Appendix 3

Discussion relating to decisions taken by Procurators Fiscal

On 24 June 1996 (day 19) Mr Bonomy on behalf of the Lord Advocate made a statement of the Lord Advocate's position in relation to that evidence and to the question of enquiring into decisions taken by Procurators Fiscal. The statement was in the following terms:
      It is a fundamental principle that prosecution decisions are taken independently of Government and that prosecutors, who act in a quasi-judicial capacity, are accountable for their decisions only to the Lord Advocate. The principle applies throughout the United Kingdom. It is recognised in the establishment of the Parliamentary Commissioner for Administration, or Ombudsman, and of House of Commons Select Committees.

      Accordingly, the prosecuting departments and matters relating to the commencement or conduct of criminal proceedings are not subject to investigation by the Parliamentary Commissioner for Administration, in terms of Sections 4 and 5 and Schedules 2 and 3, Paragraph 6 to the Parliamentary Commissioner Act, 1967.

      Similarly, the scrutiny of the Lord Advocate's Departments by the Select Committee of the House of Commons on Scottish Affairs specifically excludes "consideration of individual cases", in terms of a House of Commons Standing Order.

      The rationale for the principle is the importance of finality and fairness to a potential accused, to victims and to witnesses.

      The principle was clearly stated by Lord Justice General Clyde in McBain v. Crichton 1961 JC 25, 29: "The basic principle of our system of criminal administration in Scotland is to submit the question of whether there is to be a public prosecution to the impartial and skilled investigation of the Lord Advocate and his department, and the decision whether or not to prosecute is exclusively within his discretion". His Lordship went on "It is utterly inconsistent with such a system that the Courts should examine, as it was suggested that it would be proper or competent for us to do, the reasons which have affected the Lord Advocate in deciding how to exercise his discretion, and it would be still more absurd for this Court to proceed to review that soundness".

      The principle does not prevent an examination of the conduct of prosecutors. In the "Meehan" Inquiry Lord Hunter was able to examine the actions of prosecutors, although his remit excluded both firstly "the guilt or innocence of Mr. Patrick Meehan or Mr. Ian Waddell of the charges contained in the respective indictments against them", and secondly "the reasons for and justification of any decision taken by the Lord Advocate whether or not to institute, or concur in, any criminal proceedings".

      Equally, the Report of the Inquiry into an Allegation of a Conspiracy to Pervert the Course of Justice in Scotland by Messrs. W.A. Nimmo Smith, Q.C., and J.D. Friel made it clear that, although they had been instructed to investigate whether decisions were taken by prosecutors for improper reasons, "there can be no question of our reporting on prosecution decisions in such a way as would facilitate public debate about their correctness".

      The principle was reflected in the establishment and operation of the Waters Tribunal of Inquiry, the last Tribunal of Inquiry to be held in Scotland, in 1959. In that case there was a motion before the House of Commons that a Select Committee should inquire into the case of John Waters and advise, inter alia, in what circumstances it was decided that no prosecution should be instituted. The Government of the day brought forward a motion for appointment of a Tribunal of Inquiry into, inter alia, the action taken by Caithness Police. In explaining why it was inappropriate to examine the decisions of the prosecutor, the then Prime Minister, Mr. Harold McMillan, stated:

      "It is an established principle of Government in this country, and a tradition long supported by all political parties, that the decision as to whether any citizen should be prosecuted, or whether any prosecution should be discontinued, should be a matter where a public as opposed to a private prosecution is concerned, for the prosecuting authorities to decide on the merits of the case without political or other pressure.

      "It would be a most dangerous deviation from this sound principle if a prosecution were to be instituted or abandoned as a result of political pressure or popular clamour. In this case, my Right Hon and Learned Friend the Lord Advocate decided, after considering the evidence before him, that criminal proceedings would not be justified.

      "In reaching his decisions the Lord Advocate's duty in Scotland, like the Attorney-General's in England, is to act in a quasi-judicial capacity, whether the person involved is a public functionary or a private citizen". That is a quotation from Hansard. (HC Deb, 16 February 1959, col 31.)

