Interview: Andrew Normand

The anecdotal evidence is apparently irrefutable; Scotland’s fiscal service is a beleaguered and demoralised organisation, bereft of adequate funding and afflicted by chronic levels of staff absenteeism due to stress and excessive working hours.

According to Crown Agent Andrew Normand, popular wisdom which reports a crisis in the fiscal service “reflects a distorted representation of the department”, caused by “myth and misinformation”.

“I welcome the opportunity to refute some of the wilder claims and suggestions about the way the organisation is operating, to dispel some myths and correct the misinformation.”

He cites an unsupportive press and a higher political profile since devolution as being two possible reasons for the plethora of articles detailing allegations of problems in the prosecution service.

“There are various interests which may be served by talking up supposed problems, reporting a crisis which doesn’t exist.  That’s not to say we’re not under pressure, but we are coping with it.”

“Most public services funded by taxpayers’ money are under pressure, but so are many law firms in private practice, including many successful ones.  The statutory time limits for prosecution in Scotland mean that Scottish prosecutors always work under pressure.  The dedicated staff across our offices are committed to ensuring compliance with those time limits - one reason for the high regard the Scottish prosecution service is held internationally.”

“1999/2000 is proving a very demanding year due to three major factors, namely the incorporation of the European Convention on Human Rights, preparation for the Lockerbie trial and the substantial rise in the number of serious cases to be dealt with.  The Convention, for example, was thoroughly prepared for, but its impact was and is unknown and hard to predict.”

Andrew Normand describes the Crown Office and Fiscal Service as a “forward looking organisation” and tells how foreign prosecutors encountered at international conferences frequently express admiration for the system, including its tight time limits.

The considerable effort devoted to the preparation and training for incorporation of the Convention caused Professor Christopher Gane to comment recently that “the Crown are manifestly more at ease with the Convention and its related jurisprudence than either the courts or the lawyers representing the accused”, while Lord Reed noted that “the benefits of this investment of resources by Crown Office have been felt by all lawyers working in the Scottish criminal courts”.

However, in recent months specific allegations have centred on reports of a disproportionately high rate of fiscal solicitors on sick leave caused by stress.

“It’s quite untrue to suggest that a large number of PFs and deputes are absent from work suffering from stress.  Legal staff sickness absence rates are overall low and there are few stress related absences.  Even those are not necessarily work related, we know of family or domestic causes in some instances.”

“There is no evidence that sickness rates in the PF service are higher than in comparable organisations - or indeed the legal profession more generally.  We monitor the number and cause of staff absence and have a full time welfare service, as well as other initiatives such as “fair treatment at work” policy and a new scheme to compensate staff for late night and weekend call-outs.”

Another newspaper report alleged that fiscals were instructed to work to a figure of 40% in terms of cases not to be proceeded with.  Again Andrew Normand refutes this.

“There are no departmental marking quotas.  Non-court disposals, which includes a range of disposals, not just no proceedings, vary across the country, but overall the rate is in the range of 30-40%.  The no pro rate average for the service stands at around 15% of criminal case reports.”

On these pages in September, chairman of the Scottish Human Rights Centre, John Scott, said that “cases are often badly marked and either not proceeded with or are brought at the wrong level”.

“The main factor in marking cases is sufficiency of evidence and public interest.  For cases at the bottom end of the scale of seriousness, where there is sufficient evidence, fiscals require to consider whether the case may be dealt with appropriately in the public interest by an alternative to prosecution, rather than prosecution through the courts.  In particular the use of a ‘fiscal fine’ requires to be considered.”

“Fiscal fines are a statutory alternative to prosecution which may be offered for any offence capable of being tried in the District Court.  Parliament has therefore granted wide authority for the use of this alternative to prosecution.  Any so-called ‘downgrading’ with regard to the use of fiscal fines is in accordance with the will of Parliament and not the whim of prosecutors.  In practice, fiscal fines are used carefully and responsibly in accordance with the policy of the Lord Advocate and departmental guidance.  That guidance sets out various circumstances where fiscal fines are not to be used - such as in cases involving sexual or racial overtones or where a compensation order by a court may be more appropriate.”

“Bodies representing lawyers in defence practice need to be careful in their criticism of downgrading.  They do not have responsibility for representing the public interest and the public may find difficulty in accepting them in the role of guardians of the public interest.  The public could easily interpret criticisms as self-interested and business related.”

One of the more remarkable recent stories suggested that fiscals must achieve 60% success in order to have a chance of promotion and therefore might be tempted to drop cases which would jeopardise their healthy win/loss ratio.

