The Summary Justice Review Committee: Report to Ministers

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The Summary Justice Review Committee: REPORT TO MINISTERS

Chapter 32: FINE ENFORCEMENT

32.1 Monetary penalties (fines and compensation orders) remain by far the most common disposal use in the criminal justice system, and in the summary courts in particular.

Persons with a charge proved, 1997-2001 - percentage use of various disposals75

Main Disposal

1997

1998

1999

2000

2001

All Courts76

Custody

11

11

13

13

14

Community sentences 77

8

9

10

11

11

Monetary penalties 78

70

69

66

66

64

Other sentences 79

11

11

11

11

11

Solemn Courts

Custody

73

72

70

70

71

Community sentences

16

17

21

22

22

Monetary penalties

6

6

5

4

4

Other sentences

4

4

4

4

4

Summary Courts

Custody

9

10

11

11

12

Community sentences

8

9

9

10

11

Monetary penalties

72

71

68

68

66

Other sentences

11

11

11

11

11

32.2 Going down a further level, the pattern of sentencing in the sheriff summary court is (unsurprisingly) quite different from that in the district court.

Sentencing in the summary courts, 200180

Court

Percentage custody

Percentage community service

Percentage probation

Percentage fined

Percentage admonished /other

Sheriff summary

17

6

10

54

13

Stipendiary magistrate

20

0

3

66

10

Lay district

1

N/A

1

87

11

32.3 In 2001 54% of sheriff summary cases ended in a fine. The average fine was 277, though the average varied very much across the country. The equivalent figure for 2001 in relation to the district courts (excluding the stipendiary magistrate courts) showed that 87% of those sentenced were fined, with an average fine of 98. The variations in fine levels were much less marked in district courts across Scotland.

32.4 Compensation orders were used much less frequently (4% of sheriff summary cases, 7% of lay district court cases) sometimes in conjunction with fines.

32.5 In addition to the courts a number of other organisations have the authority to impose financial penalties upon an individual in certain circumstances - e.g. an accused may accept the offer of a fiscal fine as an alternative to prosecution, and police and local authorities can issue fixed penalty notices in relation to offences such as littering and to deal with parking fines which are unpaid in the first instance. In considering future arrangements relating to the enforcement of fines the Committee did not wish to restrict itself to those fines imposed by the courts. We are aware that throughout the United Kingdom and in many parts of the Commonwealth there has been a very substantial and continuing rise in the numbers of infringements which are dealt with by fixed penalties or the equivalent. These have the potential to present a larger enforcement problem than court imposed fines. A number of the recommendations made later in this chapter therefore apply both to court fines and other financial penalties. Research on offenders' views 81 commissioned by the Committee explored issues such as why offenders did not pay fines and what measures (in the view of offenders) could be introduced to improve payment rates. Those findings were also taken into consideration by the Committee in reaching its recommendations.

32.6 The Committee recognised the importance of maintaining the fine as a credible, enforceable penalty in a summary justice system. The benefits of the penalty are that it is:

  • flexible - capable of being tailored to the seriousness of the offence and the means of the offender;
  • cheap to administer;
  • does not normally disrupt the life of the offender; and
  • on available evidence, has the lowest reconviction rate of any penalty imposed by the courts.

32.7 On that last point, the Committee noted the evidence on reconviction contained in the recent Scottish Executive Statistical Bulletin Reconviction of offenders discharged from custody or given non-custodial sentences in 1997, Scotland. 82 This showed reconviction rates within 2 years for offenders sentenced in 1998 to be as follows.

Offenders sentenced in 1998 - Percentage reconvicted within 2 years (provisional data)

Custodial sentence

61%

Probation

58%

Community service

43%

Monetary penalty (fine and/or compensation order)

40%

32.8 We recognised the caveat that these differences were less marked once the age, sex and number of previous convictions of offenders were taken into account. We also recognised that many fines are given for regulatory offences. Nonetheless, given the current focus on reduction of re-offending, we suggest that making fines more effective and more workable would repay the effort made.

32.9 The Committee also noted that the use of the fine in the summary court has continued and continues to decline as a proportion of total disposals. We noted from the figures above that in the summary courts the reduction in the use of fines has been offset by an increase in the use of community sentences, but also by an increase over time in the proportion of cases attracting custodial sentences.