      Finally, in the North Wales Child Abuse Inquiry, which was announced in Parliament on 17th June, 1996, the terms of reference, which are very specific, include examination of "the response of the relevant authorities and agencies to allegations and complaints of abuse made either by children in care, children formerly in care or any other persons, excluding scrutiny of decisions whether to prosecute named individuals". That is a quotation from the Hansard report of the debate. HC Deb, 17 June 1996, col 522.)

      Although the considerations underlying the principle against subjecting to critical scrutiny prosecution decisions apply most obviously to the interests of potential accused persons, they also affect victims and witnesses. Prosecutors are required to make judgements on their credibility and on the weight to attach to individual pieces of their evidence. Prosecutors are also entitled to take account of other information placed before them, which may be confidential. There are also related considerations applying to the integrity of the decision-making process itself. If decisions on criminal cases are not taken privately, without the pressure of public scrutiny and on the basis of an independent assessment of the quality of evidence and credibility of witnesses, prosecutors could be inhibited from taking difficult decisions, which they must take in the exercise of an independent discretion.

      The Lord Advocate has considered the exceptional circumstances of this case, including the death of Thomas Hamilton, who was the principal subject of reports to the Procurators Fiscal. He has also borne in mind the fact that other persons named in these reports, as suspects, victims and witnesses, are still alive.

      In the exceptional circumstances which apply, the Lord Advocate has concluded that it is entirely appropriate that evidence should be put before the Inquiry as to the investigation of the individual cases and that it was appropriate that the actual police reports - which would normally be wholly confidential to the Crown - should be made available to the Tribunal. He has also concluded that it is appropriate that the Tribunal should have a detailed account of the inquiries made by the relevant Procurators Fiscal.

      He has considered that, in the exceptional circumstances of this case, it is also appropriate that the reasons for the decisions taken by Procurators Fiscal should be placed before the Tribunal, so that it is as fully informed as possible as to the facts surrounding Hamilton.

      After Lord Cullen had been appointed to conduct the Inquiry, the Lord Advocate arranged for an independent senior member of the Procurator Fiscal Service - Mr. Alfred Vannet, the Regional Procurator Fiscal for Grampian, Highlands and Islands - to examine all the relevant case papers and to interview the members of the Procurator Fiscal Service who were responsible for taking decisions in the cases. Mr. Vannet has never worked in the Procurators Fiscal's Offices at Dumbarton and Stirling. Mr. Vannet had no prior involvement in any of the cases. He has produced a full review, which he has completed under the direction of Crown Counsel, setting out in detail the history of the dealings of members of the Procurator Fiscal Service with these cases and including the reasons for the decisions which were taken.

      The Lord Advocate considers that presentation of this report to the Tribunal should enable the Tribunal to have a full account of the history of these cases and the reasons why decisions were taken.

      The Lord Advocate trusts that Mr. Vannet's account will be sufficiently complete for the Tribunal's purposes. If the Tribunal so wishes, the individual members or former members of the Procurators Fiscal Service who dealt with enquiries concerning Hamilton are available as witnesses as to the facts set out in Mr. Vannet's review. It would, however, be incompatible with principle and the practice to which detailed reference has been made for the Tribunal to subject the soundness of the decisions made in relation to Hamilton to detailed examination in evidence or submissions at the Inquiry. For that reason the Lord Advocate's position is that evidence should not extend, so far as decisions are concerned, beyond informing the Tribunal what decisions were taken and what the stated reasons for these decisions were.

      The Lord Advocate trusts that the Tribunal and parties appearing before it will understand and respect the position which he has adopted in the exceptional circumstances to enable the Inquiry to have a detailed account of the involvement of members of the Procurators Fiscal Service with Thomas Hamilton.

I gave the parties the opportunity to consider this statement along with Mr Vannet's report before hearing any submissions from them. On 25 June (day 20) I heard submissions from Mr Campbell and Mr Bonomy.

Mr Campbell accepted that in the exercise of his quasi-judicial role as public prosecutor the Lord Advocate should not be subject to political pressure. However, he was accountable to Parliament where his acts and omissions were open to scrutiny and comment. The rule that his decision-making should not be subject to outside pressure did not apply where a prosecution was not pending or underway. Mr Campbell pointed out that in regard to prosecutions the Lord Advocate and Procurators Fiscal enjoyed certain immunities (Hester v MacDonald 1961 SC 370; and Sec 170 of the Criminal Procedure (Scotland) Act 1995).

