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Hearing and answering

12 February 07

Interview with Lord Advocate Elish Angiolini QC, covering changes within the prosecution service and the constitutional position of the Lord Advocate

by Peter Nicholson

She was appointed only in October, and her tenure beyond the pending Scottish Parliament elections is subject to political processes in which she disclaims any involvement. But the impact of Elish Angiolini’s appointment as Lord Advocate, following her groundbreaking five-year tenure as Solicitor General, is likely to be felt for some considerable time whatever the outcome in May.

Though often described as a career prosecutor following a working life spent in the Crown Office and Procurator Fiscal Service, Angiolini had in fact already spent nine years in the secretariat of the Law Officers before becoming one herself – briefing and advising, drafting speeches and researching the public law issues of concern to the Law Officers. Clearly steeped in the processes of evaluating and implementing reform whether of law or policy, she has been a central figure in the massive changes faced by Crown Office in the years since devolution.

“When I was appointed as Solicitor General I was asked by the First Minister to focus on the modernisation of the procurator fiscal service, to update its systems, the way in which it worked, to look at its resourcing and its management structures, and to improve the way we dealt with victims and witnesses within the system”, Angiolini explains. In addition to that she had oversight of a number of matters – some covered in more detail in the panel on the next page – and a particular ambition to improve the performance of the High Court.

Professionalism in the service

As for this last, the success of the procedural reforms recommended by Lord Bonomy in bringing about more early pleas of guilty (up 350%) and fewer witness citations (down 70%) is one of the more visible features of recent reforms. Hand in hand with the legislation however were changes in the way cases are prepared, with earlier and better involvement of Crown counsel, and the setting up of whole teams for the most difficult and complex cases, all to help ensure that preparation takes place early enough for the preliminary diet system to work.

An increased professionalism at all levels within the prosecution service is a key theme for Angiolini – “a very important part, looking at areas of specialism” (she instances environmental issues, wildlife, oil and gas, and child witnesses), “and how we can improve the training and competence of our prosecutors to make sure that they are delivering the best possible case”. All this goes hand in hand with a major refurbishment programme for local offices.

“But by far the major objective for me is to ensure we now look at how summary justice is delivered in Scotland.” Readers will not need to be reminded that the summary justice reform bill has just completed its parliamentary passage, even if they have yet to come to terms with its implications.

Unusually for a Lord Advocate, Elish Angiolini is thoroughly familiar with the workings of the system at summary level. “I’m very keen to see particularly in summary justice a problem solving approach by the prosecutor to the problems of criminality. The new bill will provide an opportunity for fiscals to become much more proactive in dealing very expeditiously with the manifestations of criminal behaviour, and being able to focus the attention of the courts on the persistent offenders who have a disproportionate effect on the life and the environment of their local communities.”

More extensive powers in the fiscal to offer fines, compensation orders and other alternatives to formal prosecution have led some to query whether too much authority is being vested in the prosecution service. But Angiolini insists that the Scottish prosecutor’s role does not strictly follow the adversarial model; rather it is a hybrid with roots in the civilian inquisitorial system, and diverting those with a “tentative toe” in criminality by means of early, tailored interventions is preferable to going through the lengthy court process.

“I think it’s a tremendously good opportunity to keep many people out of the formal court system and to bring the penalty for their action much more closely to the event itself, which we know from research actually enhances the opportunity for rehabilitation. So I think that that creative role for fiscals is not empire building, it’s a sensible way forward to ensure that we keep our courts for those where the court’s expertise can be used most fruitfully to deal with the problems which have presented, rather than having the scattergun approach that we have at the moment.”

Independence through listening

She is also determined that prosecutors should have a higher visibility in their local communities, through attending groups such as community safety partnerships, shopkeepers’ associations or minority ethnic groups – not at the expense of their independence, but because “You have to have a better feel for what’s happening out there.”

“That listening process is not about compromising the independence of the prosecutor, it’s not about responding to the whims of the local community, it’s about taking into account the local features in their independent decision making. I have never felt that listening is something which weakens your independence. As I’ve said already, isolation and a refusal to listen can fundamentally undermine your independence.”

Begin with understanding

Talk of independence naturally brings us to the issues that (apart from being first woman in the job and all that, of course) dominated the media coverage following Angiolini’s appointment. It is a debate she is happy to engage in – “As a moderniser I would be the last person to suggest that every part of the system should be scrutinised and examined except my own” – but she does not accept the starting point of many of those who have called for a redefinition of her role.

“I think it’s excellent that there’s a level of awareness which is greater than it was before about the extent of the powers of the Lord Advocate. I think that’s a feature of devolution. But there’s the occasional disappointment that even senior lawyers have commented when I was appointed that the first thing the new Lord Advocate should do would be to resign from the Executive. Now that displays to me a fundamental misunderstanding of the constitutional structures within which the Lord Advocate is required to operate.”

