Scottish Government

REPORT OF THE SUMMARY JUSTICE REVIEW COMMITTEE: SUMMARY OF RESPONSES TO THE WRITTEN CONSULTATION - FINAL REPORT

CHAPTER SIX ALTERNATIVES TO PROSECUTION

INTRODUCTION

6.1 The Committee recommended a number of changes that would increase the use of alternatives to prosecution. These changes were intended to reduce the number of less serious cases coming to court, freeing up resources to focus on the prosecution of more serious crime. These included:

• Increasing the scope of fixed penalty notices;
• Measures to increase the use and levels of fiscal fines; and
• The introduction of fiscal compensation orders.

6.2 The consultation response form said:

" Please record your views on the recommendations contained in Chapters 8-11 (recommendations 11-40) in the box below:"

6.3 This chapter summarises responses relating to the views submitted:

THE RESPONSES RECEIVED

6.3 Overall 166 respondents - 69% of all responses received - commented upon the proposals for alternatives to prosecution set out in the Committee's Report.

6.4 The table below details the organisational groupings that commented upon this area:

Table 6.1:

GENERAL COMMENTS REGARDING ALTERNATIVES TO PROSECUTION

6.5 Many of those in favour of the recommendations set out in the Report tended to note their agreement without further comment. We have chosen not to list all those responses which merely agreed. We have instead summarised on the following pages issues that respondents brought up in relation to these recommendations - whether their submission agreed with the overall concepts detailed or not.

6.6 Safeguarding Communities, Reducing Offending (SACRO) strongly endorsed the recommendation that alternatives to prosecution should be more widely available, more flexible and more robust. This, they felt, would enable the courts to focus on the more rapid handling of serious crime and offences while giving police and procurators fiscal the range of powers they needed to respond quickly and appropriately to minor offences.

6.7 SOLACE was also fully supportive of measures that reduced the number of accused coming to court, stating:

"From a local authority perspective the recommendations on alternatives to prosecution are particularly welcomed, since they allow criminal justice social work services to offer a comprehensive and consistent pattern of options across the country. We are particularly keen to see an expansion of restorative justice schemes, so that they are available in all parts of the country".

6.8 Other respondents broadly agreed with recommendations to increase the scope and use of non-reporting options, but made the point that they must be subject to rigorous monitoring and evaluation to ensure consistent application, and also to guard against loss of public confidence if inappropriately applied.

6.9 Many JPs, however, made the point that diverting to non-court disposals would tend to trivialise the offences and that this could influence public attitudes towards a belief that "the offence was not a real crime".

Extension of Fixed Penalty Notices (FPNs)

6.10 We found that many JPs and police organisations were in favour of increasing the scope of FPNs to certain non-road traffic offences, but many acknowledged that non-payment of existing fixed penalty notices was a considerable problem, and consequently extension of FPNs would seriously hamper collection of outstanding penalties.

6.11 The Law Society of Scotland, whilst agreeing that further consideration should be given to the extension of fixed penalty notices for some straightforward and minor non-road traffic statutory offences, made clear that guidance from the Lord Advocate as to the appropriate criteria or circumstances in which such penalties should be used should be produced before any extension of the use of FPNs is introduced.

6.12 Fife Constabulary felt that increasing the scope of FPNs would have a positive effect upon the workload of both operational officers and support staff and the recommendation was perceived as an improvement on existing reporting practices that would " lighten the load".

6.13 Falkirk Justices' Committee, however, feared that the reduction in the level of court business proposed by the Report would not materialise in practice, and questioned how the Procurator Fiscal Service and the police would cope with the burden of additional fixed penalties. It also questioned whether the introduction of a wider range of fixed penalties could inhibit the right of accused (particularly those who are vulnerable) to due process and deprive the court of the opportunity to consider the circumstances of such offenders.

6.14 British Transport Police were enthusiastic about the proposal to issue FPNs for travel frauds as at present they submit more than 3,000 cases per year to the Procurator Fiscal or the Reporter to the Children's Panel for consideration. However the Scottish Police Federation did not believe that there was a direct correlation between experience in relation to fixed penalties for road traffic offences and the proposals for fixed penalties for public order offences, and stated in its response:

"Road traffic offences dealt with by fixed penalty are generally fairly clear cut and there is little room for debate or dispute. We do not think this applies in the same way to public order offences".

6.15 A minority of responses - including Moray Council - although supporting the idea of extending FPNs, were concerned that there appeared be no central guidance offered as regards the number of successive offers of a fixed penalty which an accused should receive before being prosecuted. Many suggested that there was no reason why a limit such as three such offers within a two year period could not be imposed, and without central regulation it was felt that it would be possible that substantial local deviations could arise, thereby producing "justice by postcode".

