Practice statement on notification and information sharing in significant cases with constitutional office holders

This practice statement formalises the arrangements for the Lord Advocate, acting as head of the systems of criminal prosecution and investigation of deaths in Scotland, to provide notification or share information concerning cases to constitutional office holders, including government ministers and parliamentary office bearers in Scotland and the United Kingdom.  In doing so, it builds on the long-standing approach, pre-dating the Scotland Act 1998, by which the Lord Advocates have carried out this function.

The purpose of doing so is to enable those persons to fulfil their constitutional, legal or operational responsibilities and to protect the integrity of criminal proceedings in Scotland.

The practice statement sets out the overarching principles which are applied and provides illustrative but not exhaustive types of notifications or information which the Lord Advocate or Solicitor General or Crown Agent may consider giving in any case or investigation.

Nothing in this practice statement restricts the routine sharing of information by COPFS officials with crown, civil or public servants where such sharing is necessary for the proper discharge of operational responsibilities or official functions.

This practice statement does not relate to the routine sharing of prosecution and death investigation information with the media.  This is done under different arrangements to support public understanding of the work of the Crown Office and Procurator Fiscal Service (COPFS).

This practice statement will be kept under review to ensure it remains accurate and reflects operational practice and legal requirements.

This practice statement is founded upon key principles which are upheld by the Law Officers, Crown Counsel and Procurators Fiscal in every case.

The Lord Advocate is the head of the systems of criminal prosecution and investigation of deaths in Scotland.   The independence of prosecutorial and death investigation decision-making is specifically protected by law.

No one can require the Lord Advocate to institute criminal proceedings or to abandon a prosecution.

Decisions taken by prosecutors in Scotland are made in accordance with the law, the COPFS Prosecution Code and prosecution policy issued by the Law Officers free from political influence and independently of any other person. 

From time to time, it is necessary to share limited information on criminal cases or death investigations with one or more of the Scottish Government, the UK Government or parliamentary authorities in Scotland and the United Kingdom for the purposes of good governance in order that the constitutional office holders can discharge their responsibilities or to protect the integrity and fairness of criminal proceedings. Whether the Law Officers share case information will be a matter for them to determine in accordance with the public interest. 

Where information is shared in the context of this practice statement, doing so neither involves nor implies consultation on, or influence over, prosecutorial decision making. 

While the factors which require to be taken into account in assessing the public interest in notifying constitutional office holders or sharing information with them will vary according to the circumstances of each case, information will be shared only if it is:

• lawful, necessary, and proportionate to do so; and
• the minimum information necessary to enable the recipient to discharge a specific legal, constitutional, or operational responsibility or otherwise to protect the integrity of the investigation or court proceedings. 

All notifications or occasions where information is shared under this practice statement will be appropriately authorised by the Law Officers, or where they are recused in the case in question, by the Crown Agent and Chief Executive of the Crown Office and Procurator Fiscal Service. Both the notification or sharing of information and reasons for that will be recorded. 

The persons to whom the information is provided, the extent of the information and the timing of its provision will depend entirely on the circumstances specific to each case.

The decision to notify or otherwise share information will be informed by an assessment of the public interest in doing so. The factors which require to be taken into account in assessing the public interest will vary according to the circumstances of each case.

The assessment of the public interest will often include consideration of competing interests, and it may may not coincide with what the public or constitutional office holders are interested in. Political sensitivity, media interest, or the public profile of a case are not, of themselves, reasons to notify ministers.

The Lord Advocate will not share evidence, prosecutorial strategy, or material that could compromise an investigation or prejudice court proceedings. 

In deciding whether to make a notification or share information consideration will be given to the following:

1.    What lawful purpose requires notification to that specific person or persons?

Notification will be made and information shared only where there is a lawful purpose in doing so and it is necessary for that specific constitutional office bearer to fulfil their proper functions. 

2.    Why is notification or sharing of information necessary at that particular stage?

Consideration will be given as to why it is, at that specific point in time, the notification or sharing or information is necessary. 

3.    What is the minimum information necessary to achieve the identified purpose?

Only the minimum information necessary to allow the constitutional office holder to exercise their lawful functions or to safeguard the proceedings, for example from the risks presented by prejudicial publicity or contempt of court, will be shared. 

Information shared will ordinarily be high-level and factual in nature, such as the procedural status of the case, court “milestones” or key procedural events, and limited, appropriate contextual facts to ensure that the information shared is properly understood.

4.    What restrictions should apply to onward disclosure?

The notification made or information shared is for the named office bearer(s) only and they may share it only where doing so is essential to the execution of their functions and then only with the most limited number of people to allow that function to be carried out. 

Circumstances where information sharing of the kind described may be necessary, or events which may trigger the need for information sharing include:

• Key procedural milestones in high-profile cases where developments are likely to enter the public domain and there is a heightened risk that Ministers will be asked to comment (for example, when an arrest has taken place or court appearance is scheduled; an indictment is served; a warrant is executed; or a significant hearing is imminent). 
• Contempt of Court where there is a foreseeable risk of prejudicial public comment, including in Parliament, and limited factual context is needed to help officeholders comply with legal restrictions.
• Public safety, resilience, or major incident consequences where a case has exceptional operational impact and limited awareness is required to support lawful government functions (for example, resilience planning or liaison with other administrations).
• National security or sensitive investigations including serious, organised crime, terrorism, or matters involving security, where inappropriate disclosure by others could prejudice proceedings or wider operations or where sharing information is necessary to support lawful government functions.
• International relations or cross-border considerations where sensitive liaison with foreign counterparts or other jurisdictions is required and accurate high-level information is necessary to manage diplomatic or operational implications or to enable the proper exercise of functions relating to formal domestic UK or international co-operation. 
• Systemic or precedent setting implications where a case raises issues with significant implications for the operation of the criminal justice system or potential legislative change, and limited awareness is required for lawful policy consideration (without discussing evidential detail not otherwise in the public domain).
• Post decision transparency in exceptional cases for example, where a decision not to prosecute is likely to prompt consideration of further government action and limited factual clarification is necessary and lawful.
• Procedural transparency for example to confirm the normal practice of the Law Officers recusing themselves in certain cases of operational involvement in prosecutorial decision making in the case or to provide clarity or accuracy or as to procedural actions taken.