The Law Officers, COPFS, advocate deputes and procurators fiscal
1. The Lord Advocate as head of the system of public prosecution in Scotland is responsible for the investigation of deaths and the prosecution of crime. The Lord Advocate's deputy is the Solicitor General for Scotland, and together they are called the Law Officers. Since devolution they are appointed by the Queen on the recommendation of the First Minister with the agreement of the Scottish Parliament.
2. The Crown Office and Procurator Fiscal Service (COPFS) is the prosecution authority. Advocate deputes prosecute cases in the High Court. They are typically experienced practising members of the Faculty of Advocates or solicitor advocates. Together with the Lord Advocate and Solicitor General they are known collectively as Crown Counsel. Procurators fiscal prosecute crimes locally throughout Scotland. Within COPFS, the Crown Agent is the legal adviser to the Lord Advocate and head of the legal staff. The headquarters are at Crown Office in Edinburgh.
Decisions to prosecute and the role of the police
3. The police carry out an initial crime investigation and submit a report to the procurator fiscal who decides whether to take any action in relation to the case. In cases involving the more serious crimes the procurator fiscal makes a report to Crown Counsel to take a decision as to whether to prosecute.
4. In deciding whether to prosecute a number of factors are taken into account. The prosecution must be in the public interest. The conduct complained of must be a criminal offence in terms of the law of Scotland. There must be sufficient evidence i.e. evidence from two independent sources as to the essential facts: that the crime was committed and that the accused committed the crime.
5. The procurator fiscal can provide instructions and directions to the police. This happens particularly in serious cases.
Murder cases and solemn procedure
6. Murder cases are prosecuted in the High Court of Justiciary under solemn procedure: trial 'on indictment' before a judge and a jury of 15 people.
7. Solemn procedure is commenced with the procurator fiscal presenting a petition to the sheriff in court. This identifies the accused and the charge under consideration. The first appearance on petition before the sheriff is normally brief and is in private. The accused may state a plea or make a statement, but in practice that is now rare. The accused may be judicially examined, i.e. questioned by the prosecutor in so far as such questions are directed to eliciting any admission, denial, explanation, justification or comment. The accused person may be kept in custody.
8. In a murder case, the procurator fiscal prepares a report for Crown Counsel's consideration and decision. There then follows a second appearance before the sheriff at which the prosecution may apply for full committal to trial.
9. Prior to a trial, and typically prior to indictment, the procurator fiscal interviews witnesses and gathers and reviews the forensic and other evidence. Some investigation is carried out by others because of the skill and knowledge required. For example forensic scientists will examine various items and offer a professional view about an item or substance. These and other specialists will present their findings in the form of a report that may be lodged in court as a production. Most often however the procurator fiscal obtains from a witness what is known as a precognition, in essence the procurator fiscal's note of what a witness is likely to say when giving evidence. This is unsigned and not sent to the witness to confirm the accuracy of what has been noted. These investigations are primarily conducted by the local procurator fiscal but under directions from Crown Counsel.
10. The result of the investigations of the procurator fiscal is a collection of precognitions, police statements and other documents. In a case that is subject to solemn procedure, these, with an analysis of the case and recommendations, are sent to the Crown Office for a decision to be taken by Crown Counsel as to whether to indict and continue to proceed with the prosecution. The material is collectively referred to as the Precognition.
11. If, after investigation, Crown Counsel instruct that there is to be a trial by jury, an indictment is prepared. The indictment is served on the accused.
The trial
12. There is no opening speech by the prosecutor or the defence. The charge is read to the jury and the trial judge will make some limited opening remarks to the jury advising them, among other things, that it is their task to assess the evidence that they will hear.
13. The prosecution leads its witnesses. The defence may test that evidence and explore other evidence in cross-examination. Once the prosecution has led its evidence the defence may lead its witnesses. The accused may give evidence but is under no obligation to do so.
14. The prosecutor and the defence make closing speeches to the jury. Thereafter the judge gives the jury directions and advice: the charge to the jury. The jury then retires to consider its verdict. The verdict of the jury is given orally by one of the jurors. The three possible verdicts are guilty, not guilty and not proven. The accused may only be convicted if at least eight of the fifteen jurors have voted for a guilty verdict.