ function allocated to the Lord Advocate. It is not a retained function.

Crown Counsel

4.59 The Lord Advocate, the Solicitor General for Scotland, and Advocate Deputes are referred to collectively as “Crown Counsel”.

4.60 The Lord Advocate’s relationship with Advocate Deputes is a fundamental one. Advocate Deputes receive a commission directly from the Lord Advocate to carry out the Lord Advocate’s functions in relation to the prosecution of crime and investigation of deaths. Advocate Deputes traditionally appear in criminal proceedings before the High Court and Appeal Court. Advocate Deputes duties include, for example, the authorisation of the indicting of an accused person. The Lord Advocate leads the Advocate Deputes in the discharge of their role both constitutionally and in practice. The Lord Advocate or Solicitor General will provide specific advice and direction to Advocate Deputes in challenging cases.

4.61 There are currently 77 substantive Advocate Deputes who are either advocates or solicitor advocates. Advocates Depute were traditionally drawn from the Faculty of Advocates. The Lord Advocate’s relationship with the Faculty is therefore an important one, encouraging Faculty members to carry out the important public service role of Advocate Depute on their behalf. In modern times, a proportion of Advocate Deputes are solicitor advocates drawn from both procurators fiscal and private practice. The Lord Advocate may also grant a commission to an advocate or solicitor advocate to act on her behalf on a more limited basis e.g., an individual criminal case. Leadership of the Advocate Deputes on a day to day basis is provided by Principal Crown Counsel (“PCC”). In cases where there may be a risk or perception of a conflict of interest, such as in relation to the prosecution of a political figure or where an investigation requires scrutiny of Government action, the Lord Advocate delegates to PCC the appointment of counsel responsible for all prosecutorial decision-making in relation to the matter, and is not herself involved.

His Majesty’s Inspectorate of Prosecution

4.62 HM Inspectorate of Prosecution in Scotland was first established in 2003 as a result of an independent inquiry and report by Dr Raj Jandoo into the working practices of COPFS following the murder of Surjit Singh Chhokar that took place in North Lanarkshire in November 1998^[51].

4.63 One of the recommendations of the Jandoo report was that an Inspectorate of COPFS should be established. The Inspectorate first operated as a non-statutory body before being placed on a statutory footing by sections 78 and 79 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 (the 2007 Act).

4.64 The Chief Inspector of Prosecution is appointed by the Lord Advocate and the Lord Advocate decides on the duration of appointment. The current Chief Inspector took up her post in 2019. The Chief Inspector’s role is to secure the inspection of the operation of COPFS, and she is to submit to the Lord Advocate reports on particular matters that the Lord Advocate refers to the Inspector. The Chief Inspector is required to submit to the Lord Advocate an annual report on the exercise of her functions and before this report is submitted the Chief Inspector must submit a draft report and then allow the Lord Advocate to comment on the contents of it. The Lord Advocate lays before Parliament every report she receives, and the Inspector is to act independently of any other person.

4.65 The current arrangement for appointment of the Chief Inspector reflects the constitutional position of the Lord Advocate as the head of the system of criminal prosecution.

4.66 The Policy Memorandum attached to the 2007 Bill, which became the 2007 Act, states at paragraph 317:^[52]

“The creation of an independent statutory Inspectorate would place the Inspectorate on a similar footing to other public sector inspectorates such as Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate. This would enhance the independence and status of the Inspectorate and others’ perception of it. It would also help to reinforce the separation of the Inspectorate from both the Lord Advocate and the Department”.

Extradition

4.67 Section B11 of Schedule 5 of the Scotland Act 1998 provides that extradition is a reserved matter. Certain functions in relation to extradition are given to the Scottish Ministers, the Lord Advocate and the Crown Agent by the Extradition Act 2003. The Lord Advocate represents the requesting territory throughout the extradition process.

4.68 Extradition proceedings are conducted by the Lord Advocate. Such proceedings are not criminal, but the Lord Advocate, as a member of the Scottish Government, has no power to act in a way which is incompatible with the European Convention on Human Rights, and challenges to her actings in extradition proceedings can be made in terms of section 57 of, and Schedule 6 to, the Scotland Act 1998 as devolution issues.

45.69 When extradition of an individual is sought to Scotland it is the procurator fiscal that seeks a warrant from a Sheriff. Extradition proceedings are then carried out in the name of the Lord Advocate.

Role of the Lord Advocate in ceding jurisdiction

4.70 From time to time the Lord Advocate will be approached by the Crown Prosecution Service (CPS) and asked to cede jurisdiction in relation to suspects who have committed linked offences in both Scotland and England or Wales. These requests are made when the CPS, in liaison with the relevant English or Welsh Police Force, intend to prosecute the same individuals in England. The most common scenario relates to the supply of controlled drugs where, especially in relation to organised crime groups, the supply of drugs occurs in both England or Wales and Scotland.

4.71 Where the CPS intend to ask the Lord Advocate to cede jurisdiction the relevant English or Welsh police force makes contact with Police Scotland to ensure the suspects are not under a current Police Scotland investigation. Early contact is then made by the CPS with COPFS and a specialist department who routinely deal with intra UK crime co-operation. The CPS provide a report that sets out the nature of the alleged offending. COPFS then draft a report with a recommendation to Crown Counsel. Once Crown Counsel has reviewed the report the file is sent to the Lord Advocate who then decides whether it is in the public interest to cede jurisdiction. The Lord Advocate can refuse the request, or she can confirm she is willing to grant it and cede jurisdiction. The Lord Advocate may also grant the request subject to conditions, for example, that the CPS do not accept a guilty plea that deletes reference to the offending that took place within Scotland. There is no statutory basis for this working practice, and it is not found within a published policy statement; it is thought to be a working practice that has developed over time.

Role of Scottish Law Officers in relation to homicide and rape cases

4.72 When a decision is made in any case not to commence a prosecution that decision is to take no proceedings. There is a crucial difference when an accused has appeared in court either on a summary complaint, petition or following service of an indictment. If a prosecutor decides to discontinue proceedings that decision is noted as no further proceedings.

4.73 COPFS guidance makes unique provision for any decision to take no further proceedings for the crimes of homicide and rape. In such instances, the case must first be reported to a Scottish Law Officer for an instruction. This is a long-standing convention and reflects the terms of the following statement by the Solicitor General for Scotland to the House of Commons on 21 January 1982 :

“The Lord Advocate has decided to instruct that no decision to drop proceedings altogether in any case of murder or rape should be taken before the hearing of evidence has begun without the question being referred to him for decision.”^[53]

4.74 For clarity, the direct decision of Scottish Law Officers is not required where there is insufficient evidence, and the decision is not to take proceedings in the first instance.

Continuity of Crown business with a change in Lord Advocate

4.75 There is statutory authority for the continuity of Crown business (indictments in the name of the Lord Advocate) in the event of a change of Lord Advocate. This provision is contained in section 287 of the Criminal Procedure (Scotland) Act 1995. This matter is also mentioned at paragraph 2.18 above.