Historical Development of the Office of Procurator Fiscal
The origin of the office and even the derivation of the term "procurator fiscal" are rather obscure. The first document reference appears in the Records of the Scottish Parliament for 22 August 1584, naming several procurators fiscal in Edinburgh.
The fiscal was the servant of the sheriff, and the sheriff appointed him. His responsibilities appear to have included the collection of fines, and then in due course assisting the sheriff in criminal proceedings. Until the Sheriff Courts (Scotland) Act 1876, the procurator fiscal was not involved
in principal with the preliminaries to prosecution such as handling criminal complaints or examining witnesses, but in fact as early as 1701 the fiscal is described in legislation as the "pursuer of criminal cases" in the sheriff court. In practice, by the early nineteenth century, the sheriff appointed the procurator fiscal as the public prosecutor. The procurator fiscal dealt with the majority of prosecutions, except for the District Courts where local magistrates appointed their own prosecutors until 1975.
Until the end of the nineteenth century the fiscal continued to be appointed by the sheriff (with the consent of one of Her Majesty's Principal Secretaries of State), and was appointed for life (unless his behaviour was unsuitable). In 1907 the Sheriff Courts (Scotland) Act vested the right of appointment of procurators fiscal to the Sheriff Courts in the Lord Advocate.
During the period in which the office of procurator fiscal developed, the office and authority of the Lord Advocate in Scotland was also expanding. The Lord Advocate's office is concerned with the prosecution of serious crime. By the nineteenth century it became necessary for the Lord Advocate to appoint practising advocates, called advocates depute, to assist him in conducting cases in the High Court of Justiciary. He also established an office in Edinburgh to provide support for himself and the advocates depute. This office, the Crown Office, also became the link between the Lord Advocate and the procurators fiscal, who were now under his immediate control, and could be appointed and removed by him. There was now a more unified structure for prosecuting crime. The advocates depute (collectively known as crown counsel) were authorised to issue recommendations to the procurator fiscal in serious cases of crime meriting trial by jury.
By the end of the nineteenth century, the Crown Office was firmly established as the administrative centre. Fiscals provided statistical returns to Crown Office, and guidance circulars, and directions from the Lord Advocate were amalgamated in the "Book of Regulations" - the fiscal's bible. The office of Crown Agent was established at the beginning of the nineteenth century, and the holder of this post is the head of the fiscal service, an advisor to the Lord Advocate and Solicitor General, and is in charge of administrative matters at Crown Office.
In 1927 the Sheriff Court and Legal Officers (Scotland) Act established a corps of public officials, procurators fiscal who are appointed on a full time basis and are members of the Civil Service.
Bibliography:
Susan R Moody and Jacqueline Tombs - Prosecution in the Public Interest , Scottish Academic Press, 1982