Magistrates want ministers to halt the widening of on-the-spot fines for offenders, warning that serious crimes are not reaching the courts. They have told Jack Straw, the Justice Secretary, that the use of the fines in cases involving assault is undermining confidence in the justice system.

Defence solicitors say that serious offences are being dealt with inappropriately, or not at all, for lack of police time and resources. A dossier collated by Edward Garnier, QC, the Conservative justice spokesman, indicates lawyers? concerns that their clients are being ?let off? over alleged assaults and even rape rather than prosecuted.

Out-of-court penalties now account for half of all cases ?brought to justice? in England and Wales, and Mr Straw plans to consult on extending their scope to a further 21 offences.

According to magistrates and lawyers, the system is already being abused. Magistrates have drawn up a list of circumstances in which on-the-spot fines or penalty notices should not be used. These include where an offender has caused injury, has previous convictions or cautions for disorder offences or planned the crime.

John Thornhill, of the Magistrates? Association, said that some minor offences could be dealt with out of court but other offences should be brought before the court so that ?justice can be seen to be done? and treatment ? such as where there is a problem with drink or drugs ? can be arranged.

Mr Straw has indicated that he may exclude shoplifting from the proposed new list of offences. Possession of cannabis is to remain on it.

In a paper to Mr Straw the magistrates say that in one area of Staffordshire a solicitor has claimed that only two of 12 suspects interviewed by police are being charged. ?One or two may be given a fixed penalty or caution, but the majority are being allowed to leave on the basis that there is insufficient evidence,? it says.

Mr Garnier, who approached law firms in the West Midlands, said: ?Sometimes the accused gets off scot-free; sometimes they are given a caution. The solicitors say that this is partly caused by overwork and partly because the police have too much to do without chasing evidence for an over-cautious Crown Prosecution Service.?

To take the matter to court ?would involve too much paperwork and administrative hassle when the chances of potential witnesses coming to court to give evidence are pretty slim?.

A lawyer who had a case in which the victim of a serious assault required stitches to the head said: ?We fail to see how this assault could be dealt with by way of caution as it was, according to the victim, accompanied by a threat to kill, the use of a weapon and a repeated attack.?

Mr Garnier said: ?My concern is that people who on the face of it have committed serious crimes are being let off when at the very least they should be charged and prosecuted. It?s for the courts to decide the guilt or innocence of a defendant ? it is not for the desk sergeant to make that decision.?

The Justice Ministry defended out-of-court penalties as an efficient use of resources: they ?enable police to deal swiftly with low-level offending, freeing them to spend more time on frontline duties and investigating violent, dangerous or sexual offences as well as freeing up court time for more serious offences. Out-of-court disposals are not suitable for contested or more serious cases and would not normally be considered for those who offend repeatedly.?

New spot fine proposals

• Possession of a Class B drug restricted to cannabis
• Making off without payment
• Threats to destroy or damage property
• Allowing disorderly conduct on licensed premises or failure to leave a licensed premises
• Obtaining alcohol for a person who is drunk
• The sale of cigarettes to children under 18 and failure to display a warning sign that it is illegal to do so
• No smoking, intoxication, possession of intoxicating liquor and unacceptable behaviour in Royal Parks or on the London Underground
• In addition, acts prohibited in a park include littering, dog fouling and illegal cycling

Offenders who should not be dealt with outside the courts include such cases where:

• The victim is opposed to the use of a penalty notice for disorder or fixed penalty notice; violence has been used; the offender has a drug or alcohol problem or has previous convictions or cautions for disorder
• The offender has not paid a previous fine or has previously committed similar offences
• The offenders do not know what is going on because of their inability to understand English or because of their mental health or intellectual capacity
• There is clear evidence of planning or preparation