The Scottish Government

« Previous | Contents | Next »

Listen

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

CHAPTER SEVEN FINE ENFORCEMENT

INTRODUCTION

7.1 Chapter 32 of the McInnes Report looked at the current system of fine enforcement in Scotland, and detailed recommendations which the Committee believed would make fine enforcement more consistent and flexible across the country. These recommendations would apply equally to all financial penalties imposed by the courts and those offered by fiscals, local authorities and the police. The issues raised by respondents on this subject are discussed in this section and relate to Recommendations 130-134 of the Report.

7.2 The consultation response form asked:

" What are your views on the report's proposals for the enforcement of financial penalties?"

7.3 This chapter summarises responses relating the views submitted.

NUMBERS RESPONDING

7.4 Overall 134 respondents - 56% of all responses received - commented upon the proposals for fine enforcement set out in the Report.

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

7.6 Many JPs welcomed the Committee's aim of reducing the scale of the task faced by the courts and the police by changing the emphasis that exists in current enforcement procedures and also improving the level of fine recovery. A number of respondents felt that the current system of fine enforcement lacked credibility amongst the general public and offenders alike, and that many offenders knew that the current system was loosely enforced.

7.7 Dundee City Council, for example, broadly welcomed the recommendations, believing that a recognised " building block" approach, with identifiable steps in the fine recovery process, coupled with reform to the deductions from benefits system, would result in greater levels of payment.

7.8 Although there was a perception by some that existing enforcement practices resulted in the authority of the court being undermined, some respondents (including North Lanarkshire Council and the Law Society of Scotland) wished to see more detailed proposals before agreeing with the recommendations detailed in the Report. They felt that the issue of fine enforcement was so wide-ranging that it should be the subject of a separate consultation:

"There are wide-ranging implications for the police, court and prison authority resources in debating this issue and if a new body were to be established for collecting fines, evidence would have to be presented to justify the fact that this would be the better option".

North Lanarkshire Council

A FINE ENFORCEMENT AGENCY

7.9 Many of the local authority submissions received were against the creation of a national fine collection or enforcement agency, believing that the enforcement of court penalties was a judicial function, not an administrative one. The point that the court should administer fines and fixed penalties was a point made repeatedly by those against the creation of an agency, and was linked to a fear that these recommendations would result in criminal penalties being downgraded to a form of debt.

Disparity in Collection Patterns

7.10 Dundee City Council argued that the disparity in collection patterns discussed within the Report was due in part to the legislation relating to enforcement available to the courts:

"The age of the offender, ability to pay, willingness to pay, opportunities given for payment and the proportionality of ultimate disposal are all considerations resulting from statutory provision to which courts should have regard. These areas could be addressed by comprehensive legislative provision applying equally to all sources of fine and would remove the need for recourse to the criminal court as a decision-making body. The move to centralised collection seems to have little additional benefit given the intended legislative reform".

7.11 Others argued that at present many district courts already acted as centralised fine enforcement agencies within their area, as they collected fines issued by many different agencies. Indeed some local authorities commented that they had already developed their own centralised enforcement systems which included facilities such as on-line payments and payment by debit and credit cards.

7.12 Moray Council argued that the significant advantage of recovery being dealt with on a local basis was the familiarity of those handling fine enforcement with the offender's circumstances and, in particular, an ongoing pattern of paying fines and other penalties at that court.

Endorsable Road Traffic Penalties

7.13 A minority of local authority submissions commented that the Report had failed to address the collection of endorsable road traffic penalties (whether generated as a court disposal or a conditional offer by police and/or procurators fiscal). The main crux of their argument was that UK legislation states licenses can only be processed by the courts. UK legislation therefore dictated the role of court clerks in this process, meaning that any fine enforcement agency could not deal with these penalties, unless that legislation was amended. Such legislation is, of course, reserved to the UK Parliament.

The Local Connection

7.14 Another worry amongst respondents was the perceived assumption within the Report that local facilities to pay fines would be removed by the creation of the proposed new agency. West Lothian Council commented:

"Payment arrangements need to be convenient to offenders as many do not have the facility to pay other than in small amounts of cash by means of a personal visit to a cash office".

