Exclusive: Former fiscal blows whistle on oppressive domestic cases

I have been following some of the recent articles in the Scottish Legal News about the investigation into the Crown Office and Procurator Fiscal Service (COPFS) allegedly being overstretched and overwhelmed in the performance of its duties. In particular, I read the following article with some interest: Domestic abuse cases unlikely to succeed burden on courts.

It is no secret and certainly well-known within legal and criminal justice circles that criminal cases involving a “domestic” element are being subjected to an incredibly over-zealous, intrusive and counter-productive approach led in policy partnership by the Scottish government, Police Scotland and COPFS.

Let there be absolutely no doubt about it – in Scotland there now exists an unusual phenomenon whereby if two people are in a relationship with one another, and the pair happen to have an argument or a row with each other and the police get to know about it, say by a neighbour overhearing an exchange of some loud voices; at least one of them is going to be apprehended by police rushing to the scene and be cuffed and taken away in a police car or van to a police station where they will be detained and held in police custody typically for the remainder of the day and all throughout the night, while the police work fervently to try and charge the individual in their custody and wheel them off to court in the morning. The situation is far worse if such an argument or row breaks out on a Friday night – at least one of them is going to be stripped of their liberty and spend the whole weekend in a police cell. And a police cell is the last place anyone would want to be. A cold and dark place where the only fixture of a toilet with no lid provides a filthy and unhygienic stench in a horribly confined space.

If the police succeed in being able to charge an individual in their custody – and be in no doubt that they will try their utmost to do so to meet their performance targets – then living nightmare only gets worse when the court process begins and by then the whole thing is already having an adverse knock-on effect on the criminal justice system as a whole. Many judges have rightly raised concerns about the current policies on domestic cases, including Sheriff Richard Davidson and some of his useful comments can be read here.

And yet nobody really seems to care about the devastating impact all of this can have on innocent people caught in the web of this policy and all the while the Scottish government, Police Scotland and COPFS continue to adopt a rigid and unrelenting approach in its implementation which in the long-run is just not sustainable.

One of the reasons we now have this worrying reality in Scotland is because the police simply have no discretion in the way they deal with cases involving a domestic element. That much has been made clear in the evidence which has been heard and presented in the ongoing investigation. The comments of Calum Steele, general secretary of the Scottish Police Federation (SPF) are important to note and in particular, when he talks about police dealing with domestic cases he confirms that: “with the police service…there is absolutely a lack of discretion”. I believe Mr Steele is to be commended for his honest, succinct and candid remarks.

There are judges across our country who have been voicing appropriate concerns about the current domestic policies and the way in which they are being implemented and those concerns are echoed by every lawyer I know practising within criminal law and now we have a member of the SPF voicing appropriate concerns. All of this is to be welcomed to raise awareness and action ought to be taken accordingly by the powers that be.

Mr Steele mentioned that it would be inappropriate for him to speak for fiscals, but did acknowledge that evidence had been heard that there was a lack of discretion for them dealing with domestic cases. It is the comments of Rachel Weir of the Procurators Fiscal Society that I take some issue with as a former Procurator Fiscal.

In my experience as a procurator fiscal working summary cases in the East of Scotland (many of which were domestic cases), there was absolutely a situation where cases involving a domestic element were marked for prosecution when the evidence was incredibly scant and conviction(s) unlikely. At the case marking stage, a fiscal would ensure that the case was marked as a “domestic” and one reason for this was so that other fiscals knew that they could not exercise any discretion with the initiated prosecution. It was going to be added to the court business and the prosecution had to be taken all the way and as far as possible. Better to try and fail than to not try at all was the mantra which we had to work to for these cases.

In courts I was covering, the papers for domestic cases were contained within a different coloured folder from all of the other court cases. This appeared to be for two primary reasons: (1) to ensure that these cases are placed at the top of the pile of court business and given priority; and (2) to ensure and easily remind fiscals that they did not have any discretion on the prosecution of such cases. They really liked to dumb it down for us fiscals to keep us in line with the policies on domestic cases. I am not sure if that process still continues to this day.

Moreover, I came across numerous domestic cases where complainers had expressly withdrawn statements that they had given to police and yet our instructions as fiscals in spite of this was to completely ignore this because there was no discretion permitted for us to exercise our judgement in the prosecution and policy dictated that we had to further the prosecution and take it as far as possible.

In addition, I also came across many domestic cases where complainers had written to us at the PF Office pleading for their partners not to be prosecuted. Often, they would provide a long explanation about how things got out of hand or a bit “heated” and that they did not expect the criminal justice system to intervene with such a brutal approach leaving partners unable to contact or approach one another and work things out between themselves. Again, fiscals were conferred no discretion and had to refer these cases to an in-house “victim, information and advice” service for further investigation while the prosecution remained at the forefront of our agenda to satisfy policy requirements.

There were even cases where fiscals had to issue threats to complainers with a warrant for their arrest when those complainers had made it quite clear that they had withdrawn their statement, did not want to be involved with a prosecution and did not want to attend court as a witness. I find that to be an unbelievable state of affairs – COPFS policy being (at the time I was there) to force such complainers under threat of an arrest (and prosecution) to attend court as a witness when they did not wish to do so.

As such, I have great difficulty with reconciling the remarks of Rachel Weir with the COPFS policy I encountered in practice. I would call on former and current fiscals to do what they can to raise awareness of the unsustainable and epidemic policy on domestic cases which might eventually encourage change to take place.

I would respectfully submit that there needs to be more awareness about the practical reality of the current policy partnership between the Scottish government, Police Scotland and COPFS surrounding domestic cases. The current operation and implementation of it is unsustainable, disproportionate and will continue to place an undue burden on the criminal justice system as a whole.

The contributor has chosen to remain anonymous.