AS head of the system of criminal prosecution in Scotland, I would like to respond to the open letter which was published in the Sunday National on Sunday, May 31.
The open letter was prompted by proceedings which are currently before the court. It would not be appropriate for me to comment on those cases and I will not do so. However, I can address some of the general issues which the letter raises.
It is a fundamental principle of the criminal justice system in Scotland that any person is innocent unless they have been found guilty by a judge or jury. The responsibility of the professional prosecutor is not to determine guilt or innocence, but to decide on the basis of the available evidence whether there is a case which should be brought before the court. Criminal allegations require to be investigated and, if there is a case to try, prosecuted so that the court can determine whether or not the accused is guilty of the charges.
Following a trial, Alex Salmond was acquitted by the jury and he stands innocent of the charges brought against him. That does not mean that it was inappropriate to investigate the allegations, or that the prosecution was not properly brought.
Mr Salmond’s counsel did not argue, nor did the court hold, that there was no case to answer.
In Scotland, prosecutors are obliged to exercise their functions independently of any other person on the basis of a professional assessment of the evidence, without regard to external pressures, whether for or against prosecution. They do this day in and day out, acting without fear or favour in the service of the administration of justice.
Decisions in serious cases are usually taken by Crown Counsel, the most senior prosecutors in our system. Crown Counsel apply the same professional standards and independent consideration to every case, regardless of its nature or the identity of the accused or witnesses.
Scotland’s system of independent public prosecution has served, and continues to serve, our country well. Police and prosecutors act, when investigating and prosecuting crime, with complete impartiality in the fair and consistent application of the law. The values of independence, impartiality and professionalism are at the heart of the system.
The Crown Office and Procurator Fiscal Service, Scotland’s public prosecution service, operates robust protocols and systems designed to ensure that the decisions in individual cases are made on a sound evidential basis, and to avoid any risk of an actual or perceived conflict of interest.
Consistent with those protocols, the Law Officers were not involved in the decision to prosecute Mr Salmond or the subsequent conduct of the case. Nor were they involved in the decisions
taken in respect of contempt of court. Those decisions were taken by Crown Counsel, acting professionally and independently, as they do routinely in the most serious cases. I turn to address, so far as I can, given the live proceedings, the issues raised about contempt of court, upon which I have been briefed.
The rules on contempt of court protect the integrity of the trial process. They limit reporting about criminal cases to ensure that the accused receives a fair trial. The court may also make specific orders to protect the integrity of the trial and the interests of those involved. During Mr Salmond’s trial the court made an order prohibiting publication of the names and identity, and any information likely to disclose the identity, of the complainers. That order remains in place.
The Crown is not solely responsible for ensuring that these rules are followed, but it does have a responsibility to take action to enforce them when required. It does so applying the same professional approach it takes to all its decisions.
In the context of Mr Salmond’s trial, the Crown required to consider a number of publications on both social and traditional media.
Where action was justified, to protect either the right of the accused to a fair trial or the identity of the complainers, such action was taken.
The same tests were applied regardless of the nature of the breach or the perceived thrust of the comment. In most cases once an issue was raised it was addressed voluntarily. A number of potentially prejudicial comments were removed from the public domain as a result of those actions.
Most reporting of criminal proceedings in Scotland respects the rules which protect the administration of justice. Where a breach does occur that is often remedied voluntarily. Where the Crown takes formal action it is the court which will, rightly, decide whether or not a contempt of court has taken place and, if so, determine the appropriate response.
Rt Hon W James Wolffe QC
Lord Advocate
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