Scotland is no soft touch, says Lord Advocate

His remarks echo growing frustration among justice experts that a nation with one of Europe's highest incarceration rates is described as soft on crime.

Mr Wolffe stressed that prosecutors and courts looked for decisions which were "appropriate and proportionate" before adding "That is not the same thing as soft touch."

The Lord Advocate was speaking after delivering an annual lecture to APEX Scotland, a charity set up to help one-time offenders stay out of trouble.

He did so as the Scottish Government unveiled plans to introduce a presumption against prison sentences of under a year, up from the current three months.

SNP ministers, backed by most of the justice sector, argue non-custodial services and support from bodies like APEX will help to reduce re-offending and crime.

Ms Sturgeon said: "For some people, a period in prison - sometimes a lengthy period - is the only appropriate sentence.

"However, we also know that community sentences, where appropriate, are much more effective in reducing re-offending."

Liam Kerr MSP

Conservative justice spokesman Liam Kerr, a former solicitor, cited 2015-16 figures showing that 99 out of 325 people jailed for sex offences were sentenced to less than a year.

Writing in the Daily Mail, which described the proposed SNP changes as a "Charter for Violent Criminals," Mr Kerr said: "A quarter of sex offenders sent to prison last year would be, to all intents and purposes, let off the hook.

"The SNP does not like it when people accuse it of presiding over a soft-touch justice system but that is exactly what is happening."

In fact, average jail time given to sex offenders rose in the year Mr Kerr cited. The average sentence for rapists was seven years.

The 2015-16 figures showed that the proportion of convictions leading to a custodial sentence had fallen from 14 per cent to 13 per cent since 2007-2008.

Community services, however, jumped from from 12 per cent to 19 per cent as courts sought alternatives to both jail and fines.

The figures also showed the number of people given very short sentences falling while those receiving between a year and two years leapt from 992 in 2007-2008 to 1,481 in 2015-16.

Conservatives have also called various alternatives to prosecution, such as fiscal fines or police warnings as a symptom of "soft touch Scotland".

Mr Wolffe defended such direct measures, a Tory-era 1995 innovation, as facing "the accused up with consequences of offending more swiftly than court proceedings."

Ever since Conservative reforms in the early 1980s, Scottish fiscals have also been able to decide that it is not in the public interest to prosecute some offenders and instead divert them to social work programmes, usually helping with underlying problems like drug or alcohol abuse.

The number of diversions almost doubled between 2007-8 to 2014-15 with nearly half of them provided to under-21s. Previous studies have suggested a post-code lottery on such schemes.

Mr Wolffe, in his lecture, suggested that still may still be the case.

He said: "The ability of prosecutors to use diversion consistently is constrained by the diversity of provision in different parts of the country."

The Lord Advocate welcomed the new community justice regime as a way of "enhancing" diversion schemes across the country.

Alan Staff, chief executive of APEX Scotland, meanwhile warned of a public "disconnect" between the need to punish and the need to think how to stop re-offending.

He said: "We need to provoke a a discourse that sees keeping people out of criminal justice as being a success rather than getting people in."

David Leask: Scots prosecutors told to show professional judgment, not discretion

POLICE constables like to say they have discretion.
Judges clearly have. But do prosecutors? Not really, says their boss, Scotland’s Lord Advocate.
“I prefer to speak of professional prosecutorial judgment,” explained James Wolffe, QC. “Prosecutors do not exercise discretion, rather they exercise professional skill in assessing the evidence in the light of the relevant law.”
This may sound like a nicety. It is not. Ensuring justice is the same everywhere in Scotland is no minor matter. The line between prosecutorial discretion and prosecutorial arbitrariness, after all, is a fine one. And it is one which is often crossed on the continent.
Mr Wolffe, giving the annual Apex lecture in Edinburgh’s Signet Library, close to the Faculty of Advocates, another ancient body he once led, made it clear that he expects his prosecutors to make consistent decisions, wherever they are.
“Reasonable professionals may sometimes disagree,” he stressed. “But I would not regard it to be desirable in our national prosecution service for different prosecutors to apply materially different approaches to similar offending, without good reason.
“Prosecutors exercise their framework within a framework which, today, seeks to secure reasonable consistency of approach across the system.”
Mr Wolffe does not just mean that there are national guidelines. There are also national units, specialist teams of prosecutors in complex areas like sex crime who make sure prosecutorial decisions, including on how they lead police investigations, are broadly aligned. Mr Wolffe he said he was “struck” to read French magistrates suggest
very different attitudes to sex offenders.

James Wolffe QC

The Crown Office, however, is not making decisions on whether to prosecute – or to prosecute on what charge – in a bubble detached from general public policy. It is not just the law it has to worry about.
Take decisions on whether to send an offender for some kind of diversion scheme – say drug treatment – rather than to court. A fiscal can only do that in an area where there is a properly resourced service. He or she cannot simply decide that somebody should be diverted to a project which does not exist or which is short-funded.
Thus the Lord Advocate, in an understated way, reminded his audience that the ability of prosecutors to divert an offender away from prosecution is “constrained by the diversity of provision” of such schemes.
Mr Wolffe welcomed the new national body, Community Justice Scotland, to oversee the whole system of non-custodial disposals – and try and end the revolving door of repeat offenders going in and out of jail.
The Lord Advocate – well aware of the “soft-touch Scotland” – has made his own study of other systems.
Prosecutors may not have discretion. But they do have choice, choices that put them, Mr Wolffe says, in the “European mainstream”.
Scotland has had a single police force for four years. It has had a single head of prosecution for four centuries. Can it be sure there is no postcode lottery for justice?