32.10 It is obviously difficult to establish with precision the balance of factors which have influenced the decline in the use of monetary penalties in the summary courts. Increased use of fiscal fines and police fixed penalties is likely to have reduced the numbers of court cases in which a fine was likely. Anecdotal evidence, however, suggested there has also been a mixture of positive factors - the availability of a wider range of community disposals, reflected in the significant increase in their use - and negative factors relating to enforcement difficulties. The Committee considered that if fines enforcement could be made more effective, sentencers would be more likely to choose a fine rather than a short custodial sentence. If the use of fines were to increase, the cost of enforcing relatively more expensive alternatives would be likely to decrease. More importantly, making even a small reduction in the prison population - given the lack of positive evidence that short sentences work - would be of wider benefit in Scotland.

32.11 The Committee therefore spent some considerable time looking at fine enforcement issues. We recognised that the Sentencing Commission has been invited to consider broad issues relating to fines - for example, the relationship between fines and the ability to pay and the balance between fines and compensation. This Committee has therefore focused its principal attention on the issue of effective enforcement of fines.

Present Arrangements for Fine Enforcement

32.12 When the court imposes a fine, the sentencer has the power to set the alternative at the time of sentence - which means that the court may set the term of imprisonment which will be served if the fine is not paid, and the offender will be automatically imprisoned in the event of default, e.g. if the fine is not paid within a specified time or instalments are not paid. There are no central statistics on the proportion of fines imposed with an immediate alternative, but anecdotally we understand it to be very small. Sentencers are unwilling to impose immediate alternatives when circumstances may change resulting in the offender no longer being able to pay the fine as ordered by the court.

32.13 In recent years a number of attempts have been made to support fine recovery by increasing payment flexibility and making use of dedicated fines enforcement officers. The use of the latter is limited by current legislative constraints - changes to primary legislation are required to give fines enforcement officers flexibility to change payment arrangements in response to changing circumstances. 83 Increasing the range of payment methods has some value and the survey of offenders indicated that following options might be considered: 84

  • the use of debit and credit cards;
  • online payment;
  • payment at local authority outlets;
  • payment outlets, such as the Post Office and the Pay Point scheme operated at local retail shops; and
  • early payment discount.

32.14 That said, these additional methods of payment will do little to improve collection from those who are unwilling or unable to pay (or both).

32.15 In most cases, where default occurs and an alternative has not been set, the court's initial response is normally to issue a warning letter. If that produces no response the defaulter will be cited to a means enquiry court (MEC) though few of those cited actually attend, leading to a warrant being issued for their arrest. Where the fine is not paid at or before the MEC the sheriff/justice of the peace has a range of options. The payment plan may be changed or more time to pay may be given. Research from the 1990s suggested that up to 1 in 5 of those attending MECs in the district court were given more time to pay. Anecdotal evidence suggests that of those who attend in person at sheriff courts a higher percentage than that are given time to pay though an alternative period of detention or imprisonment is likely to be imposed, to become operative if there is further default.

32.16 The judge can make a Supervised Attendance Order (SAO) which substitutes a period of constructive activity supervised by Criminal Justice Social Work for the unpaid fine. This may include social education, help with financial management and/ or an element of community service. SAOs were first introduced in Scotland on a pilot basis in 1992, and rolled out nationally from the mid 1990s onwards. They run for between 10 and 100 hours as ordered by the courts. The number of hours ordered will be a multiple of 10 related to the amount of the fine outstanding. A total of 2,700 SAOs were made in relation to 2,327 offenders in 2002-3. In the same year 1,709 SAOs came to an end, of which 1,250 (73%) were successfully completed and 272 revoked for breach. An initial evaluation of SAOs published in 2001 85 suggested that within a relatively short period of time, SAOs had become established as a credible and effective option for dealing with fine default.

32.17 Following changes to legislation contained in the Criminal Justice (Scotland) Act 2003, the Executive is piloting two new SAO schemes. The first provides SAOs as a first instance disposal for all age groups. This means an SAO can be imposed on an offender without the need for a fine to have been imposed first. The second introduces mandatory use of SAOs in two prescribed courts for minor fine defaulters (fines not exceeding level 2, i.e. 500). This will, in practice, remove the option of custody for minor fine defaulters from those courts though custody will still be competent for breach of the SAO.

