Written evidence submitted by the Lord Advocate (SDC0013)

Role of the Lord Advocate

The Lord Advocate is the senior of the two Scottish Law Officers. She is a Minister in the Scottish Government and the holder of a historic office which has a range of functions associated with the maintenance of the rule of law and the proper administration of justice. The Lord Advocate’s role has four main components.

Firstly, she is head of the systems for the prosecution of crime and investigation of deaths in Scotland. Section 48(5) of the Scotland Act 1998 expressly recognises that the Lord Advocate continues to exercise these functions independently of any other person, including other Ministers in the Scottish Government. That statutory requirement reflects the well-established constitutional and international principle of prosecutorial independence. The Scotland Act makes other special provision for the role of the Lord Advocate – it is outwith the legislative competence of the Scottish Parliament to remove her from her positions as head of the systems of criminal prosecution and the investigation of deaths (s.29(2)(e)).

Secondly, she is a member of the Scottish Government and is its principal legal adviser; as such she is not a member of the Cabinet but sees Cabinet papers and attends Cabinet meetings when required. It is a fundamental part of the Lord Advocate’s role to ensure that the Scottish Government acts lawfully at all times and she has the ultimate responsibility for advising the Scottish Ministers on all matters relating to the law of Scotland. This encompasses providing legal advice on the full scope of the Scottish Government’s responsibilities, policies and legislation, and includes specific responsibilities in relation to the legislative competence of the Scottish Parliament’s legislation.

Thirdly, the Lord Advocate represents the Scottish Government in civil proceedings, and fourthly, she represents the public interest in a range of statutory and common law civil and constitutional functions, including advising the Privy Council, of which she is a member, in relation to certain charters. 

The Lord Advocate is appointed by His Majesty the King, on the recommendation of the First Minister with the approval of the Scottish Parliament. Unlike other Ministers however, she cannot be removed from office by the First Minister, without the approval of the Parliament (s.48(1)). The current Lord Advocate, like her three immediate predecessors, is not a politician, and is not a member of a political party.

As head of the systems for the prosecution of crime and investigation of deaths in Scotland

The Lord Advocate has had universal title to prosecute crime in Scotland since 1587. Overall responsibility for the investigation and prosecution of crime in Scotland rests with the Lord Advocate, as it did before devolution (and, indeed, before the Union of 1707). This applies to all criminal offences irrespective of whether they come within devolved or reserved areas of law.

The system for which the Lord Advocate is responsible includes the work done by Advocate Deputes[1], Procurator Fiscals [2] and their deputes, and all the staff of the Crown Office and Procurator Fiscal Service (COPFS). Furthermore, in Scotland, in relation to the investigation of crime the police act subject to the direction of the public prosecutor and are bound, except in narrow circumstances, to report offences the Procurator Fiscal.

Powers

In her role as the head of the systems of prosecution of crime and investigation of deaths, the Lord Advocate may issue prosecution policies. Prosecution policy determines the approach taken by prosecutors to different types of criminal offences.

The Lord Advocate has a statutory power (the Criminal Procedure (Scotland) Act 1995 and the Police and Fire Reform (Scotland) Act 2012) to issue directions to the police about the reporting of alleged offences to the Crown.

While the Lord Advocate may issue instructions and guidance to the police and prosecutions policies, which police and prosecutors must apply when exercising their functions, she cannot make something lawful which Parliament has determined is unlawful; nor can she decriminalise conduct which the law (whether the common law or statute law) characterises as criminal.

It is not open to the Lord Advocate to issue a wide- ranging immunity from prosecution in advance of the conduct taking place.

It is, however, open to the Lord Advocate to issue a statement of prosecution policy. Any statement of prosecution policy would not represent immunity from prosecution.  Rather, it would represent a statement of the way that the public interest considerations relevant to a specifically prosecutorial decision (which are identified generally in the Scottish Prosecution Code) would fall to be applied by prosecutors in a particular, limited and readily identifiable context.

Timeline

2017

On 16 June 2017, the then Lord Advocate James Wolffe KC was asked by the Glasgow City Health and Social Care Partnership to confirm (by way of guidelines, letters of comfort, protocols, or a formal policy) that the health board, the council, their staff, partner organisations and their staff and service users of a proposed Safe Drug Consumption Facility (SDFC or ‘the facility’) would not be prosecuted for a range of potential offences.

