Chris Marshall: Prosecution service has its own case to answer

The handling by the Crown and others of the prosecution of the Lockerbie bomber is subject of a police investigation.
The handling by the Crown and others of the prosecution of the Lockerbie bomber is subject of a police investigation.
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When Holyrood’s justice committee announced earlier this year that it would hold an inquiry into the work of the Crown Office and Procurator Fiscal Service (COPFS), it took many by surprise.

Problems associated with heavy workloads and court delays have been well documented over the past few years, but there was nevertheless no sense of a looming crisis in the prosecution service.

Initially it was suggested the inquiry was politically motivated – the result of Tory MSP Margaret Mitchell replacing her SNP counterpart Christine Grahame as convenver.

As early as January last year Ms Mitchell had set out a series of concerns about the Crown Office in an essay she wrote for the Scottish Conservatives’ Justice Matters journal.

But the inquiry has proved to be a worthwhile exercise for the committee, revealing concerns held by witnesses, police officers and prosecutors themselves.

It all paints a picture of a service which – like much of the public sector – is becoming increasingly stretched as it is asked to do more with less.

MSPs have heard evidence of fiscal deputes so swamped that they are often landed with cases literally minutes before standing up in court.

There have also been complaints from expert witnesses that their time is regularly wasted by re-scheduled court dates and poor communication.

Meanwhile, domestic abuse victims have spoken of being left “traumatised” by their experience of court.

The organisers of the Jim Clark Rally even warned the future of the event was in jeopardy due to the length of the Crown Office investigation into the deaths of three spectators at the 2014 event.

Perhaps the most worrying evidence, however, has come from lawyers themselves.

In a series of written submissions to the justice committee, bar associations have warned that fiscal deputes are being forced to proceed to trial in cases involving domestic abuse or hate crime because of national policy rather than their own professional judgment.

Bar associations representing lawyers in Edinburgh, Glasgow and Aberdeen all raised the issue with MSPs, describing it as a “serious concern”.

In its submission, Edinburgh Bar Association said: “The leeching away of the discretion of the procurator fiscal depute in court to take decisions on the prosecution is the greatest enemy to efficiency and effective management by COPFS”.

Then came a further warning last week from an anonymous fiscal depute citing “grave concerns...of cases proceeding to trial without there being sufficient evidence”.

The prosecutor warned of an “ever-increasing gap between management and frontline staff” and said serious and complex cases were being indicted for trial without “any prospect” of sufficient evidence.

Lord Advocate James Wolffe currently has plenty on his plate, not least spearheading the Scottish Government’s Article 50 case at the Supreme Court. There is also the soon-to-be concluded police investigation into criminal allegations against the Crown and others over its handling of the prosecution of the man later convicted of the Lockerbie bombing.

But there is also now plenty to suggest there is much to concern the Lord Advocate within the prosecution service itself.