procurator fiscal

The office most likely originates in the Roman-Dutch and French manorial or seignorial administrator ({{langx|nl|procurator-fiscaal}}, {{langx|fr|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.{{cite web |title=The Prosecution of Crimes in Scotland and in Hungary |url=http://www.law.ed.ac.uk/eyl/02repgv.htm |publisher=University of Edinburgh |access-date=2009-08-12 }}

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 {{lang|la|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 {{lang|la|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.Fionda, J., [https://books.google.com/books?id=5Wc8L6Mw_m8C 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.

Originally the fiscal was the sheriff's official and tenure of the office was at the pleasure of the sheriff."Where a private Party prosecutes with Concurrence of the Procurator Fiscal,": Small Debts (Scotland) Act 1829 in [https://archive.org/details/statutesunitedk12britgoog/page/n354/mode/1up The Statutes of Great Britain and Ireland v. 69 p. 329]. His Majesty's statute and law printers. Retrieved on 2009-08-10. 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.{{cite web|title=Historical development of the office of Procurator Fiscal |url=http://www.copfs.gov.uk/News/Historical/HistDevPF |publisher=Crown Office and Procurator Fiscal Service |archive-url=https://web.archive.org/web/20120312022836/http://www.copfs.gov.uk/News/Historical/HistDevPF |archive-date=12 March 2012 |access-date=2009-08-10 |quote="In 1907 the Sheriff Courts (Scotland) Act vested the right of appointment of procurators fiscal to the Sheriff Courts in the Lord Advocate." |url-status=dead }}{{cite speech |title=Rights of Audience - A Scottish Perspective |last=The Right Hon. Lord Rodger of Earlsferry |author-link=Alan Rodger, Baron Rodger of Earlsferry |event=The Child & Co. Lecture |location=City of London |date=1993 |url=http://ubplj.org/index.php/dlj/article/viewFile/231/257 |access-date=6 April 2017 }}

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,{{efn|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}} but except for serious crimes such as murder the police normally complete their enquiries before involving the procurator fiscal.{{cite web |quote=When a crime is committed it is the responsibility of the Procurator Fiscal to investigate it. Lord Justice Clerk Thomson Smith | title=The investigation of complaints against the police in Scotland: A Fair Cop? |url=https://www.scotland.gov.uk/hmic/docs/afcp-05.asp |publisher=Scottish Government| access-date=2009-08-11}}

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.Court of Session Act 1988: {{cite web|title=110/140 Day Rule |url=http://www.copfs.gov.uk/About/roles/pf-role/prosecution/110-day-rule|publisher=Crown Office and Procurator Fiscal Service |access-date=2009-08-10}}

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 [accused] 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."Although Scotland did not have the principle of 'legality' as in some foreign jurisdictions where the prosecutor has no discretion..."{{cite web|title=Summary Justice Reform Thematic Report on the Use of Fiscal Fines, page 7|url=http://www.scotland.gov.uk/Resource/Doc/264423/0079241.pdf| publisher=Scottish Government|access-date=2009-08-10}}{{cite web |quote=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. |title=Procurator Fiscal Powers |url=http://www.hingstons.co.uk/laws-Procurator%20Fiscal%20-%20Powers-no.html |publisher=David Hingston LLB |access-date=2009-08-12 |url-status=dead |archive-url=https://web.archive.org/web/20090528071415/http://www.hingstons.co.uk/laws-Procurator%20Fiscal%20-%20Powers-no.html |archive-date=2009-05-28 }}p. 46 {{Cite book | last1=Jones | first1=Timothy H. | last2=Christie | first2=Michael G.A. | title=Criminal Law | year=2008 | publisher=W.Green | location=Edinburgh | isbn=978-0-414-01683-5 }} 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.{{Cite book | last1=Law Society of Scotland | title=Petition PE 1633: Private Criminal Prosecution in Scotland |url=https://www.lawscot.org.uk/media/359757/scottish-government-justice-committee-petition-pe-1633-private-criminal-prosecuton-in-scotlanddocx-23-february-2018.pdf | year=2018 | publisher=Law Society of Scotland | location=Edinburgh }} 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 1987http://www.uk-legislation.hmso.gov.uk/RevisedStatutes/Acts/ukpga/1987/cukpga_19870041_en_1 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.{{cite web |quote=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) |title=The Criminal Justice (Scotland) Act 1987 s.56 |url=http://www.opsi.gov.uk/acts/acts1987/pdf/ukpga_19870041_en.pdf | publisher=Office of Public Sector Information| access-date=2009-08-11}}"Conditional offer of fixed penalty by procurator fiscal" {{cite web|title=The Criminal Justice (Scotland) Act 1987 Fixed Penalty Order 1987 |url=http://www.opsi.gov.uk/si/si1987/Uksi_19872025_en_1.htm | publisher=Office of Public Sector Information| access-date=2009-08-11}}"Penalties as alternative to prosecution" {{cite web|title=Criminal Proceedings etc. (Reform) (Scotland) Act 2007 |url=http://www.opsi.gov.uk/legislation/scotland/acts2007/asp_20070006_en_7#pt3-pb2 | publisher=Office of Public Sector Information| access-date=2009-08-11}}

