Open letter to the Lord Advocate, James Wolffe QC

Dear James

Congratulations on your appointment which has been universally welcomed. Now that you’ve had time to settle, let me make two suggestions from the other side of the fence.

Please allow others to make decisions. There is a perception that prosecutors, from Advocate Depute to junior fiscals, are very reluctant to make any decision. In a case of my own, an experienced fiscal refused to drop a case she knew to be hopeless because she can’t face her decision being queried and perhaps criticised by others who know very little about the case.

So, too, a very senior fiscal can’t make a simple decision in a high profile case without checking “upstairs”. Or a long-serving Advocate Depute tells me that she was a good decision maker but has got so used to not making difficult decisions that she now finds it hard to do.

Eventually it becomes the norm not to make decisions but leave that to others be it judge or jury, but that may not be in the interests of justice. The jury may well acquit but it is itself unjust if people sit in the dock when they shouldn’t be there just because no one will make the correct decision.

Of course, prosecutors work at different levels. A junior fiscal can’t decide on a murder charge but everyone should be encouraged to make responsible decisions at their own level. Mistakes will be made. That is inevitable, but prosecutors need to know they will be supported when that happens. This will all need a culture change but without that the whole system is suffering.

A judge recently told me he had always been against judges having the power to dismiss cases where a conviction would be “unsafe” because prosecutors could be relied on to deal appropriately with such cases. That, he said, regrettably no longer seems to be the case. That needs to change.

Please, too, maintain a very robust independence. An independent prosecutor has always been at the heart of our system and that principle is enshrined in the Scotland Act itself. I’m worried however that this admirable principle is being eroded in practice.

Of course, in the real world, any Lord Advocate will be aware of others, press and politicians, looking over his shoulder. To ignore that would be naive. The problem is striking the balance and when, as I believe has happened, correct decisions are not made because of how that might play out in the popular press, then the balance is wrong. Knowing you as well as I do. I have no doubt you will get this right.

Perhaps more difficult, and more controversial, is the role of victims of crime and their relatives. Again it is about balance. For too long those most affected were largely ignored, given little or no information. That has changed and rightly so. Now, there are proper support system and channels of information. Judges are given victim impact statements. But yet again I think the balance has gone wrong.

Victims and their relatives now seem to feel that the prosecutor is their lawyer acting for them. They expect that their wishes will not only be heard, but acted on. Hardly surprising when in the High Court prosecutors are instructed to regularly meet victims and their families.

You will be told that none of this over influences decisions. I don’t believe it. You cannot meet the family of a deceased victim every day and not be influenced by that when it comes to accepting a reduced plea. Not surprising therefore that senior prosecutors tell me they agree with my analysis but can’t act on it because of the family’s position.

That is wrong. It needs to be stressed that the prosecutor is NOT the victim’s lawyer but an independent prosecutor in the public interest. I know everyone pays lip service to this principle but I also believe it, too, is being eroded in practice.

Both of these things are about the importance of the independent prosecutor making decisions without fear or favour. If you ensure that happens, your time as Lord Advocate will be of great value.

With best wishes

Gordon