The independence of Scotland's prosecutors is not being eroded by their providing support to victims of crime, the Lord Advocate, James Wolffe QC, claimed in a lecture.
Delivering the JUSTICE Human Rights Day Lecture, Mr Wolffe addressed comments in an open letter by the Dean of Faculty, Gordon Jackson QC, that, while greater recognition of victims was to be welcomed, the independence of prosecutors, acting in the public interest, was being eroded in practice.
“You will find no one more resolute in defence of the independence of the public prosecutor than I am", Mr Wolffe said. "But I do not, for my part, believe that there is any conflict between resolute professional prosecutorial independence and the provision of appropriate and meaningful support to the victims of crime.”
He continued: “Our responsibilities as prosecutors demand that we engage with victims of crime, that we seek to give victims the confidence to come forward and to speak up, and that we seek to support and enable them through the criminal justice process.”
The Lord Advocate stated his belief that the entrenchment of fundamental rights in Scots law, through the Human Rights Act and the Scotland Act, as well as the EU Charter of Fundamental Rights, had been good for the law. "Without an explicit commitment to the protection of fundamental rights, and the opportunity, when necessary, to test our law against those requirements, there is a risk that we lose sight of the imperatives which flow from respect for that inherent dignity of all human beings which is referred to in the Preamble to the Universal Declaration."
While cases such as Holland, Sinclair and Cadder, on prosecution disclosure and the suspect's right of access to a solicitor, had caused practical consequences for the prosecution system that were "hard to overstate", now that it had adapted we could "recognise that, by testing our criminal justice system against international standards, we may, in fact, improve its robustness".
On the duties of the prosecution system, Mr Wolffe pointed to European human rights cases that had held that respect for the rights of the victims of crime may impose positive obligations on the state. This was reflected in the Istanbul Convention on combating violence against women and domestic abuse, and in the "rigorous approach" now being taken to prosecuting domestic abuse in Scotland. It was in this context that he addressed the Dean of Faculty's letter.
Turning to the role of defence lawyers, he affirmed: “The defence bar, both solicitors and counsel, have an essential role in securing the fundamental rights of the accused and the integrity of our criminal justice process. A vigorous and independent legal profession is one of the guarantors of the rule of law and fundamental rights, and Scotland is fortunate in that regard. It has, after all, been the persistence of defence lawyers that has, since 1998, compelled us to examine different aspects of our criminal justice system against our international commitments and to take fundamental rights seriously.”
Mr Wolffe ended by looking to the future: "Let me observe, in conclusion, that we are at an unusual moment of significant reform of the justice system, including the criminal justice system. We would fail the people, whom it is our responsibility to serve, if we were not, collectively, to grasp and embrace the opportunities of that moment."