History of the office of Lord Advocate
Historical Background to the development of the office of Lord Advocate
The head of the system of public prosecution in Scotland is the Lord Advocate. The Lord Advocate is the Ministerial Head of the Crown Office and Procurator Fiscal Service, and the head of the systems of criminal prosecution and the investigation of deaths. The Lord Advocate's appointment is political and to a limited extent the Lord Advocate's role as public prosecutor can overlap with his role as a minister. The Lord Advocate may therefore change with a change of Executive, but decisions taken by him and on his behalf in respect of criminal prosecution and the investigation of deaths are taken independently of any other person.
The independence of the Lord Advocate is preserved in section 48 of the Scotland Act 1998 and his position as head of the systems of criminal prosecution and death investigation is protected by section 29 of that Act. The early history of the office of Lord Advocate is obscure, but it is plain that it grew out of the necessity for the King to have an advocate to represent him in proceedings both criminal and civil. Hence the original title was 'King's Advocate' or 'King's Majesty's Advocate'. This ancient usage is continued in modern indictments (the written accusation of a serious crime) which run in the name of the Lord Advocate as 'Her Majesty's Advocate'.
There are references on record to a king's procurator-fiscal in 1434 and 1457, and a queen's advocate in 1462. An office of king's advocate dates from 1478 but between 1478 and 1494 there are references to "advocates" (unnamed) and it is only from 1494 that one can be sure that there was a single king's advocate as the normal representative of the king in treason trials and in civil litigation. It was not until 1579-84 that he was known as chief public prosecutor in criminal cases. The first known person to act in this role was John Ross of Montgrenan. In 1476 the King appointed him to be his commissioner for the hearing of a case in Stirling. In 1477 he was appointed by the King to be his procurator for the hearing of a case in Edinburgh. Then on 8 June 1478 he appeared before a court in Edinburgh as advocate for the King. The title of King's Advocate dates from that occasion. But it was probably not until 1494 that there was a single permanent officer of state called the King's Advocate, and it was not until 1587 that his full role as public prosecutor developed.
The Lord Advocate is one of the great officers of state of Scotland. In that capacity he is one of the persons charged with maintaining and protecting the Scottish regalia (the Honours of Scotland). Before the Union he had a seat ex officio in Parliament. Since the Union it has been customary for him to be a member of one of the Houses of Parliament.
Bibiliography
David M Walker - A Legal History of Scotland Volume 2, W Green, 1990
Stair Memorial Encyclopaedia of the Laws of Scotland , Volume 7 and reissue Vol 4, Butterworths-Lexis/Nexis