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The Summary Justice Review Committee: REPORT TO MINISTERS
Chapter 8: OPTIONS FOR THE POLICE IN RELATION TO MINOR CASES WHICH DO NOT REQUIRE TO BE REPORTED FOR PROSECUTION
Informal Warnings
8.1 In practice, the police receive reports of crimes and offences, which they will investigate, or they will themselves detect crimes and offences. Many incidents will be capable of resolution without the need to submit a report to the procurator fiscal. In some situations, police officers will decide to take no action, or will choose to counsel or to issue informal, verbal warnings, which are not recorded centrally. These are valuable options. Many minor offenders, particularly first offenders, will take very seriously such involvement with the police and not commit further offences. Prosecutors have given some encouragement to the use of warnings where appropriate and Her Majesty's Inspectorate of Constabulary recently recommended 34 the introduction of an adult police warning scheme.
Other Options
8.2 Other options may relate to the needs of offenders. We note that the Criminal Justice (Scotland) Act 2003 gives the Executive new power to fund arrest referral schemes, and that the Deputy Justice Minister recently announced additional funding to run pilot schemes over the next two years. Arrest referral schemes, commissioned by the local multi-agency Drug Action Teams, offer an opportunity to drug and/or alcohol users who have been arrested to engage with treatment or other appropriate services with a view to reducing their offending behaviour. They are a pathway into services from a criminal justice setting (usually a police cell or court premises) but participation is entirely voluntary on the part of the offender. Setting up such a scheme requires the kind of inter-agency co-operation which we have strongly supported elsewhere in this report.
8.3 Powers are also available to the police under the Mental Health (Scotland) Act 1984 to remove a person apparently suffering from a mental disorder from a public place to a place of safety to be examined by a doctor and for treatment arrangements to be made.
8.4 The Committee considered that the greater use of such options where appropriate would avoid the risk of offenders finding themselves in the criminal justice system when it is their health or social problems which need to be addressed.
8.5 In addition to the options set out above, the police have power to issue a limited range of fixed penalty notices (FPNs), which are considered further below.
Extending the Use of Non-Reporting Options
8.6 The prosecutor is currently entitled to direct the police not to report certain categories of offence where he or she considers that to be appropriate. This is an important aspect of his or her role, as the prosecutor stands in a pivotal position in the criminal justice system between the police and the courts, able to gauge the nature and volume of cases coming into it and to see what is happening in the courts. Consistent exercise of that power enables the police to deal with less serious offences without the need to refer to the procurator fiscal, and thus to give priority to reporting more serious offences to the procurator fiscal.
8.7 The delegation of decisions not to report to the police is in keeping with our proposition that decisions should be taken and implemented at the earliest stage in the system. But there ought to be reasonable consistency across the country in relation to types of case which the police are directed not to report, such as in relation to prostitution. We consider that the proposed criminal justice boards will help to address such problems in future.
8.8 The use of "non-reporting" options can avoid the need for further, possibly disproportionate action and we see clear benefits from enabling the police to exercise a wider range of options appropriate for minor crimes and offences. Providing these options should limit the number of cases reported to procurators fiscal and hence the number of cases coming to court.
8.9 We recognise that empowering the police to use these options may be perceived to raise constitutional issues. We consider though that an important safeguard is provided by the principle that where a penalty for a breach of the criminal law is being imposed, the accused should always have the opportunity to have the matter referred to court for determination of guilt. We consider too that the relationship between the police and the prosecutor enables the Lord Advocate and procurators fiscal to supervise the operation of non-reporting options and to pursue with Chief Constables any issues which arise.
8.10 Increasing the range of offences in which police officers may exercise a range of discretion and avoid the need to report to the procurator fiscal has advantages and disadvantages. We consider that the advantages outweigh the disadvantages. We recognise that an occasional misjudgement of the seriousness of an incident may preclude prosecution where this should have been the outcome and that a mistaken assessment of the sufficiency of evidence may lead to fixed penalty notices (FPNs) or warnings being issued inappropriately. We consider that these are issues which can be addressed by appropriate training in which we would expect prosecutors to be involved.
8.11 We are aware that not all police officers are happy to have the responsibility which these options confer on them as they consider that their role is to detect and report crime, not to make decisions relating to the most appropriate disposal for minor offenders. Some senior police officers were uncomfortable about complying with instructions not to report crime in view of the statutory duty on them to report crime. Some consider that being involved in administering disposals could undermine their other roles in the communities in which they work. There were concerns too about local perceptions of the police if they were seen not to report all crime. But the police already warn some offenders and issue fixed penalty notices to others. For relatively minor infringements of the criminal law, we consider that extending the range of "police alternatives" provides a proportionate and cost effective way of dealing with minor crimes and offences. In addition, we anticipate that the time saved by avoiding the need to prepare police reports and statements and, ultimately, attend court, will release police officers for other more productive duties.
