European Young Lawyers
THE PROSECUTION OF CRIME IN SCOTLAND AND IN HUNGARY
Comment by Joëlle Godard
2) The History of the Procurator Fiscal Service
3) Aims and Objectives of Crown Office and the
Procurator Fiscal Service
4) The Law Officers and Crown Counsel
5) The Structure of Crown Office and the Procurator
6) Procedure in Relation to Prosecution
7) Time Limits
Since 1999 I have been working as a city prosecutor
in Hungary. Therefore my main interest is the prosecution system, how it works
in Scotland. I have already known that the Scottish legal system is a mixed
system, so it has elements from the continental legal system, in which the
Hungarian legal system is based on.
I spent 4 weeks at the Crown Office and 2 weeks at
the Procurator Fiscal’s Office in Edinburgh, where I had the chance to examine
how the prosecution system works here.
I spent my first week in the Crown Office at the High
Court Unit, where I got to know how the prosecutors review and prepare for
trials in murder, drug and rape cases. During my second week at the Appeals Unit
I had the chance to read appeals written by the solicitors and convicted
persons. I could also examine the written notes provided by the prosecutors here
to the Advocate Deputes, who appeared for the Crown at the Appeal trials.
The third week at the Fraud and Specialist
Services Unit was the most interesting for me. In Hungary I usually deal
with crimes like fraud and emblezzment, so it was useful to see how the
colleagues work on complex and serious fraud cases. I spent my last week at the
Policy Group where I have been to different meetings, like Domestic Abuse and
Violence Meeting and Ethnic and Racial Minority’s Group Meeting.
During my 2 weeks at the Procurator Fiscal’s Office
in Edinburgh, I went to Intermediate Diets, Custody Court and Sheriff and Jury
Trials, so I could take a closer look, how the criminal authority operates in
of the Procurator Fiscal Service
The existence of the Procurator Fiscal is recorded
from 1584. Until the XIXth century , the responsibility for investigating crimes
and presenting offenders for trial lay with the local Sheriff. The medieval
Sheriff had investigative and judicial functions placing him more in the
position of an examining magistrate. The Procurator Fiscal was originally an
agent of the Sheriff, employed to collect fines and pay them to the Sheriff’s
treasury. Between the late XVIth and XVIIIth centuries, the Sheriff’s
investigative functions were transferred to the Procurator Fiscal, who developed
the role of the prosecutor. The
Procurator Fiscal’s status as public prosecutor was recognised by the Criminal
Procedure (Scotland)Act 1700.
In Hungary the XXXVIII. Act (1871) established
the unified, central State Attorney’s Office, which was independent from the
court and worked under the control of the Minister of Justice.
Objectives of Crown Office and the Procurator Fiscal Service
1) to provide the sole public prosecuting
authority in Scotland which ensures that all crimes reported to the Fiscal are
2) to investigate all sudden deaths,
3) to investigate independently all complaints of
criminal conduct by police officers,
4) through the Scottish Charities Office, to
supervise charities and investigate alleged misconduct and mismanagement in the
5) through the office of the Queen’s and Lord
Treasurer’s Remembrancer, to administer property falling to the Crown 
In Hungary the Constitution determines the main
tasks of the State Prosecution’s Office. According to this, the State
Prosecution’s Office takes charge of the protection of the citizen’s rights
and the consistent pursuit of every act, which endangers or offends the
constitutional order, the independence and the safety of the country.
The Criminal Procedure Code (1973.I.Act) and
the State Prosecution’s Office Act (1972.V.Act) determine the tasks of the
1) investigates in certain cases
2) practices supervision on the legality of the
3) represents the charge at the trial.
1) These cases are, where the independence of
the investigator authority is a basic requirement, for example when the member
of the police commits a crime.
2) Within it, the prosecutor may:
a; instruct the investigator authority to complete
the investigation in certain time,
b; obtain to the files,
c; attend at the investigation,
d; change or abrogate the decision of the
e; dismiss the case. 
