Duff, Peter. "The Prosecution Service: Independence and Accountability" in Criminal justice in Scotland, Edited by Duff, Peter and Neil Hutton. Aldershot, Hampshire, UK: Ashgate. 1999.

Duff, Peter. "The Prosecution Service: Independence and Accountability" in Criminal Justice in Scotland, Edited by Duff, Peter and Neil Hutton. Aldershot, Hampshire, UK: Ashgate. 1999.

• The essay starts with an anecdote from the 1990s, claiming at one point a woman got away with murdering her father in law because both the Lord Advocate and the Crown agent agreed with her motives. They thus decided not to prosecute the crime, demonstrating the amazing degree of discretion that can be exercised by prosecutors (115).
• Another case regarding the tendency for homosexual conduct with those under 18, but older than 16, to go unpunished, shows that by choosing to exercise discretion in not prosecuting cases, prosecutors can essentially unwrite law (116).
• The duties of prosecutors is balanced between legality and expedience: on one hand, prosecutors should prosecute all crime with sufficient evidence in accordance with the law; conversely, discretion by prosecutors means cases that would be costly and better solved outside of court can be deferred, saving the state time and money (116).
• Under Scots Law, the police and inspectorates report crimes and give evidence to the public prosecutor, who is then responsible for the subsequent legal proceedings. The prosecutor's office is headed by the Lord Advocate, a government minister, and his deputy (117). They, along with other senior lawyers, make up the Crown Court, and advice other lower levels of prosecutors (118).
• A notable trait of the Scottish system is its independence and reliance on expediency over legality. The prosecutors exercise large amounts of discretion in the name of the "public good", and are not accountable to any public body except for Parliament (118).
• In Scotland, the police are only responsible for law enforcement, the collection of evidence, and the arrest of suspects. The prosecutor's office is therefore responsible for bring cases to court, including what charges will be brought against the defendants (118), and what court the claims are heard in (123). However, the prosecutors receive almost all information about crimes from the police (119).
• In 1975, over 90% of all cases brought the police were prosecuted in Scotland, whereas in the 1990s, that number has dropped to below 50%. This again increased to 75% in the late 1990s, as many minor traffic cases were transferred entirely to police discretion, but this rate still reflect significant use of alternatives to prosecution (119-120).
• Instead of pursuing criminal prosecution, prosecutors can choose to not prosecute, either because of lack of evidence or prioritizing other cases, issue a warning about the behavior, recommend diversion to help from social work or mental health specialists, invoke a fixed financial penalty, or a discretionary financial fine (120-123).
• Like most other countries, most criminal cases in Scotland end in plea bargains, called charge-bargaining, where the accused accepts a deal to avoid a court case. In Scotland, the extreme discretion of prosecutors means that these deals usually involve the modification of criminal changes in return for admission of guilt (124).
• In other jurisdictions, such as England and Wales, the only kind of plea bargain is for sentence deduction, where the penalties for crimes can be reduced in return for cooperation and admission of guilt within set guidelines (halved, 1/3, etc.), whereas the Scottish system is much less regulated and more discretionary (124).
• The Lord Advocacy of Scotland is trying to enforce internal discipline over its lower prosecutors, called prosecutors fiscal. First they have issued a guidebook of regulations and conduct to all prosecutors, although this guidebook and its reasoning are not publicly available. The Lord Advocacy also collects data which it uses to discipline prosecutors, although all this information and investigation remains internal (126-127).
• Generally victims of crimes, and those accused of crimes, have no ability to determine what charges will be laid against the accused, or even if charges will be pursued. Both victim and accused may ask for a prosecutorial decision to be considered by the Crown Council, but this is just the administrative superior and even then, no official has to give a reason for the request to be rejected (127-128).
• In very rare and isolated cases, a 'private prosecution' with special conditions may be considered, but it is exception because it requires the consent of the Lord Advocate or the High Court (128).
• "Given the absence of effective external control over the use by prosecutors of their very wide discretionary powers, considerable confidence must be placed in the competence, professionalism and incorruptibility of the prosecution service. It is fair to say that, at present, the Scottish public prosecutor is generally held in sufficiently high esteem, by both the general public and other participants in the criminal justice process, for the necessary trust to be granted" (129).