Scotland's Place in Europe: security, judicial co-operation and law enforcement

Chapter Two: How Scotland is different from the rest of the UK

1. Scotland is one of three separate legal jurisdictions ^[6] which comprise the UK. As a leading case puts it ^[7] , the systems of criminal law of Scotland on one hand and England and Wales on the other are -

"as distinct from each other as if they were two foreign countries"

2. Scotland has its own court system and its own single agency prosecution system and law enforcement agencies. Scotland's distinctiveness as a legal jurisdiction was expressly preserved by the Acts of Union ^[8] and its separate criminal justice system accordingly long pre-dates devolution and the UK's membership of the European Union ( EU).

3. Justice policy matters are within the responsibility of the Scottish Parliament and Scottish Government although some specific areas of justice, for example extradition and terrorism, are reserved to the UK Parliament. EU law currently applies throughout the UK but different approaches may be taken to the implementation of this law in different jurisdictions. Within its area of responsibility, the Scottish Parliament scrutinises, transposes and implements EU legislation and decisions of the Court of Justice of the European Union ( CJEU) which affect Scotland. When the EU issues a Directive on a subject within the Scottish Parliament's area of responsibility, it is, in the first instance, for the Scottish Government, accountable to that Parliament, to decide how the Directive should be implemented in Scotland. As a result, over the past 40 years of EU membership, EU law has become woven into the fabric of Scots law.

4. The Lord Advocate is constitutionally responsible for the investigation and prosecution of crime in Scotland. The office of Lord Advocate long predates the formation of the UK – and the Lord Advocate has had universal title to prosecute crime in Scotland since 1587. Since devolution, the Lord Advocate has been one of the Ministers of the Scottish Government ^[9] but exercises prosecutorial functions independently of any other person ^[10] , including the Scottish Government and the UK Government.

5. As part of that independent function, the Lord Advocate is ministerially responsible for the Crown Office and Procurator Fiscal Service ( COPFS), the sole public prosecution service in Scotland. COPFS operates entirely independently of, and separately from, the other UK prosecution services. As in other parts of Europe - but by contrast with the position in other parts of the UK - in Scotland, the investigation of crime by the police is subject to direction by the public prosecutor.

6. The Lord Advocate also has specific statutory functions in relation to cross border criminal justice co-operation which cuts across reserved areas, for example:

• Under the Extradition Act 2003 to represent requesting States and territories in extradition proceedings in Scotland; and
• Under statutory provisions governing mutual legal assistance ^[11] both within the EU and beyond as the competent authority dealing with outgoing and incoming requests for mutual legal assistance.

International co-operation matters for COPFS are handled by a specialist unit, the International Co-operation Unit ( ICU), established in 2004. The ICU serves as Scotland's central authority for International Letters of Request (documents requesting Mutual Legal Assistance ^[12] ) and European Investigation Orders (see below). As such, the ICU operates as far as possible as a single point of contact, both for criminal justice agencies in foreign jurisdictions seeking assistance in Scotland, and for Scottish prosecutors and law enforcement agencies seeking assistance from counterparts in foreign jurisdictions.

7. In Scotland we have a single national police service, Police Scotland, which is the second largest police service in the UK. One of the advantages of having a single police service is the operational capability it can bring to bear in areas such as serious and organised crime. In 2014 the Scottish Government opened the Scottish Crime Campus ( SCC), at Gartcosh in North Lanarkshire, which houses staff from all the relevant agencies involved in dealing with serious crime in Scotland including Police Scotland, COPFS, the National Crime Agency and Her Majesty's Revenue and Customs. Co-location on a single site has improved information sharing and practical co-operation between agencies without compromising individual operational independence and integrity and has ultimately led to more multi-agency cross border investigations and prosecutions. Co-location of law enforcement and prosecutors at the Scottish Crime Campus has also increased early engagement with Europol and Eurojust.

8. Police Scotland has established a single International Assistance Unit ( IAU) based at the SCC providing a centre of expertise for international enquiries and intelligence sharing, including provision of specialist advice and support to police officers at a local level, the tracing of fugitives abroad and the collection and removal of individuals extradited to and from Scotland. The IAU works closely with the ICU of COPFS.

9. Co-operation in criminal justice, security and law enforcement is vital. Law enforcement agencies have always had to address cross-border crime – where a person commits a crime in one jurisdiction and flees to another, or where evidence needs to be obtained from another jurisdiction. Today, our law enforcement agencies and prosecutors have to deal with cybercrime, terrorism, trafficking in illicit goods (including drugs and firearms) and in people, as well as serious organised crime, which increasingly has an international dimension. Within the EU, we benefit from legal rules and practical arrangements which facilitate co-operation in tackling transnational criminality, and Scotland's police, prosecutors and courts have direct connections with their counterparts in other Member States which facilitate co-operation.