The Prosecution Service: Independence and Accountability

As in most jurisdictions, decisions made by Scottish prosecutors are relatively unstructured and are of low visibility, compared with those made by the legislature or judiciary. Yet prosecutors’ decisions may have similar effects. In practice, the distinction between these two principles is purely academic because no modern criminal justice system has the resources to prosecute every possible act of criminal behaviour. The most significant aspect of the Scottish system of public prosecution is its complete independence, a status which has long been established and frequently emphasised. As a result of the wide discretion traditionally possessed by fiscals, it has always been regarded as permissible for them to adopt some alternative to prosecution. If the procurator fiscal feels that something more than a no pro is required, he may choose to issue a warning to the accused. The fiscal may also offer the accused ‘diversion’ from prosecution to receive social work help, psychiatric attention or to participate in a mediation/reparation scheme.