The Scottish Government

This item was published during the term of a previous administration that ended in April 2007

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Prosecution service explains itself to victims

10/02/2005

Victims and next-of-kin will now routinely be able to request and receive from the prosecution an explanation for the decision not to proceed in a case, it was announced today.

The Lord Advocate, Colin Boyd QC made the announcement during a debate in Parliament on the modernisation of the Crown Office and Procurator Fiscal Service.

The Lord Advocate said:

"Historically, the Crown did not give victims and next of kin reasons for decisions. This rule is a long-standing one. It has been refined somewhat in recent years; we have been giving reasons for decisions in child abuse cases and to many other victims of sexual crimes. But for many others it has been a source of grievance against the Department.

"I do not believe this rule should be maintained in a modern prosecution service. If we are confident of the quality of our decision-making, we should be prepared to be open and accountable to those whose lives have been affected.

"I am pleased to announce a change to the policy. Wherever possible, victims and next of kin who request it will be provided with an explanation by the Crown for the decision to mark a case no proceedings, or where proceedings have been commenced a decision to discontinue proceedings, or accept a plea.

"I hope that this new policy will give greater confidence to the victims of crime and to the wider public in the work of our prosecution service."

Background

Historically the Crown's reasons for not proceeding were confidential and would not be divulged to any third party. No one can compel the Lord Advocate to disclose his reasons for not proceeding with a case. This allows the Lord Advocate to act in such a way as to be free from political pressure and other outside influences, preserving the independence of the Lord Advocate within the Scottish criminal justice system.

The policy of non disclosure was underpinned by public interest considerations such as:

• It is the duty of the prosecution service to act in the public interest;
• In many cases there are competing interests, not only between the victim and the accused, but also between victims themselves and victims and witnesses;
• The long-standing policy of the Crown not to provide reasons is based upon the fact that statements and reports are confidential;
• The provision of any reasons could provoke discussion of a case without the proper protection of the court and rather than improving public confidence there is a danger that victims may be inhibited from reporting crime and witnesses coming forward;
• When a decision to take no proceedings has been intimated, the Crown will be held to it; such an intimation to the accused will constitute a bar to any proceedings thereafter.

It was recognised that victims, witnesses and next of kin often have great difficulty understanding the reasoning behind the policy. Additionally it was in contrast to the COPFS commitment to the Scottish Strategy for Victims which seeks to ensure provision of information to victims of crime.

There was a departmental commitment to reviewing the policy in the Departmental Improvement Plan and the Strategic Plan, each of which committed COPFS to such a review, as did the COPFS response to the Partnership Agreement commitment to "encourage prosecutors to give appropriate information to victims whenever practical on their reasoning for action taken or discontinued"

Where a decision is reached:

• not to proceed with a case or a charge;
• to discontinue proceedings in a case or a charge;
• to substantially change a charge;
• or to accept a plea to a reduced charge,

Wherever possible information will be provided to that effect to the victim (or next of kin if the case involved a fatality) upon request.Where the Victim Information and Advice service (VIA) is already in contact with the victim or next of kin and providing information about cases progress the decision will be intimated by VIA. In all other cases the decision will be intimated by the Procurator Fiscal. If the victim/next of kin wishes an explanation of the reasons for the decision this will be provided by the Procurator Fiscal.