Scottish Government

6 RECOMMENDATIONS

6.1 The following section looks at a range of issues relevant to the improvement of the FPN system from the perspective of police officers and local authority representatives. These views were captured in an e-survey of 247 police officers from around the country and from senior police officers and other local officials who were interviewed in each force area. They were asked for their views on their current practice for offering FPNs, perceived benefits and challenges and any information that is relevant to an understanding of current practice. They were also asked for their views on possible changes to the FPN systems for further training and guidance, additions to the list of eligible offences, the fine level and other changes they felt relevant.

Police recommendations about the list of offences for which FPNs can be used

6.2 Not all the offences were seen by police as appropriate for FPN use. Police were asked if they thought any of the offences should be removed from the list of 10. The following table shows the percentage of respondents who thought offences should be removed from the list.

Table 10: Police views on removal of offence categories (n=247)

'Drunk in Charge of a Child' and 'Malicious Mischief'

6.3 The main two offences which a majority of survey respondents felt should be removed were 'being drunk in charge of a child' and 'malicious mischief'. These were the two offences which were also identified as most controversial in the evaluation of the FPN pilot in Tayside force and also were the offences where the powers have been least used.

6.4 The research interviews with senior police officers also found support for the removal of 'drunk in charge of a child' and 'malicious mischief.'

6.5 For 'drunk in charge of a child' the objections stemmed from the severity of the offence, the 'duty of care' requirements which would require the police to take responsibility for the welfare of the child and the deeper problems that may be at the root of the offence, possible abuse and neglect and the need for other agencies to be involved in responses to these incidents. Interviewees said that this offence did not seem to sit well with the FPN philosophy of dealing with minor problems caused by people who are not commonly the focus of police attention.

6.6 Some forces had taken the policy not to use these offences and removed them from their own ticket books. Other senior officers said that they would cancel all FPNs that were given out for these offence categories and report them to COPFS instead. Interviewees were asked if there were any hypothetical circumstances in which FPNs could be seen as an acceptable way of dealing with the offence. All interviewees said there were not.

6.7 The opposition towards the 'malicious mischief' among interviewees was connected to the perceived seriousness of this offence. Cases of 'malicious mischief' are typically the more serious cases of vandalism. This category was seen as inappropriate by definition because it is impossible to conceive of a minor case of 'malicious mischief' - these would be simply recorded as vandalism. Again, police officers who were interviewed said they felt there were no circumstances under which this offence could be disposed of with an FPN.

'Vandalism' and 'Riotous Behaviour'

6.8 Nearly a quarter of survey respondents believed that 'vandalism' should be removed from the list of eligible offences. Senior police officers spoke about the issue of damage levels and how this is often above the £40 level. This fine may not appear to be a just outcome from the perspective of enforcement authorities and victims. There were strong feelings among some interviewees that the police should report these to COPFS to consider whether to issue a direct measure or raise proceedings.

6.9 Compensation is also relevant. If the police offer a FPN, which is accepted by the offender, there is no way for the victim to get a compensation order, which sometimes results from a police report to the Procurator Fiscal. Some interviewees felt it was not the place of the police to deny the victims of vandalism the possibility of compensation.

6.10 There were however, still hypothetical situations when police said they felt that an FPN might be appropriate. For example, if there is no apparent victim or if the vandalism is at the most minor level. Some police felt that vandalism should stay on the ticket as an option for them to use in these circumstances but that they would not expect this to be used as a common way of dealing with many cases.

6.11 A quarter of survey respondents believed that 'riotous behaviour' should be removed from the list of FPN offences. There was broad agreement also among senior officers that this offence is too serious for FPN use. Some said that minor examples of disorder could be dealt with as breaches of the peace. The use of the word 'riot' was a problem for some interviewees who said an 'on the spot' fine was always an inappropriate way of dealing with rioting.

'Playing Loud Music' and 'Refusal to Leave Licensed Premises'

6.12 Police officers were asked also about the possible removal of the other 3 offences which were not often used: 'playing loud music', 'riotous behaviour' and 'refusing to leave licensed premises.'