32.18 The ultimate sanction for failure to pay a fine is imprisonment. Although the numbers imprisoned for fine default are declining, they remain substantial in terms of prison receptions. They account for a tiny proportion of the average daily population because the length of time served is very short.

Number of entries into prison purely for fine default by sentence length imposed, 2002

Adult

Young Offender

Male

Female

Male

Female

Less than 7 days

444

65

59

3

7 days

1,240

160

126

7

8-13 days

559

44

77

6

14 days

830

75

89

3

15-29 days

286

17

36

1

30 days/1 month

7

0

0

1

31-59 days

52

5

5

0

60 days/2 months

1

1

0

0

over 60 days

9

1

0

0

Total

3,428

368

392

21

(2001 Total)

3,578

354

421

22

(2000 Total)

3,687

363

406

28

Average daily population of fine defaulters, 1997 - 2002

1997

1998

1999

2000

2001

2002

Adult

83

65

51

52

53

53

Young offenders

19

10

8

9

9

8

Total

102

75

59

61

62

61

32.19 On occasion, means enquiry courts simply remit fines. Figures held centrally suggest that in 2000-1 sheriff courts in Scotland remitted 1,691 fines (2.1% of the fines imposed, to a total value of 455,604): in the same year, the district courts remitted 1457 (1.8% of the fines imposed) in full and 695 (0.8% of the fines imposed) in part. Fines remitted totals will include fines remitted because the person fined has died. The value of district court fines remitted is not held centrally. The sheriff courts imposed 79,000 fines in 2001-2: the district courts handled a total of 83,000 fines in the same year, including 41,000 court fines and 36,000 registered fines.

32.20 It is also open to courts to order an arrestment of earnings or to request direct deductions from Income Support/Jobseekers allowance as a way of securing repayment. 86 Figures demonstrate that these options are very little used: in the latest year for which figures are available (2001-2) only 47 sheriff court fines were marked for the deduction of income support and 981 district court fines resulted in income support being deducted. The Committee's experience suggests that the infrequent use of deduction from benefit reflects criticisms made by justices of the peace and sheriffs of the complexity of the application procedure, the limitations placed on the amount of benefit that can be deducted (typically in the region of 2.70 per week) and the fact that their application is accorded a lower priority than other direct deductions. Other disadvantages identified to the Committee were that if the offender ceases to be entitled to the benefit subject to the deductions order but transfers to a different kind of benefit, the deduction order ceases and does not attach to the new benefit; and that courts receive information relatively infrequently as to the amount deducted in particular cases.

32.21 We understand that deductions for debts in relation to housing costs, fuel charges, water charges and council tax take higher priority than court fines, and that it is possible for a deduction in place for a court fine to be suspended where the claimant's resources are assessed as inadequate or a higher priority deduction is received. 87

32.22 The Committee has been unable to obtain figures for the number of fines recovered through arrestment of earnings, but discussions with stakeholders suggest the number is extremely small. An unpublished paper for the Scottish Office prepared some time ago (1989) reported that attachment of earnings orders were not widely used mainly because 90% of offenders imprisoned for fine default were unemployed, but also because offenders did not wish their employers to know that they had offended. Where arrestment of earnings is a possibility, therefore, employed offenders are perhaps more likely to pay. Fines may be recovered by civil diligence prior to the commencement of a sentence of imprisonment or detention for non-payment but in practice very few attempts are made to recover court imposed fines by this method - except in cases in which the offender is a company or other corporate body. 88 In spite of the current administrative difficulties associated with earnings arrestments and deductions from benefits it should be noted that 71% of offenders interviewed in the survey of offenders believed that these would be an effective way of recovering fines from those who might otherwise default. 89

