The prosecution of MSP has heaped further pressure on the role and independence of the Lord Advocate, writes Brian Wilson
The case of Bill Walker, the MSP convicted of multiple wife-battering, raises disturbing issues on many levels. Indignant demands for him to be a decent chap and stand down from Holyrood answer none of them and miss the more important question of why that decision will be left entirely in his own hands.
For the moment, forget that he is an MSP. It does seem remarkable that any man convicted in Scotland of 23 offences of violence against women can be deprived of his liberty for no more than 12 months with the reality, allowing for parole, to be more like six.
How can this be? I am no advocate of long custodial sentences simply in the name of societal retribution. But there has to be some kind of tariff which communicates itself to potential offenders – and the messages sent out by this case and the way it has been treated by the Scottish legal system are truly lamentable.
But then we get back to the fact that Walker is indeed an MSP, which is relevant because it cannot be detached from the way his case was dealt with. The Procurator Fiscal in Dunfermline, with complete access to the evidence, opted for prosecution under solemn procedure, which would have meant a jury trial and a maximum five years if convicted.
But the final say did not lie with the fiscal. The case was sent upwards to the Lord Advocate and the decision was taken within the Crown Office to over-rule the local view on procedure to be followed. According to a statement issued to the media, including this newspaper, by the Crown Office: “After full and careful consideration of the facts and circumstances of the case... Crown Counsel instructed that it should be tried at summary level.”
It would be interesting to know how many recent instances there have been of the Crown Office over-ruling the local PF in cases of this nature. Indeed, with goodwill, there should be no difficulty in bringing that statistic into the public domain.
It would also be interesting to know if the number of cases being referred upwards is increasing, as part of Scotland’s general trend toward centralised control.
M’learned friends tell me that the involvement of “a notable” would have led to the fiscal’s decision being reviewed at a very high level. To most people, I suspect, the system should work in exactly the opposite direction – the involvement of “a notable” should lead to decisions being taken at the furthest possible remove from the risk of politicisation, with or without a capital P.
Whisper it, but this is what happens in England where there is a much clearer separation between the role of the Attorney General – a political figure who also has a duty to offer independent legal advice to his colleagues in government – and the Crown Prosecution Service.
The Attorney General has the power to intervene in cases only where national security is at stake. And errant politicians do not threaten national security.
In the Walker case, the consequences of the Crown Office’s decision have certainly been political, in both upper and lower case. The difference between summary and solemn translated into 12 months or five years – and also, quite possibly, into the difference between a by-election and no by-election for the good burghers of Dunfermline.
A lot of people who believe that justice should both be done and be seen to be done would feel more comfortable if that decision, with its ramifications and consequential messages, had been taken as close to the scene of the alleged crimes as possible, rather than in Chambers Street, Edinburgh, by a department of the Scottish Government.
It is not necessary – or indeed possible – to prove that there were political factors involved in the Crown Office decision in order to feel uneasy about the route by which it was arrived at. It is within a context of more and more decisions that were hitherto devolved throughout Scotland now being taken at levels and locations that are closer and closer to government. This is one that has gone badly wrong.
The office of Lord Advocate does not need additional controversy, but decisions like this invite it. Historically, the role was occupied by established legal figures who had an association with the party of government. Yet, they were invariably able to challenge party politics and to defend the separation of powers which their office depended upon.
The current Lord Advocate and his immediate forerunner were career civil servants within the prosecution service. This was advertised as an underpinning of independence from political bias or interference which had not, previously, been a conspicuous issue.
While that sounds high-minded enough, it does not mean that the pressures do not exist or need to be resisted. Transparency remains an essential prerequisite for confidence.
Whether he liked it or not, Frank Mulholland has been drawn into political controversy by the Scottish Government on some highly political issues, notably the revelation that “legal advice” on future European Union membership did not actually exist. Then there was the counter-productive and acutely political legislation on singing football supporters for which Mr Mulholland appears to be the sole surviving cheer-leader.
Nobody doubts the difficulty of sustaining an independent, non-political role in the face of pressures which undoubtedly surround law officers and everyone else working for the Scottish Government. But it scarcely helps that cause when a case of such obvious sensitivity, which would have been much better left to the local fiscal’s judgment, is pulled in-house with such capricious consequences. The separation of powers is fundamental to any democratic system with the politicians, the civil service and the judiciary as its three corner-stones.
In Scotland over the past few years, we have seen the rapid erosion of the first distinction with the civil service transformed into a wing of the political administration without let or hindrance from those who should be defending its independence and integrity.
At the same time, there is the paradox that those of us who oppose independence believe that Scotland is big enough to embrace diversity of power centres and decision-making, while its advocates act on the basis of it being so small that every power must be drawn to the centre under their own control.
Whoever is in office, the case needs to be argued that there are many decisions best taken at a distance from government, both geographically and politically. The alternative is not attractive.