Procurator Fiscal David Howdle brought criminal proceedings against Daniel Quinn over the shooting of protected geese in 1993 and prosecuted the animal-welfare charges concerning Powhillon's cattle in 1997. When R Hill & Co subsequently reported allegations concerning Howdle's own actions, the question of prosecution passed to the same public prosecution system. The records show the different responsibilities of those who investigate, those who report suspected offences and those who decide whether criminal proceedings will be brought.

The authority to prosecute in Scotland

Scotland's system of public prosecution is headed by the Lord Advocate, whose authority extends to the investigation and prosecution of crime. The Solicitor General for Scotland assists the Lord Advocate. Procurators fiscal exercise prosecutorial functions locally on the Lord Advocate's behalf, while Crown Counsel, including advocate deputes, deal with serious prosecutions, appeals and matters referred to the Crown Office. In a summary prosecution before a sheriff, the complaint ordinarily proceeds at the instance of the Procurator Fiscal. In solemn proceedings on indictment, prosecution is conducted in the name of Her Majesty's Advocate, as the office was styled in 1997. These roles are described in the Criminal Procedure (Scotland) Act 1995 and in the Scottish Parliament's account of criminal prosecution.

The Lord Advocate's prosecution functions predated devolution. The Scotland Act 1998, section 48(5), which came into operation after the 1997 proceedings, expressly protected the independence of decisions made by the Lord Advocate as head of the prosecution system. Appointment as a Scottish law officer did not make prosecution decisions subject to direction by other ministers.

Investigating and reporting is not prosecuting

Police officers normally investigate alleged crimes, gather statements and other evidence, and report cases to the Procurator Fiscal. Other bodies, including government inspectors and the Scottish Society for the Prevention of Cruelty to Animals (SSPCA), may investigate matters within their responsibilities and provide reports. They do not, merely by investigating or reporting an allegation, become the public prosecutor or determine that an offence has been proved. The Scottish SPCA's role is to report suspected animal-welfare offences for consideration by the Crown; its present account of that role refers to powers conferred by legislation enacted after the Powhillon proceedings.

The Procurator Fiscal considers whether there is legally sufficient evidence of a crime and its alleged perpetrator and, if so, what action serves the public interest. Scottish criminal procedure ordinarily requires corroboration. The prosecutor may instruct further police enquiries, decide not to proceed, offer an alternative disposal or bring a case to court. The decision to prosecute is distinct from the court's determination of guilt; the sheriff or jury decides the latter when the evidence is heard. A prosecution inspectorate report from the early 2000s describes these duties, including responsibility for evidence favourable to an accused person.

The two prosecutions of Daniel Quinn

Howdle's complaint dated 14 June 1993 alleged offences arising from Daniel Quinn's shooting of protected geese at Powhillon. The Crown presented its allegations in court and the defence led evidence concerning goose damage and the circumstances in which the birds had been shot. Daniel was acquitted. The proceedings and evidence are set out in Shooting Trial.

In March 1997, Howdle sought a warrant allowing the removal, sale, slaughter or destruction of Powhillon's cattle. Sheriff Michael Fletcher granted it on 20 March, before guilt had been determined. The cattle were removed and permanently dispersed. The legal authority for that order, and the distinction between protection of animals and deprivation of their owners' property, are examined in Cattle Stolen. The warrant application and the later criminal complaint were different proceedings: the warrant did not itself establish the welfare offences.

The animal-welfare case was fixed for trial on 17 November 1997. Guilty pleas were then tendered on Daniel's behalf to five charges, and not-guilty pleas were accepted to the remainder. The Crown's allegations were narrated rather than proved through the examination and cross-examination of its veterinary witnesses. Daniel subsequently maintained that he had neither tendered nor authorised the guilty pleas, and challenged the convictions. Illicit Conviction examines the underlying welfare allegations; Malicious Conviction examines the pleas and subsequent court proceedings.

When allegations concerned the Procurator Fiscal

The division between investigation and prosecution became particularly significant when R Hill & Co questioned the conduct of Howdle himself. In a letter of 3 April 2002, Andrew Richardson of the Crown Office advised that allegations of criminal conduct should be reported to the police, who would investigate and, where sufficient evidence was available, refer the matter to a Procurator Fiscal. Complaints concerning the cattle warrant were subsequently considered by Crown Office officials. On 21 March 2003, Deputy Crown Agent Bill Gilchrist expressed his opinion that no member of the Crown Office and Procurator Fiscal Service had committed a crime in connection with the matter.

A separate complaint concerned Howdle's statement about Volac Volostrum during the November 1997 mitigation proceedings. Volac's technical director later confirmed that the product contained immunoglobulin. Following correspondence with Chief Inspector Kate Thomson, the complaint was referred to the Crown Office. In his letter of 10 October 2003, Gilchrist acknowledged the manufacturer's confirmation but declined to investigate the allegation concerning Howdle's conduct. The statement, the manufacturer's correspondence and Gilchrist's reasoning are presented in Volac Volostrum.

Those two complaints were directed at conduct attributed to a member of the prosecution service. The police could receive and investigate reported criminal allegations, but a decision to institute an ordinary public prosecution remained with the Lord Advocate's prosecution system. A Procurator Fiscal's position did not confer immunity from criminal proceedings, nor did it require that the individual complained about make the decision personally. The Crown Office and Crown Counsel exercised prosecution functions beyond the local fiscal's office. The surviving responses record Gilchrist's decisions; they do not record a criminal trial resolving the allegations against Howdle.

Could someone else bring a prosecution?

Scots law also recognises a narrow possibility of private prosecution. Unlike the ordinary private-prosecution procedure available in England and Wales, a person in Scotland cannot simply commence criminal proceedings in a magistrates' court. A proposed private prosecutor may seek authority through the High Court of Justiciary by a bill for criminal letters. The Lord Advocate's concurrence has traditionally been central to that procedure, and permission without it requires exceptional circumstances. The procedure is rare and is not an ordinary appeal against a Crown decision not to prosecute. The Scottish Courts and Tribunals Service recognises the possibility while emphasising its rarity.

Nothing in the Powhillon records discussed here establishes that a private prosecution of Howdle was brought or permitted. Nor did a complaint to the police, a Crown Office assessment or a refusal to prosecute amount to a judicial determination of whether the alleged conduct occurred. Those were different stages and decisions within the Scottish criminal justice system.

The decisions recorded at Powhillon

The Powhillon record contains a prosecution in which the Crown's evidence was examined and Daniel was acquitted, a later prosecution resolved through guilty pleas tendered on his behalf without contested proof, and complaints about the prosecutor's own conduct which were considered within the Crown Office. It identifies the police, government veterinarians and SSPCA as investigators or reporting participants, Howdle as the public prosecutor, Fletcher and Gilmour as judicial decision-makers, and Gilchrist as the Crown Office official who responded to the subsequent complaints. The statutory and common-law powers available to each were different. The records of their decisions are linked throughout the individual accounts.