Procurator fiscal

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A procurator fiscal (pl. procurators fiscal), sometimes called PF or fiscal, is a public prosecutor in Scotland (who, despite the title, has little to do with fiscal issues). They investigate all sudden and suspicious deaths in Scotland (similar to a coroner in other legal systems), conduct fatal accident inquiries (a form of inquest unique to the Scottish legal system) and handle criminal complaints against the police (administrative complaints are handled by the Police Complaints Commissioner for Scotland). They also receive reports from specialist reporting agencies such as Her Majesty's Revenue and Customs.[1]

For the majority of crimes in Scotland, the procurators fiscal present cases for the prosecution in the Sheriff, District and Justice of the Peace Courts, and the case for the defence is presented either by the accused, a solicitor, or an advocate. The solicitor will work for a firm of solicitors, or in certain areas of Scotland could be a public defender working for the Public Defence Solicitors' Office.

The procurator fiscal has the discretion to not prosecute and pursue alternatives free from political interference, but is always subject to the directions of the Crown Office and the Lord Advocate.[2][3][4]

Origins

The office most likely originates in the Roman-Dutch and French manorial or seignorial administrator (Dutch procurator-fiscaal, French procureur fiscal), who, as the fiscal in the title suggests, was originally an officer of the sheriff (the local law enforcement officer and judge) with financial (fiscal) responsibilities: the procurator fiscal collected debts, fines, and taxes.[5] However, such responsibilities had been eclipsed in the course of the 18th century by their duty as prosecutor in the sheriff court with the passage of the Criminal Procedure (Scotland) Act 1701. In this capacity they gave concurrence in private prosecutions and prosecuted on behalf of the Crown. The Sheriff Courts (Scotland) Act 1867 gave procurators fiscal full responsibility in law for prosecution of all criminal acts in Scotland.[6]

Originally the fiscal was the sheriff's official and tenure of the office was at the pleasure of the sheriff.[7] With the decline of private prosecution the fiscal came to be regarded more and more as under the control of the Lord Advocate. In 1776 the government started to pay procurators fiscal to take precognitions and in 1907 the right of appointing procurators fiscal was transferred to the Lord Advocate.[8]

Prosecution of crimes

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]

Under solemn High Court procedure, once someone has been charged with an offence and remanded in custody, the Crown must bring the case to a preliminary hearing within 110 days.[10]

The procurator fiscal has never been obliged to prosecute and can choose the level at which to prosecute (either through solemn or summary procedure). The defendant has no right to choose a jury trial, nor can a victim on their own decide to press charges, as the decision on whether to try by jury or summarily belongs to the prosecutor.[11][12][13] 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.[14][15][16]

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.[17]

Deaths

All suspicious, sudden and accidental deaths must be reported to the procurator fiscal, and they have a responsibility to identify if any criminal action has occurred and, where appropriate, prosecute. Where a criminal offence is suspected to have occurred the procurator fiscal will instruct the local police to investigate.[18]

Fatal accidents can be subject to a Fatal Accident Inquiry, a form of judicial inquiry akin to an inquest but conducted without a jury. Fatal accident inquiries are conducted in the Sheriff Court. An inquiry must be held for all deaths in custody and fatal accidents, with other accidental deaths subject to inquiry at the discretion of the procurator fiscal.[19][20]

Serious crimes

For the most serious crimes, the case will not be directly prosecuted by the procurator fiscal. Instead, the case will be heard at the High Court of Justiciary and the prosecution will be made in the name of the Lord Advocate by an Advocate Depute.[21]

Areas

There are eleven procurators fiscal in Scotland, each covering a geographical area or jurisdiction with a central office. Outside Strathclyde, these areas typically correspond with constabulary areas for the former territorial police forces in Scotland. They are (with areas in Strathclyde marked with an asterisk):[22]

Court of the Lord Lyon

A procurator fiscal is appointed to the Court of the Lord Lyon, which is a civil and criminal court dealing with Scottish heraldry and genealogy in Scotland. This Court is unique to Scots culture with heraldry playing an important role, particularly in relation to the clan system. Coats of arms that are registered are required to pay a fee to the Crown and must adhere to specific rules concerning their shape, colour and imagery. The procurator fiscal is appointed under the Lyon King of Arms Act 1867, formerly by the Lord Lyon, but since changes were made by the Convention Rights (Compliance) (Scotland) Act 2001, by the Scottish Ministers.[23]

If any of the rules concerning a coat of arms – also known as "an achievement" – are broken, it is the procurator fiscal's job, as the independent official prosecutor of the court, to determine whether they should initiate criminal proceedings.[24][25]