7.15 This deep concern about the loss of the local connection was replicated in many submissions, and many commented that the main weakness of the proposed centralised system was that it could not be as responsive to the needs of offenders required to pay fines as the current system. East Renfrewshire Council, in its submission, whilst welcoming a system that would make fine enforcement more effective and efficient, still felt that the administration of fine enforcement should remain with local authorities. The Council stated that they had recently introduced additional fine payment offices in Barrhead to provide a better service to local residents.

7.16 This lack of flexibility in dealing with the personal circumstances of a defaulter, minimising the human element of the process, was a criticism repeated by many JPs and Justice of the Peace Groups.

7.17 Many JPs, the District Courts Association and some local authorities were also against the recommendations because they believed that the current system combined a valued degree of flexibility with the convenience of locally administered justice. This, they argued, allowed for a certain degree of deterrence to be inbuilt in the system, with the knowledge that the same court that imposed the fine would also be monitoring the payment, and dealing with any failure to maintain those payments. As West Lothian Council commented:

"Were the proposals in the Report to be implemented, there would need to be considerable care that the court which imposes the penalties retains overall control, and that the new agency is not given powers so wide that the courts have no further say in how the penalties they impose are administered".

7.18 These respondents stressed that if a national agency were created, local fine enforcement officers or local offices should be retained, along with a full complement of experienced staff whose local knowledge base would assist with the transition.

Costs of New Agency

7.19 Many of those against the creation of a new agency believed that the financial costs of operating and staffing a nationwide and largely impersonal agency would be high, and that the recommended surcharges on defaulters, already having difficulty in paying court penalties, could escalate and become extremely difficult to collect. Consequently respondents disagreed that the agency could eventually be self-financing. Some respondents cited the establishment of the Child Support Agency as an analogous idea which was good on paper, but which had suffered a number of well-documented shortcomings soon after its introduction.

Transfer of Staff

7.20 Many respondents (including local authorities and SOLACE) were concerned that the Report appeared to have made little investigation into the feasibility and efficacy of the transfer of relevant staff to this new agency.

7.21 Stirling Council, in particular, commented that care would need to be taken to ensure that the rights of district court staff were safeguarded. A number of employees would have the right - under Transfer of Undertakings (Protection of Employment) Regulations - to transfer to the new organisation. Since the Report assumed that savings would be made in the level of resources required to recover fines, however, the Council warned that the prospect of redundancies would have to be considered.

7.22 Aberdeenshire Council believed that the setting up of a fine enforcement agency would minimise the human element of review in what would become an administrative process. This would be a significant task for a body other than a local authority - which effectively used marginal resources to deliver this function at present.

CURRENT SYSTEM OF FINE ENFORCEMENT

7.23 Some respondents, including the Associate Members of the District Courts Association and many local authorities, were concerned that the obvious benefits of the current collection system appeared to have been undervalued in the Report:

"Current collection systems operate efficiently, effectively and are staffed by individuals who are experienced in dealing with the resultant queries on a wide range of issues, some of which are legal in nature. These systems also reflect significant investment in working practices, procedures and IT systems".

7.24 Even those respondents who were in favour of the Report's proposals to create an enforcement agency and could see benefits in terms of economies of scale, qualified those responses with a number of caveats.

7.25 Glasgow District Court felt there was a danger that a national fines enforcement agency would lack the democratic accountability that council-run district courts presently owe to council taxpayers.

7.26 Moray Council and many other councils took the same position as COSLA, and felt that there was insufficient information contained within the Report to allow the proposal for a fine enforcement agency to be fully evaluated. COSLA stated that it firmly believed that the administration of fine enforcement should remain with local authorities, who were best placed to provide a local service:

"A national fine enforcement agency would need to have a local presence with local payment facilities. It is difficult to see how such a system could be provided effectively other than through local authorities… The work of the District Court and its administrative staff is considerably wider than dealing with those offenders who are cited to appear in court. We would like to see the existing service provision being built upon and perhaps for dedicated fine enforcement staff to be employed within existing structures".

7.27 In addition, although some JPs in rural areas supported measures that would increase the effectiveness and efficiency of the collection and enforcement of fines, they were concerned about how this would be achieved in a rural area, where the local knowledge of those in the district court system played an important part in ensuring the collection and enforcement of financial penalties.