6.13 'Refusal to leave licensed premises' and 'persisting to playing loud music after being asked to stop' were said to be uncommon for FPN use. 'Refusal to leave licensed premises' is a relatively rare offence category and these incidents might more often be dealt with as 'breach of the peace'. There are also alternative means of dealing with 'persisting to play loud music' which involve local authorities. Some local authorities have local noise teams who, with the police, also have powers to confiscate equipment and issue fines for persistent offenders. Repeat offenders are also dealt with by local authority officials who are able to use Acceptable Behaviour Contracts and in the most serious cases, apply for ASBOs against these offenders.

6.14 Confiscation of equipment is often seen as the best way of dealing with noise-related problems but it also involves completing a report for the Procurator Fiscal. An FPN would not often replace this method.

6.15 For 'refusal to leave licensed premises' and 'persisting to play loud music', the police said that they could conceive of hypothetical situations when an FPN might be appropriate and that they would therefore support the retention of these offence categories on the FPN ticket. They would not, however, expect to see large numbers of offences being dealt with in this way.

'Breach of the Peace', 'Drinking Alcohol in Public', 'Urinating/Defecating in Public' and 'Drunk and Incapable'

6.16 The three main offences 'breach of the police', 'consuming alcohol in public' and 'urinating or defecating in public' were not controversial; very few officers felt these should be removed. This view was supported in the interviews with senior police officers. These offences were seen as the main area of business for FPN use and the offences for which they have been most useful.

6.17 'Drunk and incapable' was a less common offence in most areas but there was broad support for keeping this on the list of eligible offences. In most locations police have responsibilities to take these individuals into custody before they are released when they are sober but there are still potential time savings from not reporting to the Procurator Fiscal.

Additional offences to be included as FPN offences

6.18 Police were also asked their views on other offence categories which might be added to the list of FPN offences. These were from a list of 10 which were suggested by the previous FPN evaluation in Tayside as well as suggestions from politicians and others. This was a closed list and an 'open question' was used for police to suggest other offences which respondents would favour for FPN use.

6.19 Some of these offences are ones for which the police may already have fixed penalty notice powers under different schemes (e.g. littering and dog fouling.) These were included in the survey because of feedback that the FPN scheme is much easier to administer than the other schemes, the ticket book is smaller and police do not always carry the other penalty notice issuing books with them on duty.

6.20 The following table shows the proportion of respondents who agreed and disagreed with the inclusion of further offences.

Table 11: Police views on offence categories suggested for future FPN eligibility

6.21 Interviews with senior police officers considered these issues and a range of reasons emerged in support of, and opposed to, some of these suggestions.

6.22 One of the main criteria for some officers when they were considering changes was whether the offence is currently resulting in large numbers of SPRs which do not result in prosecution cases. These would therefore represent opportunities for further time savings. Other factors were also raised by officers including the risk of harm that might be associated with a mistakes (e.g. in minor assault cases) and the possible conflicting messages which may be sent out by police and government if an apparently serious offence is dealt with by the issuing of a relatively small fine (e.g. in drugs possession cases). Some officers felt that £40 fines might be felt to suggest that the offending behaviour is viewed as minor by the police. Some officers said that the risk of 'harm', and the possibility of sending out confusing messages about the acceptability of some behaviour should outweigh the opportunity for time savings through the FPN system.

6.23 Another relevant issue was said to be the consideration of the purpose of the FPN system as dealing with offenders who are not repeat offenders and who are more at the periphery of offending. Some of the offences would suggest behaviour that might be connected to other and more serious types of offending. There is also a potential move away from the current focus of FPNs used in the night time economy and for acts of alcohol related disorder to environmental issues, fraud and theft as well as drugs and assault.

Litter and Dog Fouling

6.24 Police already have the same powers as other agencies to issue penalty fines for littering and dog fouling. The police however need to carry around a separate ticket book which is not common practice because of the books' size and weight. The inclusion of these offences in the antisocial behaviour FPN scheme would aim to take advantage of the practicalities: the fact that the ASBFPN ticket scheme is easier and would enable the police to issue FPNs without having to carry around other ticket books.

6.25 There were views in support and opposed to adding these offences to the list for FPN eligibility. Despite acknowledging the large volume of these crimes and the impact it has on the community some officers and local authority representatives had concerns about adding these to the list. There was a feeling that this behaviour may most adequately be dealt with by other agencies' and the fixed penalty schemes already established and the antisocial behaviour FPN scheme should be reserved for the main types of antisocial behaviour problems.