The first target was her role within the First Minister’s cabinet: “uncomfortably close to the politicians” was the description of Lord McCluskey, himself a former Solicitor General. But the true picture, Angiolini feels, is often overlooked. “Although I attend cabinet I am not a full voting member, I do not participate in the discussions of cabinet, I have no full voting rights as any other cabinet minister would have in that context. I do have an opportunity however – I think this is important – as the head of the systems of prosecution and deaths investigation in Scotland, to ensure that the interests of my own department are taken into account in any discussions about for instance the resourcing or the structures of the Scottish Executive.”

If she were not there, she adds, she would need another minister to bat her corner, with the prosecution service’s needs possibly competing against those of a wider portfolio.

The compromised legal adviser?

The critics’ next target is her twin role as chief legal adviser to the Executive. Surely something bound to compromise her independence? “I do not see a conflict at all”, she counters, insisting that the one does not impact in any way on the other. “It’s in some way suggesting that a lawyer who provides advice to a client thereby adopts in some way the behaviours of the client by proximity of giving advice, and I don’t think that’s something that withstands scrutiny in any context.”

In fact, she adds, those who called for her attendance at cabinet to be confined to providing legal advice when necessary are close to reflecting the actual position already. “I have to say that that’s really all that we do, except where it’s a matter which is about the prosecution service. But it’s important that the Lord Advocate has an opportunity to address the cabinet on matters of seriousness or import to the prosecution service, and equally an opportunity to address parliament and to be accountable to parliament.”

It is in her advisory function that the Lord Advocate’s status as an essential prop in the legal framework within which the Executive, as a devolved entity, has to act, becomes apparent. “There’s a greater imperative for the Executive always to ensure that what it does is legal and therefore competent, and therefore the Lord Advocate does have a prominent role in relation to those legal matters. But if having asked the Lord Advocate for advice on a prominent and difficult matter the Executive was to fail to take that advice and nonetheless proceed, the Lord Advocate would require to resign, thereby precipitating a constitutional crisis for that Executive”.

As a matter of law? “As a matter of convention. If I was to give advice on a significant matter which was then ignored by the Executive, I couldn’t remain as part of that Executive”.

Checks and balances

And while the Lord Advocate is guaranteed independence under the Scotland Act in her prosecutorial capacity, there remain constraints to guard against abuse of power. “I think the notion that if a prosecutor or a Lord Advocate was to be in some way seized with political expedience in his decision making, the notion that Crown counsel would simply lie down and roll over and allow that to take place would be extremely naïve, it simply wouldn’t happen. There are checks and balances in this organisation which work very carefully about ensuring the integrity of decision making, and certainly that works at all levels.”

I put to her the issues arising were a ministerial colleague to be accused of illegality. “I would not deal with that matter: it would be dealt with by Crown counsel anonymously and I would be advised of the decision prior to it being made public, but I would not participate in the decision…. Likewise if a member of your family was to be the subject of a prosecutorial matter, the protocols of this department are that you would not deal with that matter, nor would you engage with the papers in any shape or form.”

She also dismisses the suggestion that public perception, the Executive’s trump card in enacting the Scottish Legal Complaints Commission, requires steps to be taken to counter the apparent conflict of interest in her roles. “I think that it’s been whipped up perhaps in some quarters that there may be [that perception], but I don’t think there’s a manifestation of that that I see as Lord Advocate, that there’s any loss of confidence whatsoever in the independence of decision making.”

Any political pressure, she adds, comes not from the Executive, who are well aware of the proprieties surrounding her role, but from ordinary MSPs who have been known to write demanding that action be taken (or not) in particular cases – at which they are put firmly in place.

“I think that had there been a conflict over the years it would be something which would have manifested itself long before now. I think that what’s important is that we explain ourselves, and hopefully this interview will be part of that as well as to understand the way in which decisions are made, so that the mystery of the role of the Lord Advocate is dissipated.”

No single answer

“There is no unique model that is absolutely right. I think what we have to accept is that the model we have currently is given by the Scotland Act. The cabinet is not a part of that, it is up to the First Minister whether he has a cabinet or not, what the arrangements may be, but the Scottish Executive in terms of the Scotland Act consists and must consist of the First Minister, the Deputy First Minister and the two law officers. They are the only obligatory ministers in the Executive.” So the Lord Advocate’s current role is not optional, and it would take Westminster intervention to devise a different structure.

“I think it’s healthy and good to have that debate and I respect that there are different ways of doing it. If you had a blank canvas you’d maybe do it differently. But what shouldn’t persist is a notion or a suspicion that there is a difficulty in the operation. It has worked very well for a number of years in a perfectly proper manner, and I think ultimately, irrespective of the constructs that you make around an individual’s office of this nature, the fundamental issue which is always going to be there is the integrity of the individual.”

And it has to be said that those who entered the debate have entirely disclaimed any aspersions against Elish Angiolini.


