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SMARTER JUSTICE, SAFER COMMUNITIES
SUMMARY JUSTICE REFORM - NEXT STEPS >>>
CHAPTER THREE
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THE RIGHT INTERVENTION AT THE RIGHT TIME -
ALTERNATIVES TO PROSECUTION
CHAPTER THREE: THE RIGHT INTERVENTION AT THE
RIGHT TIME - ALTERNATIVES TO PROSECUTION
3. ISSUES
3.1 The vision of the criminal justice
system, which we articulated in the introduction to this
paper, stressed the importance of dealing with minor
offences in the way most likely to deter reoffending.
3.2 In some cases prosecution is
inevitable. But in others, we need a range of options which
can be used quickly to offer an alternative to prosecution.
These signal that there is enough evidence to prosecute,
but that in this instance a chance is being offered to make
reparation without coming to court and possibly acquiring a
criminal record.
3.3 For these to be effective, we need
robust enforcement which reassures victims that financial
penalties will be paid, and that reparation to the
community is visible and measurable. So the challenge is to
develop a range of alternatives to prosecution which stop
offending from escalating and are credible to the
public.
3.4 And communities - and individual
victims - need to be reassured that increased use of
alternatives to prosecution does not mean that minor
offences are being overlooked. Acceptance of an alternative
does not require a formal admission of guilt, so
publicising individual fiscal penalties would not be
appropriate. It is, however, important that individual
victims of crime are able to see that action has been taken
and will be pursued. It is also vital that communities as a
whole get feedback from the agencies involved about the
extent to which alternatives are used locally, how
effective they are, and what the community is gaining as a
result.
The recommendations of the McInnes
report
3.5 The McInnes report noted that
alternatives to prosecution were increasingly used by
prosecutors, resulting in a decline in the number of cases
prosecuted through the courts. However, given the
increasing number of cases reported to the procurator
fiscal, it was important for the criminal justice system to
have access to a full range of options in deciding how the
public interest could best be served in each case.
3.6 The report recommended that
alternatives to prosecution should be made more widely
available, more flexible and more robust.
3.7 To achieve this, the report
recommended an increase in the maximum level of fiscal fine
available to prosecutors, the introduction of a fiscal
compensation order (FCO), a new enforcement procedure for
fiscal fines and FCOs, disclosure of fiscal fines and FCOs
before a court in the event of a subsequent appearance, and
the extension of the use of fixed penalty notices
(FPNs).
Issues raised by the Criminal Justice Plan
3.8 In addition to the proposals outlined
above, the Criminal Justice Plan proposed that a prosecutor
should have available the option to fine an individual's
time in cases where an accused may be unwilling or unable
to take up the offer of a fiscal fine. This did not feature
in the McInnes report, and accordingly consultation on that
report did not address it.
The consultation responses
3.9 The consultation paper asked for the
views of respondents on the proposals for alternatives to
prosecution. One-hundred-and-sixty-six respondents - 69% of
all responses received - commented upon these
proposals.
Extension of the use of fixed penalty notices
(FPNs)
3.10 The McInnes report proposed (in
chapter 9) the extension of the use of fixed penalty
notices, as a simple and effective way of dealing with
minor offences without using resources other than those of
the police. This proposal has in part been implemented by
provisions within the new Anti-social Behaviour legislation
which make it possible to issue police FPNs in relation to
a number of minor nuisance offences, involving (for
example) drunkenness, breach of the peace and damage to
property. A pilot of the new provisions, with the FPN level
set at £40, is due to start on 1 April 2005 in Tayside, and
run for a year.
3.11 The report also recommends that
recipients of a FPN should be required to 'opt-in' (as with
the proposals for fiscal fines) if they want a court
hearing, and that failure to pay should result in the fine
being registered at a surcharge. These provisions form part
of the Anti-social Behaviour FPN pilot.
3.12 The Committee was of the view that
there was further scope for the extension of FPNs, beyond
that which is being piloted as a result of the Anti-social
Behaviour etc (Scotland) Act 2004 - in particular, to other
lower-level offending of a statutory nature, such as some
of the offences contained in the Civic Government
(Scotland) Act 1982.
