Yesterday's report by the Inspectorate of Prosecution on its inquiry into the use of fiscal fines should go some way to allaying the concerns of those who feared the option was being used by the fiscal service to downgrade offences that should have gone to court.

An examination of close to 1,500 cases from all fiscal areas (around 40% of those concluded last September) found few problems that could not be attributed to simple bedding in of a new system, or addressed by a tightening of the guidelines issued to fiscals especially as regards assault cases. While assaults have been the subject of much media coverage in this context, only five out of 142 looked into were held to have been inappropriately dealt with.

Recommendations that more clarity be provided over which aspects of Crown Office guidance take precedence, that more flexibility be allowed where an accused is already subject to a court order, and that every use of the disposal in assault cases continues to be monitored, have been accepted by the Lord Advocate.

So far so good, and the report also recognises that the principles on which the guidance is based include that of maintaining and improving public confidence in the criminal justice system – without which the system has little hope of long term success.

Questions remain

At the same time it records pressure on the Law Officers to make the guidance more public. There is no comment on the refusal to do so to date, but the then Solicitor General apparently told MSPs during the passage of the Criminal Proceedings etc Bill that publication would be inappropriate because accused persons might tailor their behaviour accordingly.

That strikes me as unlikely; and I would hope that any repeat offending just below the prosecution threshold for a single instance would be taken to court before long, at which point fiscal fines issued in the previous two years would be brought to the court's attention. I do wonder if there is really much to be gained from continued secrecy: sooner or later someone will be able to research a reasonably detailed picture from information provided to MSPs, contacts with defence lawyers, monitoring of cases that do go to court, etc.

Withholding information from a concerned public immediately raises the bar to be jumped in order to win their confidence, so the question must continue to be asked, whether the policy is counterproductive.

The other aspect I suggest should still be flagged up, one beyond the scope of the Inspectorate's report, is the rule (as it now is) that an offer of a fine is deemed to be accepted unless the alleged offender takes steps to dispute it. Here defence lawyers have pointed out that this is an unsafe assumption given the chaotic lifestyles of many accused; and figures reported today that almost half the fiscal fines issued remain unpaid, despite extra enforcement measures in the Act, must raise questions as to whether they are being used in inappropriate cases, simply because not enough is known of the offender's circumstances.

In short, the Inspectorate's report is encouraging, but it is still proper to ask the question whether we have yet got the formula right in diverting cases from court.