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Procurator fiscal

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A procurator fiscal (pl. procurators fiscal), sometimes called PF or fiscal (Scottish Gaelic: Neach-casaid a' Chrùin), is a public prosecutor in Scotland, who has the power to impose fiscal fines. They investigate all sudden and suspicious deaths in Scotland (similar to a coroner in common law 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 Investigations and Review Commissioner). They also receive reports from specialist reporting agencies such as His Majesty's Revenue and Customs.[1]

For the majority of crimes in Scotland, the procurators fiscal present cases for the prosecution in the sheriff and justice of the peace courts (and formerly district 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 not to 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

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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]

A procurator-fiscal is a procurator or court representative connected with the fisc or Treasury, and hence with the collection of fines or dues. In official records, a king's procurator-fiscal is referred to in 1457. Such an officer appears to have emerged first in the ecclesiastical courts. In the St Andrew's Formulare of 1514, there is reference to an episcopal appointment of a man as procuratorem et advocatum nostrum fiscalem in all the bishop's causes, spiritual, civil and criminal, with wide powers; it contains a reference also to power which attaches ex officio procuratoris fiscalis. He was assigned the duty of seeking out and prosecuting delinquents and disobedient people. In the mid-16th century, Cardinal Beaton had two procurators-fiscal. At this stage, it appears clear that a procurator-fiscal was competent in civil, criminal and spiritual causes. These duties of looking for and then prosecuting people may be the forerunner of policing in Scotland, which was established very considerably later (in 1800). This may explain why, in Scotland, the police are under a legal obligation to comply with the directions of the procurator fiscal in matters concerning the investigation of crime, since the fiscal was himself once an investigator and so did the same job.

In the course of the 18th century, the duties of a procurator fiscal to collect taxes and other dues were eclipsed by his duty as prosecutor in the sheriff court with the passage of the Criminal Procedure Act 1701. In this capacity, procurators fiscal 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, and in 1927 procurators fiscal became full-time civil servants.[8][9]

Prosecution of crimes

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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,[a] but except for serious crimes such as murder the police normally complete their enquiries before involving the procurator fiscal.[10]

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.[11]

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.[12][13][14] There is a very exceptional mechanism however, called a bill for criminal letters, where a victim of a crime can petition the High Court of Justiciary for permission ('to pass the bill') to prosecute; akin to private prosecution in other jurisdictions. The last successful bill passed was in 1982 and previous to that, in 1909.[15] Until 1987, the PF's 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[16] 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.[17][18][19]

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.[20]

Deaths

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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.[21]

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 a 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.[22][23]

Serious crimes

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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.[24]

Areas

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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):[25]

Court of the Lord Lyon

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The coat of arms of the Procurator Fiscal to the 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, where heraldry plays an important role, particularly in relation to the clan system. Registration of a coat of arms requires a fee paid to the Crown, and the coat must adhere to specific rules concerning shape, colour, and imagery. The procurator fiscal was appointed under the Lyon King of Arms Act (1867) by the Lord Lyon, but since the Convention Rights (Compliance) (Scotland) Act (2001), by the Scottish Government.[26]

If any rule concerning a coat of arms – also known as "an achievement" – is broken, the procurator fiscal, as the independent official prosecutor of the court, determines whether to initiate criminal proceedings.[27][28]

See also

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Notes

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  1. ^ Section 17(3) of the Police and Fire Reform (Scotland) Act 2012 requires the police to comply with any lawful instruction of the Lord Advocate or the procurator fiscal in relation to the investigation of offences

