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Policy and the public interest

12 December 16

The Lord Advocate sets out his approach to his role, in which he has initiated a review of prosecution policy and underlined the responsibility of individual prosecutors

by James Wolffe QC

As Lord Advocate, my fundamental personal and professional commitments are to the integrity of Scotland’s legal system, the maintenance of the rule of law and the sound administration of justice.

The work of skilled and dedicated prosecutors, acting independently in the public interest, is essential to an effective criminal justice system – one which deals fairly with persons accused of crime, secures justice for the victims of crime, and punishes those who are convicted of crime.

Independent, fair, rigorous, and effective – these are qualities which I value; qualities which characterise and should continue to characterise our prosecution service.

I am obliged by statute to exercise my responsibilities as head of the systems of prosecution and investigation of deaths in Scotland independently of any other person. That is a constitutional responsibility which I take seriously and which includes responsibility for setting prosecution policy.

Policy and principle

I have approved the institution of a wide-ranging prosecution policy review. The review is directed to implementing more effectively and rigorously the Crown’s existing principles. An underlying aim of the review is to ensure that marking decisions take account of the likely sentencing outcome, in a more systematic fashion than heretofore. The review therefore includes an analysis of sentencing outcomes to provide an evidence base for decision making.

If the evidence supports it, one result may be that cases will be prosecuted in a different forum. Equally, where the anticipated sentencing outcome can be achieved through a direct measure, using such a measure achieves a swifter outcome for the victim and the accused, and avoids the stresses which a prosecution can impose on victims and witnesses. While there will be cases where the public interest rightly demands a prosecution and a conviction, regardless of the sentencing outcome, I anticipate that there will be cases which are currently prosecuted on summary complaint that may appropriately be dealt with by a direct measure.

In setting prosecution policy it is right that I seek to address criminality as it actually affects people and communities in this society at this time. We are seeing a welcome decline in the incidence of violent crime including homicide, but at the same time a significant increase in reports of sexual offending. That increase reflects, I believe, at least in part an increased confidence on the part of victims in the criminal justice system, and it is right that I devote effort and resource to maintaining that confidence.

I make no apology for taking a firm and rigorous prosecutorial approach, as a matter of policy, to domestic abuse. Let us not forget that I only prosecute domestic abuse where there is a proper basis for concluding that there has been criminality – and it is not pandering to any political agenda to seek to address a form of criminal behaviour which for far too long was not taken seriously by the criminal justice system, and which blights the lives of families throughout Scotland.

Prosecutor responsibilities

I wish to highlight the work of the skilled and dedicated prosecutors who exercise my functions in the High Court and who prosecute on my authority in the sheriff court. Since almost my first day in office, I have emphasised the responsibility of the individual prosecutor. They should know that they are trusted to take responsibility and to exercise judgment.

This does not, of course, mean that prosecutors are free to disregard my policies; indeed, it is their responsibility to implement those policies. But I rely on them to apply those policies to the individual cases with which they deal, and to take robust and realistic decisions in light of the evidence before them.

This change in emphasis will be accompanied by training and measures to ensure that prosecutors are appropriately supported in fulfilling the trust which I place in them, and I believe that it will, over time, generate benefits.

It is a challenging time to be Lord Advocate. It is right that the work of the service which I head is, in a very literal sense, judged publicly every day in Scotland’s courts. Public expectations rightly result in public scrutiny of that service. Resources are limited. However, I relish the challenge, and I do so because I believe in the importance to a well-functioning justice system of an effective, rigorous, independent and fair public prosecutor.  

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