Prosecution in the Public Interest The Rt. Hon. James Wolffe QC Lord Advocate Apex Scotland Annual Lecture SIGNET LIBRARY 5 SEPTEMBER 2017 APEX SCOTLAND Previous Apex Scotland Annual Lectures have been delivered by: 6 September 2016 9 September 2008 Fraser Kelly Kenny MacAskill Chief Executive, Social Enterprise Scotland Cabinet Secretary for Justice and Richard Jeffrey, The Prisons Commission 1 September 2015 Michael Matheson MSP 11 September 2007 Cabinet Secretary for Justice Professor Wesley Skogan Institute for Policy Research (IPR), 2 September 2014 Northwestern University, Illinois Professor Lesley McAra Co-Director, Edinburgh Study of Youth 12 September 2006 Transitions and Crime, University of Edinburgh The Rt. Hon. Lord Cullen of Whitekirk 3 September 2013 13 September 2005 Sir Stephen House Cathy Jamieson MSP Chief Constable of Police Scotland Justice Minister 4 September 2012 15 September 2004 Jeane Freeman OBE Duncan L Murray WS President of the Law Society of Scotland 6 September 2011 Tam Baillie 16 September 2003 Scotland’s Commissioner for Children and The First Minister, The Rt. Hon. Jack McConnell Young People MSP 7 September 2010 18 May 1998 Baroness Vivien Stern CBE Henry McLeish MP Senior Research Fellow at the International Minister for Home Affairs and Devolution, Centre for Prison Studies King’s College London Scottish Office 8 September 2009 Professor Fergus McNeill Professor of Criminology and Social Work, University of Glasgow ANNUAL LECTURE 2017 Foreword Pierre Trudeau once stated that “the essential Just hours before, the Scottish ingredient of politics is timing”, and we at Apex Scotland Government had announced its intentionally try to align the lecture topic with key issues intention to extend the presumption and moments in the political/justice environment of against short sentences to a year. Scotland. The Lord Advocate’s insights into the challenges and opportunities that this Rarely have we managed to co-ordinate things quite presents offer food for thought, not as well as this, our thirtieth year of operation, slotting the least in the need to ensure that if there lecture just hours after the Scottish Government laid out is to be an alternative to traditional its plan for the year including significant modernisation sentences these options must be plans for justice. Lord Advocate, The Rt. Hon. James available everywhere and not just for Wolffe QC gave this year’s lecture titled “Prosecution in those from certain post codes. the Public Interest” outlining the role of the prosecutor as arbiter of fairness and justice, but also to some extent I hope you enjoy the lecture. Please also an interpreter of public opinion and Government take the opportunity to check out this th policy. His explanation of the tension between the need year’s 30 Anniversary special edition for consistency in sentencing versus the responsibility Annual Report which you can find on to ensure that the action taken will produce good, not our website. bad, results was very well received by a packed Signet Library who clearly appreciated the chance to hear Alan Staff from the most senior prosecutor in Scotland how he Chief Executive viewed the reform agenda. Apex Scotland 1 APEX SCOTLAND Four hundred and thirty years ago, in 1587, An effective, rigorous and fair prosecution the Scottish Parliament enacted a significant service, acting independently in the public programme of criminal justice reform1. The interest, is, accordingly, a central component in legislation of that Parliament established certain a criminal justice system which aims to deal fairly principles which endure today – that the with persons who are suspected and accused of accused is entitled to legal representation; that crime, to respond effectively and proportionately evidence should be led in the presence of the to offending behaviour, to secure justice for the accused; that steps should be taken to ensure victims of crime, and to punish people who are the integrity of the jury verdict; that the Justiciary convicted of crime. Court should go on circuit. I was pleased that, following its inquiry into the And among the measures of that Parliament Role and Purpose of the Crown Office and was the Act2 which established the title of Procurator Fiscal Service, earlier this year, the the Lord Advocate to prosecute any crime Justice Committee of the Scottish Parliament in Scotland – which, accordingly, established agreed that the Service is, overall, effective, the Lord Advocate as the public prosecutor. It rigorous, fair and independent in the prosecution might therefore be said, at the risk of some over- of crime. That is a tribute to the skilled and simplification, that my predecessors in office dedicated staff of the Service, whom it is my and I have, together, accumulated 430 years of privilege to lead. It is the individual prosecutors, experience of prosecution in the public interest. and the staff who support them, who, day in and day out across Scotland, make real the I am grateful to Apex Scotland for inviting me to commitment of the Service to serve the public give this lecture on the topic of prosecution in interest in the effective enforcement of the the public interest. Preparing it has given me the criminal law. opportunity to reflect on certain fundamental features of our prosecution system, and to think Lord Hope described our system in this way3: about prosecution systems elsewhere in Europe. “… the entire system for the investigation My purpose tonight is descriptive – to explain and prosecution of crime in Scotland is some of the basic features of our system, and in the hands of the public prosecutor. to set them in a broader, to some extent a Overall responsibility for the investigation comparative, context. and prosecution of crime rests with the My starting point is that the effective, rigorous, fair Lord Advocate. He presides over a system and independent investigation and prosecution which is operated on his behalf in the of crime satisfies some of the basic responsibilities sheriff and district courts by the procurator of the state. It vindicates the interest of the fiscal. The functions and powers of the community at large in the enforcement of the procurator fiscal long pre-dated the criminal law. It fulfils the state’s responsibility to inception of police forces in Scotland. So, establish mechanisms which seek to protect while there is a close working relationship individuals and communities from crime. It meets between the prosecutor and the police, the expectations of victims of crime that the the police remain subject to the control of state will respond to the injustice done to them. the procurator fiscal.” And at the same time, it provides assurance that Let me draw your attention to some fundamental prosecutorial action will be taken only where features of the system which Lord Hope there is a proper basis for doing so. described. 1 See GWT Omond, The Lord Advocates of Scotland, 3 R v. Manchester Stipendiary Magistrate ex parte 1883, vol. I, pp. 45-60. Granada Television [2001] 1 AC 300, 305B-F. 2 APS 1587, c. 77. 2 ANNUAL LECTURE 2017 The first is that, in Scotland, we have a unified to give directions to the police about the public prosecution system. That system includes reporting of crime. Prosecutors, of course, rely advocate deputes, procurators fiscal and their heavily on the professional skill of the police in deputes and all the staff of the Crown Office the investigation of crime; but that legal regime and Procurator Fiscal Service. But they operate underpins the working arrangements under within a single system, which deals with all crimes which police and prosecutors, together, seek to subject to the jurisdiction of the Scottish courts. address criminality in Scotland. No public authority outside that system has title to prosecute crime in the Scottish courts. As many here will know, the two features of our system which I have just described contrast The Dutch call this the monopoly principle with the position in England & Wales. But they – the principle that there should be a single reflect the European norm, as I understand it. In public prosecution authority responsible for particular, although the details may vary, in the the prosecution of all crime. In Scotland, the major continental systems, the investigation of monopoly principle is modified only by the crime by the police is, as in our system, generally 7 continuing competence of private prosecution; subject to direction by the prosecutor . These are but private prosecutions are, in our system, features which facilitate a coherent approach extremely rare. A private prosecution may to the investigation and prosecution of crime be brought only with the consent of the Lord both horizontally across all types of criminality Advocate or the approval of the Court – and and vertically, at different stages of the system. the Court’s approval will be granted only in 4 A third feature of the system to which Lord Hope exceptional circumstances . So, for practical referred is the overall responsibility for the system purposes, the prosecution of all crime subject which rests, in our system, with the Lord Advocate. to the jurisdiction of the Scottish courts is in the