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.Alternatives to prosecution: {{cite web| title=Victimes of crime in Scotland| url=http://www.victimsofcrimeinscotland.org.uk/the-justice-process/prosecution-process/alternatives-to-prosecution/| publisher=Scottish Government| access-date=2009-08-10| url-status=dead| archive-url=https://web.archive.org/web/20110215020637/http://www.victimsofcrimeinscotland.org.uk/the-justice-process/prosecution-process/alternatives-to-prosecution/| archive-date=2011-02-15}}

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."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." {{cite web|title=Death and the Procurator Fiscal| url=http://www.show.scot.nhs.uk/publications/me/death%20and%20pf.htm| publisher=NHS Scotland |access-date=2009-08-12}}

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."Section 1 Paragraphs 1 (a) and (b)"{{cite web|title=Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976| url=http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1976/cukpga_19760014_en_1| publisher=Office of Public Sector Information |access-date=2009-08-12}}"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." {{cite web|title=Fatal Accident Inquiries |url=http://www.scotland.gov.uk/Topics/Justice/law/fatalaccidentinquiries| publisher=Scottish Government| access-date=2009-08-10}}

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."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." {{cite web|title=The Prosecution of Crime in Scotland and in Hungary| url=http://www.law.ed.ac.uk/eyl/02repgv.htm| publisher=University of Edinburgh| access-date=2009-08-12}}

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):Location of procurators fiscal: {{cite web|title=Our Offices? |url=http://www.copfs.gov.uk/in-your-community/our-offices|publisher=Crown Office and Procurator Fiscal Service |access-date=2014-01-12}}

• Argyll and Clyde (in Paisley)*
• Ayrshire (in Kilmarnock)*
• Central (in Stirling)
• Dumfries and Galloway (in Dumfries)
• Fife (in Kirkcaldy)
• Glasgow and Strathkelvin (in Glasgow)*
• Grampian (in Aberdeen)
• Highlands and Islands (in Inverness)
• Lanarkshire (in Hamilton)*
• Lothian and Borders (in Edinburgh)
• Tayside (in Dundee)

File:Arms of the Procurator Fiscal to Lyon Court.svg

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.[http://www.legislation.gov.uk/asp/2001/7/section/11 Convention Rights (Compliance) (Scotland) Act 2001, section 11]

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."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."{{cite web|title=History of the Court of the Lord Lyon |url=http://www.lyon-court.com/lordlyon/215.180.html |publisher=Court of the Lord Lyon |access-date=2009-08-12 |url-status=dead |archive-url=https://web.archive.org/web/20090802040102/http://www.lyon-court.com/lordlyon/215.180.html |archive-date=2009-08-02 }}{{cite news |title=Victoria Raimes meets the outgoing procurator fiscal for the Court of the Lord Lyon – a newly 'open' post |url=https://www.scotsman.com/news/victoria-raimes-meets-the-outgoing-procurator-fiscal-for-the-court-of-the-lord-lyon-a-newly-open-post-2480409 |newspaper=The Scotsman

|date=26 April 2009 |access-date=2024-05-01}}

• Lord Advocate's Reference
• Staatsanwaltschaft – the German State Prosecutor, who exercises a similar role
• Crown Prosecutor – equivalent in England and Wales
• Sutherland's Law – a 1970s drama series made by BBC Scotland

{{notelist}}

{{Reflist|2}}

• {{Official website|http://www.copfs.gov.uk/}}

{{Scotland topics}}

{{CriminalJusticeScotland}}

Category:Scots law general titles

Category:Criminal law

Category:Coroners

Category:Region-specific legal occupations