See also

External links

References

  1. ↑ Procurators Fiscal: Lua error in package.lua at line 80: module 'strict' not found.
  2. ↑ "The International Association of Prosecutors – Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, which the Crown Office and Procurator Fiscal Service adopted in 1999, states "the use of prosecutorial discretion should be exercised independently and be free from political interference" and requires prosecutors to "perform their duties without fear, favour or prejudice."Lua error in package.lua at line 80: module 'strict' not found.
  3. ↑ "...the Lord Advocate as regards procurators fiscal may from time to time issue such instructions as may be deemed necessary for the purpose of giving effect to the provisions of this Act."Lua error in package.lua at line 80: module 'strict' not found.
  4. ↑ "The purposes for which the Lord Advocate may issue instructions to procurators fiscal under section 8(1) of the Sheriff Courts and Legal Officers (Scotland) Act 1927 shall include, in addition to the purpose mentioned in the said section 8(1), the speedy and efficient disposal of business in the sheriff courts."Lua error in package.lua at line 80: module 'strict' not found.
  5. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  6. ↑ Fionda, J., Public prosecutors and discretion: a comparative study. Oxford University Publishing. p. 65. ISBN 978-0-19-825915-2. Google Book Search. Retrieved on 2009-08-10.
  7. ↑ "Where a private Party prosecutes with Concurrence of the Procurator Fiscal,": Small Debts (Scotland) Act 1829 in The Statutes of Great Britain and Ireland v. 69. His Majesty's statute and law printers p. 329. Google Book Search. Retrieved on 2009-08-10.
  8. ↑ "In 1907 the Sheriff Courts (Scotland) Act vested the right of appointment of procurators fiscal to the Sheriff Courts in the Lord Advocate." Lua error in package.lua at line 80: module 'strict' not found.
  9. ↑ "When a crime is committed it is the responsibility of the Procurator Fiscal to investigate it." Lord Justice Clerk Thomson Smith Lua error in package.lua at line 80: module 'strict' not found.
  10. ↑ Court of Session Act 1988: Lua error in package.lua at line 80: module 'strict' not found.
  11. ↑ "Although Scotland did not have the principle of 'legality' as in some foreign jurisdictions where the prosecutor has no discretion..."Lua error in package.lua at line 80: module 'strict' not found.
  12. ↑ "We do not have the English system of someone deciding whether or not to press charges, nor of Magistrates [or in America, Grand Juries] deciding whether or not someone should be committed for trial, nor of the accused opting for trial by jury. In Scotland, these are decisions for the Procurator Fiscal to make. "Lua error in package.lua at line 80: module 'strict' not found.
  13. ↑ p. 46 Lua error in package.lua at line 80: module 'strict' not found.
  14. ↑ "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)Lua error in package.lua at line 80: module 'strict' not found.
  15. ↑ "Conditional offer of fixed penalty by procurator fiscal" Lua error in package.lua at line 80: module 'strict' not found.
  16. ↑ "Penalties as alternative to prosecution" Lua error in package.lua at line 80: module 'strict' not found.
  17. ↑ Alternatives to prosecution: Lua error in package.lua at line 80: module 'strict' not found.
  18. ↑ "It is the duty of the Procurator Fiscal in the exercise of his function at common law and under statute to enquire into certain categories of death." Lua error in package.lua at line 80: module 'strict' not found.
  19. ↑ "Section 1 Paragraphs 1 (a) and (b)"Lua error in package.lua at line 80: module 'strict' not found.
  20. ↑ "Fatal Accident Inquiries (FAIs) are held under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976. An inquiry must be held in cases of death in custody or as a result of an accident at work." Lua error in package.lua at line 80: module 'strict' not found.
  21. ↑ "For certain of the most serious crimes known as the “pleas of the Crown”, like Treason, Murder and Rape, the High Court has exclusive jurisdiction. It remains the duty of the Procurator Fiscal to investigate such cases and prepare them fully for trial." Lua error in package.lua at line 80: module 'strict' not found.
  22. ↑ Location of procurators fiscal: Lua error in package.lua at line 80: module 'strict' not found.
  23. ↑ Convention Rights (Compliance) (Scotland) Act 2001, section 11
  24. ↑ "An Act of the Scottish Parliament of 1592 gave the Lord Lyon responsibility for prosecuting as a criminal offence anyone who uses unauthorised Arms. The Court has its own Procurator Fiscal, an independent official prosecutor."Lua error in package.lua at line 80: module 'strict' not found.
  25. ↑ "If any of the rules concerning a coat of arms – also known as "an achievement" – is broken, it is the procurator fiscal's job as the independent official prosecutor of the court to initiate criminal proceedings – although "it is not simply case of punishing somebody", points out Mr Way." Lua error in package.lua at line 80: module 'strict' not found.
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