Officers and Crown Counsel
The prosecution of crime in Scotland is a
public function exercised by the Lord Advocate in the public interest. He is the
head of the Criminal prosecution system. He is appointed and removed by the
Queen on the recommendation of the first minister who can act only with the
agreement of the Scottish Parliament. The Lord Advocate’s appointment is
political and may change with the change of Executive, but decisions taken by
him and on his behalf in respect of criminal prosecution and the investigation
of deaths are taken independently of any other person.
The Lord Advocate is assisted by the Solicitor
General who is also a member of the Scottish Executive and whose appointment
also changes with the Government.
The Attorney General in Hungary:
- is the Head of the Prosecution system, like in
- leads and directs the State Attorney’s Office,
- participates with consultation right at the session
of the Parliament and the Constitutional Court,
- suggests the creation, modification and abrogation
of an Act but unlike in Scotland is not the member of the
Parliament, and his appointment is not political, although he is responsible for
the Parliament. His nomination’s period is 6 years. The Attorney General and
the prosecutors are not allowed to be a member of a political party, to do any
political activity. Apart from academic, educational and artistic activity, they
can not perform other gainful employment.
The Advocate Deputes are the personal
appointees of the Lord Advocate. They have reached a certain stage in their
careers at the Bar to serve for on or more periods of about 3 years as Advocate
Deputes. The importance of the Advocate Deputes is, that is their duty under the
supervision of the senior Advocate Depute (Home Depute) and in the most serious
cases under the direct instructions of the Law Officers to decide whether or not
cases reported to them by Procurators Fiscal should
be prosecuted and if so whether they should be prosecuted on indictment
in the Sheriff or High Court. They prosecute cases in the High Court, appear for
the Crown in the Appeal Court and provide advice to Procurators Fiscal on
different issues . Advocate Deputes
are not professional or permanent prosecutors.
Although they spend most of their time during that
period working for the Lord Advocate, they remain free to undertake private
civil practice, but they rarely do .
structure of Crown Office and the Procurator Fiscal Service
Crown Office is the departmental headquarters of the
Procurator Fiscal Service. The Scottish Law Officers and the Crown Counsel are
based in Crown Office in Edinburgh.
The senior civil servant assisting the Lord Advocate
and Solicitor General is the Crown Agent. He is an experienced prosecutor
appointed from the Procurator Fiscal Service. He is the solicitor to the Lord
Advocate and advisor to him on policy and operational matters. The Crown Agent
is responsible for the direction and management of the Department.
The Deputy Crown Agent is the second in command at
Crown Office. A very experienced prosecutor, who is in charge of the division of
the Crown Office that is responsible for operational work. It consists of three
1) the High Court Unit – a team of lawyers and
support staff who prepare cases for the High Court
2) the Appeals Unit – a team of lawyers and support
staff who prepare cases for the Court of Appeal,
3) the Fraud and Specialist Services Unit -
a team of lawyers and support staff who investigate complex fraud cases,
deal with major drug profit confiscation cases, deal with extradition and mutual
legal assistance to foreign jurisdictions.
1) The High Court Unit
The High Court Unit reviews, revises and prepares for
trial all cases investigated and reported by Procurators Fiscal in which Crown
Counsel have instructed prosecution in the High Court. The Unit is responsible
for programming cases in the various scheduled sittings of the High Court in the
2) The Appeals Unit
The Appeals Unit prepares cases for all criminal
appeals. Anyone convicted in the criminal courts in Scotland has a right of
appeal to the High Court of Jusdiciary, sitting as an Appeal Court in Edinburgh.
When a case is appealed, the Fiscal sends a report to the Appeals Unit which
deals centrally with the appeals from all the criminal courts in Scotland. The
Unit’s staff consider the report received from the Fiscal and provide written
notes for the Advocate Deputes who will appear for the Crown in the Appeal
Many reports received by the Unit relate to
appeals against sentence by convicted persons only. All appeals against
conviction require to be considered on their merits. Legal staff consider such
matters as the sufficiency of evidence and any procedural difficulties that have
arisen in the lower court.