6.16 North Lanarkshire Council agreed that consideration should be given to increasing the scope of FPNs, but wished to be consulted on the specifics. However the Council shared the reservation expressed in the Note of Dissent that it would not be appropriate for police to give FPNs to someone who had a substantial criminal record or a number of outstanding fines and stated:

"the view that many offenders need support and advice in the community is wholly endorsed and the Council would urge Ministers to leave it with the Courts to decide when such support should be offered through the various non-custodial sentences now available".

6.17 Other submissions opposed the proposal to increase the range of offences that could be subject to FPNs. Their argument stemmed from the fact that, at present, FPNs tended to relate to matters that were easily provable at the time of the offence, or later (such as speeding which could be evidenced by camera). West Dunbartonshire Justices Committee echoed the voice of many JPs when they stated "an extension of such powers could undermine support for the police".

6.18 Dumfries and Galloway Justices of the Peace Group felt that the whole idea of extending the fixed penalty system had to be questioned, especially if non-payment would mean an increased fine and not, as at present, a report back to the police and fiscal with a view to prosecution. It argued that, at present, there are very limited options open to the court as punishment for non-payment of a fine. It therefore believed that the 'opt-out' proposal for prosecution would increase this problem, unless a range of alternative options was available to the court.

6.19 In addition, many of those against extension (including COSLA) argued that any fixed penalty process conducted away from the public eye would mean that the general public would be disconnected from the justice system. This might result in the perception that nothing is being done to address offending problems in local communities, leading to a loss of confidence in the justice system and, perhaps, lower levels of reporting of crime.

6.20 A number of respondents were against the idea that the procurator fiscal could act as judge and jury, arguing that, under the present system of road traffic FPNs the prosecutor had no discretion as to the level of fine.

6.21 Some JPs and Justice of the Peace Committees - although broadly in agreement with the principle of fixed penalties being offered in respect of minor criminal offences - were opposed to the extension of FPNs. These respondents recommended that a formal record of such offers should be retained by the procurator fiscal and be open to scrutiny by the courts or other independent official court users, and that greater controls should be put in place to ensure that people were not offered inappropriate or multiple FPNs.

6.22 Another common concern was that, with no information regarding an accused person's background or ability to pay before them at the time of administering an FPN, the police have to make a general judgment based on the nature of the offence. An accused person on a lower income (and thus unable to pay the FPN) could end up facing a criminal conviction whilst those on higher incomes could avoid the criminal process by paying the FPN.

Extension of Fiscal Fines

6.23 Many of the arguments expressed against the extension of fiscal fines were similar to those expressed against the extension of FPNs, such as the assumption that some would see fines or penalties as merely debts to be repaid, rather than being indicative of society's disapproval of their conduct. As one respondent stated:

"A fine imposed by a court is an order of that court; that is, a reflection of society's disapproval of the conduct. It is not merely a debt. The widening of the fixed penalty and Fiscal Fine systems and the introduction of a fiscal compensation order system could detract from this. Fines could be seen merely as a debt and by a section of society, bizarrely as another form of taxation…"

6.24 For many JPs and JP Committees, the facility to issue a fiscal fine or a compensation order would vest a great deal of power in the prosecutor, who would only have a police report to inform any decision. Many respondents argued that such a report would contain little or no information as to an accused person's means. The report may also contain little or no information about possible underlying problems that may not have been apparent at the time of arrest. In addition, such fines allow the accused no opportunity to put forward any mitigating circumstances.

6.25 Many of the submissions which opposed an increase in the level of fiscal fines argued strongly that any further increase would encroach on an area where judicial determination is required. One response observed:

"where a fine is imposed in court, there has either been a plea or finding of guilt before a fair, impartial and independent tribunal, and the circumstances of the offence and the means of the offender have been explained. The court is held in public, the press are free to report the proceedings, and the accused has the right to appeal the sentence imposed".

6.26 Other respondents were concerned that the clear distinction of the roles and responsibilities of the police, prosecution and the judiciary would become blurred in the minds of the general public if there was further extension to the use of either FPNs or fiscal fines:

"When an accused is dealt with on an individual basis in open court there is some prospect that this may act as a deterrent to subsequent offending. Certainly in the view of the justices the prosecution of a case in court should provide reassurance to victims and witnesses that the complaint is being dealt with openly and fairly".

