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Tuesday, 21st March 2006 Story in full A SHERIFF last night hit out at prosecutors for preventing him from passing a lengthy prison sentence on a corrupt police officer, heaping more criticism on Scotland's justice system. Sheriff Craig Caldwell said he was "unable to comprehend" why the Crown Office had prosecuted Police Constable Alan Gavin - who faked the theft of his own car and torched it for the insurance money - under summary procedure. Sheriff Caldwell said the "surprising" decision not to put the case before a jury meant instead of getting a two to three-year jail sentence, he would give Gavin no custodial sentence at all. His remarks came only a day after another sheriff criticised the Crown Office for a similar decision, which prevented him from giving a lengthy sentence to a thief. Sheriff Michael Fletcher said the maximum time to which he could sentence James Brown under summary procedure was "a complete waste of time". Politicians last night attacked the Crown Office and Lord Advocate Colin Boyd, saying the two cases showed the service's judgment was "getting worse". The Lord Advocate and Cathy Jamieson, the justice minister, have come under fire in recent weeks for failing to order an inquiry into the Shirley McKie affair, while an investigation has also been launched into how vital evidence was withheld from defence lawyers in the Arlene Fraser murder case. But the Crown Office last night defended the way they handled the two latest cases. Insiders said they were "bemused" at the criticism, as the sheriffs could have jailed Gavin and Brown but chose to impose community-based sentences. Gavin, a police officer for 22 years, was found guilty last month of defrauding his insurers and wasting police time by making a false report of a crime. The 43-year-old broke the law after his two-litre Nissan Primera GT blew a cylinder head on the M9 on the way back to his home in Falkirk from Edinburgh. After taking it to a garage, which removed the part for inspection, he found he could not afford the repair bill, so he decided to pretend it was stolen. He arranged for his brother Hugh, also a Central Scotland police constable, to tow it to a lonely spot near Armadale used by joyriders for dumping trashed cars. There he doused it in an accelerant and set it on fire, burning his hand and scorching his eyebrows in the flashback. He later went to Linlithgow police station, where he reported the car had been stolen from a lochside car park while he and his brother were in a local pub. Gavin claimed £4,225 for the car from the Allianz Cornhill Insurance Company, which paid out in full, less a £100 excess, and bought a replacement car. Sheriff Caldwell yesterday said it would have been appropriate to jail the officer for "a significant period". But the sheriff said a "surprising" decision by the Crown Office and the procurator fiscal service had tied his hands. He told Gavin: "If this case had been prosecuted before a sheriff and jury, you'd be facing two to three years' imprisonment. "However, for reasons which I'm not able to comprehend, you have been prosecuted in terms of summary procedure. "The significance of that is that, being a first offender, the maximum sentence is one of three months, which would mean an effective sentence of six weeks' incarceration. I see no purpose in that whatsoever." In choosing not to jail Gavin at all, Sheriff Caldwell said he had been moved by letters written to him by Gavin's son Mark, 12, and his daughter Amy, 14. Alex Neil, an SNP MSP, claimed the case showed the Crown Office's judgment was "getting worse". He said: "This isn't good enough. People are effectively getting off with crimes. The Lord Advocate has to take the rap because he's the head of the Crown Office. He's presiding over a shambolic situation at the Crown Office, where bungle after bungle is being made." Margaret Mitchell, the Tory's justice spokeswoman, also voiced concern over the decisions. "I would have thought there would be sufficient checks and balances within the Crown Office to make sure mistakes are not made. If that is not being done, I wonder whether that is because of a lack of resources," she said. A spokeswoman for the Crown Office said: "Prosecution decisions are never taken lightly and are always taken in the public interest. It would not be appropriate to prosecute a case before a jury if it was not serious enough to justify that course." Two-tiered justice The most serious offences must be taken under solemn procedure. It requires a trial before a jury, and can be either in the High Court or the Sheriff Court. Some crimes, notably murder and rape, are always heard in the High Court, where the maximum sentence is life in prison. The Lord Advocate, as the head of the prosecution service, has the choice between the courts in other instances, such as drugs charges, robbery or assault. The determining factors are usually the severity of the crime and the record, if any, of the offender. The second tier, called summary procedure, is used for less serious offences and for less hardened offenders. It is for non-jury trials in the sheriff or district courts. The choice between summary or solemn, like that between Sheriff and High Court within the solemn procedure, is for the Lord Advocate alone. The maximum sentence under summary procedure is generally six months. Related topic Law and Order
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