Recusal of law officers in cases involving politicians

The Lord Advocate is the head of the systems of criminal prosecution and the investigation of deaths in Scotland and is supported in that capacity by the Solicitor General.

The Lord Advocate and Solicitor General take decisions in relation to criminal prosecution or the investigation of deaths independently of any other person.

The Lord Advocate and Solicitor General are also Ministers in the Scottish Government.

Prior to devolution in 1999 they were Ministers in the United Kingdom Government.

There is a long-standing convention that Law Officers will not be involved in decision-making where an accused is a politician.  In such cases decisions as to whether to take action will be taken by an Advocate Depute.  This principle is included in the Prosecution Code which sets out the basis on which prosecutorial decisions are taken.

This convention pre-dates devolution and ensures that decision making in cases involving politicians is seen to be independent.

The convention is consistent with and supported by the terms of the Ministerial Code, the professional obligations of the Law Officers as members of the Faculty of Advocates or the Law Society of Scotland to manage and avoid conflicts of interest and the professional ethics of prosecutors.

The practical impact of the convention is that COPFS will make arrangements for all decisions to be made by an Advocate Depute without reference to the Law Officers.  A Legal Director in COPFS, or a senior prosecutor reporting to them, will discuss and agree with Principal Crown Counsel the selection of a serving Advocate Depute to take all decisions in the case.  This will be done when COPFS first becomes aware of a criminal investigation or receives a report of alleged criminality.  The Advocate Depute will take a decision on whether or not to prosecute the accused as well as preliminary decisions on matters relating to an investigation, such as instructing further enquiries or obtaining a search warrants.

In exceptional cases, senior counsel with previous experience of the role of Advocate Depute may be appointed at the discretion of the Legal Director to perform an independent review function of the decisions taken by the Advocate Depute.

The following steps will be taken to ensure that the convention is given full effect:

• The Law Officers will play no part in the selection of the Advocate Depute to take decisions in the case;
• The Law Officers will not be advised of an investigation or prosecution until an Advocate Depute has been allocated the case and any initial decision has been taken;
• The Law Officers will be advised of the nature and scope of the case but will not be given access to the evidence; and
• The Law Officers will be advised of key milestones in the case (e.g. an appearance at court or agreement of a plea) after any appropriate prosecutorial decisions have been taken.