Mr Campbell's submission was that there should be no inhibition either in his submissions or in the Tribunal's report in regard to any criticism of the decisions taken by the Procurators Fiscal. As regards calling them as witnesses he was neutral and left this to the Tribunal to decide. In the present case the Crown had led evidence of fact which raised questions as to the soundness of the decisions. While he was not able to assert that there was no good justification for them there was no logic in denial of an opportunity to consider the merits of those decisions.

Cases which had been concerned with the question whether the High Court of Justiciary should exceptionally authorise a private prosecution did not demonstrate that the Lord Advocate could not be called upon to explain the reasons for the decisions taken on his behalf or that the merits of those decisions could not be scrutinised. In J & P Coats Ltd v Brown 1909 SC(J) 29 the Court embarked on a consideration of the merits of the case or at least the merits of whether or not there should be a prosecution. A distinction was drawn between matters of law and the review or re-examination of evidence. There would be very few cases in which the exercise of discretion would be interfered with. The passages in the opinion of Lord Justice - General Clyde in McBain v Crichton on which the Lord Advocate had founded were obiter in view of the fact that the complainer failed to show that he had a sufficient interest in the alleged wrong to sustain a prosecution. In any event they did not entail that there could be no comment on the decision itself. Any question of unfairness was outweighed by the public interest. In Meehan v Inglis 1975 JC 9 the distinction was again drawn between the application of judgement to all sources of evidence and questions of law or relevancy.

These cases did not deal with comment on past events. In any event they demonstrated a reluctance to embark on an examination of the decision-making process as opposed to an examination of the decision itself.

Mr Bonomy submitted that there was no justification for, on the one hand, refraining from interfering with a decision of the Procurators Fiscal while, on the other hand, engaging in a critical examination of that decision. The result of infringing the principle that the decision should not be open to review would be that every decision would be made under the threat that a decision-maker would be called upon to account.

The Court had observed a clear distinction between the question whether authority should be granted to bring a private prosecution and an investigation of the public prosecutor's decision and what lay behind it. The principle set out in McBain v Crichton applied also in the present case. According to that principle the Court refused to examine the reasons given by the Lord Advocate for the decision in question. However, if there were no reasons or if the stated reasons did not ex facie justify the decision, the Court was not prevented from making its own judgement in regard to the law and the relevancy of any charge (see Meehan v Inglis at page 14). There was no question of the Court ever stating that the Lord Advocate had erred in some way in the exercise of his discretion.

Mr Bonomy accepted that the relevancy of a charge was an area in which the Tribunal could properly be invited to make a decision, assuming there was sufficient available evidence on which to do so. It was one thing to say that a relevant charge could have been brought. It was another thing to submit that a charge should have been brought.

In the exceptional circumstances of the present case the Lord Advocate had presented material which was normally confidential. It was open to the Tribunal to assess what the substance of the available evidence amounted to, as opposed to reviewing the decisions which had been taken.

After the conclusion of these submissions I gave my decision in the following terms:

      Can I say first of all that I am most grateful to counsel for their very clear submissions to me in regard to the problem which has arisen at this comparatively late stage in the Inquiry.

      In considering the dispute which arises today, it seems to me that in the background there are two main considerations. The first is the consideration that in exercising his independent quasi-judicial role the Lord Advocate should not be subject to pressure or influence from outside sources. The locus classicus for that rule can be found in the speech of the Prime Minister, Harold McMillan, in the passage to which I was referred.

      Mr. Campbell has submitted to me, however, that this is not a case in which that arises, because we are not considering here a case in which a decision has not yet been taken or a case in which a decision is still open to re-consideration, nor are we dealing with pending proceedings.

      The second consideration which seems to arise is the question of confidentiality. It is I think well settled that information which becomes available to the prosecutor in the course of the performance of his work is and should remain normally confidential to him. That is referred to in the statement made by the Lord Advocate at the foot of page three, where he says "Prosecutors are required to make judgements on their credibility and on the weight to attach to individual pieces of their evidence. Prosecutors are also entitled to take account of other information placed before them, which may be confidential", and so on.