North Lanarkshire Justices of the Peace Committee

6.27 Some respondents (specifically some local authorities, JPs and JP Groups) agreed with the recommendations in relation to the extension of the use and level of fiscal fines, but with some caveats.

6.28 Moray Council, for example, felt that it would be prudent for police officers to include in standard reports a generalised statement detailing the financial circumstances of the accused and any apparent difficulties they faced with regard to mental health, alcohol or drugs. In addition, it would only support greater use of this alternative if a commensurate proportion of summary criminal business currently dealt with in the sheriff court was marked instead to the district court, as otherwise the district court would become a greatly under-utilised resource.

6.29 A minority of JP Committees, although approving of the concept of fiscal fines for minor offenders and first offenders, did not believe that they should be offered repeatedly to the same person for the same or similar types of offence unless there had been a considerable time lapse between offences. They feared that the public would perceive the fiscal as acting as judge, jury and prosecutor which, they felt, would "detract from the high regard in which Scottish justice is held". There was also concern that the fiscal would have no opportunity to assess any defence evidence before reaching a decision. West Lothian Justices' Committee commented:

"A lot of crime dealt with summarily is committed by a small core of people who regularly commit fairly minor offences over a period of several years. They then either grow out of it or graduate to more serious crimes. The fixed penalty recommendation will be unworkable for these offenders. For these offenders we would suggest that they require to come before a court with a range of community-based disposals such as Supervised Attendance Orders…"

6.30 Although Glasgow City Council, in a similar vein, was concerned that FPNs and fiscal fines were presently being used for more serious offences and multiple offences committed by the same person, it still supported their use in less serious cases. However it pointed out that it would be concerned about their extension if the result of this was that offences would not be investigated properly.

6.31 Justice For Victims was extremely concerned about the recommendations regarding the extension of the fiscal fine system, citing what it termed the general public's "justifiable" concern at the number of cases being 'dropped' by the Procurator Fiscal:

"Local community disorder offences cause widespread misery for local communities, bearing this in mind a fine is not appropriate. Greater consideration must be given to the well-being of the law-abiding member of the community".

Opting Out of System

6.32 Renfrewshire District Court Bench Justices were concerned that the suggested 'opt-out' approach to the enforcement of fines and fixed penalties (whereby if the accused did nothing, rather than being called to court, their fine would be registered and enforcement action would commence) would simply transfer the number of accused from the cited court to the means court for non-payment, thereby cancelling out the argument that it would save court time, as it would simply transfer court business to another part of the legal system.

6.33 SACRO welcomed the proposed 'opt-out' changes, the proposal to increase the maximum level of fiscal fines, and the intention that such fines should be more effectively enforced.

6.34 Others (including some JPs and the Scottish Law Agents' Society) welcomed the recommendation that FPNs should be extended, but were concerned about the ability of the accused to understand the 'opt-out' approach. Dundee City Council commented upon "the inability of offenders to understand the consequence or otherwise of receiving the offer of a fiscal fine". Dunbartonshire Faculty of Solicitors made the following comment:

" The suggestion that positive action should be required on behalf of a client to say that they wish to contest an issue in court is a step too far. No matter what is said in Paragraph 20, the people that we are dealing with have a tendency to bury their heads in the sand and not to understand complex issues and no matter what explanation is given to them, as to their rights and obligations, that would not be enough".

6.35 West Dunbartonshire and North Lanarkshire Justices' Committee had similar concerns, as they felt that individuals would be disadvantaged by inertia or misunderstanding. West Lothian Justices' Committee stated that at present many fiscal fines were not accepted because they never reached the accused, as many people move around constantly:

"How would these offers be served? In our experience recorded delivery service does not work for a large percentage of offenders - around 50%, depending on the type of crime - as undelivered letters are never picked up from the post office"

6.36 Skye & Lochalsh Justices' Committee opposed the extension of FPNs or fiscal fines, and the 'opt-out' approach. They felt that their increased use had compromised the sentencing practices the Justices had adopted specifically to tackle local crime, and converted many criminal offences and prosecutions into formal ticket procedures with no stigma, public scrutiny or public accountability.

6.37 Many JPs and Justices of the Peace Committees made similar comments regarding the 'opt-out' proposals:

"The Fiscal Fine was introduced as an alternative to prosecution in an effort to ease the pressure of work upon the Court system and the prosecution service. The proposals would reverse the fundamental basis for this option, making prosecution the alternative to a fixed penalty. This opt-out requirement can be interpreted as amounting to a presumption of guilt, requiring an alleged offender to have to opt for prosecution if they wish to challenge the allegation".