“That caused particular amusement in the office to which the story was said to relate.  There is absolutely no truth in this suggestion.  It is not the objective of the prosecutor in Scotland simply to secure a conviction.  It is to ensure that a fair and accurate account of the Crown case is effectively put before the Court in a frank and professional manner.”

“Plea negotiation commonly takes place, but the fiscal’s objective is to achieve a just and appropriate disposal of the case in the public interest, having regard to all the relevant circumstances, which may include material information provided by the defence agent.  The purpose is not - and should not ever be - to improve the fiscal’s personal tally of convictions.  There is no individual “win/loss ratio” for purposes of consideration of promotion or any other reason.”

Suggestions have also been made that fiscals are often inadequately prepared for court, largely due to a lack of working time.

“Fiscals normally receive case papers in time to prepare adequately for court.  Occasionally, and particularly in some of the biggest offices, time to become familiar with the papers may be more limited.  This should not happen, though, with more complex or difficult cases, which should have been allocated to a selected fiscal well ahead of the trial.

“I know that such systems do operate in the big offices.  Obviously practice and familiarity with cases vary depending on the size of the office and number of trial courts operating.  Transfer of cases between courts is not uncommon in the bigger, busier courts.  Reasonable sheriffs will normally allow some time for deputes to read the papers.  Fiscals are professional, trained and experienced in leading evidence and advocacy in court.  There are many sharp, young brains in the service now, well able to assimilate and lead evidence quickly and effectively.”

Nostalgic tales of easily accessible fiscals, readily available with an open door and hot coffee to defence solicitors to chat about a case, are often cited in harsh comparison to today’s more closeted breed.

“I am aware of long-standing complaints about accessibility of fiscals to defence lawyers.  It is not always clear to what extent they reflect the practices and approach to time-management of the defence agents and to what extent failures in fiscal offices.  Early discussion with the defence solicitor is often very much in the interests of the fiscal as well as the defence solicitor.  Many fiscals complain that such discussions are very often not early and too often last minute.  Fiscals are busy people and require to make effective use of their time.  Most of them can no longer accommodate solicitors simply turning up at the office without notice.  In the bigger offices attempts have been made to improve things by setting up appointment schemes, and by other arrangements such as additional fax machines, direct lines for telephones and later in the year e-mail access to all offices.”

A widely perceived problem that the service is under-funded is also disputed by the Crown Agent.

“The 1998 Comprehensive Spending Review set a more realistic budget baseline and reasonable basis for financial planning after a period of uncertainty.  The extra £12 million over three years has enabled the department to run a series of recruitment exercises to bring in able young lawyers and some more experienced practitioners.  In the past two years there have been over 50 recruits to fill vacancies and additional posts to meet continuing pressures and, in particular, European Convention related pressures.  We now have the highest number of prosecutors ever, but more lawyers are still needed and we will be advertising again shortly.”

“Funding is generally adequate for core business and has supported ECHR work so far.  We will be assessing and explaining future needs in forthcoming Scottish Executive spending review.  Continuing pressures can be expected as a consequence of the European Convention and there are other new pressures and expectations to tackle crime, as well as the need to invest in computer and communications systems.  We wish to provide a better service for the people we deal with - victims, witnesses and indeed our professional contacts.”

“Efficiency and quality improvements could be achieved if funding is available for proposed IT system changes.  Important progress has already been made in that area with the integration of criminal justice information systems, and in that respect Scotland is ahead of many other countries.”

As solicitor to the Lord Advocate in matters concerning prosecution and deaths investigation, Andrew Normand does not consider it appropriate to discuss the controversy about the “dual role” of the Lord Advocate.  He does, however, draw attention to the statutory protection of the independence of the Lord Advocate regarding prosecution and deaths under Section 48 of the Scotland Act and notes that the present Lord Advocate has shown the same determination to act independently as his predecessors for whom Andrew Normand has worked.

Having had a close involvement in the initial stages of the Lockerbie investigation, as Deputy Crown Agent, Andrew Normand has a particular interest in the forthcoming trial.  “The Lockerbie trial will display the Scottish legal system very publicly to the world.  It is important to show that we are able to mount such a trial and present all the relevant evidence before the court, and therefore the public, including in particular the families of those who died.

“The Scottish system is well- respected internationally and there is strong international support for a Scottish trial.  It’s important for us to retain support and confidence and to show the process to be fair and effective and that the case is properly and fully presented.  That aim is, of course, at the heart of our approach to all our work, at whatever level.”