6.26 The main argument against this point was made by other officers who said that whilst this may be though of as minor behaviour, it is still behaviour which the police receive complaint calls about and come across on an everyday basis. The inclusion on the list should not be seen as a move away from more serious police priorities but rather to allow the police to deal, in the most practical way, with low-level offences that they deal with in large volumes.

6.27 There would however be other practical difficulties related to this. Other penalty fines for these offences are higher than £40. Consideration would have to be given to the need for standard fine levels if this is considered for inclusion on the FPN ticket book. There would also be the need, to avoid two separate systems, to have a system shared with other enforcement officers; the same ticket book, guidance, fine level and collection methods etc.

Assault

6.28 Some senior police officers saw the potential for time savings from FPNs in the most minor cases of assault and theft. Others, despite acknowledging the potential time savings, said that the inclusion of these would be too risky.

6.29 Objections concerned the potential risks of officers missing out on potential harm that was caused to victims in the course of an assault. FPNs for assault would depend upon the assessment of the police officer that the offence caused no (or only very minor) harm to the victim. Some police officers who were interviewed said that this is a large responsibility. Physical or psychological harm may have been caused to a victim that is not immediately apparent to the police officer.

6.30 Officers recommended that the inclusion of these offences would depend on strong guidance to enable officers to use their discretion appropriately.

'Minor' Thefts and Shoplifting

6.31 Minor theft was suggested as relevant for use with FPN tickets. This presents a large problem for police in some city centre areas who perceived an opportunity for time savings with FPNs. Police said they felt that many minor thefts do not result in prosecutions but involve large amounts of police time which could be better used as a visible deterrent in public view. FPNs would provide a higher level of punishment for some thefts.

6.32 Concerns focused on the links between shoplifting and drugs habits. Shoplifting was said to be often a means for individuals to get money to fund drug addiction. In these situations FPN fines may not be a useful means of preventing future offending. Also shoplifting may be a habitual crime for which FPNs would not be suitable according to the Lord Advocate's guidelines.

6.33 Police in most areas agreed that there is potential for time savings with these offences but again this would require guidance on the levels of goods stolen and when they may not be appropriate for use with repeat offenders.

Prostitution and ASBO Breach

6.34 Only around a quarter of police survey respondents said that Prostitution and ASBO breach should be included in the FPN system. Police who were interviewed opposed these offences being added to the list.

6.35 Most police said that Prostitution in public was not a problem they encountered but that an FPN would be inappropriate even if they did. Others said that Prostitution is not appropriate for FPN eligibility because of its complicated nature. Offenders may be unlikely to change their behaviour as a result of getting an FPN and it runs against the philosophy of the FPN system to deal with low-level one-off offenders.

6.36 ASBO breach was also seen as an inappropriate offence category for FPNs because it is too serious. It represents a contravention of a court order and senior police officers in all locations said that these breaches should be reported to the Procurator Fiscal.

Possession of Cannabis

6.37 The potential inclusion of 'possession of personal amounts of cannabis' on the list of eligible offences was a popular suggestion with police survey respondents. 83% supported the addition of these offences to the list. Some police officers were however more concerned about this, mainly because cannabis has recently been upgraded from a class C to a class B drug.

6.38 Arguments in favour were connected with the potential for time savings. These offences are detected in large number but were not perceived to result in prosecutions being brought. There were also arguments made connected with proportionality. Some officers said they did not regard possession of small amounts of cannabis for personal use as a high priority crime. In some areas there are arrangements in place, supported by the Procurator Fiscal, where a formal adult warning scheme is used. Officers who find very small amounts of cannabis will dispose of it and issue a warning to say that a future offence will be prosecuted.

6.39 Police officers also spoke about the social effects of cannabis and its relatively minor (compared with alcohol) links with other crimes of violence or disorder. Arguments were made about the effects of a drugs conviction of an offender who may have their education and employment prospects severely limited as a result of a court conviction.

6.40 Arguments against adding this to the list of eligible offences centred on the fact that cannabis has been upgraded to a Class B drug and a fine for possession may not reflect the notion of personal and social harm which is associated with it or the connections with organised crime. There were also concerns that the use of a small fine might bring with it an impression that drug use is acceptable or condoned by the authorities. Some officers believed that these concerns could be dealt with however and suggested that this has been done in England and Wales where the police have the power to issue penalty notices for these offences.

Other offences

6.41 The questionnaire asked if other offences might be added apart from the above suggestions. Most people didn't offer any suggestions but the two most popular were for the offences of supplying alcohol to under 18s and for communications act offences such as nuisance phone calls and abusive text messages.