6.38 Other points made regarding the 'opt-out' proposals can be summarised as follows:

• It would be grossly unfair on unsophisticated accused people;
• It may result in the effective decriminalisation of offending behaviour as only a certain level of crime would be prosecuted;
• Some criminal penalties would effectively be downgraded to a form of debt, particularly if an independent collection agency is introduced; and
• It would mean that accused who did not respond to FPN or fiscal fine offers would be deemed guilty by their silence.

Safeguard Mechanisms

6.39 Although most respondents accepted that there have to be some safeguard mechanisms to avoid injustice, many felt that the safeguards detailed in the Report fell short of a safe system. The main reason given for this was that the mechanism proposed was perceived to be unfair, as it put the onus on the person contesting the offence to demonstrate that they had not received the offer in the first place. Many felt that the normal rules of criminal law should apply, and that the onus should be on the enforcing agency to demonstrate that the accused did indeed receive the notice. The Associate Members of the District Courts Association clarified this point:

"Proof of service will be essential for the enforcement of any such scheme. Personal service of all fixed penalties is not a viable option. At present service of documents is a real issue in the system. Fiscals struggle to serve all summary complaints even when personal service is attempted and many prosecutions are only commenced following the granting of a warrant. Many more cases are dropped due to problems with service and are considered too minor for warrants to be issued. Recorded Delivery is also expensive and unreliable, as a large percentage of recorded delivery mail is never collected.

6.40 However British Transport Police supported the Report's recommendations regarding safeguards.

Fiscal Fine Levels

6.41 Amongst the submissions that commented on this issue, most were concerned at the possibility of the fiscal fine level reaching £500. ACPOS welcomed the recommendations; however it felt that fine levels should not be set at one particular level with no flexibility as they would be overtaken within a year of implementation by inflation. ACPOS suggested that it would be beneficial to have a link between fines and an established financial index.

6.42 The Procurators Fiscal Society believed that the proposed increase in the level of fiscal fines would have a direct impact on the number of cases that reached the summary courts for prosecution, and stated:

"There is anecdotal evidence to suggest that Fiscals have concerns about using Fiscal Fines because of the level of non-payment… but there is also concern amongst some about being both the prosecutor and sentencer and increasing the fine level will not allay the latter concern and could simply increase it".

6.43 Some JPs, although approving wholeheartedly the other proposals relating to alternatives to prosecution, had concerns that if the level of fines were increased to £200 or £500, fewer offers would be accepted which would defeat the purpose of the change. In addition the Sheriffs Principal commented that the procurator fiscal would have little or no information regarding the means of the accused. In the same vein, Dundee City Council noted that of the 35,253 fiscal fines offered in 2002-2003, only 4,021 were at the level of £75 or above. The council stated:

"Applying basic common sense it would seem that if the present system is not being utilised to its full potential by those procurators fiscal, the reasons for this should be examined before the scheme is widened."

6.44 Many JP submissions were concerned that the higher level of fiscal fine would result in some accused being able to avoid a criminal record because they earned a higher salary, whilst others would eventually end up in court because fines of up to £500 would be very difficult to pay, especially if the accused received several over the course of a year (and these were surcharged by a further 50% as a result of non-payment, as proposed in the Report).

6.45 There was also concern that a disproportionate number of crimes are committed by non-earning 16-18 year olds, who in many cases have their fines paid by another family member to prevent a court appearance. In some cases, therefore, the accused would be unaware of the sanction and there would have been no true punishment and no discouragement to re-offend.

6.46 Other respondents were against the extension of fiscal fines on the grounds that they were contrary to the concept of justice altogether. Skye & Lochalsh Justices' Committee felt that fiscal fines were acceptable for minor regulatory offences such as a bald tyre, but for common law offences the issue of a ticket was unacceptable:

"It is reprehensible that the decision to prosecute in such cases will in effect rest with the accused who may choose to be prosecuted".

6.47 The Law Society of Scotland also opposed this recommendation and requested that the upper limit of fiscal fines be retained at £100. In addition to the lack of knowledge that the fiscal may have about the means of the accused, the Society was also concerned that the extension of the fiscal fine to £500 could result in comparatively serious cases being diverted from prosecution when previously they would have been prosecuted in court.

Supervised Attendance Orders (SAOs)

6.48 Apex Scotland fully supported the proposed future use of SAOs, both as an alternative to prison for those who had defaulted on fines and also as a first disposal. They quoted a study that had been carried out with the assistance of the Scottish Criminal Records Office in 2003. The study had tracked 486 clients on Supervised Attendance Orders, and had found a 37.5% reduction in the number of offences carried out by individuals six months after completing SAO programmes.