Formal Police Warnings
8.12 We have considered whether there should be introduced a formal system of police warnings for minor offences. The issues which we identified as relevant to this consideration are:
- should such a warning require an admission of guilt on the part of the accused?
- should such a warning be referable to in any subsequent criminal proceedings?
- how would such a system operate within the context of the current system of procurator fiscal warnings?
8.13 We recognise that there are arguments in favour of a system of police warnings similar to the system of police cautions that applies in England and Wales. Indeed we understand that ACPOS would be in favour of such a system. The characteristics of the police caution system in England and Wales are that an admission of guilt is required and it can therefore be referred to in subsequent court proceedings. It remains an important principle that if an accused does not admit the offence, he or she should be given the opportunity to have the case heard in court if there is the possibility that the matter may be disclosed or referred to in subsequent proceedings.
8.14 However, we also need to bear in mind the current system of procurator fiscal warnings that operates in Scotland. The procurator fiscal can give a formal warning either personally or by letter. The warning proceeds on the basis that a report alleging a specified offence has been submitted to the procurator fiscal; that he or she considers that there is sufficient evidence to justify the taking of proceedings in court against the person concerned; that he or she has decided not to take proceedings in the particular case; but that should a similar report be submitted against the person in future, he or she might well take proceedings in court.
8.15 Such a warning does not require an admission of guilt. Where a warning is given, the Crown relinquishes the right to prosecute. No further criminal proceedings will be taken in respect of the offence, even where the warning takes place in the form of a face-to-face interview. 35 The warning cannot be withdrawn at the insistence of an accused who denies the offence. For that reason, the giving of a warning remains confidential between the accused and the procurator fiscal and will not be disclosed (except in certain limited circumstances to a specialist reporting agency, or in subsequent court proceedings where the subject is raised by the accused or his or her agent). This information is recorded by COPFS, but not by SCRO.
8.16 In the past, each procurator fiscal maintained his or her own register of warnings at office level. Since most offenders operate in their local area, this was not seen to create a significant difficulty, but there remained the possibility that an offender might receive a number of warnings, each from a different procurator fiscal, ignorant of warnings given previously by colleagues in different court districts. Recording arrangements have now changed and the COPFS national database permits procurators fiscal to see the position across Scotland.
8.17 The Stewart Committee felt that for procurator fiscal warnings there was no need for admission of guilt. 36 Nor did they see an admission of guilt as necessary for formal police warnings, which they also recommended. 37
8.18 A system which required an admission of guilt for a formal police warning, while an attractive option in many respects, would run the risk of being seen as a more substantial sanction than that of a procurator fiscal warning, despite the fact that the latter represented a further step up the ladder of the criminal justice system. There could arise the situation where an alleged offender declined to accept a police warning which required an admission of guilt, only for the matter to be reported to the procurator fiscal and for the offender to receive a further warning not requiring any admission of guilt. We have considered whether in the circumstances to recommend a change in the status of the procurator fiscal warning, but have decided that given that that system appears to work well it would be better not to disturb it.
8.19 We take the view therefore that the best option for a system of formal police warnings in Scotland is not to base the system on a requirement for an admission of guilt. We accept that such a warning could not be referable to in subsequent court proceedings. It should, however, be recorded and available to police officers and procurators fiscal via SCRO to enable them to come to decisions about prosecution in future instances involving a particular offender. We recognise that it would not be appropriate for such warnings to lie on a file indefinitely and would suggest that they should be removed after a period of not less than 2 and not more than 5 years.
8.20 A recorded police warning would require the submission of some form of report to a senior officer. While this may simplify the reporting process, it will not eliminate it. However, such a report could be relatively brief and we consider that the crime report already prepared by the police would usually suffice. As it would be a report internal to the police, it would avoid the need to report cases to the procurator fiscal by preparing a full standard prosecution report (SPR). The offender should also be clearly advised, possibly by means of a written document, about the nature of the warning and the implications for future offending behaviour.
We recommend that the police make full use of non-reporting options, and that guidance be issued by the Lord Advocate extending the types of offences which may be dealt with by the police on an informal basis.
We recommend that there ought to be reasonable consistency across the country in relation to types of case which the police are directed not to report. We recommend that the proposed criminal justice boards should address this issue.
We recommend the introduction of a system of formal recorded police warnings. These warnings should not require an admission of guilt. They should be accessible to police and procurators fiscal for a period of not less than 2 years and not more than 5 years from the warning. They should not be referable to in court proceedings.
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