Crown has certain rights of appeal as well. In the case of sentencing the Crown
may appeal on points of law. The Crown has the right to appeal against acquittal
in summary cases where it is considered that the Sheriff of Justice erred in law
in acquitting the accused. No such right exists in cases prosecuted before a
jury but the Lord Advocate may refer to the Appeal Court a point of law which
has arisen in a solemn case where an acquittal has resulted.
Although Fiscals report many cases to the Appeals
Unit as potential Crown Appeals, the Crown’s right to appeal is used
sparingly. Legal staff and Crown Counsel try to identify cases which raise
matters of public concern or where an important point of law may be decided.
3) The Fraud and Specialist Services Unit
The Crown Office Fraud and Specialist Services Unit
undertakes the investigation and preparation for trial of cases of serious and
complex fraud and related offences. Fraud cases are generally taken over on the
request of Procurators Fiscal but maybe taken on directly as a result of a
report from an investigative agency. For the most part the Unit deals with large
cases which have arisen in areas served by a smaller Fiscal's office and cases
that have national or international dimensions.
The Unit’s responsibilities extend to
restraint and confiscation procedures in relation to the proceeds of drug
trafficking and other serious crime, preparation of cases for extradition and
representation of other Governments at extradition hearings and international
mutual legal assistance procedures, both civil and criminal.
The aim of the Policy Group is to secure the achievement of Departmental
objectives by constantly reviewing the policies and practices of the Procurator Fiscal Service. The need to review specific
policies or practices may result from an analysis of complaints, representations
from other agencies, changes in the law, points arising in individual cases.
Various ongoing Working Groups have been established
to monitor and review current policies in areas such as Evidence of Children in
Court, Standing Committee on Expert Evidence, Domestic Violence and Abuse, and
Alternatives to Prosecution. Where necessary these groups will suggest changes
in the law where this would assist in the achievement of departmental
The Procurator Fiscal
The Procurator Fiscal’s responsibilities in
relation to crime committed in Scotland covers both its investigation and its
prosecution. The Regional Procurator Fiscal is a legally qualified permanent
civil servant who is appointed with the approval of the Lord Advocate. There is
a Regional Procurator Fiscal for each of the six Sheriffdoms in Scotland. He has
no right to raise proceedings for any offence committed outwith the jurisdiction
of the court to which he is attached or to prosecute in any other court.
The Procurator Fiscal is an independent public
prosecutor. He receives and considers reports of crimes and offences from the
police and more than 50 other reporting agencies and decides whether
or not to take criminal proceedings in the public interest. He and his
deputes prosecute cases in all courts except the High Court of Judiciary.
In practice, the initial investigation is done
by the police or statutory reporting agency and the Procurator Fiscal will not
know about it until police
enquiries are complete. Nevertheless it is his right and his duty to take
personal control of the investigation. As a result of this responsibility when
the most serious crimes such as murder are committed, the police immediately
contact the Procurator Fiscal who will usually attend personally at the scene.
The police’s function in relation to the
investigation of crime usually ends with the report to the Procurator Fiscal who
considers each report and decides whether to take criminal proceedings or not.
He may direct the police to make further enquiries on his behalf before making
his decision and at this stage he will frequently discuss cases with the police
officer. The police officer is not involved in the decision as to whether the
case is to be prosecuted.
The Procurator Fiscal’s prosecution function
is the principal feature of the system. It’s central importance in this
respect is his discretion to prosecute or not. There is no rule of law that a
criminal offence must be prosecuted. No-one can oblige the Lord Advocate to
prosecute and no-one except the Lord Advocate can oblige the Procurator Fiscal
Before acting upon a report he must be
satisfied first that the circumstances disclose a crime known to the law of
Scotland. He must then consider whether the evidence is sufficient,
admissible and reliable. If not the Procurator Fiscal will take no further
action. Even although there is sufficient evidence of a crime, the Fiscal may
decide that the case is so trivial that it does not merit any action on his
In Hungary after the completion of the
investigation the police send the file to the prosecutor. The prosecutor
examines the file in 30 days and according to the result:
a; makes a charge,
b; suspends the investigation,
c; dismisses the case.