THE LORD ADVOCATE’S VIEWS ON SOME OTHER TOPICS COVERED IN A WIDE-RANGING INTERVIEW

The ECHR, in response to a question whether the Crown finds it difficult to live with:

“There can be a characterisation of the Convention as being a charter simply for the accused person. That is not the case. The Convention has very significant rights for victims of crime and for [others than the accused]… far from it being an obstacle for prosecutors, what we found at the time we were training prosecutors was an enthusiasm for using the jurisprudence of Strasbourg to assist the Crown in arguing its cases, and while there were great predictions of gloom and doom at the time, it did not manifest itself… Other aspects which have been tremendously helpful are the notion of proportionality in looking at decision making, and it has given us in a sense a vocabulary to articulate much of what we were doing over the past but through a different lens, and I think the European jurisprudence has been helpful in doing that, accelerating that process in developing our policies.”

Crown disclosure, the subject of recent criticisms over whether it is happening properly:

“Since [the Holland and Sinclair decisions of 2005] we have had to undergo a major change in practice along the lines of the English system, where the changes took place over 20-25 years through a series of cases. We have required to do that over a matter of months and I think the efforts we made have been tremendous to ensure that we do our very best to comply with our new obligations. We have been able also to harness the IT systems which we’ve put in place over the last five years; had this case happened to us say seven or eight years ago it would have been a very different picture. From time to time there will be problems because of… the very dramatic change in the obligations of the prosecution, and I don’t think I can overemphasise it’s not about simply photocopying cases, it’s also about going through statements and making a legal assessment not only of their relevance to the case, but equally of the rights to privacy which are inherent for victims and witnesses. It’s a huge new range of tasks which have to be embraced.”

Domestic abuse, when asked whether progress has been made in a notoriously difficult area:

“The evaluation of the domestic abuse court in Glasgow is yet to be published, but the conviction rate in that court is significantly higher than what had previously been achieved. The importance there is to look at… how we apply the lessons across the country so that the good working practices which have been learned in that model can be applied in other courts… I remember as a young prosecutor at the age of 23, 24 simply being bemused by women who would come along and say that they wanted the case dropped… What I’m now trying to do is to ensure that even our newest prosecutors understand the complexity of these cases and the sensitivity of how we can accelerate them, and show there is appropriate support around victims because there are tremendous pressures on the victims in these cases to abandon a case once it’s started… I think that there’s tremendous progress in that area and it’s an exciting area where we can point to visible changes in the way in which we’ve addressed those cases.”

Rape prosecutions, on which she instigated an extensive review, the recommendations of which, published in June 2006, will take up to three years to implement:

“What I wanted to ensure was that what we were doing within the prosecution service was as good as it could be, that we had as good an understanding of these cases as with domestic violence… There are quite significant sociological issues about how we protect our most vulnerable in society when the victim may very often be highly intoxicated or may have been involved in circumstances which in themselves do not come within what many jurors would consider to be the classic rape situation… [We had to look at] how we change our approach to do our best to ensure that only those cases which are safe to be prosecuted are being prosecuted… because it’s just as traumatic for victims to be put through the process of the case. A very important caveat is that we work within a very significant framework of law and that’s why the Scottish Law Commission’s review in this area is vital…

    “We cannot compare the conviction rate for rape in this country with any other jurisdiction because it is not a uniform crime. In England and Wales it’s a very much wider crime than it is in Scotland… therefore I think it’s important to look at our law and ensure that it is as closely scrutinised as possible to ensure that it reflects the needs of the 21st century. The great thing about our law is that it is organic, it does change and adjust… but I still tend to think that rape as we have it at the moment reflects very much the slightly quaint notion of women in a sort of proprietorial sense, and a lot of the attitude about rape stems from that.”

Victim Information and Assistance, whether the programme is complete:

“In any progressive organisation there is a need to constantly evaluate and examine what you are doing to see whether or not there are better ways of doing it, and to ensure that you are outward looking as well to find if there are other ideas in other jurisdictions… Five years ago the notion of what we are doing now would have seemed very radical, but now what we are looking at is, how can we improve that service, what are the additional needs, how can we ensure through our links with other support agencies that at the end of a trial process there is continuing support and throughcare for victims – not from the prosecution, we’re independent of victims, but independence does not require isolation or arrogance or impenetrability in what we do… The victim one day may be an accused in a trial the next day, so it’s a complex set of communications that we need to set up within the system and I think increasingly we’re becoming more sophisticated and professional in how we approach that… but there’s lots of scope for looking at how we improve.”

The scope for more

specialised courts:

“You have to look at the nature of the jurisdiction in Scotland… What we need to do is look at each of the models which seem to work and at what consistent themes come up… Very often it is the collaborative approach to working, the sharing of information across agencies, increased knowledge and specialisation among the agencies, and indeed of the judges who have acquired a huge degree of expertise in these areas… These are issues which can be built into training for prosecutors, for criminal justice social workers and indeed for judges. And therefore the lessons that can be learned from the bigger metropolitan courts can be adapted and modified for the smaller courts across the country… I think it’s a very exciting development and again we have an opportunity of looking at how criminal justice can not simply deal with persons in disposals but actually become part of the solution for communities.”