Scottish Law Officers: roles and functions research report

Chapter 6 Functions in the public interest and miscellaneous functions

6.1 The Lord Advocate has public interest functions and miscellaneous functions. Some of these functions require the Lord Advocate’s involvement on a regular basis, and some arise in practice occasionally. This Chapter mentions functions of the Lord Advocate in relation to contempt of court; and in relation to the non-conviction based civil recovery scheme; and sets out public interest functions and miscellaneous functions.

The role of the Lord Advocate and contempt of court

6.2 Contempt of court is not a criminal offence in Scotland. It is the responsibility of the Courts to punish those who have committed a contempt of court in order to protect the administration of justice

6.3 Publication of material for example may be treated by the courts as a contempt of court. The legal test to be applied is whether the publication creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.

6.4 In relation to publications, both by media organisations and individuals, the Lord Advocate has an important role. The Lord Advocate can submit a Petition and Complaint to the High Court asking the Court to consider the matter of contempt where she considers a publication has satisfied the test mentioned above. The result of a Petition being lodged at court can result in imprisonment for those found to be in contempt.

The Civil Recovery Scheme

6.5 One of the major innovations of the Proceeds of Crime Act 2002 (POCA) was the establishment of a non-conviction based civil recovery scheme. That scheme is set out in Part 5 of POCA. Under that scheme, the enforcement authority for Scotland is the Scottish Ministers. The enforcement authority for the rest of the United Kingdom is the Serious Organised Crime Agency.

6.6 The Civil Recovery Unit (CRU) acts on behalf of the Scottish Ministers in the exercise of their functions under Part 5 of POCA. The team comprises two sections, one dealing with cash forfeiture and the other handling asset recovery. The CRU is a multi-disciplinary team comprising solicitors, financial investigators, support staff and forensic accountants. The Civil Recovery Unit reports directly to the Lord Advocate, who is the Scottish Minister with delegated responsibility for the exercise of those functions.

6.7 The CRU handles all actions for non-conviction-based asset forfeiture in Scotland. Whilst criminal confiscation targets persons and punishes them, civil recovery targets assets which are, or which represent, the proceeds of crime and recovers them.

Functions in the public interest and miscellaneous functions

6.8 The Lord Advocate has certain public interest functions and miscellaneous functions highlighted below. Some functions are a statutory or common law role in relation to types of action. Courts will sometimes require intimation to the Lord Advocate because they consider that there may be an element of public interest or public importance in the case. The public interest role of the Lord Advocate has been recognised by the House of Lords^[61] and by the Supreme Court.^[62] The courts have also recognised the Lord Advocate as the appropriate respondent where the competence of an Act of the Scottish Parliament is challenged “as befits his role as a Scottish Law Officer acting in the public interest”.^[63]

6.9 Functions in respect of vexatious litigants under the Courts Reform (Scotland) 2014 Act, section 100 (the Lord Advocate may apply to the Inner House of the Court of Session for a vexatious litigant order in respect of a person);^[64] and under the Employment Tribunals Act 1996, section 33 (the Lord Advocate may apply to the Appeal Tribunal for a restriction of vexatious proceedings order).

6.10 Functions in respect of educational endowments under the Education (Scotland) Act 1980, section 108A (re-organisation of endowments: the Lord Advocate may petition the Court of Session to give effect to a scheme for the future government and management of an endowment) and section 120 (re-organisation of endowments: provision for default of governing body; the Lord Advocate may apply to the Court of Session to summarily compel a defaulting governing body to give effect to the provisions of a provisional order or scheme).

6.11 Functions under the Presumption of Death (Scotland) Act 1977. Under section 1, the any person having an interest may raise an action for declarator of the death of a person where the person who is missing is thought to have died or has not been known to be alive for at least seven years. The definition of “any person having an interest” in section 17 includes “the Lord Advocate for the public interest”. The Lord Advocate may apply under section 4 for variation or recall of a decree. Under paragraph 37.2 of the Sheriff Court Ordinary Cause Rules the pursuer in an action of declarator shall include a crave a warrant for intimation to the Lord Advocate.

6.12 The power to assist, including by funding, other persons in conducting research into any matter connected with the law under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, section 48 as read with section 58.

6.13 Functions of appointing a special advocate or similar representative; under the Town and Country Planning (Scotland Act) 1997, section 265A(5) (planning inquiries to be held in public subject to certain exceptions), to represent the interests of a person at an inquiry who is prevented by a direction from hearing or inspecting any evidence at the inquiry; and under the Special Immigration Appeals Commission Act 1997, section 6(1) as read with (2)(b), to represent the interests of an appellant at proceedings before the Special Immigration Appeals Commission in Scotland from which the appellant and any legal representative are excluded.

6.14 Statutory powers to enforce various statutory duties e.g. under the Local Government (Scotland) Act 1973, section 211 (on default of a local authority, the Lord Advocate may apply to the Court of Session for an order for specific performance of the function); under the Water (Scotland) Act 1980, section 11(3)(b) (on default of Scottish Water, the Lord Advocate on behalf of the Scottish Ministers may apply to the Court of Session to order specific performance of the functions); the Education (Scotland) Act 1980, section 70(1)(b) (the Lord Advocate may apply to the Court of Session to order specific performance of a duty of an education authority or other persons); and the Road Traffic Regulation Act 1984, sections 70(2)(b) and 93(4)(b) (default powers as to traffic signs, and the placing of bollards and other obstructions; the Lord Advocate may apply to the Court of Session for an order to enforce any requirements).

6.15 The function of being consulted by the Lord Chancellor in terms of paragraph 15 of Schedule 4 to the Transport Act 1985, before the exercise of the Lord Chancellor’s powers under paragraphs 2 and 3 of the Schedule (powers as to appointment of members of the Transport Tribunal and tenure of office).

6.16 Functions as an ex officio member of various bodies. These include as regards the Lord Advocate, the Scottish Universities Committee of the Privy Council, under the Universities (Scotland) Act 1889, section 9; the Committee regularly considers proposed amendments to the statutes of the four Scottish universities. Both the Lord Advocate and the Solicitor General for Scotland are Commissioners for the Northern Lighthouses, under paragraph 1 of Schedule 8 to the Merchant Shipping Act 1995; the Commissioners are responsible for the superintendence and management of all lights, buoys and beacons for mariners within Scottish and Isle of Man waters.

6.17 The Lord Advocate is a Commissioner for the Keeping of the Regalia, under the Royal Warrant of 1818, and the Royal Warrant of 1996 for the safekeeping of the Stone of Scone and for the arrangements for its return to Westminster Abbey for coronations. The regalia of Scotland, the oldest regalia in the British Isles, are known as the Honours of Scotland, or the Scottish Crown Jewels, consisting of the crown of Scotland, the sceptre and the sword of state. The regalia were worn by Scottish monarchs at their coronation and are used for state occasions. The Stone of Scone, or Stone of Destiny, is used in coronation ceremonies.

6.18 There are miscellaneous other public interest functions (e.g. the Sheriff Court Ordinary Cause Rule 53.2(2) requiring the Lord Advocate to be called as a defender “as representing the public interest” in actions of proving the tenor of certain documents, such as wills, where there is no other defender).

6.19 The Lord Advocate is a Privy Counsellor, by long-standing convention. Appointments are made by the Sovereign on the advice of the Prime Minister.