7.28 Others, although accepting the recommendations in principle, felt that the new agency should have a range of extended powers - greater than those which are available to the courts at present. However, they believed the agency should always be accountable to the court that imposed the fine (i.e. it should work on behalf of the courts, rather than being totally independent).

7.29 For many JPs, JP Committees and local authorities such as North Ayrshire Council, the removal of fine enforcement from a local level would mean a loss of local contact and knowledge and, ultimately, a reduced understanding of the reasons for non-payment. North Ayrshire Council felt that, on balance, due to the high costs they incurred in running a Means Enquiry Court, they supported the establishment of a national fine enforcement agency, subject to assurances that the procedures established would take account of local circumstances.

7.30 The Scottish Police Federation and British Transport Police welcomed the proposals if they meant that non-payment of fines would be dealt with in a way that did not require police powers. They would not, however, support the transfer of police powers of arrest to any other body.

7.31 The Association of Scottish Police Superintendents also believed that once a fine had been imposed, it was not a good use of the court's time to enter into negotiations at a later date on how the individual would meet the payments. ACPOS agreed that the establishment of an independent agency to administer and recover fines imposed by the courts would be beneficial. They expressed the view, however, that it would be necessary to carefully manage any transitional process, to avoid replication of the difficulties experienced with the introduction of privatised escorting of prisoners. In addition, they believed that there would have to be robust liaison arrangements between the police and the new agency to ensure that interaction between the police and fine defaulters took place in a way that continued to assist in the recovery of fines.

7.32 Justice for Victims also welcomed the proposals, as they felt current arrangements were not working. Falkirk Justices' Committee also agreed in principle but were concerned that the proposals might merely move the problem of recovery of fines on to another organisation.

7.33 The Society of Messengers at Arms also fully supported the recommendations that the recovery of fines should no longer be the responsibility of the courts. The Society was, however, disappointed that the potential roles of officers of the court were not considered. It believed that the job of fine collection and enforcement could be handed over to sheriff officers. The Society gave a number of reasons for this stance, which included:

• Firms of sheriff officers could effectively provide the collection functions without the need for an additional layer of public administration;
• The staff, expertise and IT infrastructure was already in place in sheriff officer firms;
• Officers of the Court, including sheriff officers, currently have extensive expertise in the field including the effective use of earnings arrestment;
• Officers of the Court can offer a full range of payment methods from cash payments at an office to direct debit; and
• Considerable expertise has been built up by sheriff officers in the assessment of debtors' circumstances.

7.34 A number of those who agreed with the proposal to establish a fines enforcement agency noted that it was the logical step to take if lay justice were to be abolished and the court system unified. There was little sense in local authorities continuing to have a role in fine collection and enforcement if they had no other role in respect of the court system. In addition, many agreed that radical changes should be made to the current system since, for habitual fine defaulters, there were few options open to the district court other than imposition of the statutory alternative of imprisonment.

Final Sanction of Imprisonment

7.35 Many respondents were adamant that a significant number of offenders ultimately only paid their fines because they were aware of the threat of imprisonment. Without this final prison sanction, in their view, a fine would be considered merely as a debt. Many, especially JPs, felt that this threat should be retained as the ultimate sanction since its removal would lessen the impact of the original fine. West Lothian Justices' Committee did not believe that the new agency would be effective in collecting fines from those with no jobs, bank accounts or fixed addresses if there was no ultimate custodial sanction.

7.36 There was some agreement with the Report's description of some fine defaulters using the sanction of imprisonment to their advantage to discharge a large fine for a relatively short period in custody. It was observed that an increase in the alternative sentence for fine defaulters might reduce the numbers abusing this sanction. Further comment was made that, for some offenders, imprisonment was the preferred way of clearing outstanding fines, and it would be wrong to deny them that option.

Means Enquiry Courts

7.37 Many JPs who commented upon this area observed that a further expansion of Means Enquiry Courts would do little to improve collection rates, as some defaulters were too embarrassed or unwilling to attend and few checks were made on offenders' means in any case. Means Enquiry Courts were therefore perceived as a waste of time by a number of respondents.

