THE Lord Advocate has written to a Tory-led Holyrood committee over an “inappropriate” bid to influence prosecution guidelines.
Dorothy Bain KC wrote to Sue Webber MSP, convener of the Education, Children and Young People Committee which is currently scrutinising the Children (Care and Justice) (Scotland) Bill.
The committee stated that the Lord Advocate should make “careful consideration” of the views of young people when revisiting guidelines on offences committed by children.
However, the Lord Advocate stated that it was a “fundamental principle of Scots constitutional law” that she “takes decisions independently of any other person”.
Bain added that the committee recommendations were against its constitutional principles “to seek to influence the content of prosecution policy, including the Guidelines”.
The Lord Advocate was highly critical in the letter, adding that she was “disappointed” the committee made the recommendation.
In the committee’s Stage 1 report, published on June 13, MSPs recommended that: “When the Lord Advocate’s Guidelines are next revisited, careful consideration is given as to how the views of the child or young person are factored into the Procurator Fiscal’s decision-making process when identifying a) if a prosecution is in the public interest and b) whether a case should be disposed of via the courts or via the Children’s Hearing System.
“In making this recommendation, the Committee is mindful that the process should include the views both of the young person accused of an offence and any young person harmed as a result of that behaviour.”
The committee has 10 MSPs including Webber (pictured above) who are scrutinising the legislation, with SNP MSP Ben Macpherson serving as deputy convener.
SNP MSPs Stephanie Callaghan, Bill Kidd, Ruth Maguire, and Michelle Thompson also sit on the committee, alongside Tory MSP Stephen Kerr, Labour’s Pam Duncan-Glancy, Ross Greer for the Scottish Greens and Willie Rennie for the LibDems.
In her letter to the committee convener, Bain wrote that the doctrine asserting that the Lord Advocate takes decisions independently pre-dates devolution but is included in the Scotland Act.
“This principle is not restricted to independence in prosecutorial decision-making,” Bain wrote.
“It extends to the content of prosecution policy, for which I am responsible.
“It runs counter to this constitutional principle for the Committee – or any other person – to seek to influence the content of prosecution policy, including the Guidelines.
“With respect, it was inappropriate for the Committee to make a recommendation of this nature and I am disappointed that it did so.”
The Lord Advocate added that she hopes her letter “does not detract from the importance of the substantive issues at which the Committee’s recommendation was directed”.
Bain (pictured above) added that the Crown Office and Procurator Fiscal Service (COPFS) is reviewing the guidelines under her direction, and considering the Crown’s legal obligations, particularly under the United Nations Convention on the Rights of the Child (UNCRC), are core to that review.
“This of course includes the requirement to give due weight to the child’s views according to their age and maturity,” Bain added.
“I trust that this is of reassurance to the Committee.”
Bain also said in the letter that the Scottish Government had already set out why it disagreed with the recommendation and that it was inappropriate for the committee to make it in the first instance.
