Protocol regarding the exercise of criminal jurisdiction in Scotland between the Lord Advocate and the Director of Service Prosecutions

1.1    This protocol (“the protocol”) has been agreed between the Lord Advocate and the Director of Service Prosecutions (DSP) pursuant to section 320B of the Armed Forces Act 2006 (AFA 2006). 

1.2    The primary purpose of the protocol is to provide guidance for relevant prosecutors regarding the exercise of jurisdiction in respect of conduct of a person, subject to Service law¹, which occurs when that person is in Scotland and constitutes an offence under the law of Scotland (as specified in section 320B(2) AFA 2006) in cases where:

1. the alleged conduct also constitutes an offence under section 42 AFA 2006 (criminal conduct), or 
2. the person could, on the same facts, be charged with an offence under section 42 AFA 2006 which is broadly equivalent to the offence under the law of Scotland (section 320B(3) AFA 2006).

This protocol identifies principles which are to be considered when deciding the appropriate jurisdiction in which to bring proceedings. In the civilian system, jurisdiction in the context of this protocol refers to matters of criminal law which fall within the jurisdiction of the Lord Advocate in Scotland, including decision making in respect of both the investigation and prosecution of crime. 

1.3    In addition, it is agreed between The Lord Advocate and the DSP that the guidance and principles in this protocol will apply to cases of concurrent jurisdiction where the alleged conduct has occurred outside Scotland in a location where a Scottish Court would have jurisdiction.

1.4    The Lord Advocate and the DSP have consulted with the Secretary of State, the Chief Constable of Police Scotland and other consultees in accordance with section 320B(8) AFA 2006 before agreeing the protocol.

1.5    The protocol replaces all previously published guidance relating to the exercise of concurrent jurisdiction and will be published on the Crown Office and Procurator Fiscal Service (COPFS) and the Service Prosecuting Authority (SPA) websites when it has been signed by the parties.

1.6    This protocol recognises the constitutional position of the Lord Advocate, who is the head of the system of criminal prosecutions in Scotland and has sole jurisdiction for the investigation of all sudden and suspicious deaths occurring in Scotland.

2.1    Initial decisions regarding jurisdiction are likely to be made by the police force(s) investigating the alleged conduct. Accordingly, the protocol is intended to complement any corresponding guidance issued to and by Police Scotland and the Service Police. 
 
2.2    Where a relevant prosecutor² is consulted about an investigation and made aware that the alleged conduct falls within the terms of section 320B(2) AFA 2006, the prosecutor will be responsible for deciding on the appropriate jurisdiction in accordance with the principles set out in section 3 and, where relevant, the procedures set out in sections 4 and 5 of this protocol. It is the duty of a relevant prosecutor to keep the issue of jurisdiction under review and to reconsider the question of jurisdiction in the event of a significant change of circumstances.

2.3     In cases requiring mandatory consultation under section 4 of this Protocol, relevant prosecutors should satisfy themselves that the police force conducting the investigation has provided details of the investigation to the appropriate police force in the other jurisdiction (service or civilian).

2.4     A decision as to jurisdiction should be made at the earliest reasonable opportunity and, in all cases, before criminal proceedings³ have commenced⁴. After proceedings have commenced, cases should only be transferred between jurisdictions in exceptional circumstances (see paragraph 3.8 below).

2.5     Where police seek advice from prosecutors prior to bringing charges, and additional investigation is required prior to a decision being made in respect of the appropriate jurisdiction for criminal proceedings, a consultation between the relevant prosecutors within COPFS and SPA shall take place at the earliest opportunity. The consultation should address which police force should carry out any necessary investigatory work and which prosecutor should instruct and monitor these. Where COPFS instructs further enquiries, these will be carried out by Police Scotland. The relevant service and civilian prosecutors will continue to communicate as necessary until a final decision on jurisdiction can be made by applying the terms of the joint protocol. 

2.6    Where a relevant prosecutor is responsible for making a decision in accordance with paragraph 2.2 above, the prosecutor will make a record of the decision as to jurisdiction,  the basis for the decision, and any note of consultation or discussion made in accordance with paragraph 4.5 or paragraph 5.3.6 below, at the conclusion of the relevant procedure.

3.1    Decisions regarding jurisdiction are to be approached on a case-by-case basis.

3.2    The overriding principle is to promote fair and efficient justice, as specified in s.320B(5) AFA 2006. This will include support for the effective participation of victims, witnesses, suspects and defendants, to ensure public confidence in both the civilian justice system and the service justice system.

