Kenny MacAskill

The Lord Advocate, whose role in other jurisdictions is split, for example, between an attorney general and director of public prosecutions, is both chief prosecutor and chief lawyer to the Scottish government.

Writing in The Scotsman, Mr MacAskill said: “It’s something I’ve always felt was wrong, believing that the positions should be entirely separate. Justice has not only to be done but must be seen to be done.”

Mr MacAskill said that the recent trial of Alex Salmond called into question “those dual responsibilities and the position it puts the post holder in”. The current Lord Advocate is James Wolffe QC.

Of Mr Wolffe’s recusal from the criminal case against Mr Salmond, Mr MacAskill said he did this “only after he had already, wearing another hat, directed it there”.

“In any event, whilst there’s no suggestion of any impropriety on those who then dealt with the prosecution, it certainly raises questions about perception. When the boss makes a referral in any post you don’t take it lightly.”

He also suggested it was inappropriate that the Crown Agent, who is accountable to the Lord Advocate, offered a report from the civil case to the police as evidence for the criminal prosecution.

“The police rightly seemed to baulk at that and proceeded with their own investigations. The Lord Advocate may not have been responsible for that, but it was one of his most senior officials and emanating from a civil case he had been involved in.”

He concluded: “But there must be no doubt about whether the Lord Advocate’s pursuing a case for the Scottish Government with whom many are closely linked or acting in the public interest as the head of the prosecution service. The roles need spilt, perception matters as much as reality matters.”

In a submission to the commission established to consider how the devolution settlement between Scotland and the United Kingdom could be improved in 2009, judges recommended that the Lord Advocate should no longer be head of prosecutions.