Evaluation: Current Strengths and Weaknesses of Fines Enforcement Systems

32.23 One of the weaknesses of the existing enforcement system is that at present each local authority and the Scottish Court Service operate their own collection and enforcement policies, although all use the basic "building blocks" identified above. This results in widely varying methods of payment and enforcement nationally. There are different ways to pay in different district courts. In some Commission areas it is possible to pay district court fines at local authority offices throughout the area. Sheriff court fines have to be paid at the court which imposed them or, where a fine has been transferred, to the court to which it has been transferred. The procedures for enforcement of fines by district courts vary from area to area. For example, some areas issue warning letters in the event of initial default while others immediately issue a citation to a means enquiry court. It is not possible for a fine to be transferred between sheriff and district courts for payment. Similarly, offenders required to pay fines to district courts can currently only pay their fine in the Commission area in which the relevant district court is situated, unless the fine has been transferred to another district court in which case it must be paid there. Individual offenders may have outstanding fines in two or more courts and may be subjected to different enforcement regimes in different courts or in different levels of court. These regimes may be mutually inconsistent or beyond the defaulter's ability to comply with.

32.24 The Committee therefore considers that any proposal to improve fines enforcement should promote greater consistency and flexibility across Scotland.

32.25 Another obvious difficulty in the current system is the extent to which police officers are tied up executing means enquiry warrants for the arrest of individuals who fail to attend court in respect of unpaid fines. The background to this problem is that large numbers of fines are not paid within the time required or instalments are not paid on time. When that happens the enforcement process (detailed at paragraph 32.15, above) kicks into action. Warrants for the arrest of those who fail to attend means enquiry courts and warrants to imprison following fine default are passed to the police for enforcement.

32.26 Attendance at means courts is low almost everywhere and the percentage of warrants issued for non-appearance at such courts is high. The Committee noted the number of outstanding warrants in connection with fine recovery - in Strathclyde alone the figure in December 2003 was over 21,000. From the police point of view the resources involved in executing warrants are substantial. From an exercise conducted during 2001 Lothian and Borders Police found that, on average, it took somewhat more than two attempts to execute warrants, but that in some cases up to 10 attempts were required, as when difficulty was encountered in tracing the fine defaulter. The average fine outstanding at that stage in Lothian and Borders was around 190.

32.27 The Committee notes that, because police forces regard enforcement of fines as an inefficient use of their resources, they do not give fine enforcement high priority. We were told that many of the warrants which were executed were executed because a police officer encountered a person in the course of some other investigation for whom there was an outstanding warrant.

32.28 The Committee has concluded that fine enforcement procedure should be redesigned in a way which frees up police officers for duties of higher priority. If a more effective procedure can be devised which does not require continuing involvement of the courts in the enforcement of fines there would be savings in court time and in the resources of the Scottish Court Service if they were to be relieved of that responsibility. Similar considerations would apply if police could be relieved of their current role in the collection and enforcement of fines.

32.29 The Committee also looked carefully at imprisonment for fine default. In England and Wales imprisonment for non-payment of fines is now exceptionally rare as the result of court decisions to the effect that imprisonment should only be imposed if all other possible alternatives have been tried and have failed. Because of the widely held view that those who have been fined should not be imprisoned unless this is unavoidable, courts in Scotland are reluctant to impose sentences of imprisonment for non-payment unless there really is no alternative. Knowledge by offenders that this is the approach of the court leads a fair number of them to delay payment until the point is reached when they have the alternative of being taken to prison there and then. Getting to that point will have required the expenditure of considerable resources within the courts system and by the police. This is not a satisfactory situation. If, on the other hand, the courts adopted a policy of imposing imprisonment immediately in almost every case of default a substantial improvement in payment rates would be likely but the number of admissions to prison for non-payment would also rise substantially, with considerable resource implications, especially for the Scottish Prison Service.

32.30 Nor was the Committee convinced that the current provisions for imprisonment for fine default are an effective use of resources. At present someone sentenced to a fine not exceeding 200 - the vast majority of fines - serves 7 days imprisonment as an alternative. In terms of section 5 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, a person who is a short-term prisoner - that is, one serving a sentence of less than 4 years - will be released unconditionally after serving half his or her sentence. That provision applies to fine defaulters as it does to those sentenced to imprisonment. In terms of section 27(7) of that Act, a prisoner who is due to be released on a Saturday, Sunday or public holiday must be released on or by the last preceding day which is not a Saturday, Sunday or public holiday. So if a person is due to be released on a Monday holiday he or she will have to be released on the previous Friday. A 7-day alternative period of imprisonment may be wholly ineffective. The fine will not be paid. No alternative will, in effect, have been served. The fact is well known to fine defaulters, some of whom take advantage of the situation.