3.3        Without prejudice to the generality of the overriding principle, the main principles to be applied when deciding in which jurisdiction proceedings should be brought are:

3.3.1    Proceedings relating to alleged conduct which affects the person or property of a civilian⁵ should ordinarily be brought in the civilian jurisdiction.

3.3.2    Subject to paragraph 3.3.3, proceedings relating to alleged conduct which does not affect the person or property of a civilian should ordinarily be brought in the service jurisdiction.

3.3.3    Proceedings relating to alleged conduct brought jointly against a person subject to service law and one or more civilians should ordinarily be brought in the civilian jurisdiction.

3.4    In addition to the main principles contained in paragraph 3.3, relevant prosecutors should also consider the following non-exhaustive list of factors when deciding the appropriate jurisdiction in accordance with the overriding principle. Prosecutors should identify any relevant factors and give the appropriate weight to each factor, depending on the particular facts and circumstances of the case. The order in which the factors are set out below is not intended to convey their relative importance.

3.5    Factors which may favour either jurisdiction

3.5.1    Whether the conduct is alleged to constitute or form part of a pattern of offending which includes conduct that should ordinarily be dealt with in either the civilian or service jurisdiction; but where the pattern of offending includes conduct that would ordinarily be tried in the civilian jurisdiction and separate conduct that would ordinarily be tried in the service jurisdiction, this would tend towards proceedings being brought in the civilian jurisdiction. 

3.5.2    Whether there are linked proceedings or allegations which have been brought or made in either the civilian or service jurisdiction.

3.5.3    The suite of special measures available in each jurisdiction: although measures to achieve best evidence are available in both jurisdictions, there are differences between them explained in guidance issued jointly by COPFS and SPA to which prosecutors should have regard, particularly if there are child suspects, witnesses or victims.

3.5.4    The availability of different sentencing powers and ancillary orders within the service and civilian jurisdictions, for example:

• service detention (which involves retraining), dismissal from His Majesty’s Armed Forces, and reduction in rank are sentences available in the service jurisdiction;  
• the ability of civilian courts to impose non-harassment orders upon conviction, or acquittal in certain circumstances. A non-harassment order is an order requiring the person to refrain, for such period (including an indeterminate period) as may be specified in the order, from such conduct in relation to the victim as may be specified in the order;
• the ability of the High Court, in the civilian jurisdiction, to make an Order for Lifelong Restriction (OLR);
• the service jurisdiction does not have power to make confiscation orders under the Proceeds of Crime Act 2002, nor to impose Hospital Orders and associated orders under the Mental Health Act 1983, unless the offender has been found unfit to stand trial.

Note that sentencing powers and ancillary orders in relation to allegations involving children, domestic abuse, sexual offences and child abuse, that tend to favour the civilian jurisdiction, are referenced at 3.6.2.

3.5.4    Any views expressed by a victim⁶ or any relevant witness who has been impacted by the behaviour, including any relevant child. On receipt of a case, prosecutors should seek assurance from the police that any adult victim has been asked whether they have a view on jurisdiction.

3.5.6    Whether any initial decisions made as to which police force should investigate the alleged conduct align with the guidance in this Protocol and whether those decisions were made in accordance with relevant police guidance.

3.6    Factors which tend to favour the civilian jurisdiction

3.6.1    The obligations upon the UK as state party of the United Nations Convention on the Rights of the Child 1989 (UNCRC) where the accused and/or the victim or witness is a child, (aged under 18 years old). The best interests of the child should be treated as a primary consideration and be given appropriate weight, along with other relevant considerations such as:

• whether the best interests and welfare needs of the child require a multi-agency approach, which may be more difficult to achieve in the service jurisdiction;
• the availability of diversion from prosecution and out-of-court disposals in the civilian jurisdiction and;
• the range of sentences available in the civilian jurisdiction, such as, for example, non-harassment orders, referral to the Scottish Children’s Reporting Administration and specialist programmes designed to tackle future offending. 

