THE CROWN OFFICE has been forced to apologise to a lawyer after two drunken thugs who beat him escaped with a fixed penalty fine of £150.

Officials accepted the case was a misuse of recent justice reforms that were intended to divert less serious cases away from court, using alternatives to prosecution.

Euan MacKay, 27, a solicitor from Glasgow, was attacked as he walked through the city centre last February. His assailants, who had been drinking, punched and kicked him in the head, leaving him bleeding on the pavement. He was rushed to hospital where he received five stitches in his face.

His attackers were arrested and charged with assault to injury, an offence which normally merits a court appearance and carries a jail sentence of up to 12 months.

However they were released by police within hours of their arrest and spared court because they agree to pay a fixed penalty fine.

MacKay was only notified by the procurator fiscal of the decision last month. He raised his concerns with the Crown Office and with his local MSP Nicola Sturgeon, the deputy first minister.

“I was disappointed and shocked when I received the letter,” he said. “Basically, someone can go out, assault somebody, scar them, and walk away with a £150 fine and no criminal record, no appearance before a judge, no nights spent in custody and no lesson learned. I find it appalling.”

The Glasgow Bar Association has estimated that between March, when the new measures were introduced, and June, some 6,500 cases which should have gone to the city’s sheriff court were dealt with by fixed penalties.

Frank Mulholland QC, the solicitor general, challenged the figures and claimed allegations the Crown Office wasn’t responding to crime were “not borne out by the facts”.

However MacKay said: “The reforms are about delivering better justice for the victims but I don’t think that’s the case.

“I have read with interest [Mulholland's] comments that any accusation that the Crown Office was downgrading its response to crime was not borne out by the facts. This certainly does not appear to be the case, certainly in relation to my own case.

“It would appear that diversion from the courts is being used in a great number of cases in which it is not, I would submit, appropriate.”

The Crown Office said the decision to offer Mackay’s assailants the option of a fine ran contrary to guidelines offered to procurators fiscal concerning the justice reforms.

“Any assault of this nature requires to be prosecuted in the sheriff court — both before and after summary justice reform — that is quite clear,” said a spokeswoman.

“The area procurator fiscal has written to Mr MacKay to apologise for this error and the additional unnecessary distress it has caused him. The fiscal has also offered to meet Mr MacKay to apologise personally, and to explain the measures put in place to prevent any further errors like this.

“Fiscals must work within the national case marking guidelines, and where they do not comply with the guidelines swift action will be taken.”

Paul McBride, one of the country’s leading QCs, said: “This is totally inappropriate. I am absolutely astonished this did not go through the courts.

“Inflicting injuries on someone in an unprovoked attack, in which they need to go to hospital, should mean that [those responsible] face a custodial sentence. The introduction of diversion was for low level offences, not to deal with violent, unprovoked crime.”

Another Glasgow-based lawyer, said: “I’ve never known a case of this nature not to be prosecuted. It’s a serious assault and should have gone to court. This is all about saving money because fiscals cannot cope with the level of crime.”

Accusations that the Scottish government is taking a “soft touch” approach to crime, favouring alternatives to jail for thousands of offenders amid concerns that Scotland’s prisons cannot cope, has been a central feature of the Glasgow East by-election campaign.

Kenny MacAskill, the justice secretary, recently compared prison to “free bed and board” and suggested that minor offenders should be forced to pay for their crimes “through the sweat of their brow” rather than be locked up at the expense of taxpayers.

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