The hidden court processes

Question 1

Describe prosecution in the UK

Answer 1

Scotland: Crown Office and Procurator Fiscal Service
England & Wales: Crown Prosecution Service

Common features:
Key decision makers 
Act on behalf of state
Only proceed if criteria met:
Evidence
Public interest

Question 2

Describe the key features of prosecution in Scotland

Answer 2

High levels of discretion

Strong independence
Political - freedom from governmental interference in
operational matters
Institutional – independence guaranteed by statute
Independent from police

Accountability
Lord Advocate only accountable to Scottish
Parliament
Procurator Fiscal accountable only to Lord Advocate

Question 3

Describe the pros and cons of discretionary decision making

Answer 3

Negative implications:
Subjective judgement
Potential for discriminatory practices
Disparity and inconsistency
Tension with ideal of equality before the law

Positive implications:
Allows flexibility
Avoidance of harsh/indiscriminate application of rules
Mercy and compassion?

Question 4

What are some alternatives to prosecution

Answer 4

No action
Warning letter
Fixed penalty
Procurator Fiscal fine
Compensation Order
Fiscal Work Order
Diversion from prosecution

Scotland 2015-2016, 55% of reported criminal cases not actioned or dealt with as alternatives to prosecution
40% go to court, of which 90% plea guilty

Question 5

Describe Negotiated Justice

Answer 5

71.7% of defendants said they had pleaded guilty under pressure
Some said they pleaded guilty even though they were innocent
‘Plea bargaining’: Legitimate practice, but controversial
Conduct of negotiation extremely informal…
…and at discretion of the prosecutor
Shapes sentencing outcomes

Question 6

Describe 3 possible justifications for ‘plea bargaining’:

Answer 6

Reduces costs of time and money
Sparing victims’ (and witnesses) time and distress
Indicates remorse, therefore deserving offender

Prioritising expediency over justice?