3.6.2    Considerations that may be particularly relevant in cases involving reports of domestic abuse, sexual violence, or child abuse including, for example:

• whether the needs of the victim or any witness who has been impacted by the behaviour, including any relevant child, require a multi-agency approach, which may be more difficult to achieve in the service jurisdiction;
• the availability of dedicated courts dealing with domestic abuse cases in the civilian jurisdiction;
• the capacity for the civilian jurisdiction to exert both cross border jurisdiction in an offence which has a connection to Scotland and to exert extra-territorial powers in cases where none of the offending or harm took place in Scotland, for example Domestic Abuse (Scotland) Act 2018 section 1 offending or sexual offending including against children: the effect of these provisions is that in some cases a broader range of offending behaviour can be prosecuted than would be the case in the service jurisdiction⁷;
• the legislative provision in the civilian jurisdiction [Domestic Abuse (Scotland) Act 2018 section 1] allowing the prosecution of a single offence of a course of conduct, encompassing physical, emotional, psychological and economic abuse without the need to demonstrate that the course of conduct had a serious effect on the victim.
• the availability and nature of out-of-court disposals available in the civilian jurisdiction, such as, for example, a diversion to the Local Authority’s social work department in appropriate circumstances;
• the range of ancillary and civil orders available within the service and civilian jurisdictions noting, for example, that non-harassment orders are not available in the service jurisdiction and although there is a power to impose a service restraining order under the Armed Forces Act 2006, an order cannot be imposed should the person be dismissed from or no longer serving in the armed forces; nor is there power to enforce an existing service restraining order should the person leave or be discharged from the armed forces during the currency of the order;
• where a victim at any stage has not engaged with service police, or has indicated that they do not wish any particular individual within the services or the wider service community to become aware of alleged offending behaviour, including where there are concerns that the victim’s engagement is being effected by concerns over the suspect’s status or influence in the service community, particularly in cases relating to allegations of coercive or controlling behaviour or abuse of power or trust.

3.7     Factors which tend to favour the service jurisdiction

3.7.1    Whether the conduct is alleged to constitute or form part of a pattern of offending, other than serious sexual offending or serious domestic abuse, which includes conduct that occurred outside Scotland, noting that the service courts have jurisdiction for offences committed by persons subject to service law anywhere in the world, whereas the extraterritorial jurisdiction of the civilian courts is limited to particular offences.

3.7.2    The ability of the DSP to charge disciplinary offences under the AFA 2006, which are not available to the Lord Advocate, for example, offences in relation to insubordination, property offences, offences against service justice, and offences involving neglect of duty and misconduct, including conduct prejudicial to good order and discipline, fighting or threatening behaviour, ill-treatment of subordinates and disgraceful conduct of a cruel or indecent kind.

3.7.3    Whether the conduct, if established, would be viewed more seriously within the service jurisdiction because of the service context, for example, because it may undermine the maintenance of discipline or the operational effectiveness of the armed forces.

3.7.4     The ability of the service police to deploy rapidly to conduct certain investigations outside the UK, particularly when suspects and/or witnesses may be outside the UK.

3.7.5    The power of the DSP to refer cases involving certain criminal conduct offences (for example, assault) to the Commanding Officer (CO). If the DSP refers a case to the CO, the CO has various powers, which include bringing a charge capable of being heard summarily, taking administrative action or taking no action, which may provide for a more timely and efficient manner of dealing with a case. Note that, in some circumstances, a Commanding Officer has powers of punishment up to 28 days’ detention, which may be extended to 90 days’ detention with approval from Higher Authority. In all cases an accused person may elect for trial in the Court Martial rather than being tried summarily  before their Commanding Officer, or may appeal to the Summary Appeal Court after the event.

3.7.6    The requirement for corroboration before certain offences can be prosecuted in the civilian system. 

3.8    There is no legal mechanism to transfer a case between jurisdictions after criminal proceedings have commenced against an accused, and there are inherent risks and difficulties in discontinuing proceedings in one jurisdiction and re-commencing them in another. Accordingly, any decision to change jurisdiction after criminal proceedings have commenced should not be made unless there are exceptional circumstances and then only with the joint approval of COPFS and the DSP, in accordance with paragraph 5.3.5 below.

4.1     There should be consultation between the relevant prosecutors within the COPFS and the SPA regarding the appropriate jurisdiction for proceedings, whether the person affected is a civilian or member of the armed forces, in all cases involving:

4.1.1    an allegation of an offence of:

1. Homicide (Murder);
2. Culpable Homicide;
3. Attempted murder;
4. Serious assaults that result in “permanent disfigurement”, “permanent impairment” and/or “danger to life”;
5. Deaths due to road traffic collisions;
6. Deaths where an offence under the Health and Safety at Work etc Act 1974 may have been committed;
7. Assaults that involve overtones of sexual behaviour;⁸
8. Sexual offending;⁹
9. Criminality resulting in death;
10. Child abuse;
11. Domestic abuse including coercive control, violence or the threat of violence, or a background of unreported allegations/offending.