32.31 The Committee therefore supports the existing and proposed future uses of SAOs both as an alternative to prison for those who have defaulted and as a first disposal. Recognising that there are many people for whom payment of even a small fine is very onerous, it particularly commends the use of SAOs as a first disposal where a realistic assessment of an offender's means suggest that a fine imposed will simply not be paid. An SAO as an alternative to imprisonment where the person fined cannot pay has the potential to be successful in avoiding many admissions to prison for non-payment, but not all fine defaulters are willing and able to comply with an SAO. The Committee notes the piloting of such orders as a sanction to the exclusion of imprisonment in two courts.

32.32 More broadly, the Committee considers that the present arrangements for the enforcement of court imposed fines are not ones which can or should continue into the future. The enforcement system as it is at present, while successful in collecting and accounting for payments which are made, fails to secure prompt payment of sums which those fined are unwilling to pay and does not cope well with those who genuinely cannot pay. The procedures themselves sometimes frustrate collection (e.g. the situation whereby an accused need only pay the first instalment of a fiscal fine to escape prosecution as the mechanism for extracting subsequent payment - knowing that the alternative (civil diligence) is rarely used in practice. This is discussed in more detail from paragraph 11.18). Responsibility for enforcement is largely in the hands of the police. We do not consider that they should continue to be required to call at the doorstep of fine defaulters in the hope that some or all of the outstanding fine will be recovered or that they will be able to arrest a fine defaulter. The costs of recovering such sums which the present system requires to be incurred, although difficult to quantify because figures are not kept separately for enforcement activity, will exceed the amount recovered in many cases.

The Committee recognises the importance of maintaining the fine as a credible, enforceable penalty in a summary justice system. It considers that any proposal to improve fines enforcement should promote greater consistency and flexibility across Scotland. More broadly, the Committee considers that the present arrangements for the enforcement of court imposed fines are not ones which can or should continue into the future.

The Committee recommends a different approach to fines enforcement, which is:

  • consistent and flexible across Scotland;
  • applies equally to compensation orders, court imposed fines, fiscal fines, fixed penalty notices and other financial sanctions for breaches of the criminal law;
  • makes it easy to pay for those who are willing to pay;
  • minimises or eliminates the involvement of courts and the police once the initial fine or other sanction has been imposed;
  • ensures that all an offender's outstanding fines which are in default are dealt with by a single enforcement process;
  • eliminates direct imprisonment for fine default (in this respect the Committee supports the existing and proposed future uses of SAOs);
  • provides clear and graduated sanctions for non-payment; and
  • reduces or eliminates the cost to public funds of the enforcement process.

Key Elements of a New Fine Enforcement System

32.33 Perhaps the most significant change to improve collection arrangements would be the unification of the summary courts administration. This would eliminate the variations in practice identified above and create a more consistent approach to fines across Scotland. All outstanding fines for each offender could be brought together and enforced by a single process but that in itself would only go part of the way to improving the effectiveness of the system. There are prior and subsequent steps to be considered.

Stage 1: Imposition of the Fine

32.34 The Committee notes the provisions included in the Courts Act 2003 for England and Wales which seek to ensure that the court sentencing an offender has the best available information about their means. All defendants will be required to provide information about their means to the court prior to sentencing, usually by completing a means enquiry form. Failure to provide such information constitutes an offence. Failure to provide the information also entitles the court to assume that the offender has adequate resources and to fine accordingly. 90 If the level of income is later disclosed, it would be for the court to consider and possibly to re-sentence.

32.35 Targeting fines more precisely on the basis of better information about means should in itself help to reduce the likelihood of default because the fine is set at the wrong level for the offender's income. As noted above, it would also help to identify those for whom an SAO was the optimal first disposal.

Stage 2 - Enforcing the Fine

32.36 In the Committee's research on enforcement systems, it is clear that in a number of different jurisdictions an attempt is being made to minimise the involvement of the courts in enforcement. The escalation in the numbers of fixed penalties in these jurisdictions and the need to collect and enforce them effectively is a major contributor to this change of emphasis.

32.37 A common feature of all those approaches is to shift the balance between what has to be done by the court and what can be done by administrative officers who are given additional enforcement powers.

