COPFS Fact Sheet 1 October 2016 COPFS EFFECTIVENESS, EFFICIENCY AND RESOURCES Introduction 1. The Crown Office and Procurator Fiscal Service (COPFS) is Scotland’s sole public prosecution service. COPFS receives reports about crimes from the police and other reporting agencies and then decides what action to take, including whether to offer a direct measure or to prosecute someone and, if so, in what forum. COPFS also investigates deaths that need further explanation and investigates and prosecutes allegations of criminal conduct against police officers. 2. In addition, COPFS provides instructions and directions to the police in connection with their investigations1. This happens particularly in serious cases, where the police work very closely with the Procurator Fiscal. 3. Following receipt of a report from the police, the Procurator Fiscal must first decide whether to take criminal proceedings and will only do so when there is sufficient evidence to proceed. If there is sufficient evidence to proceed, the Procurator Fiscal will then decide whether it is in the public interest to do so, following the principles contained in the Prosecution Code. If a decision is taken to commence criminal proceedings in court2, the action taken thereafter depends on whether proceedings are taken at summary level (no jury) or solemn level (before a jury in either the Sheriff Court or the High Court): a. Summary level: The Procurator Fiscal decides what charges the accused should face and in what court (the Sheriff Court or the Justice of the Peace Court) and drafts a summary complaint outlining those charges. The accused then appears in court on those charges. If the accused is in custody the Procurator Fiscal must decide whether or not to oppose bail, the decision to grant or refuse bail being one for the court to take. If bail is appropriate, the Procurator Fiscal must assess whether any special conditions of bail should be requested from the court, such as a condition that the accused stays away from a particular place or person for their safety. In the period prior to trial the Procurator Fiscal often has to carry out a number of further enquiries, such as requesting forensic examination of items and instructing the police to carry our further investigations. The Procurator Fiscal will also disclose relevant 1 Section 12 of the Criminal Procedure (Scotland) Act 1995 requires the Chief Constable to comply with instructions issued by the Lord Advocate with regard to the reporting of offences. Additionally, section 17 of the Police and Fire Reform (Scotland) Act 2012 requires the chief constable to comply with lawful instructions issued by the prosecutor in relation to the investigation of offences. 2 There are additionally a number of direct measures that the Procurator Fiscal can take, such as issuing a warning letter or a fiscal fine. The maximum level of fiscal fine is currently £300. 1 COPFS Fact Sheet 1 October 2016 evidence to the accused’s lawyer and make arrangements for witnesses to attend court to give evidence at the trial. The disclosure of evidence involves the Procurator Fiscal assessing all of the evidence in the case to decide what is relevant and whether any sensitive information should be withheld from the accused’s lawyer e.g. a witness’ home address or telephone number. The accused can choose to plead guilty at any stage of the proceedings and in some cases the Procurator Fiscal will agree to resolve the case by way of a plea of guilty to some of the charges in the case, balancing the public interest in securing a conviction with the particular circumstances of the case in question. The Procurator Fiscal will then conduct the trial if the accused continues to plead not guilty at the trial. VIA staff are dedicated to working closely with the prosecutors in the Sheriff Court to provide information and advice to child victims and victims of crime in cases of domestic abuse, hate crime, sexual crime. b. Solemn Level (a jury trial) The Procurator Fiscal drafts a petition warrant, outlining preliminary charges that the accused will face in court, and gives similar consideration to the question of bail. If the accused is remanded in custody he appears in court eight days later. By this time the Procurator Fiscal will have examined the evidence and must be satisfied that there is sufficient evidence to proceed further. Once again the question of bail is considered. The precognition investigation now commences, with the Crown undertaking additional enquiries including, in appropriate cases, the interviewing (known as “precognition”) of witnesses, including victims. Similar work to prepare the case involving the disclosure of evidence and the bringing of witnesses to court is undertaken along with, in complex cases, the instruction and consideration of expert and forensic evidence. The Procurator Fiscal then