Evening News, 20.10.08
In America, they do it for dog-catchers, fire chiefs and sheriffs as well as governors, senators and presidents. Electing public officials is a long-established part of the United States political culture. Now a think tank report has recommended Scotland follows its example in putting the choice of chief prosecutors to the vote.
Reform Scotland wants to see direct elections for the country\’s 11 area procurators fiscal in a bid to improve accountability to the public.
"Procurators fiscal should be directly elected from the areas they serve, similar to the way in which many District Attorneys in America are elected to office," says the right-leaning think tank. "Such a policy would lead to a far clearer and more transparent system of justice, and could also allow different area procurators fiscal to pursue crime in different ways reflecting the problems in their area."
There are already directly elected mayors in some towns and cities in England; the idea of directly elected provosts is raised every now and then for Scotland; and the Tories have argued for police board conveners to be elected directly by the public to promote democratic accountability for policing policy.
But does it make sense to have elections for a post which is about exercising professional judgement and expertise in what are often grey areas overlaid with complex webs of legal technicalities?
The job of fiscals is to receive and consider reports on crimes and offences from the police and decide whether or not to take criminal proceedings in the public interest. In doing so, they have to consider a whole range of factors, including the seriousness of the offence, circumstances of the case, interests of the victim and other witnesses, age of the offender, any previous convictions and local community interests or general public concern.
Reform Scotland argues that fiscals are prosecuting on behalf of local communities and if they were elected instead of appointed, as at present, it would give the public a say in the policies pursued.
Judges have to be independent, the think tank acknowledges, but fiscals are making important decisions on what crimes to prosecute and whether there should be any plea bargaining.
"At the moment, these are taken behind closed doors and we think we need to open it up," says Geoff Mawdsley, former Edinburgh Tory councillor and now director of Reform Scotland.
"This doesn\’t need to be party political. We envisage it as qualified professionals setting out the policies they would adopt in office. If they think they are doing the job well, they just need to justify that to the electorate and they will get elected."
Reform Scotland says elections would allow a debate on how particular crimes should be handled locally – for example, whether all drug crimes should be prosecuted before a Sheriff and jury where higher sentences can be imposed in an attempt to act as a greater deterrent.
But Edinburgh-based human rights lawyer John Scott believes electing fiscals would undermine their independence and reduce the flexibility they currently exercise in deciding how to handle individual cases. He says: "It would become a competition between the candidates as to who can prosecute more criminals to the fullest extent of the law.
"And you would end up with a manifesto commitment that would mean individual fiscals would have very little discretion. For the whole of your term you would be hostage to all the things you had said during the election campaign." Mr Scott fears candidates would come under pressure from populist campaigns and end up pandering to the lowest common denominator and chasing whatever "sexy new crime" was in the headlines.
And, he added: "The sort of person who would enjoy all the publicity and campaigning to get elected might be exactly the sort you don\’t want. My preference would be to have a fiscal who is a good lawyer, with intelligence and common sense rather than someone who was photogenic and pandered to prejudices.
"Any election seems to reduce even intelligent people standing for office to their worst level. I\’m glad we don\’t live in a country like America where every position is up for election."
Mr Scott insists fiscals are already accountable through the possibility of judicial review or appeals and because they live and work in the areas they serve. He says elections are not the only way to gauge public views: "The Crown Office and fiscal service has been very good at reaching out to victims and families."
He adds that courts can already adopt a tougher attitude to certain crimes if there is a local problem that needs to be tackled. He cites one drugs case in Shetland a couple of years ago where a person importing drugs got a stiff eight-year jail sentence. "It was upheld on appeal on the basis there was perceived to be a growing drug problem in Shetland. But if the same case had occurred in Edinburgh or Glasgow, the sentence might have been four or five years."
And he says it is not always the case that the public wants tougher approaches to dealing with crime. A Scottish Parliament study into public attitudes to sentencing found that the more information people were given about a case, the less likely they were to urge harsh punishment – and sometimes they were more lenient than the judges.
"I trust the people if they are well informed, but I don\’t trust that they would be properly informed," says Mr Scott.
SUPPORT YOUR LOCAL SHERIFF – LAW ENFORCEMENT IN THE US
In the United States, elected sheriffs control both prisons and policing in their counties. Law enforcement officers have the freedom to crack down on or devise innovative new approaches to dealing with crime.
American-style directly elected local sheriffs were at the centre of proposals to shake up neighbourhood policing announced by then Tory leader Iain Duncan Smith in 2003.
Sheriff Joe Arpaio, of Maricopa County, Arizona, USA, is famous as "America\’s toughest sheriff". He is best known for putting his prisoners in chain gangs, but points out that his was also the first county to hold Girl Scout meetings with mothers in prison.
George Reid was elected sheriff of McCormick County, South Carolina, in 1987 – 13 years after being convicted of robbery. He was elected after receiving a pardon for his crime – but the sheriff he replaced was sent to prison for six months after being convicted of trying to fix the election.