6.42 Senior officers were not supportive of these suggestions. Both of these offences were said to be too serious for FPN use. Abusive text messages may lead to further and more serious forms of abuse. Also supplying alcohol to under 18s, by a shop or a third party, was seen as a problem which were said to warrant the completion and submission of a prosecution report.

'Mission creep'

6.43 A theme which ran through all interviews was the notion of the type of offender for which FPNs are appropriate. There was a broad sense from the things said that FPNs are most suited to offenders who are at the periphery of offending; for offenders who may have acted out of carelessness or thoughtlessness but who may be expected to recognise the severity of their action when they reflect on it and potentially change their behaviour as a result.

6.44 Some felt that the extension of the FPN scheme should be careful to avoid creeping into more serious offending territory. They were not said to be appropriate for offenders who are regular and repeat offenders or who act out of compulsivity. These would not be appropriate offences even where they resulted in efficiency savings.

6.45 These views echo the Lord Advocate's guidelines on FPN issuing. These say that FPNs are not suitable for offences of a serious nature e.g. where a victim is injured or where the behaviour is persistent or alarming.

Fine Level

6.46 The questionnaire asked about the appropriateness of the £40 fine level. Most officers (62.4%) thought it was about right, 36% thought it was too low but only one person out of the sample (0.4%) thought it was too high. (n=247)

6.47 There was a lack of consensus among police officers about the overall purpose of FPN fines: if they are about providing a just punishment for offenders who are caught, if they are set to deter potential offenders who are considering committing an offence or if they are a token penalty to inconvenience an offender to allow them to reflect on their behaviour and feel that they have this time had a lucky escape from a prosecution. These different ideas would suggest different approaches towards fine levels e.g. a token punishment might require a lower fine level than a fine which is set at a level to deter people before committing an offence.

6.48 The most frequently cited problem with the fine level was the lack of consistency with other similar fines available for a range of offences such as dropping litter, dog fouling, parking, speeding, and fly-tipping. Some police remarked on the perceived injustice of someone receiving a £40 fine for a breach of the peace whilst getting a higher fine for exceeding the speeding limit or dropping litter.

Conclusions and recommendations

6.49 Overall most police were positive about the success of the procedures. They were simple and represented a 'better suited' method of dealing with the high volume of minor offences, especially in the night time economy in urban centres in the evenings and at weekends. This might have led in some cases to a new emphasis on 'pro-active' enforcement in terms of the policing of antisocial behaviour.

6.50 There were also strong perceptions of time savings: less form-filling, greater opportunities for dealing more formally with problem behaviour where it happens. These time savings were perceived to lead to greater flexibility for the deployment of police officers and greater levels of visible policing in peak hours.

6.51 There are opportunities for the development of the scheme, in terms of both time-savings and also to increase the opportunity for the use of proportionate methods to deal with other types of minor offending.

6.52 The police support changes to the list of eligible FPN offences and these should be considered in terms of the contribution to the benefits as described above. There are however a range of other issues which research participants said should be considered throughout this: the need to keep the system simple and to avoid the complicated guidance, the awareness of risk of harm connected to the mis-application of FPNs, the wider issues of social health and wellbeing, the proportionality and the fairness of a £40 punishment in cases where an offence, if reported for prosecution, would result in a 'no action' marking due to proportionality.

6.53 Recommendations based on the research findings are suggested below:

• Consideration should be given to the expansion of the FPN scheme to include other offences such as possession of personal amounts of cannabis', 'minor theft' and 'minor assault' and issues relevant to British Transport Police and Ministry of Defence Police, following the introduction of FPNs in their areas in April 2009.
• Fixed penalties are currently available for other offences such as 'littering' and 'dog fouling' which currently attract low police use. Consideration should be given to modifying systems to encourage police use of these such as including them within the ASBFPN scheme.
• The Government should consider how to make the antisocial behaviour FPN administration systems consistent with other fixed penalty notice schemes, in terms of administration procedures, fine levels, ticketing procedures and guidance.
• Greater use of portable electronic recording devices may allow for the reconciliation of FPN systems whilst enabling the police to make use of all legislation without requiring them to carry around a number of separate ticket books.
• Maintenance of a simple system, in terms of administration and clear guidance, should be borne in mind through any modifications to the FPN procedures.