Fiscal Compensation Orders (FCOs)

6.49 A range of views were also received in relation to the recommendation to allow the fiscal to be able to offer that the accused pay compensation to the victim to avoid prosecution.

6.50 South Lanarkshire Justices' Committee, although agreeing that FCOs should be introduced, felt this should only be used in instances where the compensation was easily quantifiable, such as cases involving a broken window. SOLACE was strongly supportive of the recommendation, stressing the importance both in encouraging offenders to face up to the damage they have done to victims, and in recompensing victims in a direct way. This, it was felt, would improve public confidence in the system, and perhaps more offenders would pay financial compensation if they knew that the money would go to the victim rather than "the system".

6.51 Most JPs were also in favour of introducing FCOs but suggested that an upper limit be set. Where damage caused or goods stolen exceeded that limit, prosecution should be automatic.

6.52 Glasgow City Council, the Sheriffs' Association and the Glasgow Bar Association, amongst others, believed that a decision on compensation should be made following a hearing of the facts brought out under oath in court. They believed that FCOs would result in the fiscal acting as prosecutor, judge and jury, and that this was not appropriate in any but the most minor cases. The Scottish Law Agents' Society made a similar argument, and was concerned about how victims would be consulted. The Society thought some victims would prefer accused people to be prosecuted rather than receiving compensation themselves.

6.53 Aberdeenshire Council, on the other hand, were against the proposal (and most other recommendations regarding alternatives to prosecution):

"Although fixed penalties and Fiscal Fines can usefully reduce the number of less serious cases coming to Court, they can be seen as compromising the position of the Procurator Fiscal in embarking upon a transactional administrative process to manipulate prosecution levels and effectively keep matters out of court. Social issues are a consideration in this regard as there is a perception that those who can afford to do will do so and take every opportunity to accept alternatives to prosecution, and keep matters out of Court. Those with less resource to apply to increased levels of these alternatives may find themselves disadvantaged as a result. It is also felt that greatly increased use of such measures disguises in a sense the real levels of crime at any given time".

6.54 West Lothian Justices' Committee and Glasgow Justices were of a similar view, believing the fiscal would have no knowledge of the means of the accused. Additionally there was a concern that accused may provide inaccurate information about their means. Consequently it was felt that the Court was best equipped to take a view on the whole issue of compensation, particularly hearing the surrounding circumstances of the offence and seeking further information if that proved necessary.

6.55 The Law Society of Scotland agreed that FCOs could be beneficial, but stated that these should only be available in cases where there had been malicious damage or in some cases of theft. The Society believed FCOs should not be available where an individual had suffered personal injury or emotional trauma as a result of the crime. In addition, the Law Society wished it to be made clear that the introduction of FCOs would need to be accompanied by clear police guidelines specifying that any loss claimed would have to be properly evidenced, and the value of any loss accurately reflected in the police report submitted to the procurator fiscal.

6.56 Others mentioned the issue of disputes regarding the level of a compensation order. At present, if there is a dispute the court is required to arbitrate, and the accused can challenge the amount. Neither did the Report deal with the situation where the victim may have been already compensated by a third party such as an insurance company or the Criminal Injuries Compensation Board.

Disclosure

6.57 The Association of Scottish Police Superintendents welcomed the principle of non-court disposals, but noted that any extension of their use would magnify the " pressing need to disclose these disposals". The Association further suggested that non-court disposals should still be treated as convictions and thereby be subject to the same rules of disclosure as offences dealt with through the court process.

6.58 The Law Society of Scotland was concerned about the routine disclosure of such matters by fiscals when a plea of guilty was tendered or a finding of guilt was made and commented thus:

"The proposal to allow acceptance of an offer to be disclosed to a court in other proceedings within the specified time limit is novel and would appear to equiparate acceptance of a Fiscal Fine with a previous conviction. Payment of a Fiscal Fine does not amount to an admission of guilt. Accordingly, adoption of such an approach could have an adverse impact on the operation of the criminal justice system as a whole. If the court can have regard to this information at a later date, then individuals may be dissuaded from accepting the Fiscal Fine, as it would, in practice, take the form of a previous conviction. The adoption of such a policy could also have resource implications for the COPFS".

Other Diversion From Prosecution Schemes

6.59 Most respondents were very much in agreement with the proposal to roll out successful schemes and were also supportive of measures that would lead to consistency across Scotland. In addition, many Justices commented that it was essential that information and training be given to sentencers who would send offenders to such diversion schemes, in order to ensure that their use is appropriate.