Journal editorial February 2021

Scotland’s independent prosecution system has long been held out as a model of independence and upholding of the public interest, one which leaves little if any room for private prosecutions such as have led to some controversial cases south of the border.

Something has gone very wrong, however. The Scottish Government is settling actions, now confirmed at a figure exceeding £24 million including expenses, brought by the former administrators of Rangers FC, following a public admission on behalf of the Lord Advocate (who did not hold that office at the time) that criminal proceedings against them had been brought maliciously.

That extraordinary, and shocking, state of affairs strikes at the heart of a system which ought to embody everything that is ethical about our profession. Independence, objectivity, integrity, justice being seen to be done. The result, as others have observed, was treatment such as we are more used to reading about taking place in Russia or certain regimes in the Middle East.

How did these professional standards come to be set aside? And to what treatment were the unfortunate individuals subjected, and with what consequences, that required their claims to be settled at a level equivalent to about a fifth of the current prosecution service annual budget?

Fortunately our judges cleared the ground for this to come to light by overturning the 1961 decision that would have prevented the Lord Advocate from being held to account even where malice was involved – a clear illustration of the vital role played by the law and the courts, and the necessity of upholding the rule of law in the modern world.

But the settling of these actions must in no way be the end of the story. Nor should any terms of settlement be allowed to become a shield against full scrutiny of what took place. (The two men are now seeking to make their own complaint of criminality, and it would certainly provide a test for the system as to how that might be investigated.)

An inquiry has been promised. It should not shirk from fully investigating the parts played by all those actually or nominally involved. The issue is too important to settle for less. And it needs to be enabled to take place without going the way of Lord Hardie’s inquiry into the Edinburgh trams project, which has now been running for longer than the troubled project itself, and has had to be given a further year’s funding, taking its total cost to about £11.8 million.

It is high time public confidence is restored in the way Scotland’s national authorities operate.