Fears that the accountability of Scotland’s law officers has been lost

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Before devolution the Scottish law officers – the Lord Advocate and 
Solicitor General – were clear political appointments. In the part of their job that was running the prosecution service in the name of the Crown they were independent, but they were politically accountable for their performance.

Before devolution the Scottish law officers – the Lord Advocate and Solicitor General – were clear political appointments. In the part of their job that was running the prosecution service in the name of the Crown they were independent, but they were politically accountable for their performance.

The Scotland Act did not envisage a change to that balance between accountability and independence. However, a sequence of appointments as Lord Advocate and Solicitor General from within the Crown Office has prompted concerns that the law officers appear to be increasingly acting “politically” but have lost their accountability.

In the wilder days in the far past, the Lord Advocate was an overtly political animal and, if he chose, close to a law unto himself. In the more measured days of the 20th century the law officers were party appointments and their period in office closely coincided with general election dates – 
especially if it looked as if a change of government was looming.

A veteran member of the Faculty of Advocates recalls the May morning in 1979 when the then Lord Advocate, Ronnie King Murray, announced to his staff “That’s it. I’m jumping ship”, and promptly appointed himself to the bench as a senator of the 
College of Justice.

Ronnie King Murray was one of a handful of 20th-century Scottish law officers who were simultaneously members of parliament. He was a Labour Party member of the House of Commons as MP for Leith. His immediate successor, Lord Mackay of Clashfern, surprised commentators at the time by accepting the invitation to take on the role in the incoming Thatcher government without actually being a member of the Conservative Party. He joined later.

However, there was a clear concept that while they were political appointees and would have to take political responsibility for actions carried out in their name, they were nevertheless independent creatures within the government they served.

Only one law officer has been forced to resign in modern times. Nicholas Fairbairn was presented with the political equivalent of a glass of whisky and a loaded revolver in the furore around what became known as the Glasgow Rape Case.

The Crown had decided not to proceed with prosecution in a seriously violent rape on the basis of advice it had received about the vulnerability of the victim, Carole X, if she had to give evidence. It would have been a difficult position to defend in any case, but Fairbairn’s error was to embellish the Crown’s agreed statement to a journalist prior to the statement’s release.

The end result was a private prosecution – with the agreement of the Crown Office – and the conviction of three accused.

Professor Robert Black has made well-known criticisms of a succession of Lord Advocates – pre and post-devolution – in connection with the investigation and prosecution for the terrorist attack on flight Pan Am 103 and the conviction of Abdelbaset Ali Mohmed al-Megrahi.

However, at a broader level he has criticised the undebated transition of the posts from political appointments to career advancement within the prosecution service. When Lord Advocate Elish (now Dame) Angiolini announced that she would be standing down at the time of the 2011 Scottish parliament election, Prof Black blogged: “It is to be hoped that it will be recognised that the appointment of a Crown Office staffer as Lord Advocate was a disastrous experiment which should never be repeated.” His advice was not heeded, and Frank Mulholland was appointed her successor.

Prof Black has also pointed to the collapse in 2007 of the World’s End murder trial when Edgar Prais QC, defence counsel for the accused, Angus Sinclair, had his “no case to answer” submission accepted by the presiding judge, Lord Clarke.

Directly stemming from that collapse the rules of “no case to answer” submissions have been overhauled; a new double jeopardy law has been passed allowing an accused to be retried for the same offence in certain circumstances; the law on similar-fact evidence and Moorov doctrine is in the melting pot; and the way has been opened to allow the jury to know an accused’s previous convictions and evidence of bad character. Most controversial of all is the intention to legislate, in the current session of the Scottish Parliament, to abolish, as recommended by Lord Carloway, the Scots law requirements for corroboration of evidence.

Prof Black said: “All these things have happened. The only part of the World’s End debacle that hasn’t been publicly turned upside down is the Crown Office that was responsible for the prosecution. There are many who were astonished to see the Lord Advocate still in her job the next day.”

Prof Black’s view has some support from perhaps unexpected allies in Lord Fraser of Carmyllie, who served terms as Solicitor General and Lord Advocate, and Lord Mackay of Clashfern, who served both as Lord Advocate for Scotland and Lord Chancellor at Westminster.

For Lord Mackay, it is not a matter of personalities but of knowing where the buck stops: “I was very hands-on and wanted to know what was happening in the most serious cases being prosecuted in the Lord Advocate’s name. Obviously, the workload of the Crown Office was smaller in my time.”

Would he have expected to stay in post after a case that collapsed in such a dramatic way as the World’s End trial?

“Not if it was my responsibility.”

Lord Mackay shares the concern about the apparent development in which the Crown Office has taken possession of the law officer posts, effectively into the civil service. Since devolution, Elish Angiolini became first Solicitor General then Lord Advocate. She was replaced as solicitor advocate in a brief seven-month tenure by John Beckett QC, the last appointment from outside the Crown Office. He was replaced after the 2007 Holyrood election by Frank Mulholland, who stepped up in 2011 to become Lord Advocate; his place as Solicitor General was taken by Lesley Thomson.

Lord Mackay said: “I don’t see how you can have the breadth of experience you need to be a law officer if your career has been exclusively in prosecution. To have the independence of mind that is required, I believe you have to have a broad experience of challenge to your judgment.”

In the past, recruits were drawn exclusively from the Faculty of Advocates. That is unlikely now to be a tenable proposition with the growth in ambition and experience of solicitors and solicitor advocates, but Lord Mackay clearly believes that private practice is the anvil on which independence of mind is tempered.

Lord Fraser adds that political experience was important in the conversations that he could hold with ministers or civil servants.

“I think political colleagues felt they could speak more freely to me than they would even to a senior civil servant,” he said. “There’s a level of friction that is required between the law officers and politicians, and I do wonder where that friction is in the arrangements in Holyrood, where there is no effective way of making them answer for their actions.”

Reviewing the list of legal changes since the World’s End collapse, Lord Fraser said: “It seems to me that what the Scottish parliament has been doing is giving away its role in matters that it should be able to tackle politically. The justice minister will be bound to say prosecution policy is not his responsibility but the law officers aren’t answerable to parliament. Where’s the answerability? I don’t think the people of Scotland will be comfortable with that.”