Opinion: Neil Hay

The call for evidence by the Scottish Parliament Justice Committee into the efficiency and effectiveness of COPFS has been welcomed across the legal community. For some time now there has been concern that COPFS may have lost sight of its independence in the investigation and prosecution of crime, and that the level of service it provides has been slipping. These concerns emanate not only from my colleagues at the defence bar, but also from prosecutors themselves, and sometimes even from the judiciary.

Discretion and independence

I suspect that the legal profession as a whole would applaud COPFS for giving special attention to the prosecution of crime targeted at minorities and vulnerable groups. However, an unwelcome by-product has been a restriction on the right of individual prosecutors to exercise their discretion in the prosecution of these crimes in court. Regular criminal court practitioners will know that valuable court time is often taken up trying such cases where there is little evidence, and no or little realistic hope of a conviction.

A fiscal I recently consulted thought that about 50% of prosecutions in domestic trials fail because of lack of evidence (often where the “complainer” never actually made a “complaint” in the first place). Micro-management of court prosecutions by COPFS hierarchy has resulted in a significant use of court time, and unnecessary stress for both witnesses and accused.

Defence colleagues and prosecutors alike will also be familiar with many cases which could not be resolved because the plea offered apparently conflicted with the views of the victim or their family. The Dean of the Faculty of Advocates recently made a significant intervention when he said (in an open letter to the new Lord Advocate) that victims and their relatives now feel that the prosecutor is their lawyer, acting for them, and that the delicate balance between the interests of victims, those accused of crimes and the public interest has somehow “gone wrong”. The interests of the victim and the interests of the public are not always the same thing.

Communication

A significant concern has been raised about how COPFS deals with correspondence, by letter or email. Fiscals must surely be fed up with routine criticism from the bench about that. Sometimes even formal complaints about failures to reply can be unanswered until long after the time-critical subject of the correspondence has expired. Those with the fortitude to telephone COPFS are often met with an exceptionally long wait just to be connected to the (ever-pleasant) call centre staff. Most requests to speak to a fiscal are then answered with the routine reply “They are all in court,” and a promise to send an email to “someone”.

A particularly determined solicitor might then ask the next fiscal they encounter for help. Many prosecutors spend several hours each day in court, so even the helpful and well-intentioned fiscal may take some time to provide the information required. Inevitably, this leads to frustration and delays in the justice system, and not only to defence solicitors. I noticed that a forensic medical examiner has complained about this issue in his submission to the Justice Committee inquiry, posted on the inquiry website.

Future

These criticisms exist despite the high quality of prosecutors appearing in the courts at all levels. There can be no doubt about the ability and integrity of COPFS lawyers. I’m sure all of my defence colleagues will have developed excellent and enduring professional relationships with fiscals whom they greatly respect.

But that, of course, is only one part of the COPFS equation. New resources, not redeployment or reorganisation of staff, are required to deal with back-office functions like answering correspondence. It was recently reported that Sheriff Principal Derek Pyle called for the reinstatement of prosecutorial discretion to enable a distinction to be drawn between serious domestic abuse and less serious domestic cases. That would certainly be welcome. Consideration should also be given to whether an independent public prosecution service should be consulting victims about what is, or is not, in the public interest.

Colleagues across the profession and elsewhere should intimate their submissions to the inquiry by 19 October. I am looking forward to reading COPFS’s own submission. Notwithstanding the quality of its staff and its considerable achievements, a frank admission to its own shortcomings would be characteristic of a professional, reflective and forward-thinking public service we can be proud of.