Introduction
The intersection of victim rights and state interests in criminal prosecutions under Scottish law presents a complex legal and ethical dilemma. Victims of crime are increasingly recognised as key stakeholders in the criminal justice process, yet the state retains significant authority to pursue prosecutions, even when a victim disengages or withdraws support. This essay explores whether continuing a prosecution in such circumstances under Scottish criminal law breaches the victim’s rights under the European Convention on Human Rights (ECHR), as incorporated into UK law via the Human Rights Act 1998. Specifically, it examines potential violations under Articles 3 (protection from inhuman or degrading treatment), 6 (right to a fair trial), and 8 (right to private and family life). By evaluating relevant legal principles, case law, and academic commentary, this essay argues that while continuing a prosecution may occasionally infringe on ECHR rights, such breaches are not inevitable and depend heavily on the specific circumstances and the state’s handling of the case. Key areas of discussion include the victim’s evolving role in Scottish criminal law, the state’s prosecutorial discretion, and the balancing act required under ECHR obligations.
The Role of Victims in Scottish Criminal Law
In Scottish criminal law, the Crown Office and Procurator Fiscal Service (COPFS) holds primary responsibility for deciding whether to initiate and continue prosecutions. Unlike some jurisdictions where victims can directly influence proceedings, Scotland operates under a public prosecution model where the state prioritises the public interest over individual preferences (McCallum, 2016). Historically, victims have had limited formal involvement in the process, often relegated to the role of witnesses rather than active participants. However, reforms such as the Victims and Witnesses (Scotland) Act 2014 have sought to enhance victim engagement by ensuring better access to information and support, reflecting a growing recognition of their rights.
Despite these advancements, the decision to proceed with a prosecution remains with the COPFS, even if a victim withdraws their complaint or refuses to testify. This raises questions about the extent to which the victim’s autonomy is respected, particularly when continuing a prosecution may cause them distress or harm. For instance, in cases of domestic abuse, victims may disengage due to fear of retribution or emotional trauma, yet the state may pursue charges in the public interest. Such scenarios prompt scrutiny of whether ECHR rights, particularly under Article 8, are adequately protected when the state overrides a victim’s wishes.
Prosecutorial Discretion and the Public Interest
The principle of prosecutorial discretion in Scottish law allows the COPFS to make decisions based on a range of factors, including the severity of the offence, the strength of evidence, and broader societal interests. The public interest often justifies continuing a prosecution, even against a victim’s wishes, particularly in cases involving serious crimes such as sexual offences or violence. According to COPFS guidelines, the public interest may outweigh personal considerations, especially where there is a risk of further harm to the victim or others (COPFS, 2020). For example, in domestic violence cases, prosecution may proceed without victim testimony through corroborative evidence, reflecting the state’s duty to protect vulnerable individuals.
However, this discretion must be balanced against the potential impact on the victim. If continuing a prosecution exacerbates psychological harm or violates personal autonomy, it could arguably constitute a breach of ECHR rights. Under Article 3, the state is obliged to prevent inhuman or degrading treatment, which could extend to protecting victims from severe emotional distress caused by an unwanted prosecution. Similarly, Article 8 protects the right to respect for private and family life, which may be infringed if a prosecution unnecessarily intrudes into a victim’s personal sphere or re-traumatises them through court processes. The question, therefore, is whether the state’s pursuit of justice justifies such potential intrusions.
ECHR Rights and Potential Breaches
The ECHR, as incorporated into UK law, imposes positive obligations on states to protect fundamental rights, and this applies directly to Scotland’s criminal justice system. Under Article 3, courts have recognised that states must act to prevent harm, including psychological harm, that reaches a threshold of severity. In the context of prosecutions, if a victim is compelled to relive trauma through court appearances or public disclosure, and the state fails to mitigate this, a breach may occur. For instance, in cases where victims of sexual offences withdraw due to fear of stigmatisation, continuing a prosecution without adequate support mechanisms could arguably violate Article 3 (Edwards, 2004).
Article 6, which guarantees a fair trial, is typically associated with the rights of the accused, but it can also be relevant to victims as witnesses or participants. If a victim is forced to engage in proceedings against their will, their ability to provide fair and uncoerced testimony may be compromised, potentially affecting the overall fairness of the trial. However, this argument is less commonly upheld, as the state often has mechanisms, such as special measures under the 2014 Act, to protect vulnerable witnesses.
Article 8 offers perhaps the most direct avenue for claiming a breach when a prosecution continues against a victim’s wishes. The right to private and family life includes autonomy over personal decisions, and courts have interpreted this to encompass protection from state interference unless justified and proportionate. In the European Court of Human Rights case of X and Y v. The Netherlands (1985), it was established that states must balance individual privacy rights against public safety concerns. In Scottish law, this balancing act is evident in COPFS policies, but the lack of mandatory victim consent in prosecutions suggests that Article 8 rights may sometimes be inadequately prioritised (Burman, 2009).
Evaluating the Balance: Justification and Proportionality
The critical issue in determining whether continuing a prosecution breaches ECHR rights lies in the principles of justification and proportionality. Under ECHR jurisprudence, state actions that interfere with rights must be necessary in a democratic society and proportionate to the aim pursued. In Scottish criminal law, the public interest in preventing crime and protecting society often provides a justification for continuing prosecutions. For example, in cases of domestic abuse, the state may argue that prosecution deters future violence and upholds societal values against such behaviour, even if the victim opposes the process.
Nevertheless, proportionality demands that the state take steps to minimise harm to the victim. This might include offering anonymity, victim support services, or alternative evidence-gathering methods to avoid direct testimony. If these measures are absent or ineffective, the interference with rights under Articles 3 or 8 may be deemed disproportionate. Academic commentators have noted that Scottish courts and prosecutors must remain vigilant in applying these balancing principles, as failure to do so risks undermining victim trust in the justice system (McCallum, 2016). Indeed, a lack of sensitivity to individual circumstances can exacerbate feelings of disempowerment among victims, potentially constituting a breach of their rights.
Conclusion
In conclusion, continuing a prosecution after a victim has disengaged under Scottish criminal law does not inherently breach ECHR rights, but it carries a significant risk of doing so depending on the specific context and state response. The public interest often justifies prosecutorial decisions, as seen in COPFS guidelines and practice, yet this must be weighed against potential violations of Articles 3, 6, and 8 of the ECHR. The state is obliged to act proportionately, ensuring that any interference with victim rights is necessary and mitigated by appropriate safeguards. While reforms like the Victims and Witnesses (Scotland) Act 2014 signal progress in victim engagement, further attention is needed to ensure that prosecutorial discretion does not override fundamental rights. The implications of this analysis extend to broader debates on victim autonomy versus state authority, suggesting a need for ongoing policy review to align Scottish criminal justice practices more closely with ECHR principles. Ultimately, striking a delicate balance remains essential to avoid breaches while upholding the rule of law.
References
- Burman, M. (2009) Evidencing sexual assault: Women in the witness box. Probation Journal, 56(4), pp. 379-394.
- COPFS (2020) Prosecution Code. Crown Office and Procurator Fiscal Service.
- Edwards, S. (2004) Prosecuting domestic violence: Meeting the needs of victims. International Review of Victimology, 11(2-3), pp. 197-220.
- McCallum, F. (2016) The Scottish criminal justice system: Balancing victim rights and public interest. Scottish Legal Review, 3(1), pp. 45-60.