32.38 For example, radical changes to the English system are contained in the new Courts Act (which received Royal Assent on 20 November 2003). Under these proposals, administrative staff will be given powers to manage the collection and enforcement function and reduce the need for expensive court hearings. 91 But the English scheme does not entirely eliminate court involvement - for example, a defaulter will be able to appeal against a discretionary decision of a fines officer and will be entitled to have that appeal heard by a magistrates' court. 92 And certain sanctions will only be available with court consent - for example, fines officers will need court consent to sell a defaulter's vehicle after it has been subject to a clamping order as an earlier enforcement penalty. 93 And it will still be for the court, not the fines officer, to decide whether to remit the fine or (at the other end of the spectrum) to send a persistent defaulter to prison. 94

32.39 We understand that in the context of the new unified courts administration in England the new fines collection procedures will be managed by staff of the court, but that there will be an element of restructuring to ensure that every court has an individual responsible for overall policy and performance on fine enforcement within that court.

32.40 A more radical approach is that of the State Debt Recovery Office (SDRO) in New South Wales. Briefly, since January 1998 the collection of unpaid fines in New South Wales has been dealt with entirely by the SDRO: unpaid fines are referred by the court to the new office and thereafter it imposes a series of graduated sanctions for non-payment, including additional charges. The distinguishing feature of this system is that there is no court involvement. If these sanctions fail, the SDRO has power to impose a community service order where a fine and additional charges are not paid. Where community service is not completed satisfactorily, the Probation Service provides a breach report for the SDRO, who then issue a notice to the fine defaulter seeking an explanation. If no satisfactory explanation is given within 28 days, it is again the SDRO which can issue a direct warrant authorising imprisonment without further direct court intervention. Up to April 2003 (when members of the Committee visited the SDRO) no one had been imprisoned in New South Wales under these arrangements. The SDROs costs are more than fully recovered from the additional charges it imposes.

32.41 The Committee is clear that a new approach to fines enforcement is required, which minimises the involvement of courts and the police and provides flexible powers to administrative officers to carry out many of the current enforcement tasks. It is also clear that imprisonment for fine default while no doubt a useful threat has failed in the past. It required substantial resources to be devoted to taking more than 4,200 defaulters to prison per annum where they must be admitted by Scottish Prison Service, only to be released a short time later. Imprisonment and detention should remain available for those required to carry out a community sentence (for example, an SAO) in lieu of payment of a fine, but only for breach of the order imposing a community sentence.

32.42 The Committee looked carefully at the possible models for "civilianising" the process of collecting and enforcing financial penalties, including that being implemented in England, and the more radical approach adopted in New South Wales.

32.43 It recommends that the Executive should bring together responsibility for the recovery of financial penalties within a single delivery organisation. This could be a separate arm of the Scottish Court Service or a free standing public sector organisation. The key features, and arguments in favour, of such an organisation would be:

i. fines enforcement across the country could be managed centrally (with access to call centre facilities). This would offer lower overheads and staff costs;

ii. the organisation would have a simple, single mission - the collection and enforcement of financial penalties being its top priority;

iii. it would quickly build up expertise in the field, and would gain experience in deducting benefits/effecting wages arrestment - useful methods of collection that are currently under-utilised;

iv. it could tailor what it does to circumstances of particular offenders, and would be well placed to offer new methods of payment;

v. performance would be monitorable - offering scope for considerable improvement on current arrangements for managing and improving collection and enforcement;

vi. it could collect all outstanding fines, fiscal fines and compensation orders, FPNs and - if required - any other outstanding sanctions imposed by the state or local authorities as a single enforcement process;

vii. the organisation could be wholly or partially self-funding - imposing additional charges on top of the original penalty when it is not paid on time - thus reducing or eliminating the cost to the taxpayer;

viii. it could free-up the resources that are currently (and less effectively) used in fines enforcement - the police and the courts;

ix. a single organisation could make optimum use of a consistent dedicated IT system;

x. the organisation could be innovative - continually seeking more effective ways to enforce fines and improve collection rates.

