The following passage details public prosecution in Scotland and was replicated from chapter 10 of a book titled 'Policing Scotland' which was published by 'Willan Publishing' and written by Dale McFadzean and Kenneth Scott.

It has particular relevance to the plight of R Hill & Co in that it details the structure of the prosecution services in Scotland and highlights how and why that structure allowed the Procurator Fiscal, David Howdle to steal the cattle and subsequently evade his own prosecution.

Public prosecution in Scotland

Public prosecution in Scotland is carried out by the Crown Office and Procurator Fiscal Service (COPFS). This is a department of the Scottish Executive. The head of the prosecution service is the Lord Advocate, assisted by the Solicitor General for Scotland . However, the day-to-day running of the service is devolved to the procurators fiscal. There are 48 procurator fiscal's offices which are organised into six regions corresponding to the six sheriffdoms in Scotland.

This structure is not unproblematic because of the nature of the appointments to the posts of Lord Advocate and Solicitor General, which are made by the First Minister as part of the Scottish Executive. In that sense, they are political appointments. The Lord Advocate sits as a member of the Scottish Cabinet and is expected to provide legal advice as required as well as running a department of the government. While such appointments will tend to be filled by lawyers who are not unsympathetic to the governing party of the day, they tend not to be active politicians or Members of the Scottish Parliament. However, undoubtedly the manner of appointment and duties of the law officers lie somewhat uneasily with the independent nature of the prosecution service, especially when law and order is seen as a high-profile political issue.

Unlike the police, the functions and responsibilities of the Crown Office and Fiscal Service cannot be found in any statutory form. Instead, they are based upon historical custom and practice, all derived from the authority of the Lord Advocate. The Service is reponsible for conducting prosecutions at all levels of court. However, the decision on whether or not to prosecute in the first instance is taken by the local procurator fiscal. In this respect, the fiscal is a crucial part of the criminal justice process. The Scottish system thus differs from that in England and Wales in that the police have never been involved in deciding on prosecutions. The fiscal makes the key decisions whether or not to prosecute; in which court the prosecution will take place; and what type of procedure - summary or solemn, i.e. with or without a jury - will be followed (Jones and Christie 2003). The debate in England about the right to trial by jury does not apply in Scotland. That is a decision made by the prosecutor, largely on the basis of the seriousness of the crime. It would be unusual for a murder trial to be tried without a jury. Equally, it would be unlikely that a case involving, say, breach of the peace would be tried under solemn jurisdiction. However, in Scotland there is no 'right' to a jury trial.

Procurators fiscal also have powers to adopt alternatives to prosecution, including issuing fiscal fines and referring accused persons to social-work agencies for supervision, to health bodies for psychiatric or addiction treatment and an increasingly wide range of disposals. Under the Criminal Procedure ( Scotland ) Act 1995, the fiscal is also formally in charge of the investigation of crimes and is statutorily authorised to direct the police as to the reporting and investigation of offences. The creation of a Crown Prosecution Service (CPS) south of the border has moved some way towards this approach. However, as a more recently developed organisation, the dynamic of the CPS's relationship with the police is probably less clearly established than is the relationship between the fiscal and the police in Scotland .

The Crown Office and Procurator Fiscal Service is the sole public prosecution authority in Scotland . The Lord Advocate is responsible for prosecuting the most serious crimes in the High Court of Justiciary. However, with the exception of important or high-profile cases, such as the trial of those accused of committing the Lockerbie bombings held at Camp Zeist in the Netherlands , the actual prosecutions are led by advocates depute, known collectively as crown counsel. These experienced advocates take the decisions on whether to prosecute serious crimes such as murder, rape and armed robbery. They do so based on a report prepared by the police for the procurator fiscal, who will have made a recommendation on whether or not there is sufficient evidence to indicate that there is a case to answer.

The decision on whether to start criminal proceedings rests purely with ithe COPFS, whether or not a person has been arrested or charged by the police. There is a long-established practice that the Crown does not have to give any reasons for their decision to prosecute in any individual case or not. There is no law in Scotland which says that a crime must be prosecuted and the public prosecutor has considerable discretion over what action to take.

In the performance of their duties, procurators fiscal and staff of the Crown Office have regular contact with the police and the courts, as well as the wider legal community. The work of the Fiscal Service, in particular, has been subject to review by a Quality and Practice Review Unit. In the wake of a number of highly publicised cases, such as the Chokar case, in which the performance of the Fiscal Service was strongly criticised on both procedural and racial grounds, a new independent Inspectorate of Prosecution has been created, similar to those that exist for the police, prisons, social work and education (Scottish Executive 2004b). This Inspectorate does not investigate individual cases, but is concerned with the work of the prosecution service overall. Not surprisingly, the first area to be reviewed by the new Inspectorate is concerned with racial issues in prosecution.