reports the case to Crown Counsel, who decide whether the accused should be indicted for a trial before a jury and, if so, in the Sheriff Court or the High Court. The accused then appears in court on indictment and, if he pleads not guilty, the case will proceed to trial, with a trial in the Sheriff Court being conducted by a Procurator Fiscal Depute and in the High Court by an Advocate Depute. Unlike in England and Wales, the accused cannot elect for a trial before a jury. VIA staff also work with jury prosecutors in the Sheriff Court and Advocate Deputes in the High Court to keep victims informed throughout the case. 4. Specialities arise in the case of child accused. In Scotland, a person can be prosecuted from the age of 12. However, a protocol has been agreed with the 2 COPFS Fact Sheet 1 October 2016 Children’s Reporter covering the circumstances in which cases require to be reported to the Procurator Fiscal. As a general rule, this will only happen in the more serious cases. Prior to making a decision about proceedings in these cases, the Procurator Fiscal must discuss the case with the Reporter to assist in deciding the best way to proceed. Criminal proceedings can only be taken against child accused on the authority of Crown Counsel. 5. All cases remain under review at all times. Sufficiency of evidence and whether it is in public interest for proceedings to continue are always kept under consideration and the Crown will bring proceedings to an end if these requirements are no longer met. Lord Advocate, Solicitor General, Advocate Deputes and Procurators Fiscal 6. The Ministerial Head of COPFS is the Lord Advocate. He is the senior of the two Law Officers and has four roles: Head of the systems of prosecution and investigation of deaths; Principal legal adviser to the Scottish Government; Represents the Scottish Government in civil proceedings; Represents the public interest in a range of statutory and common law civil functions. 7. The Solicitor General is the Lord Advocate's deputy. 8. All criminal proceedings on indictment, whether in the High Court or the Sheriff Court, proceed in the name of the Lord Advocate. Advocate Deputes are appointed by the Lord Advocate and are vested with his powers in relation to the prosecution of crime. They make decisions in serious cases, they advise Procurators Fiscal on complex or sensitive issues, decide which cases should be prosecuted in the High Court, and conduct criminal proceedings in the High Court. Together, the Lord Advocate, Solicitor General and the Advocate Deputes are known as Crown Counsel. 9. The public prosecutor in the Sheriff and Justice of the Peace courts is the Procurator Fiscal. Summary criminal proceedings proceed in the name of the relevant procurator fiscal. Each sheriff court district has a Procurator Fiscal who normally has a number of deputes, and the definition of “procurator fiscal” includes them and any other person duly authorised to execute the duties of the Procurator Fiscal. Procurators Fiscal are appointed by and subject to the authority of the Lord Advocate, and they are under an obligation to obey his instructions. 3 COPFS Fact Sheet 1 October 2016 10. In relation to criminal prosecutions and the investigation of deaths the Law Officers have always acted independently of other Ministers and, indeed, of any other person. That duty is now expressly set out in s.48(5) of the Scotland Act 1998. Therefore, whilst COPFS is part of the Scottish Government, the independence of COPFS in relation to its prosecution decision making and the investigation of deaths is a long-standing principle of the Scottish criminal justice system and that independence is now enshrined in legislation. Crown Agent and COPFS Structure 11. The Crown Agent is the permanent Civil Service Head of COPFS acting in three distinct capacities: as principal advisor to the Lord Advocate on all prosecutions and deaths investigation; as Civil Service Head and Chief Executive of the Service; and as the professional head of the lawyers within COPFS. He also is also ex officio the Queen’s and Lord Treasurer’s Remembrancer, overseeing the claiming of Bona Vacantia (ownerless property including the estates of deceased persons who have no known heir) and the operation of the Treasure Trove system in Scotland. 12. As Accountable Officer for COPFS, the Crown Agent is answerable to the Scottish Parliament for the regularity and propriety of COPFS finance and the stewardship of public monies. 13. The Crown Agent is supported by three Deputy Crown Agents, each of whom is responsible for one of three functions: Local Court Delivery; Serious Casework; and Operational Support. The remit of each function is as follows: (a) Local Court – This function provides a local prosecution service dealing with both summary and sheriff and jury business in the various localities of Scotland.