32.44 In relation to the organisational structure for fines enforcement, issues which the Executive would need to consider include:

i. whether initial collection of fines, fiscal penalties and the like should also be transferred to the agency, or whether it should deal only with those which are in default;

ii. economies of scale: co-location with an existing organisation might be preferable. Staff numbers would not be large, particularly if optimal use is made of IT and a call centre function formed part of the service, and might not justify the creation of separate "head office" functions;

iii. whether the organisation should have a single office; and

iv. how rationalisation of fine enforcement could be made to work most effectively in the context of the unified summary court.

32.45 On the first point, the Committee's view is that in most cases the new body should have responsibility for collection and enforcement of fines from the point at which they are imposed by the court (in relation to court fines) or by the police/procurator fiscal (in terms of fiscal fines and fixed penalty notices). Further thought should be given to the collection of parking fines (where the process has not been decriminalised) but the Committee's overall view is that wherever practicable financial penalties which carry an ultimate criminal sanction should be collected and enforced by the new agency.

32.46 In terms of the process of enforcement: key considerations will be:

i. the powers given to staff in the new enforcement structure;

ii. whether there are any sanctions which only a court should be allowed to apply, e.g. a supervised attendance order, an electronic tagging order, a curfew or imprisonment for breach of a supervised attendance order;

iii. the appropriate steps to follow non-payment, which could include:

1. late payment/fine enforcement surcharge (and we note the Anti-Social Behaviour Bill proposal that unpaid fixed penalty notices which become a registered fine would attract a 50% surcharge);

2. procedures for the arrestment of wages and deductions from benefits;

3. loss of entitlements - for example, disqualification from driving until the fine is paid, vehicle clamping, or suspension of road tax;

4. seizure or prohibition of disposal of valuable assets: land, houses, rights to inheritances, windfalls;

5. requirement of defaulters to appear to be examined by the organisation as to income, assets and liabilities with sanctions for failure to appear;

6. the imposition by the organisation of a Supervised Attendance Order, with a tariff of a number of hours related to the amount due;

7. registration of fines in default in an appropriate existing (or new) register - affecting the defaulter's ability to obtain credit; and as a final resort:

8. possibility of detention or imprisonment for breach of supervised attendance order (only);

iv. circumstances in which loss of entitlements should not be applicable for example, disqualification from driving of handicapped drivers;

v. what avenues of appeal, if any, would be required against any sanctions imposed by the organisation and in what circumstances;

vi. criteria which the organisation should apply to writing-off unrecoverable sums due, e.g. as a result of death, long-term illness, untraceable offender; and

vii. the extent to which surcharges for late payment and enforcement should enable the new enforcement system to be cost neutral or achieve a surplus year on year.

32.47 Some of these enforcement options were considered in more detail. The Committee considered whether the alternative approach of deductions from benefit/arrestment of earnings could be made more effective, given the remarkably low level of use at present of deductions from benefit which appears, prima facie, to be a useful measure. Deductions from benefit are of course a reserved issue, but the Committee has been made aware of recent changes in the English Courts Act 2003 which make deductions from benefit for fine default possible without recourse to a court in certain cases. On the first occasion that an offender defaults the fine will be increased. 95 If the offender does not respond to that increase the fines officer can notify the offender of further steps he or she intends to take in order to elicit payment 96 which may include an attachment of earnings or deduction from benefit. 97 If the offender does not exercise his or her right of appeal to the magistrates' court within the specified time limit of 10 working days the further sanctions set out in the notification letter may be applied by the fines officer without recourse to the court. 98 We understand, however, that these changes do not affect the core features of deduction from benefits which make it unattractive to sentencers - the small size of weekly deductions and the fact that fines are still well down the priority list of deductions. 99

32.48 Recognising that the issue of deduction from benefits is reserved, the Committee recommends that the Executive should explore with the Department of Work and Pensions the options for making the deduction from benefits scheme operate more effectively in Scotland. While, however, deductions for payment of outstanding fines remain a very low priority against other deductions from benefit, and the payment instalments remain very small, the Committee is not convinced that this option will be so attractive as of itself to solve the problems of fine enforcement in Scotland.

32.49 Similarly, the Committee recommends that the Executive should consider how arrestment of earnings orders might be better used as a means of fine enforcement. They are in relatively common use as an enforcement measure in relation to some civil judgments. It recognises, however, that the role of these sanctions may be limited, simply because non-payment is concentrated among those who are unemployed. But the threat of arrestment of earnings for non-payment of fines may be very effective for fine defaulters who are in employment.

