The Procurator Fiscal

The Public-Interest Monopoly

In England and Wales, prosecution was for centuries the business of the victim: private prosecutions, associations for the prosecution of felons, and police-led cases, with a national Crown Prosecution Service arriving only in 1986. Scotland reached public prosecution far earlier, and made it near-exclusive. Crime is reported to the fiscal, who directs investigation with the police, and it is the fiscal — not the police, and not the complainer — who decides whether proceedings are in the public interest.

That discretion is broad and mostly invisible. The fiscal may take no action, issue a warning, impose a fiscal fine or other direct measure, divert an accused person to social work or a support programme, or prosecute — summarily in the sheriff or justice of the peace court, or under solemn procedure, with the gravest cases taken by Crown counsel in the High Court. The gatekeeping, more than the advocacy, is the institution.

Private prosecution survives as a theoretical safety valve. It is legally competent with the concurrence of the Lord Advocate or, exceptionally, on the authority of the High Court, but it almost never happens: the last successful instance was in 1982, in the case commonly known as the Glasgow rape case, brought after the Crown had decided not to proceed. Near-monopoly, then — not monopoly.

No Coroners: Sudden Deaths and FAIs

Scotland has never had coroners. Every sudden, suspicious, unexplained or unexpected death is reported to the procurator fiscal, who investigates, instructs post-mortem examination or toxicology where required, takes statements, and decides what follows: no further action and release of the body, criminal proceedings, or a Fatal Accident Inquiry.

Inquiries are mandatory in certain categories — notably deaths in legal custody and deaths arising out of employment — and discretionary where the Lord Advocate considers an inquiry to be in the public interest. The modern regime sits in the Criminal Procedure (Scotland) Act 1995 and the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016. COPFS runs a dedicated Scottish Fatalities Investigation Unit.

From Local Agents to Civil Servants

For most of its history the office was local and part-time. Fiscals were appointed by sheriffs, drawn from the local bar and often combining the post with private practice — an arrangement open to obvious criticism about patronage and conflicting interests. Statutory consolidation of duties and procedure came in 1867 and 1876. In 1907 appointment transferred to the Lord Advocate, breaking the link with local sheriffs, and from 1927 fiscals became full-time salaried civil servants. Reorganisation followed local-government reform in 1975.

The result is that the modern service — national, professional, specialised — is barely a century old, even though the office it descends from is medieval. Both facts should be told together.

COPFS Today

The Crown Office and Procurator Fiscal Service is Scotland’s sole prosecution authority, headed by the Lord Advocate with the Solicitor General for Scotland and administered by the Crown Agent. Local autonomy has given way to national functions and specialist units: homicide, sexual offences, serious and organised crime, health and safety, financial crime, and fatalities investigation. The Lord Advocate answers to the Scottish Parliament for the system while retaining independence in individual prosecution decisions — a separation that is central to how the concentration of powers is justified.

How Distinctive Is It, Really?

Distinctive within the United Kingdom: certainly. Unusual within the common-law world, where investigation and prosecution are typically separated: yes. Unique in the world: no. Continental civil-law systems have long had prosecutors who direct investigations — the French procureur de la République, the Dutch officier van justitie, the German Staatsanwalt — and Scots criminal procedure shares that European inheritance, as it does in much else.

The right pitch is therefore comparative rather than boastful: Scotland arrived at public prosecution early, kept it through the Union, and combined it with a death-investigation function that most common-law jurisdictions give to coroners. That is genuinely interesting without needing to be a world first.

Criticism and Reform

The strongest structural criticism is the obvious one: the same office directs the investigation, judges its adequacy and conducts the prosecution, which makes independent scrutiny harder. Bereaved families and campaigners have criticised delays between a death and any inquiry, sometimes running to years. Workload and funding pressures on COPFS have been raised repeatedly by the profession and in Parliament. And because private prosecution is effectively unavailable, a Crown decision not to proceed leaves complainers with very little recourse.

These are live policy arguments, not settled findings, and a fair account of the institution includes them alongside its strengths.