Unlike in Scotland, in Hungary according to the
Criminal Code every criminal offence must be prosecuted.
In Scotland in many individual cases the
decision on disposal is relatively straightforward but instead of prosecuting
there are other alternatives:
1) Fixed Financial Penalties – these are
issued in a wide range of Road Traffic offences depending upon the seriousness
of the offence and sometimes the previous convictions of the accused,
2) Fiscal Fines – in less serious cases that
would result in prosecution in the District Court, the Procurator Fiscal can
offer the accused the opportunity to pay a fixed sum direct to the court, if the
accused pays it, no prosecution will be brought,
3) Warning Letters – if the Procurator Fiscal
decides the case merits action short prosecution or an administrative penalty,
he may warn the accused,
4) Diversion – in certain cases the Fiscal
may decide that for example a psychiatric disposal or social work intervention
may be more appropriate for the accused in the circumstances.
In Hungary if the prosecutor thinks, that there
is no need to prosecute, because of the small offence and the suspect’s social
background, he can send Warning Letter to the suspect.
In summary, we can say that the Lord Advocate
is “master of the instance” which in effect means that it is for the Crown
to decide whether or not a prosecution is to take place, what charges should be
brought in what court, whether or not to abandon a charge in the course of a
trial, or to accept pleas of guilty or not guilty, or partial pleas.
In Hungary the Attorney General with the
Supreme Prosecution’s Office is based in Budapest, there are 20 County
Prosecution’s Office and 114 City Prosecution’s Office.
Relation to Prosecution
In every case, where a prosecution is
instituted the Procurator Fiscal has to decide whether the proceedings are to be
by summary or solemn procedure. Summary procedure leads to trial by Judge alone,
solemn procedure by a Judge sitting with a Jury.
If the Procurator Fiscal decides that a
sentence in a summary proceeding would see justice done, he will allocate the
case to either the Sheriff Summary Court or the District Court. In each case he
will serve upon the accused a Summary Complaint containing the precise terms of
the charge or charges, together with the list of
those previous convictions of the accused which he intends to place
before the Court, if he is going to be convicted in the current charge.
The summary complaint runs in the name of the
Procurator Fiscal as Complainer and the accused is usually cited to attend the
first calling of a case in a Court at a given date and time. When a summary case
first calls in court the accused person must plead “guilty” or “not
guilty”. If the accused pleads “guilty”, the case may be disposed of
forthwith by the Court. If so, the Procurator Fiscal narrates the facts of the
case to the court and lays before the court a copy of the previous convictions
that has been served upon the accused.
If the accused pleads “not guilty” at the
pleading diet and the matter is urgent, the case may proceed immediately to
trial. At the intermediate diet
enquiries are made by the Court to ensure that parties are prepared, that formal
or uncontroversial evidence has been agreed, that witnesses have been cited and
to establish that the trial is likely to take place at the trial diet.
At the trial, the Prosecutor Fiscal will
question each of his witnesses in turn to show the relevant facts and
circumstances and the accused, or his legal representative will cross-examine
these witnesses. Thereafter the Procurator Fiscal and the accused’s legal
representative will address the court from their opposite standpoints, seeking
to persuade the Court that the accused’ guilt has or has not been proved. If
the Judge takes the view that the Crown has proved the accused’s guilt beyond
reasonable doubt he will convict, if not he will acquit.
If the Procurator Fiscal decides that the
maximum sentence available to the Court on summary conviction is inadequate, he
will proceed with the charges by way of solemn proceedings. The first step is
the presentation of a Petition by the Procurator Fiscal to the Sheriff setting
out the name, age and address of the accused person and the charge against him.
The Petition seeks warrant to arrest the accused and bring him before the Court
and further warrant to search his premises and to cite witnesses for
When the accused is brought before the Court
under this procedure to admit or to deny the charge against him, the Procurator
Fiscal will ask the Sheriff to commit him for further enquiry or if satisfied
that sufficient evidence is already available to prove the charge until the
trial, this stage is the “full committal”. The Procurator Fiscal may
judicially examine the accused before the Sheriff.
