Prosecutorial discretion; a view from the ground

Prosecutorial discretion is currently a matter of wide debate before Holyrood's justice committee. Scottish Police Federation general secretary Calum Steele told Holyrood's justice committee on Tuesday "We have got to a stage now in Scotland where couples can't have a row in their house or if they do the police are informed....it is a very strong likelihood that one of them will be leaving in handcuffs". He went on to acknowledge that there are very good reasons why domestic abuse cases must be taken seriously. In my view what is required is that those tasked with policing and prosecuting domestic abuse cases, and others of a particular public interest, are allowed to do so with an element of discretion. In policing terms, that discretion should ensure that cases which fall below criminality are not swept along with the crowd by virtue of falling into a certain category of possible offence. Insofar as prosecutors are concerned it would allow a qualitative assessment of every case in order to determine whether there are any realistic prospects of convictions and/or if it is truly in the public interest to continue with a prosecution.

In the absence of such a discretion what prevails is an enormous sense of frustration. That frustration is felt by accused persons, complainers, witnesses, family members, police officers, fiscals, Sheriffs, court staff and defence lawyers. At the moment all of these people are losing days within Sheriff Courts across Scotland as a consequence of the increasingly criticised policy of the Crown Office and Procurator Fiscal (COPFS). One such example happened to me only two weeks ago when COPFS insisted on continuing with a prosecution where the prospects of success were less than remote. This is a familiar scenario and one that grows increasingly tiresome. 

The reason such cases exist is that the COPFS policy appears to be to see every single domestic case through to the bitter end regardless of its merits or the particular view that the Fiscal Depute charged with dealing with it holds. An identical approach can be seen in cases featuring charges of a sexual nature or with a racial aggravation. I believe the idea is that it is easier to begin a trial with no hope of securing a conviction, only to see it collapse, than it is to make a reasoned determination that the case shouldn't continue to be prosecuted in the first place. In the latter scenario such is the fear of criticism that there are almost no Fiscal Deputes prepared to adopt such a course. Instead they opt for the hopeless trial in order to avoid criticism at the hands of others who were not there and did not have the opportunity to fully consider the case as they did. 

In my most recent case of this type my client faced two charges; one a statutory breach of the peace and the other of culpable and reckless conduct by throwing a brick through a window. The conduct was alleged to have taken place at his partner's house. She refused to provide the police with a statement. She does not wish to give evidence against my client and it was clear that if asked, she would not say anything that supported a conviction. A neighbour who may or may not have seen something also refused to provide a statement. According to the police the aforementioned parties informally pointed the finger at my client. This is not a matter that could be lead in evidence. The police arrived after the alleged incident and did not witness anything. My client was not present when the police arrived. There was absolutely no evidence that could form the basis of a conviction for either charge. I knew that and the fiscal depute dealing with the case knew that. On any view the prospects of the COPFS obtaining a conviction were nil but the case was classified as a domestic and so the show must go on. The show of course is a costly one. It is put on at the expense of my client's rights, witness inconvenience, Police Scotland costs, G4S costs, Scottish Court Service costs, and costs to the Scottish Legal Aid Board.

My day started, at 9.30am, with my approach to the Fiscal Depute assigned to deal with this particular matter. Buoyed by recent discussion both within the profession and the media regarding handing discretion back to deputes, I was almost confident. I've seen poor crown cases but this one is at the very bottom of the barrel. No redeeming qualities. Having been met with an initial refusal to even entertain dropping the case I even joked that I had hoped that the refreshing attitude displayed by some of the more prominent figures within the profession may have positively filtered down to the doldrums of Glasgow Sheriff Court. No and no. This matter will call for trial later.

Of course my case is not a priority because then we would at least get through the whole charade sooner rather than much later. I am in fact fifth in the priority list behind four other trials that will take the majority of the day or beyond. That leaves me facing the inevitable prospect of encountering an adjournment on the basis that the court has ran out of time. Such an outcome will leave me returning in a month or two to do this merry dance all over again. Not a new experience but my familiarity with this scenario does not reduce my frustration. 

As irritating as the time spent waiting around for the inevitable is, that is not the true frustration. What is most frustrating about these cases is seeing able Fiscal Deputes being curtailed in their legal thinking by a blanket policy seemingly thrust upon them from above. The role of a criminal solicitor, regardless of whether they are prosecuting or defending, is to assess the strengths of a case and strategise how to progress it. From a defence point of view that will mean considering questions of sufficiency of evidence, assessing the likelihood of a conviction, preparing questions for witnesses, preparing the presentation of a particular defence where applicable and generally advising the client on how best to proceed. In many cases a trial is the recommended course of action but in certain cases the likelihood of a conviction is so high that, in my view, a defence solicitor must advise their client against a trial. It is not in an accused person's best interests to prolong the inevitable and one would expect that looking at things from a prosecution point of view the same rules should apply. 

Such thinking informs negotiations between parties in trying to reach an acceptable and appropriate resolution in a case. Not every case has to proceed to trial and many are capable of resolution whereby an accused accepts some of what he is charged with but not all. Such resolutions are impossible in cases featuring the aforementioned domestic, racial and sexual aggravations. As yet again, even where certain charges won't prove, they are prosecuted regardless, meaning that a trial is required to resolve matters. Many of these cases are extremely distressing for witnesses and the impact of this 'policy' is that they are put through the trauma of giving evidence about matters that will often amount to nothing. On top of that there are umpteen police witnesses related to cases such as these who can spend their day sat in the witness area at public expense. Not to mention the impact that prosecuting almost everything and anything has on the court schedule. 

As luck would have it a space opened up in another court room around 3.30pm and my trial began. A different court room meant a different Fiscal Depute but unfortunately the enforced attitude towards the hopeless case remained the same. Three minutes later and the trial was over. My client's partner was first to give evidence and said nothing that was remotely incriminating. The Depute lead no further evidence and a formal verdict of not guilty in respect of each charge was recorded. My client was free to leave with the special bail conditions preventing him from approaching or communicating with his partner no longer in place. A raised eyebrow from the presiding Sheriff told me exactly what he thought of that particular prosecution.