The Solicitor General Frank Mulholland has taken the unusual step of criticising what he calls the "continuing inaccurate and misleading claims" about summary justice reform that have accompanied the 18 month rollout of the reforms.

In a letter issued to Bill Aitken MSP, Nigel Don MSP, Pauline McNeill MSP, Margo MacDonald MSP, and Margaret Smith MSP, Mulholland claims that the objectives of the reforms are not being satisfactorily presented to the public. "Both local communities and media commentators can only properly form their own view on the impact of these reforms when they are equipped with facts," he said.

The measures introduced have been widely criticised by legal professionals, practitioners, Bar Associations across Scotland as well as sections of the media. 

Mulholland's letter aims to emphasise what he views as the positive aspects of the reforms.

The full letter, copied to the First Minister and Justice Minister Kenny MacAskill, can be read below.

SUMMARY JUSTICE REFORM

You will recall that the Lord Advocate wrote to you on 22 May about the increased range of fiscal fines available for use by prosecutors following the introduction of Summary Justice Reform.

Since then, there has been continuing inaccurate and misleading claims, in the public domain, about the impact of Summary Justice Reform. Therefore I thought it would be helpful if I wrote to you, and fellow justice spokespersons, to provide factual information on the early impact of Summary Justice Reform. I have also arranged for relevant data to be made available on the Crown Office and Procurator Fiscal Service website.

Communities across Scotland will be interested to know what impact this legislation, which was passed unanimously by the Scottish Parliament in January 2007, is having on the delivery of justice for offenders and victims. Both local communities and media commentators can only properly form their own view on the impact of these reforms when they are equipped with facts.

The Lord Advocate and I have always been clear on the need for accountability in Summary Justice Reform the decisions taken by prosecutors need to be visible to communities so that they can have confidence that justice is being done. That is why we instructed our senior management team to collate, for publication, facts and figures for each Procurator Fiscal District, on all prosecutorial decisions taken under Summary Justice Reform in the first six months of its operation. That work is ongoing, and that data will be published in September 2008.

However, since the Lord Advocate and I are concerned that ongoing uninformed criticism and comment runs a significant risk of damaging public confidence in the criminal justice system, I am today making available data which shows the early impact of Summary Justice Reform, since its introduction in March 2008.

As the Lord Advocate said in the Scottish Parliament on 26 June, this legislation is in its infancy. However, as Procurators Fiscal throughout Scotland are operating within this new system, taking decisions in the public interest, each and every day, the past 4 months do provide us with some evidence of the impact of the reforms.

One of the inaccurate claims made in recent weeks is that Procurators Fiscal are reducing summary court prosecutions by anything between 50% and 75% because of the increased use of direct measures. In fact, the early impact of the reforms on Sheriff Court prosecutions is a fall of 13%, which is less than the projected fall of 17% to which the Lord Advocate referred, in the Scottish Parliament, on 27 March.

The average number of new prosecutions in the Sheriff Court between April 2007 and March 2008 was 8,092 per month. The latest figures show that between April 2008 and June 2008 the monthly average was 7,079.

There have also been claims that Procurators Fiscal are issuing excessive numbers of direct measures. Again, this is not true. We projected that the number of direct measures issued as a result of Summary Justice Reform would increase by between 10% and 15%.

Perhaps surprisingly, in the early months of the reforms there has in fact been a fall of 5% in the number of direct measures used. The average number of monthly direct measures issued by Procurators Fiscal in 2007-08 was 4,293. Between April and June of 2008, the average number was 4,079.

We still expect the number of direct measures to increase over time and this early drop at the start of the reforms is, we believe, due to the successful early adoption of fixed penalties by the police in terms of the Antisocial Behaviour Act (Scotland) 2004.

I am sure you will agree that these figures present a very different picture about the impact of Summary Justice Reform to that which has been in the public domain in recent weeks. For that reason I have arranged for the available data to be published on the COPFS website and released to the media. I attach considerable importance to making it clear how inaccurate some recent comments have been, and to reassuring communities across Scotland that the reform of the summary courts is proceeding as the Scottish Parliament intended. I have enclosed a copy of the data which will be made available on the COPFS website and to the media.


There have also been repeated claims of the inappropriate use of direct measures. I wish to take this opportunity to repeat the Lord Advocate's assurance to the Scottish Parliament on 26 June that we do not regard direct measures as appropriate for domestic violence; drug dealing; violence which is likely to attract a sentence of imprisonment; or which is directed against police or emergency workers; offences involving the possession or use of knives or offensive weapons; any case where there is a significant sexual aspect; and cases where the accused suffers from a mental disorder. It is clearly not appropriate for anyone who is accused of such an offence to be dealt with by means of a direct measure. In that connection, if inappropriate decisions are taken, or errors are made, in implementing the new guidance to prosecutors on the use of direct measures, you have my assurance that immediate action will be taken to ensure appropriate compliance.

Finally, any claim that COPFS is "downgrading" its response to crime is simply not borne out by the facts. The first three months after the start of Summary Justice Reform saw us take petition proceedings against an average of 933 people per month, an increase of 9% over the preceding three months. In addition, the number of cases in which we took custody proceedings in the Sheriff Court has remained constant throughout the reforms.

If you would like to discuss these matters in more detail or would like further information about other aspects of Summary Justice Reform from my officials, please let me know.

I am copying this letter to the First Minister and Cabinet Secretary for Justice.

Yours sincerely

Frank Mulholland QC