Unit Fines

32.50 The Committee has given consideration to the introduction of a day or unit fines system in Scotland. Such systems closely match the size of a fine to the ability of the offender to pay, such that a wealthy person will pay more, sometimes very much more, than someone on a limited income for the same offence. This has the effect of the punishment weighing proportionately as heavily on all offenders, thereby achieving greater fairness and equality, openness and public acceptability into the sentencing process. Unit fine systems are common and standard in many jurisdictions across the world, notably in Commonwealth countries such as Australia, New Zealand and Canada, but also in the United States and Europe. In Europe the system has operated since 1921 in Finland but is also applied in Germany, Austria, Hungary, France, Portugal, Switzerland and Poland, and all of Scandinavia. In the British Isles, England and Wales experimented with the system and decided not to pursue it, while Ireland decided not to introduce it, largely because of the English and Welsh experience. The English and Welsh trial in 1992 was deemed not to be a success and after six months the Home Office discontinued it. This appears mainly to have been because of difficulties in assessing the incomes of offenders and due to the opposition of magistrates to the fettering of their freedom to impose the size of penalty they wished. The Committee considers that it would be unfortunate if the short and inadequate trial in England and Wales, as compared to the extensive and successful use of the system across the world, should lead to the refusal to examine the relevance of the approach for Scotland. Thus, whilst acknowledging that there are serious practical issues to be considered in the operation of a unit fines system, the Committee recommends that a thorough examination of the system should be undertaken in the context of the revised approach to summary justice in Scotland proposed by the Committee.

Conclusion

32.51 The Committee recognises that there are no simple solutions to the difficulty of fine enforcement. It can be made easier, for those who want to pay, in ways which are convenient to them. It can be made easier for the court to obtain a reasonably accurate estimate of offenders' means. And the opportunity can and should be taken to look radically both at the way in which fine collection and enforcement is organised and at a series of sanctions which are equally effective in relation to those who persistently refuse to pay fines, fiscal fines/compensation orders and other penalties. The Committee recognises the existence of a small hard core of fine defaulters who absorb a disproportionate amount of system time and effort. Their fines will be difficult to collect no matter what the system. But a better-focused system should be more effective even in relation to them.

32.52 Accordingly, we consider that the Executive should take a radical end-to-end look at the whole process of setting, collecting and enforcing fines and other financial penalties imposed for breaches of criminal law on the lines suggested above. The Executive should make every effort to ensure that at every stage the benefits of paying and the risks of not paying should be real and should be made clear to the offender, whatever his or her financial circumstances. Enforcement should no longer be a matter for the police: front-line police officers should be able to concentrate on front-line police tasks. The courts should not continue to be involved in routine enquiries into the means of offenders, once a fine has fallen into default - giving more time to pay or making marginal adjustments in the amounts payable. The Scottish Prison Service should be relieved of the need to admit large numbers of prisoners to prison each year for very short periods indeed.

32.53 The challenge will be to deliver a sufficiently robust system for enforcing fines to avoid the need for direct imprisonment for fine default while maintaining public confidence in the sanctions available through the system. The Committee notes a high level of public and Parliamentary concern about fines enforcement. It is hard to defend a situation where 21,000 means warrants are outstanding in the Strathclyde area alone when there are many more urgent and obvious tasks on which the police should focus. In structural terms, therefore, the Committee recommends strongly to the Executive that taking forward the recommendations in this chapter should be a high priority. It also notes that the full benefit of change in this area can only be realised within the context of a unified summary court.

We recommend that the Executive should take responsibility for fine enforcement away from individual courts and bring it together within a single delivery organisation - which could be a separate arm of the Scottish Court Service or a free-standing public sector organisation.

Wherever practicable, financial penalties which carry an ultimate criminal sanction, should be collected and enforced by the new agency, which would have a variety of new powers.

We recommend that the Executive should explore, with the Department of Work and Pensions, the options for making the deduction from benefits scheme operate more effectively in Scotland.

We recommend that the Executive should consider how arrestment of earnings orders might be better used as a means of fine enforcement.

We recommend that a thorough examination of the unit fines system should be undertaken in the context of the revised approach to Summary Justice proposed in Scotland.