3.13 Some respondents expressed support
for the proposals. It was suggested that clear guidelines
from the Lord Advocate would be required to regulate their
use, and that specifically there should be guidance as to
how many FPNs could be issued to one person before
reporting to the procurator fiscal would become
appropriate. There was also concern that many road traffic
offences, for which FPNs are currently used, tend to be
easily provable at the time of the offence or later;
circumstances which may not apply to other types of
offending behaviour that would be covered by an extension
to the use of FPNs.
3.14 We consider that FPNs, correctly and
appropriately used, are an important part of a modern
justice system, and can be employed to deal with low-level
and nuisance offending, as well as road traffic offences.
They offer the prospect of a quick, effective response,
particularly in relation to minor but chaotic offenders who
may respond best to a straightforward face to face
approach.
3.15 The piloting of FPNs for anti-social
behaviour has already been initiated - we consider it
appropriate to evaluate that pilot before deciding how best
to extend their use.
3.16 Accordingly, we propose the
following:
- to remain committed, in principle, to the
nationwide extension of the use of FPNs, with
appropriate guidelines in place; and
- to monitor the operation of the pilot scheme
extending the use of FPNs before taking a final
decision on how best to achieve this.
Fiscal fines
3.17 There was support among respondents
to the consultation who commented for expansion in the use
of fiscal fines. A number of concerns were expressed about
the extent of the proposed expansion. Many of these
concerns related to fears that too much power would be
concentrated in the hands of the prosecutor, who would
effectively be acting as prosecutor, judge and jury. It was
noted that the prosecutor would be acting on the basis of
the police report only, which might contain insufficient or
incomplete information about the offence or the offender
and that such fines allow no opportunity to put forward
mitigation.
3.18 Fiscal fines have been an important
part of the Scottish criminal justice system since their
introduction in the 1980s. Their use in appropriate
circumstances means that the courts are not clogged up with
lower-level offending. As acceptance of a fiscal fine does
not involve the recording of a conviction against the
accused, the consequence is that offenders do not acquire a
criminal record - with possibly disproportionate
consequences - for minor offences. Concerns very similar to
many of those expressed by consultees were considered by
the Stewart Committee, on whose recommendations the
existing provisions on fiscal fines were originally
introduced in 1987.
16 The Committee recorded its view that:
'the only part of the judicial process in which the
prosecutor [in Scotland] has never been involved is
that of the conclusive determination of guilt or
innocence of the accused. ...Our proposals do not alter
this because the prosecutor does not have the function
of determining guilt.'17
An accused person is under no obligation to accept an
offer of a fiscal fine and therefore can still opt for a
determination by a court.
3.19 We think that the discussions and
conclusions of the Stewart Committee in this respect hold
good today. We believe that fiscal fines are a valuable and
legitimate alternative to prosecution and our modern
prosecutors are well versed and capable in their use.
Twenty years on from the Stewart Committee, when courts are
busier than ever, it is even more important to ensure that
court time is used appropriately and effectively and that
prosecution is used proportionately. We agree with Sheriff
Principal McInnes that there is scope for increased use and
availability of fiscal fines to remove more lower-level
business from summary courts, allowing them to focus on
more serious crime. As with current use of this disposal,
any increase would be accompanied by detailed guidance to
prosecutors from the Lord Advocate.
3.20 The McInnes report proposed
increasing the maximum level of fiscal fine. Existing
legislation already permits a fiscal fine of up to level 1
on the standard scale - £200. The current limit, however,
as fixed by regulations, is £100. And it is worthy of note
that the level has not changed, even to take account of
inflation, since 1996. The Crown Office has carried out an
assessment exercise to determine whether the assumptions in
the McInnes report about the circumstances in which an
expanded fiscal fine might appropriately be used appear to
be sound. The exercise suggests that there is substantial
scope for increased use of this alternative.
3.21 The Crown Office exercise suggests
that raising the fiscal fine maximum to £200, in
conjunction with the availability of fiscal compensation
orders (see below) has the potential to remove from court
between 15% and 20% of cases for which prosecution is
neither necessarily a proportionate nor effective response.
Raising it to £500, while recognising that that limit would
be sparingly used, and in the main for certain categories
of statutory regulatory offences, has the potential to
further free-up court resource. These cases are frequently
more complex, and consume disproportionate resources, for
courts, witnesses and the prosecution service. In certain
circumstances, therefore, there is considerable merit in
encouraging the speedy disposal of such cases.