4.1.3    a suspect or accused who is under 18 years of age and is being considered for prosecution.

4.2     In coming to a decision on the appropriate jurisdiction for proceedings, relevant prosecutors should have regard to the principles contained in section 3 of this protocol.

4.3    All decisions on the appropriate jurisdiction for these offences should be made within COPFS by a prosecutor at the level of Principal Procurator Fiscal Depute or higher, and either a Managing Prosecutor (MP), RASODA Lead (RL) or the Deputy Director of Service Prosecutions (DDSP) at the SPA.

4.4     Where agreement cannot be reached and there is an issue as to jurisdiction, consultation should take place between the relevant Procurator Fiscal¹⁰ and the Deputy Director of Service Prosecutions (DDSP) at the SPA, in accordance with paragraph 5.3.4 below.

4.5    A note should be made of any consultation that takes place in accordance with the provisions of this section, which should be sent to the relevant prosecutor responsible for making the record of decision under paragraph 2.4.

4.6      When cases are being referred to COPFS by the SPA, they should be reported in the first instance to the Deputy Crown Agent’s Legal Assistants, who will pass the cases to the relevant operational team¹¹. 

5.1    It is expected that, in most cases, the relevant police force(s) will have applied their guidance relating to concurrent jurisdiction by the time a relevant prosecutor is first made aware of the investigation by the police. However, a relevant prosecutor, who becomes aware that the alleged conduct being investigated falls within section 320B(2) AFA 2006, should always consider whether proceedings have been, or are intended to be, brought in the appropriate jurisdiction.

5.2     Where a relevant prosecutor has not been consulted by a police force, but nevertheless becomes aware of a case in which there may be an issue as to jurisdiction, the prosecutor should consult with and advise the police force and, if necessary, apply the procedure at paragraph 5.3.  The relevant prosecutor should seek all material and information from the investigating police force that is relevant to the issue of jurisdiction.

5.3    Whereas the majority of cases are investigated by the most appropriate police force, and proceedings brought in the most appropriate jurisdiction, where a relevant prosecutor considers there may be an issue as to the appropriate jurisdiction, the following procedure will apply:

5.3.1    A member of legal staff within the COPFS will report the circumstances to Crown Counsel (CC) and seek instruction regarding the appropriate jurisdiction. Once instruction is given, the member of legal staff, where appropriate, will initiate discussions with someone at the level of MP or RL at the SPA.

5.3.2    A relevant prosecutor within the SPA will notify someone at the level of MP or RL at the SPA, who will consider the issue and, where appropriate, will initiate discussions with a member of legal staff within the COPFS.

5.3.3    The purpose of the discussions referred to at paragraphs 5.3.1 and 5.3.2 above will be to resolve the issue as to which jurisdiction is appropriate in the circumstances, having regard to the principles contained in section 3 of the protocol.

5.3.4    Where agreement cannot be reached, the issue will be discussed between the relevant Procurator Fiscal and the DDSP within the SPA.

5.3.5    If there is still no agreement, or the issue as to the appropriate jurisdiction has arisen after criminal proceedings have commenced, the relevant Procurator Fiscal will seek instructions from Crown Counsel who make decisions on behalf of the Lord Advocate. The relevant Procurator Fiscal will then discuss with the DSP and agree the appropriate jurisdiction. If they cannot reach an agreement, the final decision on the appropriate jurisdiction will be made by Crown Counsel on behalf of the Lord Advocate. 

5.3.6    A note should be made of any discussion that takes place in accordance with the provisions of paragraph 5.3, which should be sent to the relevant prosecutor responsible for making the record of the decision under paragraph 2.4.

6.1    The protocol will be reviewed, when necessary, by COPFS and DSP and, in any event, at least once every two years from the date on which the protocol is signed.

(1)    On behalf of the Crown Office and Procurator Fiscal Service:

Rt Hon Dorothy Bain K.C. (Lord Advocate)      Dated:

(2)      On behalf of the Service Prosecuting Authority:

Mary Cowe (Director of Service Prosecutions)  Dated: