Public Prosecutors and Discretion: A Comparative Study

By Julia Fionda | Go to book overview

3 The Scottish Procurator Fiscal Service: The Reluctant Sentencers

1. INTRODUCTION

THE Scottish criminal justice system has enjoyed the advantages of a public prosecution system, with independent prosecutors working in the public interest, for a good deal longer than England and Wales. The term 'procurator fiscal' dates back to early feudal courts where it referred to the representative of the local Lord, in a court presiding over civil matters. In criminal matters, the Sheriff originally acted as prosecutor and judge, but some time later his role was separated and the term 'procurator fiscal' was used to describe the prosecutorial part of the role.1 It was the Sheriff Courts (Scotland) Act 1876 which gave prosecutors the full responsibility in law for the prosecution of all criminal offences, but Moody and Tombs ( 1982) suggest that, in practice, these functions were delegated to fiscals, by the Sheriffs, considerably earlier than this.2 Hence the office of public prosecutor has been developing gradually in Scotland over the last century, and the fiscal service which exists today presents a very different picture to that of the Crown Prosecution Service of England and Wales, set up comparatively recently in 1986.

The fiscal service is run under the overall supervision and responsibility of the Scottish Law Officers, the Lord Advocate and the Solicitor-General, working from the Crown Office in Edinburgh. The Lord Advocate also, from time to time, issues directions and circulars on particular types of criminal offences, or general guidelines. Below these two political appointees there is the Crown Agent, a senior civil servant also working from the Crown Office, who is the permanent civil service head of the fiscal service.3

The six sheriffdoms of Scotland are headed for administrative purposes

____________________
1
For a fuller explanation of the history of the role of the procurator fiscal, see R. Shiels, "Focus on the Fiscals", CPS Journal May/ June 1991.
2
See S. R. Moody and J. Tombs, Prosecution in the Public Interest ( Edinburgh, 1982), 18- 22, for a historical account of the development of the office of procurator fiscal.
3
See table I 'Organisation of the Procurator Fiscal Service' in the Crown Office's publication: The Prosecution of Crime in Scotland.

-65-

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