COPFS and their initial options

Let’s assume that you have been arrested and charged with a crime by the police, who have then told you that you are being “reported to the Fiscal”. In other words:

  1. A potential criminal offence has come to the attention of the police;
  2. The police have investigated the potential criminal offence;
  3. The police have satisfied themselves that sufficient evidence of the criminal offence exists, and;
  4. The police have decided not to use powers available to them when dealing with minor offences, such as “fixed penalty notices” (fines) or Recorded Police Warnings.

In these circumstances, the police would then make a report to the Crown Office and Procurator Fiscal Service (COPFS).

COPFS (also known as “the Crown” or “the fiscals”) is Scotland’s public prosecution service. It is the Scottish equivalent of the Crown Prosecution Service (CPS) in England and Wales, but it is a completely separate organisation. The Crown Office itself is based on Chambers Street in Edinburgh (opposite the National Museum of Scotland, which is marginally more welcoming if you’re looking for a day out). There are Procurator Fiscal offices all over Scotland.

COPFS will then make a decision, based on the police report of the alleged offence (as well as any other information that they may already have, or can direct the police to gather) on what to do with the case. This is guided by the Prosecution Code, which is worth a quick read if you want to find out more.

What Can COPFS Do?

Broadly speaking, they have four options:

  1. Do nothing (“no proceedings”, or “no pro” if you’re too busy for extraneous syllables)
  2. Give you a warning
  3. Offer an alternative to prosecution
  4. Prosecute you

It’s worth bearing in mind that they can skip straight to #4 if the circumstances make it the most appropriate course of action. Either way, let’s deal with them in turn.

1. Do nothing (“no proceedings” / “no pro”)

No prosecution = no court proceedings = no conviction.

COPFS may do nothing because they decide that they don’t, in fact, have enough evidence to prove the offence in court. They may also decide to do nothing if it is in the public interest, given all the circumstances of the case.

What constitutes “the public interest”? Pass. Given the number of heated discussions between defence lawyers and prosecutors that I’ve seen/been part of, there does not appear to be a consensus.

COPFS don’t tend to be very keen to tell you, definitively, that they are going to take no action against you. The likely reason for this is stated in the Prosecution Code at page 11:

“Where the prosecutor has advised an accused person, or has stated publicly, that no proceedings will be taken he has no power to reverse that decision.”

As of 1st July 2015, “victims” of crime have the right to request a review (i.e. a reversal) of a COPFS decision not to prosecute. However, you can’t review such a decision when COPFS have told the alleged offender (or their lawyer) that they will be no pro-ing the case. It would likely be oppressive to prosecute someone when you have already told them that you won’t. For a high-profile (English) example of how significant this sort of thing can be, see the collapse of the 2014 Hyde Park Bombing Trial.

So, you can hopefully see why COPFS would rather keep their cards close to their chest in the vast majority of no-pro cases. Not great if you’ve been charged with an offence by the police (and released from custody, if they had arrested you), and then…nothing happens.

2. Give you a warning

Letter through the post saying “We have evidence to say you [committed a crime], but on this occasion we are giving you a warning. Don’t do it again pls m8 xx” (paraphrase)

Not a prosecution or conviction, but it will show up on an Enhanced Disclosure check (as well as a list of “non-conviction disposals” that a court would get to see if you’re convicted of a different criminal offence in the next two years).

3. Offer an alternative to prosecution

The basic principle here is “if you comply with this offer, you will not be prosecuted”. This “offer” could be:

  • A Fixed Penalty Conditional Offer (or “a fine” to you and me) that can be from £50 to £300.
  • A Compensation Offer (effectively, a fine that is eventually paid to the victim) of up to £3,000.
  • A Fiscal Work Order (10-50 hours of unpaid work, organised by your local Criminal Justice Social Work Office).
  • A “diversion” to specialist support (e.g. social work, mediation between two parties, drug/alcohol schemes etc)

Here’s an example of what a Fixed Penalty Conditional Offer letter looks like:

Generic_fiscal2

As you can see from the example letter above, a guarantee is given that you will not be prosecuted if you accept the offer. Silence (i.e. not replying to the letter) is deemed to be acceptance of the offer.

In all of the four cases listed above, you can refuse the offer (either by filling in a form that comes with the offer letter, or by failing to turn up at your unpaid work/diversion appointments). If you do, COPFS will probably take the view that they have no option but to…

4. Prosecute you

See you in court.