Our system, as in England and thus throughout most of the English speaking world, is accusatorial. The prosecutor accuses someone of committing a crime and leads evidence before a judge who decides on that evidence. Other systems, such as France, are inquisitorial. It is the examining magistrate who investigates. Originally in Scotland we had an inquisitorial system and, even though that is long gone, you can still find echoes of it in our legal language.
One of the principal differences between our Southern brethren and us is that prosecution in Scotland is by a public prosecutor. Private prosecution, that is a private individual bringing a prosecution, is so rare that there is only about one every decade. It requires the permission of the High Court for an individual to prosecute. Contrast this with England where the Crown did not prosecute anyone for the Lawrence murder so the parents did. The result was that no one was convicted and those suspected now have immunity from being prosecuted again, even if more evidence comes to light.
In not being influenced in any way by having been a fiscal for over 26 years, I strongly approve of our system. Our prosecutor has to stand back, consider the evidence dispassionately and place the crime in context with all the other crimes reported to him. A victim cannot, and cannot be expected to, carry out such an exercise. The fiscal is not under pressure to prosecute, for example because someone is angry about what happened or because a great deal of time and effort has gone into securing the evidence. I believe that this leads to fewer bad cases being brought.
However, in Scotland you, as a victim, cannot insist upon someone being prosecuted should the fiscal disagree. You do not have the option of bringing a private prosecution as you do in England. Nor do you have the English right to refuse to make a complaint whereby someone is not prosecuted. To prosecute or not is exclusively the right of the fiscal. There is no right of appeal against his decision. Nor can you seek a court order requiring his decision to be reviewed. In our system there is a real risk that a victim could feel that his position and feelings are given too little weight.