How a Case Actually Travels

The distinctiveness of the system is easiest to see by following a case. The police investigate and report the matter to the procurator fiscal in a standard prosecution report. The fiscal is not a reviewer of a finished file so much as a director of the inquiry: further statements, forensic examination, expert reports or additional lines of investigation can be instructed, and in serious cases witnesses may be questioned by the fiscal directly. Only then does the decision arise.

Two tests govern it: is there sufficient admissible, reliable and credible evidence, and is prosecution in the public interest? Scots law adds a peculiarity of its own at the first stage — the requirement of corroboration, under which the essential facts of a crime have traditionally needed support from more than one source. That rule, long debated and the subject of repeated reform proposals, shapes what the fiscal can do with cases — particularly sexual offences and domestic abuse — where the account of one witness may be all there is.

If the case proceeds, the fiscal chooses the road. Summary procedure takes it before a sheriff sitting alone or a justice of the peace. Solemn procedure means a jury — fifteen jurors in Scotland, a simple majority sufficient for conviction — in the sheriff court or, for murder, rape and the gravest offences, the High Court of Justiciary, where Crown counsel and not the local fiscal presents the case. Serious cases begin with a private appearance on petition, and the accused may be committed for further examination while the fiscal completes the investigation, a stage with no English equivalent.

Much of the fiscal’s work never reaches a courtroom at all. Direct measures — a formal warning, a fiscal fine, a compensation offer, a work order, or diversion to social work, mental-health or addiction services — dispose of large numbers of less serious cases without prosecution. Supporters see a proportionate filter operated by a lawyer accountable to the Lord Advocate; critics see penalties imposed without a court and without a finding of guilt. Both readings describe the same power, which is exactly why the office repays close attention rather than a slogan.

Timeline

1. 1434 / 1457

   Earliest references to fiscal-type officers

   Dates are disputed between sources; treat as indicative

2. 1514

   A recognisable fiscal appears in court records

   Acting for the Crown's financial interest as well as prosecution

3. 1584

   A statutory duty to prosecute

   The public-interest element becomes explicit in legislation

4. 17th century

   Sheriffs' fiscals across the counties

   Local men, often part-time, appointed by sheriffs

5. 1701

   The modern criminal-prosecution role established

   The date used for this card

6. 1707

   The Union preserves Scots law

   Distinct criminal procedure survives the political union

7. 1867 / 1876

   Statutory consolidation

   Duties and procedures codified in criminal procedure legislation

8. 1907

   Appointment passes to the Lord Advocate

   Ending appointment by sheriffs and local patronage

9. 1927

   Fiscals become full-time civil servants

   Salaried public officials rather than local practitioners

10. 1975

    Reorganisation follows local-government reform

    Fiscal areas realigned with the new sheriffdoms

11. 1995

    Criminal Procedure (Scotland) Act

    The main modern statutory framework, including FAI powers

12. 2016

    Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016

    Modernises the FAI regime

13. Today

    COPFS as a single national service

    Specialist units for homicide, sexual offences, fraud and deaths

Did You Know?

• “Fiscal” refers to the Crown's purse — the office began partly as a revenue role.
• There is no such thing as a coroner in Scots law.
• A Fatal Accident Inquiry cannot decide civil liability or criminal guilt.
• England and Wales had no national prosecution service until 1986.
• Fiscals were appointed by sheriffs until 1907 and were often part-time private lawyers.
• They became full-time salaried civil servants only in 1927.
• Scotland's last successful private prosecution was in 1982.
• The fiscal can impose a fine directly, without any court appearance.
• The Lord Advocate answers to Parliament for the system but not for individual case decisions.
• The Treaty of Union 1707 is why the whole system survived political union.

Honest Caveats

1701 is a convention, not a founding date. The office evolved across centuries, and the earliest references (1434 or 1457) are disputed between sources.

Not unique in the world. Continental prosecutors do comparable work; say distinctive within the UK and unusual in the common-law world.

Not a coroner, and an FAI is not an inquest. The statutory schemes, powers and outcomes differ.

Private prosecution is possible. Rare, tightly controlled, last successful in 1982 — but competent in law.

Criticisms are contested. Concerns about concentrated powers, delays and resourcing are matters of ongoing debate, and this article reports them as such.