Douglas McConnell

As a centrist dad and criminal defence lawyer, I don’t want a justice system that arrests and prosecutes everything, nor one that shrugs at genuine harm. I want one that thinks carefully, contextually, and with the public interest in mind. The Linehan case is a reminder that the key question in many cases is not can we act, but should we. For all its flaws, a system with discretion is far healthier than one without it.

Linehan’s arrest, and the backlash, forces us to ask whether discretion was properly exercised. Was the investigation proportionate? Was arrest necessary? Would a prosecution be justified? These questions reinforce two truths: discretion is essential to a functioning justice system, and how it’s exercised shapes public trust as much as the law itself. It also highlights the danger of perception. If the public believes decisions are driven by ideology or blanket policies, confidence in the system’s neutrality erodes.

In Scots criminal law, discretion isn’t a single decision. It’s a thread running throughout. Police decide whether to investigate, how to allocate resources, whether to escalate a complaint. During inquiries, choices are made about witnesses, evidence, and whether to arrest or charge. Prosecutors assess whether there’s enough evidence and if pursuing the case serves the public interest. Even in court, decisions around plea deals, sentencing, or discontinuation involve discretion. Take away those decision points, and the system starts running on autopilot. Every complaint heads straight to prosecution, no matter the circumstances. It might seem tough, but it’s not smart or fair.

Public interest discretion goes beyond legal sufficiency. It’s about judgment; balancing enforcement with societal values. Is the response proportionate? Will prosecution protect the public or inflame tensions? Would alternatives like warnings or restorative justice be more effective? Could social or personal context shift the calculus? Crucially, discretion must be shielded from political pressure or lobbying. Public interest is not the same as public pressure. When prosecutorial decisions begin to reflect the influence of political campaigns or ideological movements, discretion risks losing its integrity - no longer a safeguard of justice, but a lever for factional gain.

A growing concern is the shift toward a “no discretion” culture in certain areas. Particular concerns surround domestic incidents and perceived hate crimes. These are serious matters, but treating them as automatic prosecutions, regardless of context, undermines the purpose of discretion. Blanket approaches can lead to outcomes that serve neither victims nor the public interest. They remove space for nuanced decision-making and risk making justice a blunt instrument.

Every week, I see cases that shouldn’t be prosecuted. I also know there’s a parallel universe of cases I never see, where someone else decided not to prosecute. I understand this isn’t a flaw. It’s the system working as intended. Discretion will never be perfect. It will be inconsistent. But the alternative - a rigid, automatic system with no room for judgment - would be far worse. If we want a justice system that commands public confidence, we must keep discretion at its heart: principled, free from political distortion, and always anchored in the public interest.

Douglas McConnell is a partner at Duncan & McConnell. This article first appeared in The Scotsman.