As a criminal court practitioner, I find myself living in very interesting times, following upon the advent of the new �diversion� policy � designed to take people out of the court systems.

MARTIN MORROW

As a criminal court practitioner, I find myself living in very interesting times, following upon the advent of the new "diversion" policy - designed to take people out of the court systems. The idea is, in my opinion, half baked and an affront to the idea of justice being done and, more importantly, being seen to be done.

The principle is simple. The procurator-fiscal, traditionally responsible for bringing the prosecution before the court and allowing the court to assess guilt or innocence, has adopted a new role, that of judge and jury. The prosecutor, having read reports from the police, will now provide an accused person at court with a letter saying that he/she has reviewed the evidence, is satisfied that there is a sufficiency of evidence to prove guilt and impose sentence.

The accused person, on receipt of this correspondence, has a period of time to respond. If the accused fails to respond within the appropriate period by protesting his innocence and requesting to be tried, he is deemed to be guilty. A record is kept of the disposal for up to two years and will be referred to in the event the accused gets into trouble in the future, and intimation will be sent to Disclosure Scotland.

After 300 years, the presumption of innocence has, at a stroke, been removed from our justice system. A presumption of guilt now automatically applies - subject to a right to request to be tried.

This is justice on the cheap. It is, more importantly, ideologically flawed. The procedure is in its infancy but I have seen accused persons ecstatic at being told they have been "diverted". The effect is that they are diverted from the court process completely. They do not require to appear in the dock and do not face the prosecutor and the judge. Nor are they called to account. All they have to 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 imposed by the procurator-fiscal.

In our 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 threatening people with violence. The public should be aware of the serious nature of cases being diverted and the potential for offenders persistently avoiding being taken before the courts and called to account.

On the other hand, I have seen persons attend at court who have maintained their innocence. They have then been subjected to the "diversion" procedure. They have indicated to me that, despite being innocent, it is easier to accept the sentence imposed by the 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 court process. They 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 from the fiscal).

The answer is we don't know because the system is in its infancy. Witnesses are ordinarily not at the pleading diet for these cases, they only discover later what has happened. I have, therefore, only seen one case where a witness happened to be in attendance when the diversion notices were being handed out. The witness left shaking his head as the accused skipped joyfully out of the building brandishing his "diversion" notice.

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 courts.

Nonetheless, it is a good way to gather in money. It bypasses the presumption of innocence, saves a lot of court time and massages the figures for appearances in court of alleged offenders.

Over the past eight weeks we have monitored the mechanism of introducing new cases to court through the cited court and through bail undertakings, two of the traditional methods of commencing cases. We have discovered that cited cases are down significantly and bail undertakings, introduced to reduce the number of people appearing from custody, have themselves increased. We note, however, that there is a reduction in the prosecution of people who answer their bail undertakings.

We estimate that more than 60% of bail undertakings from week to week are being diverted and that an average figure might be 40%-50% of cases. These include well-known recidivists with convictions for offences of violence and dishonesty. Insofar as cited cases are concerned, the number of cases commenced in this way has decreased significantly, perhaps by more than half.

Justice is the first casualty of this particular system.

• Martin Morrow is a Solicitor-Advocate based in Falkirk.