The scheme that the then Lord Advocate James Wolffe KC was previously asked to consider by the Glasgow Health and Social Care Partnership would not have been capable of being met by a limited and targeted statement of prosecution policy.  That proposal involved the request for immunity from prosecution for a wide range of offences committed by both users, operators, and staff, up to and including culpable homicide. There was also a request that the Lord Advocate permit a tolerance by police officers of those found in possession of drugs claiming to be on the way to the facility. 

Though the then Lord Advocate recognised the serious public health concern motivating the proposal it was not open to the then Lord Advocate to grant such wide-ranging immunity.

2019

 The then Lord Advocate James Wolffe KC gave evidence to the Scottish Affairs Committee Inquiry into Problem Drug Use in Scotland in relation to the specific proposal he had been asked about.

2021

On 22 September 2021 the Lord Advocate made a statement to the Scottish Parliament in relation to the extension of the Recorded Police Warning scheme to cover all classes of drug.  In response to question from parliamentarians, the Lord Advocate confirmed that: “Any future proposal would have to be considered on its specific merits. I would be prepared to consider any such future proposal, but it would have to be specific and underpinned by evidence, and it would require fresh consideration.”

In the course of giving evidence to the Justice Committee on 3 November 2021, the Lord Advocate stated in response to questioning: “if there was a proposal for drug consumption facilities that was precise, detailed and specific, underpinned by evidence and supported by those who would be responsible for policing such a facility, and by Police Scotland, and if there was careful consideration in and around how those consumption rooms would impact on communities, it could be brought to the Lord Advocate.”

2022

On 22 June 2022, following a period of engagement with COPFS officials, Scottish Government officials intimated a formal request from those working on the Glasgow proposal (the “Proposers”) for a safe drugs consumption facility (SDCF), that the Lord Advocate consider a statement of prosecution policy, which, “would set out that it would not be in the [public interest] …  to prosecute individuals for the possession of illegal substances within the confines of the described SDCF facility”. 

As above, prosecution policy is independently determined by the Lord Advocate on the basis of the public interest.  The assessment of the public interest takes into account a range of factors which are identified generally in the Scottish Prosecution Code. The weight to which will depend on the particular offence and circumstances under consideration.

In order to publish prosecution policy, it  must be clear and accessible to the public, and should not, or should not be likely to, substantially prejudice the prevention or detection of crime and the apprehension and prosecution of offenders.  Further information was sought following the submission of the initial proposal particularly in relation to proposed community engagement and the approach that Police Scotland would take to policing the facility.

2023

On 11 September 2023, the Lord Advocate wrote to the Proposers and the Scottish Parliament’s Cross Committee on Tackling Drug Deaths and Drug Harms confirming that: were a safer drugs consumption facility, of the type described in the documents provided by the Proposers, to open as a pilot in Glasgow, then the Lord Advocate would be prepared to publish a statement of prosecution policy to the effect that it would not be in the public interest to prosecute users of that facility in terms of section 5(2) of the Misuse of Drugs Act 1971 for simple possession offences committed within the confines of the facility. 

2024

Construction on the SDCF building began in March 2024 and continued throughout 2024. Throughout this period, regular meetings were held between the Proposers, Police Scotland and other relevant stakeholders to discuss the building’s progress and readiness for opening. During this time, COPFS officials and Police Scotland representatives continued discussions on the terms of draft Lord Advocate’s Guidelines to the police and a draft statement of prosecution policy.  

2025

At the beginning of January 2025, the Proposers confirmed that the SDCF building was ready to open.  

The statement of prosecution policy was published and associated Lord Advocate’s Guidelines were formally intimated to Police Scotland on 9 January 2025.  

The facility opened to users on 13 January 2025.

The statement of prosecution policy and how this works in practice

The statement of prosecution policy published in January 2025 confirms that it would not be in the public interest to prosecute an individual attending the SDCF for an offence in terms of section 5(2) of the Misuse of Drugs Act 1971, when the controlled substance is intended for personal consumption and only applies to cases where the controlled substance is recovered within the facility, for the duration of the pilot.

As is set out in the Lord Advocate’s Guidelines in relation to the reporting of offences detected within the Glasgow Health and Social Care Supervised Drug Consumption Facility  where the police do detect a possession offence and seize a suspected controlled substance, they will submit a report for advice and direction to the Procurator Fiscal. The Procurator Fiscal or their deputies will consider the report and apply the prosecution policy.

If there is any other alleged offending, including other section 5(2) possession offences detected outwith the footprint of the facility, they should be dealt with by normal processes.

April 2025