Are prosecutions being driven by victim's families, or for the wider public interest? Steven Raeburn meets the prosecutor and the defence counsel who joined forces after a case that raised that question, and appealed to the Lord Advocate to take steps to redress the balance & ensure the state's scales are weighted to provide justice, rather than revenge.

Their professional responsibilities define them as opponents, but the tragic case of Nicola McMillan's abortive prosecution has brought defence advocate Gordon Jackson QC and Crown advocate depute Jock Thompson together, united in their concern that their formerly clearly defined roles were blurring under pressure from families of victims of crime.

The drift towards the perception that a prosecuting advocate depute acts on behalf and at the behest of families affected the handling of the MacMillan case so severely, Thomson says he would have resigned over it, had he not already announced his retirement from the service. Both he and Jackson are more alarmed that the disquiet they share - which they say is widely held at the highest levels across the profession- is being ignored by the Lord Advocate who does not want to acknowledge that there may even be an issue.

Thomson, who led the case against Nicola Macmillan who had been charged with murder, described the case as a "witch hunt" driven by the victim's family, and said they feared the Crown allowed the deceased's family to pressure them into pressing on with the case. He is joined by Gordon Jackson, who defended McMillan against the charge, who has tried unsuccessfully to lobby the Lord Advocate to acknowledge their joint concerns that the understandable wishes of victim's families to see justice done may actually be interfering with the administration of justice. It is a partnership borne of principle, and unprecedented in its nature, with one sole aim: to improve the daily administration of justice.

So what actually happened?

The facts of the McMillan case are pitiable. Her partner, Steven Richford, died from a single stab wound that appears to have been either self inflicted, delivered accidentally or arose from self defence. During the judicial examination of facts, defence counsel Jackson argued that the evidence led was insufficient to establish that a crime had even been committed, far less a murder, and prosecutor Thompson concurred, saying he found it "difficult, if not impossible" to disagree. He added that the victim's family appeared to have been "permitted, if not actively encouraged, to demand justice in a situation where there had been no injustice to begin with". Nevertheless, a murder charge was brought.

"It seems to have proceeded on an erroneous view of the law, a biased distortion of the facts and a seeming determination that Nicola should be prosecuted for a murder which it could never be proved she committed. In a proper and understandable climate of concern for victims, it may be said Nicola was the main victim in this case," Thompson said subsequently.

Jackson agrees that the decision to continue with the prosecution was "at least greatly influenced by the views and attitudes of the deceased's family."

MacMillan was ultimately cleared of murder at the High Court in Kilmarnock in January. Since then, Thompson expressed his concerns in a lengthy written thesis that narrated in detail his concerns over each aspect of the handling of the case, that was addressed to the Lord Advocate and has been passed to the Firm. He and Jackson have both appealed to the Lord Advocate to address their underlying worry, which is that the Crown's policy to assist victim's families is being allowed to interfere with Crown Counsel making key prosecutorial decisions.

"There is no doubt in my mind that it is a good thing that there is more interface with families," Jackson told The Firm.

"They should be kept informed and in the loop. I also have no doubt that the policy is that advocate deputes take impartial decision without fear or favour, and the families views don't influence that. However I think it is more subtle. It is difficult to maintain that in practice.

"If you are constantly reassuring a family that a certain course of action will be followed, that situation begins to influence the decision making. It is very difficult to stop that influence of process."

Jackson also notes that the pressure applied to the Crown from the media and from politicians may add to a gradual cultural drift towards appeasement of victims, at the expense of impartial decision making.

"The press don't always help, MSPs don't always help, and the tendency can easily arise - many think it has arisen already- where it is easier to not take the hard unpopular decision and instead let matters take their course. Senior advocate deputes, senior procurators fiscals say they can no longer do what they pay for, because things are just left to hit the buffers so nobody can be blamed. On top of that you have the difficulty with families, where it is easy for things to get out of kilter, no matter what the policy document says."

The famous Glasgow Rape case of 1982 illustrates the extent to which the policy has changed. In that case, the victim only learned that her rapists would not face trial when she read about it in the papers, and it was the dropping of the case that led to the landmark private prosecution. Clearly, as a victim of crime, she had been horribly let down on many levels, the most preventable of which was failing to keep her informed of developments. A lot has changed since then. It is current Crown policy to provide specialist support and information to victims of crime and their families, and the Victim Information and Advice division has doubled in size over the last five years, and now employs around 100 staff.

The laudable aims of the division have, argue Jackson and Thompson, overlapped into the strictly legal arena of the prosecutors, and it is their contention that the roles must remain separated to reverse the perception that prosecutions have become "family driven".

