Last month's reforms in the criminal law system which saw less serious offences being dealt with outside the courts by fiscal fines are being criticised by lawyers as handing too much power to the police & procurator fiscal service.
The Sunday Herald reports :
By Adam Forrest
Lawyers concerned over fair hearings for accused
THE TIME-HONOURED civil liberties of the court system in Scotland are under threat, lawyers fear, claiming reforms introduced last month have handed too much power to the police and procurator fiscal service.
The changes to criminal law stem from legislation passed last year under the Lib-Lab administration, and are designed to un-clog the courts by allowing swifter sentencing and a tougher approach to bail provision.
Since December 10, many less serious offences are being dealt with outside the courts by fiscal fines, while police now have the power to set the conditions of bail by imposing curfews and exclusion orders before the accused has even appeared in court.
But lawyers say the emphasis on speed is beginning to hamper the interests of a fair hearing, and the Scottish justice system is moving toward a presumption of guilt.
Human rights lawyer John Scott, of the Edinburgh Bar Association, said: "There is concern at decision making of that importance being left in the hands of the police, and things that should be dealt with by the courts are slipping away from judicial oversight. Wherever you grant extra powers, without the proper safeguards, the scope for abuse of those powers is massive.
"These are some of the most radical changes in criminal justice in my lifetime. The justice system is supposed to ensure there is a proper forum for determining the guilt or innocence of the individual. If you scrap accountability then you run the risk of miscarriages of justice."
The latest figures reveal the use of warning letters and fiscal penalties to deal with low-level offences shot up from 72,000 in 2005-06 to 117,000 in 2006-07. Sara Matheson, president of the Glasgow Bar Association, said taking so many cases out of the courts posed long-term risks of re-offending. "Going to court was a disincentive to offending," she said. "Now there is a danger of turning too many cases into paper exercises."
Scott agreed the reforms could not be perceived as part of a get-tough policy, claiming some crime was becoming downgraded. "In Edinburgh recently, there was a case of fraud of several thousand pounds dealt with by a fiscal fine of a few hundred pounds. And there will be more cases like that. You will see assault cases and other serious crimes being dealt with this way because the fiscal decides to take it out of court."
Bill McVicar, convener of the Law Society of Society's criminal law committee, said: "We do appreciate the court system does have problems with the number of cases going through, but we raised the concern that the public might think people were getting off lightly. One of my colleagues described it as justice-lite rather than proper justice."
Yet it is concerns over civil liberties that remain at the forefront of the legal establishment's criticisms. Before the summary justice reforms, penalty notices from the fiscal were an invitation to appear in court if the accused did not respond. Now the accused is assumed to have accepted a fine and criminal conviction unless they explicitly deny the charges.
Glasgow criminal solicitor Gerry Considine said the powers of the Crown Office and procurator fiscal were greater than ever before. "The presumption of innocence has always been one of the cornerstones of our justice system, but now there is a presumption of guilt.
"Decisions in the court have always been based on the interests of justice, but this act has brought in new cost-driven criteria. It's a move from justice to expediency."
Justice minister Kenny MacAskill defended the reforms, citing recent figures showing more than a third of summary cases have taken longer than six months to reach a conclusion. He insisted the need to end delays was compatible with the fairness and independence expected of the judiciary.
"There is simply too much delay and inefficiency at the moment. My vision for a quicker, more efficient and more effective summary justice system is one shared by all sides of the parliament."