MSPs warned prosecutors being forced to proceed to trial in certain cases
There has been a "leeching away" of the discretion of prosecutors in deciding which cases to take to court, lawyers have warned MSPs.
There has been a "leeching away" of the discretion of prosecutors in deciding which cases to take to court, lawyers have warned MSPs.
Bar associations in Scotland's cities said procurator fiscal deputes may be forced to proceed to trial in cases involving domestic abuse or hate crime because of policy rather than their own professional judgement.
Holyrood's Justice Committee has launched an inquiry into the role of the Crown Office and Procurator Fiscal Service (COPFS).
It is due to hear from a number of organisations on Tuesday, including the bar associations representing lawyers in Edinburgh, Glasgow and Aberdeen.
All three have raised the issue of loss of discretion in written submissions to the committee, stating it is a "serious concern".
The ability is of prosecutors to judge for themselves whether evidence is strong enough for a case to proceed is a key component in Scots Law.
In its submission, Edinburgh Bar Association said "the leeching away of the discretion of the procurator fiscal depute in court to take decisions on the prosecution is the greatest enemy to efficiency and effective management by COPFS".
It added: "It is stated COPFS policy that in some types of case - predominantly matters of a domestic nature or involving an alleged aggravation of prejudice of some kind - the procurator fiscal depute in court has no discretion as to whether or not to proceed with the case.
"This applies, it is understood, notwithstanding any proper professional views they may have formed based on the evidence available to them.
"This has to be a serious concern to the committee and the general public."
Both Edinburgh and Glasgow bar associations said where discretion does exist there can be a reluctance to use it.
Edinburgh Bar Association said "there seems to be a culture of fear amongst deputes in exercising it".
It added: "The common practice of employing procurator fiscal deputes on short-term contracts exacerbates this, as they do not want to be seen to 'put their heads above the parapet'."
Glasgow Bar Association's submission said many of the deputes are junior fiscals, many of whom are engaged by the Crown on fixed-term contracts, "perhaps leading to an understandable reluctance to make any significant decisions in terms of a plea being proposed to them, through anxiety that their decision will be criticised".
Aberdeen Bar Association's submission said: "Procurator fiscal deputes should be given the trust, authority and support to make decisions, based on their discretion, as lawyers.
"They should not be bound by Government policy or dictated to in terms of apparent universal policy or strategy regarding specific types of criminal conduct."
A Crown Office spokesman said: "The Law Officers and Crown Agent welcome the Justice Committee's decision to examine the work of Scotland's prosecution service as an opportunity for them to set out their vision and the successful contribution which COPFS makes to the justice system.
"Among the priorities for the Lord Advocate are tackling the harm caused by domestic abuse and hate crime. Procurators fiscal work towards those priorities and their work is essential to the administration of justice."
"The Lord Advocate has confidence in the professional skill and dedication of COPFS staff to prosecute crime in Scotland."