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Justice diverted

14 July 08

Opinion that continued experience of summary justice diversion tends to contradict assertions that it is simply an efficient alternative to prosecution leading to a fine

by Martin Morrow

Last month I raised in the national media the effect of the new summary justice diversion provisions as operated by the Crown, arguing that this is justice on the cheap and has at a stroke removed, after 300 years, the presumption of innocence from our justice system. I reported that in our own court I have seen regular offenders being “diverted”; on one occasion 75% of alleged offenders were diverted for offences ranging from allegedly altering a prescription to obtain drugs, to attending at persons’ homes and threatening them with violence.

Crown Office responded to suggest that the diversion provisions were intended in cases that would otherwise end up with a fine and that the diminution in number of prosecutions is about 12%. This in turn provoked a response from Airdrie Sheriff Court practitioners to the effect that the business of new cases in the cited court has greatly diminished.

I can only say that in Falkirk we have noticed that our cited court regularly produces each week, from a combination of pleading diets and continued pleading diets, about 12 new cases which would ordinarily require the services of a criminal court practitioner.

Regularly the cited court is made up of deferred sentence cases and applications to vary bail conditions to keep husbands and wives or domestic partners from having contact with each other. In the last cited court in Falkirk before going to press, these made up some 30 of the 42 cases. As far as bail undertakings are concerned, on the same day there were 11 people released to attend on bail undertakings, and three of them proceeded through the court! That diversion figure compared to the last eight weeks is slightly above average and in fairness the rate for our bail undertakings is probably about 60%.

Leaving aside the implications for society wishing to see justice being performed in their local courts, it is interesting to see how those who are sent away have reacted. The majority have simply laughed out loud and given an indication of not believing their good fortune.

The public should be aware of the serious nature of cases being diverted and the real potential that offenders persistently avoid being taken before the courts and called to account.

However one particular client stands out in the memory as an example of somebody who previously would have been prosecuted, probably would have been remanded in custody, and clearly had no idea what was happening to him under the diversion procedure.

He was in the cells at Falkirk facing an allegation of public disorder and would have been in breach of his probation order if convicted. I explained he might be remanded in custody, when he was then served with a diversion notice. I told him that he had won a watch. As I was leaving 10 minutes later he asked me when he was going to get the watch! Leaving aside the funny side of the story, the truth was that he had failed completely to understand the paperwork which had been served on him by the Crown. There was no prospect of him making sense of the variety of options presented to him in the letter.

I suspect he is not alone in this, and it truly is a disgrace that if a person fails to respond to the diversion letter they are deemed to be guilty.

On the other hand I have seen persons attend at court who have maintained their innocence of any wrongdoing. They have then been subjected to the diversion procedure. These persons have indicated to me that despite being innocent it is easier to accept the sentence imposed by the procurator fiscal rather than have to come back to court, take time off work, go through the trauma of giving evidence, trace and find witnesses and generally go through the heartache of attending court. Persons have openly said to me that it was better to be innocent and out of pocket than to have to come to court to prove their innocence (their perception from the terms of the letter given to them by the procurator fiscal).

I repeat my view that this is not justice. There are innocent persons who will simply pay the fine to get rid of the matter, and there will be people who have been guilty of serious offences, only too happy to be diverted to avoid the wrath of the court.

Justice being seen to be done is the first casualty of this particular system.