Domestic abuse complaints and allegations involving racial prejudice are among those where prosecutors may be forced to take cases to trial despite clear shortcomings in the evidence, according to leading lawyers’ bodies.
And even where they have “discretion”, some are reluctant to “put their heads above the parapet” and act.
But a spokesman for the Crown Office last night insisted bosses had confidence in the “skill and dedication” of prosecutors in dealing with cases.
Holyrood’s justice committee will tomorrow launch an inquiry into the Crown Office and Procurator Fiscal Service. It comes after concerns over additional pressures facing the country’s prosecutors in domestic abuse cases and the growing requirements of new legislation passed at Holyrood.
MSPs will hear from lawyers representing bar associations in Scotland’s biggest cities who all voice concerns over the “leeching away” of the discretion. This is a traditional cornerstone of Scots law which allows prosecutors handling individual cases to judge themselves whether it is strong enough to proceed on the basis of evidence.
Stephen Mannifield, president of Edinburgh Bar Association, is among those set to appear before MSPs and the body says that it is now “stated policy” from the Crown Office that in some types of case – predominantly domestic abuse or an alleged aggravation of prejudice – the fiscal depute in court has no discretion as to whether or not to proceed with the case.
“This applies, it is understood, notwithstanding any proper professional views they may have formed based on the evidence available to them,” a submission from association to MSPs states. This has to be a serious concern to the committee and the general public.”
This means a case involving a serious, unprovoked assault with a weapon could be dropped by prosecutors if they correctly judge the evidence is too weak.
In contrast “a single utterance of racially offensive language” with similar shortcomings in the evidence would have to be pursued. Even in cases where fiscals can use their discretion, there is a growing reluctance to do so.
“There seems to be a culture of fear amongst deputes in exercising it,” the submission from lawyers in the capital adds.
“The common practice of employing procurator fiscal deputes on short-term contracts exacerbates this, as they do not want to be seen to ‘put their heads above the parapet.’”
Liam McAllister, president of the Aberdeen Bar Association, will also appear before MSPs. The body says fiscals should be trusted as lawyers to make decisions and “not be bound by government policy or dictated to in terms of apparent universal policy or strategy” in the way they treat particular types of crime. “They should be able to exert their judgment, in deciding what should and shouldn’t be prosecuted, and where they can channel and focus the resources they have, rather than being dictated to by others, far removed from the reality of decision making at the coal-face,” its submission adds.
Instead, it warns that prosecutors are “bound by what are often perceived to be political concepts and policies.”
Glasgow Bar Association president Lindsey McPhie will also give evidence and the body says there is a “perception” recently that fiscals have “significantly less discretion than was previously the case”.
“It is invariably the case that the person best placed to make a decision in respect of what, in the circumstances of a particular case is an acceptable and reasonable plea, is the depute in court,” its submission adds.
The head of the Faculty of Advocates, Gordon Jackson, recently voiced fears that the independence of Scotland’s prosecution service is being “eroded” under pressure from politicians and victims’ families in a letter to Lord Advocate James Wolffe.
A spokesman for the Crown Office last night said it welcomed the Holyrood inquiry into Scotland’s prosecution service as it will be able to set out its “vision and the successful contribution” to the justice system.
“Among the priorities for the Lord Advocate are tackling the harm caused by domestic abuse and hate crime. Procurators fiscal work towards those priorities and their work is essential to the administration of justice,” he added.
“The Lord Advocate has confidence in the professional skill and dedication of COPFS staff to prosecute crime in Scotland.”