Supervised Attendance Orders

7.38 Those in favour of more extensive use of Supervised Attendance Orders (SAOs) observed that they did not disrupt family life as much as a prison sentence and also need not result in the offender losing his or her job. Most respondents still agreed that the use of SAOs had to be underpinned by the ultimate sanction of imprisonment for non-compliance.

7.39 The Committee's support for the use of SAOs was welcomed by many of those who commented on this area and felt that, subject to positive evaluation of current schemes, relevant existing legislation should be brought into force and extended programmes should be resourced as a matter of priority.

7.40 Others felt that thorough investigation would be required before the use of SAOs could be significantly expanded. Moray Council observed that the use of SAOs in Moray District Court had reduced significantly over the past two years because the court had encountered a number of difficulties ensuring offenders attended the work programme. The Council's experiences had taught it that those who were most resolute in their refusal to pay fines tended also to be those who were most likely to fail to attend regularly to complete their SAO. This then led to the following process:

"The court is then faced with a stark choice of either ordering the offender to go back and resume the SAO or instead face a period of imprisonment. Simple revocation of the order is not generally regarded as an attractive option. In the hope of avoiding imprisonment, a pattern therefore arises whereby offenders would routinely deny breaching orders although they had failed to attend, thereby necessitating the holding of a proof where the Crown would be required to prove that the order had been breached without good reason. Such proofs would often be discharged on the day due to the admission at that point by the offender that they had breached the order. In short, a small but significant proportion of offenders began working the system, wasting the time of all involved".

7.41 Many Justice of the Peace Committees felt that it would be preferable if the outcome of the Government pilot on the mandatory use of SAOs, and its effect on the number of fine defaulters, should be assessed before proceeding with plans for a national fine enforcement agency.

7.42 Other respondents felt that very few individuals who have served the alternative for fine default would be suitable candidates for a community-based disposal due to addictions to drink or drugs and/or their chaotic lifestyles. In addition, if the majority of defaulters were to end up subject to an SAO, no money would be collected and the enforcement agency would have no means of support. Respondents also noted that, at present, there is a 50% breach rate for SAOs. These respondents argued that there was nothing in the Report that addressed this issue, or that would act to lower the rate of breach.

Unit Fine System

7.43 SOLACE welcomed the proposal that this idea be further examined, seeing it as an opportunity to make the fine system fairer and more credible by establishing a link between income and size of penalty. Indeed SOLACE stated that it would be keen to be involved in further work. SACRO also welcomed such recommendations.

7.44 Some other respondents agreed that unit fines provided an opportunity to make the fine system fairer and more credible with the public and offenders alike. Midlothian Justices supported an investigation into the use of unit fines and believed that, if they were to be successful, the information given by the offender with regard to his or her means would have to be credible. Midlothian Justices suggested that such information should either be given under oath or vouched for by written documentation, and that any fine should be capable of being paid within a 12 month period.

Deduction of Fines From Benefits

7.45 West Lothian Council - although against proposals to create a national fine enforcement agency - believed that improvements to the current scheme to allow deductions from benefits could aid fine collection, and many respondents commented that the present system was very unsatisfactory. Falkirk Justices' Committee believed that deductions of payments from benefits would be an effective way of recovering financial penalties, and agreed that the Scottish Executive should explore with the Department of Work and Pensions the options for making deductions from benefits operate more effectively in Scotland.

7.46 The majority, however, observed that the scheme was unlikely to be improved due to the low priority given to court fines by the Department of Work and Pensions. Other submissions commented that there are such large operational difficulties that deductions from benefits are not a widely used option at the moment - the amounts that can be recovered are extremely small and the paperwork that is necessary is considerable, leading to administrative costs outstripping the value of the fines recovered. Others observed that deductions are not transferable from benefit to benefit automatically, resulting in even more paperwork if an offender moves from one type of benefit to another. Some respondents also argued against the greater use of this system as it is the defaulter's family that would be most affected by any reduction in benefits - they also expressed concern that a national fine enforcement agency would be unlikely to consider such consequences.

Suggested Alternatives

7.47 Moray Council suggested that some consideration be given to the possibility of local authorities employing dedicated enforcement staff, to be given a wider range of enforcement options than are currently available. The Council felt that the employment of such fine enforcement officers would only be likely to be cost effective if the range of business placed before the district court were to be extended dramatically.

« Previous | Contents | Next »