The accused may apply for bail at First
Examination. Bail may be opposed by the Procurator Fiscal at this stage on the
basis that further enquiries are being made which require the accused to remain
in custody or on public interest grounds like the previous conviction’s record
of the accused. If the accused is refused for bail at that time, he has the
right to appeal to the High Court against that decision.
In murder cases the Procurator Fiscal is
obliged in terms of the Crown Office and Procurator Fiscal Service Book of
Regulations to report the circumstances to Crown Counsel within 3 days of
committal for further examination in order that Crown Counsel may consider
whether a sufficiency of evidence exists to allow the accused to be committed
The Procurator Fiscal must then set about the
onerous task of precognoscing the case for trial. Either he or Precognition
Officers will interview the more important witnesses personally and take their
statements in order to establish beforehand what their evidence will be in
Court. By this process and by seeking additional evidence the Procurator Fiscal
must be sure that he will be able to discharge the burden of proof incumbent on
the Crown of establishing the guilt of the accused beyond reasonable doubt.
When the case is fully prepared for trial the
papers are forwarded to the Crown Office in Edinburgh where they will be
examined by Crown Office lawyers and by Advocate Deputes on behalf of the Lord
Advocate. If Crown Counsel is satisfied that the evidence is sufficient to
justify proceeding further against the accused person, instructions will be
issued accordingly to the Procurator Fiscal (“Shopping list”). These will
instruct solemn proceedings either in the High Court of Jusdiciary or the
Sheriff Court, or a reduction of the case to summary procedure before a court of
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.
In solemn proceedings an Indictment is served
on the accused setting out the charges. The Indictment runs in the name of the
Lord Advocate. If the case is dealt with, is in the High Court of Justiciary the
case will be presented in Court by an Advocate Depute, if in the Sheriff Court,
by the Procurator Fiscal or his depute on the Lord Advocate’s behalf.
On the day, when the trial is due to begin
those, who involved in it, have to come to court. When the judge has taken his
seat, the accused is identified and called upon to plead to the charges the
trial has begun. If the accused offers a “guilty” plea
or a “guilty” plea to part of the charges and the prosecutor is
willing to accept it, the court can immediately proceed to deal with the case
without any need for a jury to be selected. In Scotland is up to the prosecutor
alone to decide whether to accept a plea or not. Nobody, not even a judge can
compel the prosecutor to accept or refuse to accept a plea of “guilty”.
If the accused pleads “not guilty”, the
Clerk of Court will then proceed to select the jury, which contains 15 members.
The prosecution and the defense do not make opening speeches at the beginning of
the trial, although the judge may address the court on what is about to take
place. The Crown will then call its first witness. The witness is examined by
the prosecutor and may then be cross-examined by the defense. The prosecutor may
then re-examined the witness but only on new material raised during
cross-examination. The judge may also question a witness.
The Crown may call its witnesses in any order
it thinks appropriate and no need to call all the witnesses included on the
Indictment. The prosecutor is also entitled to call any witness included in the
list of defence witnesses.
All evidence must be presented in the presence
of the jury, however where a matter of law arises, the jury will be sent out of
the court until the matter has been debated and the judge has reached a decision
At the conclusion of the evidence the jurors
are addressed by the prosecutor and then by the solicitor or advocate
representing the accused. Finally the Jurors are charged, are given appropriate
directions in law by the judge before retiring to consider their verdict.
If the verdict is “guilty” the prosecutor
must ask the court to deliver sentence (“move for sentence”) before the
court can pass a sentence on the accused. If the prosecutor does not move for
the sentence, the judge can impose no sentence. When the prosecutor moves for
sentence, a copy of the accused’s previous convictions will be presented to
the court. The defense will have an opportunity to make a plea in mitigation
before the court proceeds to sentence. The judge then passes sentence.
Strict time limits must be adhered to by the
Crown in solemn cases. When the accused person is detained in custody his trial
must be commenced within 110 days of full committal. If the accused is granted
bail pending the trial, the trial must be commenced within 1 year from the date
on which the accused first appeared to answer the charge.