References

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  1. ^ Procurators Fiscal: "The Scottish Criminal Justice System: The Public Prosecution System, pg. 2" (PDF). Scottish Parliament. Retrieved 2009-08-10.
  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.""Prosecution Code" (PDF). Crown Office and Procurator Fiscal Service. Retrieved 2009-08-10.
  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.""Sheriff Courts and Legal Officers (Scotland) Act 1927 s.8". Office of Public Sector Information. Retrieved 2009-08-10.
  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.""Sheriff Courts (Scotland) Act 1971 s.20". Office of Public Sector Information. Retrieved 2009-08-10.
  5. ^ "The Prosecution of Crimes in Scotland and in Hungary". University of Edinburgh. Retrieved 2009-08-12.
  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 p. 329. His Majesty's statute and law printers. Retrieved on 2009-08-10.
  8. ^ "Historical development of the office of Procurator Fiscal". Crown Office and Procurator Fiscal Service. Archived from the original on 12 March 2012. Retrieved 2009-08-10. In 1907 the Sheriff Courts (Scotland) Act vested the right of appointment of procurators fiscal to the Sheriff Courts in the Lord Advocate.
  9. ^ The Right Hon. Lord Rodger of Earlsferry (1993). Rights of Audience - A Scottish Perspective (Speech). The Child & Co. Lecture. City of London. Retrieved 6 April 2017.
  10. ^ "The investigation of complaints against the police in Scotland: A Fair Cop?". Scottish Government. Retrieved 2009-08-11. When a crime is committed it is the responsibility of the Procurator Fiscal to investigate it. Lord Justice Clerk Thomson Smith
  11. ^ Court of Session Act 1988: "110/140 Day Rule". Crown Office and Procurator Fiscal Service. Retrieved 2009-08-10.
  12. ^ "Although Scotland did not have the principle of 'legality' as in some foreign jurisdictions where the prosecutor has no discretion...""Summary Justice Reform Thematic Report on the Use of Fiscal Fines, page 7" (PDF). Scottish Government. Retrieved 2009-08-10.
  13. ^ "Procurator Fiscal Powers". David Hingston LLB. Archived from the original on 2009-05-28. Retrieved 2009-08-12. 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.
  14. ^ p. 46 Jones, Timothy H.; Christie, Michael G.A. (2008). Criminal Law. Edinburgh: W.Green. ISBN 978-0-414-01683-5.
  15. ^ Law Society of Scotland (2018). Petition PE 1633: Private Criminal Prosecution in Scotland (PDF). Edinburgh: Law Society of Scotland.
  16. ^ http://www.uk-legislation.hmso.gov.uk/RevisedStatutes/Acts/ukpga/1987/cukpga_19870041_en_1 Criminal Justice (Scotland) Act 1987]
  17. ^ "The Criminal Justice (Scotland) Act 1987 s.56" (PDF). Office of Public Sector Information. Retrieved 2009-08-11. 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)
  18. ^ "Conditional offer of fixed penalty by procurator fiscal" "The Criminal Justice (Scotland) Act 1987 Fixed Penalty Order 1987". Office of Public Sector Information. Retrieved 2009-08-11.
  19. ^ "Penalties as alternative to prosecution" "Criminal Proceedings etc. (Reform) (Scotland) Act 2007". Office of Public Sector Information. Retrieved 2009-08-11.
  20. ^ Alternatives to prosecution: "Victimes of crime in Scotland". Scottish Government. Archived from the original on 2011-02-15. Retrieved 2009-08-10.
  21. ^ "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." "Death and the Procurator Fiscal". NHS Scotland. Retrieved 2009-08-12.
  22. ^ "Section 1 Paragraphs 1 (a) and (b)""Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976". Office of Public Sector Information. Retrieved 2009-08-12.
  23. ^ "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." "Fatal Accident Inquiries". Scottish Government. Retrieved 2009-08-10.
  24. ^ "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." "The Prosecution of Crime in Scotland and in Hungary". University of Edinburgh. Retrieved 2009-08-12.
  25. ^ Location of procurators fiscal: "Our Offices?". Crown Office and Procurator Fiscal Service. Retrieved 2014-01-12.
  26. ^ Convention Rights (Compliance) (Scotland) Act 2001, section 11
  27. ^ "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.""History of the Court of the Lord Lyon". Court of the Lord Lyon. Archived from the original on 2009-08-02. Retrieved 2009-08-12.
  28. ^ "Victoria Raimes meets the outgoing procurator fiscal for the Court of the Lord Lyon – a newly 'open' post". The Scotsman. 26 April 2009. Retrieved 2024-05-01.
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