The office of Procurator Fiscal is unique to Scotland and he is probably the most powerful prosecutor in the civilised world. When I retired, there were only forty two of us holding that position with some two hundred other lawyers in the Procurator Fiscal Service. Incidentally, as far as I was concerned, Crown Office was not a separate entity, but simply the head office of the Service. It is perhaps indicative of why things have gone wrong, that today the organisation is known as Crown Office and the Procurator Fiscal Service. Equally perceptive, though no longer politically correct, was the opinion expressed by my first Fiscal, Eddie Smith, that Crown Office should always be pronounced with a distinctly Chinese accent.

Fortunately the decisions and actions of Crown Office impinge rarely on our lives, whereas the Procurator Fiscal does both directly and indirectly and frequently. So what is he and what does he do?

He has properly been described as the local Minister of Justice. It is his responsibility to investigate any crime committed within his jurisdiction, to assess whether there is sufficient evidence to take proceedings, to assess what proceedings are appropriate in the public interest and to act accordingly.

This is a stunning obligation and merits a moment’s consideration. It is his responsibility, and not that of the police or other investigating bodies such as Customs and Excise etc, to investigate any, and every, crime committed in his territorial jurisdiction. It is his duty, and his alone, to consider whether anyone should be prosecuted or not. It is not for the police, the public at large, politicians, victims, courts or anyone else to decide whether or not anyone should even be prosecuted, let alone in which court or on what charges. We do not have the English system of someone deciding whether or not to press charges, nor of Magistrates [or in America, Grand Juries] deciding whether or not someone should be committed for trial, nor of the accused opting for trial by jury. In Scotland, these are decisions for the Procurator Fiscal to make.

I used to say I was the Procurator Fiscal, and not the Prosecuting Fiscal, because a major responsibility was not to secure a conviction in any case, but rather to present all the relevant evidence and argument, whether in favour of conviction or not. It is the Court’s job to decide on guilt, not the Fiscal’s. The Fiscal’s job is to present the case dispassionately and fairly.

It is a major duty upon the Fiscal to investigate all sudden and unexpected deaths in his jurisdiction. We do not have Coroners in Scotland, though I recall one of the more ignorant politicians once demanding of me why I had not held a Coroner’s Inquest into a death.

You may ask why Fiscals have such power and authority? The answer lies in the geography and history of our independent nation. The geography dictated that justice could not be centrally controlled or imposed but had to be local instead. The office of Procurator Fiscal probably originated in the eleventh or twelfth century, long before the advent of investigating police forces. Very early in our history, Scotland moved to public instead of private prosecution, that is prosecution on behalf of the public as a whole rather than any particular victim. In those days the discovery of a body was primarily a problem for the criminal authorities to ascertain whether there had been a murder. These were among the factors that combined to create the uniquely Scottish office of Procurator Fiscal.

Does it still work today? I have no doubt that it does and that we in Scotland are well served by our Fiscals. Were our Fiscals not trusted by the Courts and the public they serve, our criminal justice system would simply seize up. That does not mean that I always agree with them. They are mortals and make mistakes, as undoubtedly I did in my time. I still think they, and their staff, are undervalued and underpaid. Not only am I earning much more now as a defence lawyer with fewer responsibilities, but when I used to give talks about the office of Procurator Fiscal and ask what the audience thought I earned, they were invariably expecting at least twice what I was being paid.

To finish on an antipodean story. Melbourne police were conducting speed checks using a video car. While his friend distracted the operator, this bright spark unscrewed the number plate from it. Having put it on his own vehicle, he then raced back and fore through the speed trap. The Chief Constable received 17 summonses.