Crown Office and Procurator Fiscal Service (Correspondence)
Item 4 is correspondence from the Crown Office and Procurator Fiscal Service, as part of the inquiry that we are progressing with the Crown Agent about people making a complaint against the Lord Advocate when acting as head of the prosecution service. We now have a response. John Finnie has rightly been following up the issue. Do you want to make any initial comments, John?
I thank the staff for acquiring the letter and the Crown Agent for the information. The letter lays out a process, but a few things jump out at me. The second paragraph of the letter talks about
“an individual or organisation”
that
“is unhappy with the way in which a case, in which they have an interest, has been dealt with.”
I do not know to what extent that would temper any organisation’s or individual’s ability to challenge. It is helpful to know that a subsequent complaint would go to the Scottish Public Services Ombudsman.
The third paragraph on the second page states:
“If any complaint alleged criminality by a current Lord Advocate in the exercise of their role as head of the system of criminal prosecution in Scotland then this would be investigated by the Police as it would in any ordinary case. It would only be formally reported by the Police to the Crown Agent if it appeared that there was a sufficiency of evidence to allow consideration of criminal proceedings. The Crown Agent would allocate the consideration of such a case to an appropriately independent person.”
There are a few points about that. It could be read as presupposing that the recipient of the complaint would be the police rather than the Crown Office, which is unlikely to be the case.
There could be a debate around the point that the complaint
“would only be formally reported by the Police to the Crown Agent if it appeared that there was a sufficiency of evidence”.
In ordinary cases, it is for the procurator fiscal to decide whether there is sufficient evidence and whether it is in the public interest to proceed. Further, it is not clear who the “appropriately independent person” would be, although the final paragraph talks about the Crown Agent arranging for
“Independent Counsel to take the decision on action.”
It is helpful that we have information in the public domain. Some questions can still be asked, but at least there is a response for the petitioners who raised the issue. I will cease there.
Does anyone else want to comment?
I am advised that the “appropriately independent person” is most likely to be a member of the Faculty of Advocates and I imagine that a Queen’s counsel would deal with it.
The issue is very difficult. In particular, when a report is made regarding a former Lord Advocate there is a different procedure and, if appropriate, the current Lord Advocate could “recuse himself”. I have not come across that word before. I am not being smart; I have found out what it means: to excuse oneself because there is a conflict of interest. I must use it sometime in the chamber, now that I have found it. I will race members to that.
The current Lord Advocate could
“recuse himself or herself of any involvement in consideration of the case and arrangements would be made by the Crown Agent for Independent Counsel to take the decision on action.”
It would be interesting to find out how often that has happened and what process was followed.
Do you want to test that, John?
I was going to stray into that area, but I did not know whether you would think it appropriate. To my mind, it would be interesting to know whether the system has been tested. From the information that the committee has received, it seems that indeed a formal complaint has been made. It would be interesting to know whether that process has been followed.
I am advised that it is rare, although I cannot tell you the number. I would be interested to know which of the processes have been used, how often they have been used and how they functioned. It has taken quite a bit of effort to tease this issue out into the various strands of when reports are done.
It is a difficult area: you do not want the Crown investigating the Crown. There are issues of sufficiency of evidence, to some extent. I am guided by two former police gentlemen at either side of me. To some extent, when the police are gathering evidence they must take a view as to whether they have enough to put to the PF, but at the end of the day it is the PF’s decision whether there is sufficient evidence for a prosecution. There is a grey area.
An interesting question is how it is reported and recorded. In a police system, if someone presents themselves and says that they have been the victim of crime, it is recorded. If subsequent investigation discovers that for some reason it is not a crime, a subsequent report de-records it, but the number is still there. It would be interesting to know how the Crown goes about the recording process.
Graeme Pearson makes a valid point. It should also be a function of the committee to reassure the public that there is a mechanism and that, if they have concerns, they present themselves at their local police station and tender a complaint.
We are going to look at what processes were there before, what examples there have been, and how the complaints are recorded when they are received—complaints not about bad service but about alleged criminality—and how they might be de-recorded. Is that okay?
Members indicated agreement.