"My point, which I have made to the Lord Advocate is that I have no doubt, from speaking to lawyers, solicitors, advocates, QCs, that this is a widespread perception. All Elish has done is shoot the messenger, put her head in the sand and claim there is nothing in this, rather than have an open debate to deal with this perception and make sure nothing is going wrong," Jackson says.

"There is an unwillingness to have a genuine open discussion. If there is a perception among very experienced lawyers that this is a problem, then that needs to be discussed, even if it turns out we've got it wrong. It should be discussed openly and dealt with, and I have offered it; in my last letter to Elish, to meet with her and senior prosecutors, fellow colleagues and members of the legal profession, and to that last letter I didn't even get an answer."

Thompson agrees that there is "without doubt a widely held view that the Crown are now seen to be the families' lawyers".

"After what happened in the Carol X case, the Crown have gone to the wrong end. They are confusing the roles. The advocate depute's job is to get on with the trial and prosecute it in the public interest without fear or favour, without any influence from families. Trained professionals, dedicated people, will deal with these people and liaise with Advocate deputes, who should never get near families before or during a trial. Families shouldn't influence trial proceedings, although they should be advised of decisions taken as a matter of law, and told as a matter of courtesy.

"There have been high profile cases where the prosecutor has engaged with the family and given them a daily debriefing on how the evidence has gone that day and how it is hoped to go tomorrow. As a result, fiscals get relatives complaining about the questioning, about things that weren't asked, that were not admissible. 'YouÕre my lawyer and you messed up this case'. They are given an expectation. It has become preposterous."

Jackson agrees that a high level of engagement with victim's families can make it difficult, despite the best intentions, to act neutrally or avoid the impression that the Crown acts for them, rather than the wider public interest.

"It makes taking an objective difficult decision that much more difficult. People are only human. You can't sit down with someone on a very regular basis and they clearly want something to happen, and not find that it makes it more difficult. You can have all the policies of independence in the world, but you can also have other policies that make that more difficult. It is multifactorial.

"It is a culture which is developing. Elish may be annoyed at me for raising it, but let's sit down with senior people from both sides and thrash this out. If there is a perception, it needs dealt with. I don't get any impression there is any willingness to really engage with this problem. I got back what I thought was the typical government brush off and denial. I would have hoped for a better response than that. It has eroded confidence in the rest of the legal profession -including sheriffs and judges- that the Crown are doing the job in the right way."

The Firm asked the Lord Advocate to contribute to this analysis, but Ms Angiolini has declined. The Crown Office issued a statement confirming that she has received correspondence from Jock Thomson and Gordon Jackson. Prosecuting highly charged and high profile criminal cases is no easy task, and the Firm respects the difficulty of the task and the somewhat nebulous nature of the cultural issues raised by Jackson and Thompson. However, it is the apparent refusal to engage with these concerns that presents a more disturbing matter for the wider public interest and for the administration of justice.

It benefits no one for an institution to be unwilling to engage with the concerns of its own respected professionals, and if an organisation is so functionally constipated that it cannot open its systems privately to hear the concerns of its own membership, it raises the question; to whom will it listen?

"I would like Elish to accept that the very fact there is such a perception in existence is in itself a problem, and as a first step to be prepared to have this whole issue thrashed out and discussed openly, so that if it seems clear that there is in fact a problem here, it is addressed and steps taken to rectify it," Jackson says.

"Set aside a day with Chatham House rules, senior and junior fiscals and senior lawyers to really have a look at this. But my impression is that the barricades are up."

Thompson argues that the solution to the problem already exists, and stands to be implemented should the will and attitude to take appropriate action exist.

"The solution to the problem is to let the trained, professional dedicated people deal with the families, and let the lawyers and Advocate deputes get into court and prosecute the case," he says.

The silence towards Carol X case was as unacceptable as the claimed servitude to the wishes of the families in the MacMillan case. A clarification of responsibilities is probably all that is required, should those in charge of the administration of justice acknowledge that the problem articulated by Jackson and Thompson is causing widespread disquiet amongst the judiciary and counsel. A continued failure to engage with concerned experts simply to preserve the artificial edifice of infallibility serves no one, and ignoring a problem will not make it go away. The Firm is happy to offer to assist in convening and to cover the outcomes of the debate Jackson and Thompson are calling for, should it take place. Not only must justice be seen to be done in the prosecution of crime, but those working in the system must have confidence that it can react to their concerns. If they do not, the result may be that many more may lose faith in the work they are doing, as Thompson did, which would only ensure that victims of crime become victims of bureaucracy too.