Monday, June 09, 2008

Fiscals role as judge jury & executioner does not serve justice

Of course it doesn't !

Who on earth in their right mind would trust the Crown Office to take the role as judge, jury & even executioner !

What will the legal profession do about this ? Do we see a possible challenge to the law on the horizon from some brave solicitor out to see people do get a fair trial ?

The Scotsman reports :

Diverting cases away from court may be cheap and convenient but it does not serve justice

By Martin Morrow

AS A criminal court practitioner I find the new "diversion" policy – designed to take people out of the court system – half-baked and an affront to the idea of justice being done and being seen to be done.

The principle is simple. The Procurator Fiscal, responsible for bringing the prosecution to court, and allowing the court to assess guilt or innocence, has adopted a new role of judge and jury. Now, after reading reports from the police, they will provide an accused person with a letter saying that they are satisfied there is a sufficiency of evidence to prove guilt and impose sentence.

The accused, on receipt of this letter, has a period of time to protest their innocence and request a trial. If they fail to do so, they are deemed to be guilty. A record of the disposal is kept for up to two years and will be used in the event that they are in further trouble.

Space prohibits going into the lamentable inadequacies of this system, but it is important to highlight that, after 300 years, the presumption of innocence has been removed from our justice system. A presumption of guilt now automatically applies – subject to a right to request to a trial.

The procedure, currently in its infancy, is ideologically flawed. So far, I have seen some accused ecstatic at being "diverted" and not required to appear in the dock. All they must do is leave the building with the piece of paper and do nothing. In due course this will trigger expensive, probably futile, efforts to implement the order.

Regular offenders are also diverted, some for offences ranging from altering a prescription to obtain drugs to threatening violence.

On the other hand, I have seen people attend court maintaining their innocence before being subjected to the diversion procedure. They have indicated that, despite being innocent, it is easier to accept the sentence imposed by the Procurator Fiscal, than to have to take time off work, come back to court, and go through the trauma of giving evidence.

And what of witnesses who might have been called to give evidence in connection with such cases? They may have had to screw up their courage, fearing reprisals, to report a crime to the police. How let down will they feel to be told that the accused was diverted without being subjected to the salutary experience of court procedure and possible imprisonment?

Witnesses are ordinarily not at the plea stage for these cases, only discovering later what has happened. I have, so far, seen one case where a witness was in attendance when diversion notices were being handed out. The witness left shaking his head as the accused skipped joyfully out of the building.

In my view, this is not justice. There are innocent people who will pay the fine to get rid of the matter and there will be people guilty of serious offences only too happy to avoid the wrath of the court. Nonetheless, it is a good way to gather money from fines, and in bypassing the presumption of innocence, it saves the court system a lot of time. It also serves to massage the court appearance figures of alleged offenders.

But is justice being seen to be done? In my opinion justice is the first casualty of this particular system.

• Martin Morrow is a solicitor advocate in Falkirk

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