      Now, in this particular case Mr. Campbell did not seek to have the inward thinking of the prosecutors explored in this case, no doubt for perfectly good reasons. His submission was that he should be entitled to make comment on the decisions not to prosecute or in the case of one of the Procurators Fiscal the decision not to grant a warrant.

      Now, Mr. Campbell drew my attention to a number of cases dealing with those very special circumstances in which the Supreme Court has decided whether or not to allow a private prosecution to proceed; and he pointed out that in these cases the Court was able to reach its own view as to whether prosecutions should take place, in order to secure that justice was carried out. By implication I think he was suggesting that this was a comment on the Lord Advocate's decision to decline to prosecute. On the other hand, Mr. Bonomy has pointed out that in cases of that sort, while it was expected that the Lord Advocate should explain his reasons, he was not required to do so, and he pointed out that there was no question in these cases of the Court seeking to usurp the position of a prosecutor by reviewing his decision. He accepted on the other hand that it would be open to the Court, and certainly open in this case, to consider what could be done on the basis of the material available. So in this case he accepted as I understood him that it would be open to this Inquiry to entertain submissions as to whether there was material on which a relevant charge could have been brought.

      Now , it is plain that the material which is available to the Procurators Fiscal covers a considerable wide range, from, at the one end, matters of law, matters of available evidence, to, at the other end, various considerations where his discretion has wide room for play.

      I am satisfied that it would not on the one hand be proper for this Inquiry to require the prosecutors to justify their decisions, or to entertain submissions as to the sufficiency of what was put forward in justification of those decisions. On the other hand, I see no good reason why this Inquiry should not entertain submissions based on the available evidence. I am not going at this stage to draw any hard and fast line as to what can and cannot be submitted on the basis of the available evidence. It would certainly include, on the basis of possible sufficiency, whether a relevant charge could have been granted or whether some other decision in the circumstances could have been taken. That is as far as I go. I merely illustrate what might be the subject of submissions.

      I consider that in this case, as in any other case, where a submission can properly be made on the available evidence, there is no reason whatever why that should not be made. This is after all a free country. For that reason, therefore, I would not wish to inhibit submissions. But of course it has to be clearly understood that these submissions must be based on the available evidence and do not enter into a review in one form or another of the decisions reached by the prosecutors.

      Turning to the invitation the Lord Advocate extended in his note, as far as I am concerned I am content that this Inquiry should not require the soundness of the decisions to be subject to detailed examination in submissions, but I do wish to hear submissions based on the available evidence insofar as submissions can properly be made on the basis of that evidence. Whether that can be described as a matter of fact, as Mr. Bonomy said, or whether it is not a matter of fact is of no consequence to me. I wish to hear what can properly be submitted on the evidence available.

      That brings me to another matter. It is of course in a case of this sort for the Lord Advocate to decide to what extent he should adhere to any rule or principle against the disclosure of information available to or information about the prosecution system. That is a decision over which I have no right of control. In the present case, I note that the Lord Advocate's position is that it is appropriate that evidence should be available as to the information provided to and the inquiries made by the Procurators Fiscal and the decisions taken by the Procurators Fiscal and the stated reasons for these decisions.

      I have seen Mr Vannet's report, and with his usual thoroughness he has set out a considerable amount of detail as to these matters, and I am certain that that report will be of significant assistance to this Inquiry. At the same time, in his note which Mr Bonomy read yesterday the Lord Advocate has given me an opportunity to invite individual members of the Procurator Fiscal Service who were concerned with these events in Mr Vannet's report. I consider that in general it is not necessary, but I consider it would be desirable to have evidence from two members of this service who are apparently able to give evidence in regard to certain matters which have already been explored at this Inquiry. These two persons are Mr Cardle - I am thinking in particular of his evidence in regard to a report which Mr Vannet refers to as report 1A - and secondly Mr Gallagher, as to the communications between him and Detective Constable Taylor in regard to report No 4.

      I hope this is sufficient to enable the Crown to identify the matters about which I am interested, but I leave it entirely to Mr Bonomy to decide what further evidence in fact might usefully be taken from those two witnesses when they enter the witness box.

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Prepared 16 October 1996