It is the responsibility of the Procurator
Fiscal to ensure that these timetables are adhered . If the Crown does not meet
the relevant time limits , proceedings will ordinarily fall and the accused
cannot be proceeded against in respect of those charges again. Any application
can be made to the High Court to extend the 110-day period, but such
applications can only be granted where no fault for the delay attaches to the
Crown. Applications to extend the 12-month period by the judge in the High Court
or in the Sheriff Court and can be granted by the judge in the High Court or in
the Sheriff Court on cause being shown.
In Hungary the proceeding at the trial is
different. Firstly there is no jury, the system is inquisitorial which means
that the judge leads the evidence and the trial. Still there are two types of
proceedings: “delict” and “felony”. It is written in the Criminal
Code and in the Criminal Procedure Code, that what cases belong to which
proceeding. If it is a “delict” proceeding, that prosecutor does not have to
be at the trial, unless the accused is in custody. In these cases the judge sits
If it is a “felony” proceeding, the
prosecutor has to be at the trial and the judge sits with two lay people. The
more serious cases are proceeded in
the “felony” way. But the process of the trial is the same.
After the beginning of the trial the prosecutor
characterises the indictment, than the judge starts the process of the
production of evidence. It is always the judge who first asks the accused and
the witnesses, then the prosecutor and the defence. The prosecutor, according to
the result of the production of evidence may withdraw the charge. If he thinks
that the accused is guilty in other crimes also, he can change or extend the
After the process of the production of evidence
the prosecutor presents the statement of the closing speech. In this he proposes
the judge to :
- convict the accused in certain crime according to
- impose certain punishment, but is not allowed to
make a motion for the degree of the punishment.
Then the defense presents the closing speech,
and the judge makes the judgement. The prosecutor has the right to appeal
against conviction and sentence as well. 
After observing the prosecution system here in
Scotland and in Hungary, I have the view that both system has its advantages and
disadvantages. It is hard to say that which one is better. The prosecutors here
in Scotland and in Hungary can learn a lot from each other. I think that the
best system would be the mixture of the Scottish and the Continental prosecution
1) Macdonald on the Criminal Law of Scotland - Fifth
Edition, Edinburgh - W.Green and
2) Renton and Browns: Criminal Procedure
Legislation - W.Green,
Sweet and Maxwell, Edinburgh
3) Kenton and Brown: Criminal Procedure - Sixth
Edition, Edinburgh W.Green,
Sweet and Maxwell
4) Criminal Procedure (Scotland) Act 1995
5) W.Green, Sweet and Maxwell: The Scottish
Legal System, an introduction to the study of
Edition - Edinburgh,
6) Christopher Gane and Charles Stoddart:
Criminal Procedure in Scotland cases and materials
Sweet and Maxwell - Edinburgh,
7) Criminal Code, Hungary, 1978
8) Criminal Procedure Code, Hungary, 1973
9) Prosecutor’s Act, Hungary, 1972
10) Report of the inquiry into the liaison
arrangements between the Police, the Procurator Fiscal Service and the Crown Office and the family of
the deceased Surjit Singh Chhokar in connection with the murder of Surjit Singh
Chhokar and the related prosecutions by Dr. Raj Jandoo, Advocate
11) Alastair L Stewart: The Scottish Criminal Courts in Action Second Edition, Butterworth, Edinburgh, 1997
 Kenton and Brown: Criminal Procedure pp.35-46,
 Criminal Procedure Code (1973.I.Act)
- Report of the inquiry into the liaison arrangements between the police, The Procurator
Fiscal Service and the Crown Office and the family of the deceased Surjit Singh Chokar in connection with the
murder of Surjit Singh Chokar and the related prosecutions - By Dr. Raj Jandoo, Advocate
 Alastair L. Stewart: The Scottish Criminal Courts in Action pp. 191-192.
 Christopher Gane and Charles Stoddart: Criminal Procedure in Scotland, cases and materials