An interesting discussion

So there we were, m'learned friend, young grasshopper, Uncle Fester and I, in the club last night watching Newsnight, amazed that Wendy Alexander had taken to referring to herself in the third person (as in "well, Wendy has taken ...") as well as her strange delusion that she had done something good or actually achieved something by persuading the Electoral Commission that they didn't have enough evidence to refer her to the beak - she really needs to take a break for her own health and peace of mind.

Conversation after the programme turned in an interesting direction. Following on from the bit in the Electoral Commission's statement that said that prosecuting in this case wasn't in the public interest, I got to asking "how do they judge that?"

Not just in this case - other cases are deserted because prosecuting them further isn't in the public interest. How does a prosecutor (again, I'm assuming it's usually the proc fisc) decide which prosecutions would be in the public interest and which wouldn't.

M'learned friend tells me that the procurator fiscal has guidance from the Crown Office about the public interest test. I set off in search of that guidance - of which more later. The Electoral Commission, of course, doesn't have that guidance because it is not a prosecutor and really shouldn't be taking decisions about what is and is not appropriate for prosecution, but once an investigatory body like the Electoral Commission is set up such anomalies will occur.

Anyway - how to decide whether it's in the public interest to prosecute:

First, open the Prosecution Code
Turn to page 6 (8 of 16 in a viewer window)
You'll find things laid out there, not a flowchart or anything of that nature, but a list of things that have to be considered. There's quite a bit of detail, but these are the headings:

(i) The nature and gravity of the offence
(ii) The impact of the offence on the victim and other witnesses
(iii) The age, background and personal circumstances of the accused
(iv) The age and personal circumstances of the victim and other witnesses
(v) The attitude of the victim
(vi) The motive for the crime
(vii) The age of the offence
(viii) Mitigating circumstances
(ix) The effect of prosecution on the accused
(x) The risk of further offending
(xi) The availability of a more appropriate civil remedy
(xii) Powers of the court
(xiii) Public concern

There's very little that actually gets said in the document about what decision the procurator fiscal should make, most of it is couched in terms like this:

(xiii) Public concern
In assessing the public interest the prosecutor will take account of general public concerns as well as local community interests.
Arrangements can be made to enable local community representatives to discuss general matters of concern with the Procurator Fiscal although the final decision is the responsibility of the prosecutor.

Once the Procurator Fiscal has decided not to prosecute and advised the accused person accordingly or stated this publicly, there is no way to reverse that decision. Whether a decision of the Electoral Commission falls into the same category or not is an interesting question, but since the Crown Office has said today that there doesn't seem to be any basis for further inquiry it would seem that the case is dead.

Except that it isn't in the public domain yet. Justice must be seen to be done, after all - I'm sure some scribe of a great public organ is already beavering away.