3.22 We recognise, however, that any
increase in the use of fiscal fines must come as part of a
package designed to maintain public confidence in their
use, while recognising the offending behaviour of the
accused. The Crown Office assessment exercise was based on
that assumption. To be effective, these proposals need to
be implemented along with the proposals for enhanced
enforcement outlined later in this chapter.
3.23 Accordingly, we propose:
- that the fiscal fine limit for most offences should
be set at £500, to be available to prosecutors along
with detailed guidance from the Lord Advocate; and
- that use of the new levels of fiscal fine should be
closely monitored.
Fiscal compensation orders
3.24 The McInnes report proposed the
introduction of fiscal compensation orders (FCOs), to be
imposed by procurators fiscal in much the same way as
fiscal fines. The report suggested that they should be used
in circumstances where there is quantifiable financial
loss, and where the victim of offending behaviour has been
subjected to behaviour which is frightening, distressing or
annoying or has caused nuisance or anxiety. The report goes
on to recommend that there should be no upper limit for
these orders.
3.25 A majority of those responding to
this issue in the consultation supported the concept of
FCOs although a minority expressed concern about the
procurator fiscal acting as prosecutor, judge and jury and
there were some reservations over whether it was
appropriate for FCOs to be used in circumstances beyond
clearly quantifiable financial loss.
3.26 The use of FCOs was considered in the
Crown Office assessment exercise. Again, the exercise
demonstrated that there appears to be scope for the use of
FCOs to remove from the courts some cases where
compensation would be appropriate, in particular where
there was quantifiable loss that was disproportionate to
the seriousness of the offending behaviour. At present,
some cases which would otherwise be suitable for fiscal
fines are prosecuted simply because it is considered that
some element of compensation to the victim is appropriate.
This then becomes a matter for the court. We do not agree
with the McInnes report, however, that there should be no
upper limit. But, recognising that minor offending can
cause significant damage we think the appropriate limit
should be equivalent to the statutory maximum summary fine
- £5000.
3.27 We remain committed to addressing the
needs and concerns of victims, and consider that the use of
compensation in cases beyond those where simple financial
loss has been suffered is a part of that.
3.28 Accordingly, we propose the
following:
- FCOs should be introduced, with an upper limit of
£5,000;
- the new FCOs should be available both for cases
where quantifiable loss has been established and where
the victim has been subjected to frightening
distressing or annoying behaviour, or behaviour which
has caused nuisance or anxiety; and
- use of FCOs by prosecutors should be in accordance
with comprehensive guidelines provided by the Lord
Advocate and their use and impact should be closely
monitored.
Enforcement of fiscal fines and fiscal compensation
orders and safeguard mechanisms
3.29 Any increase in the use of fiscal
fines, and the introduction of FCOs, must be accompanied by
robust enforcement mechanisms, otherwise there will be
little saving of court time, offenders may escape
punishment for their crimes, and the public will have
little confidence in the use of alternatives to
prosecution. The McInnes report suggested that the current
system, in which if an accused person takes no action on
receipt of a fiscal fine offer s/he is prosecuted, leads to
a significant amount of business ending up in court when it
need not - the reason for no action having been taken need
not be that the facts on which the offer was based are
disputed. The McInnes Committee, on balance, regarded it as
reasonable for the accused to have to take positive steps
to indicate if s/he wanted a court hearing - the 'opt-out'
system.
3.30 Some respondents to the report
welcomed this, but others warned that there was a danger of
the system being unfair to accused people, who may not
appreciate the significance of the documentation. There was
also concern expressed that silence was being treated as
the equivalent of guilt.
3.31 Enforcement procedures were also
addressed by the McInnes report and respondents. The report
suggests that unpaid fiscal fines should be registered,
with a 50% increase, and thereafter enforced as if they had
been imposed by a court. There would be a safeguard
mechanism whereby the recipient could contest a recorded
fine if good reason could be shown.
3.32 The main concern expressed by
respondents about this proposal was the danger of
unfairness, particularly the suggestion that the accused
would have to demonstrate that s/he did not receive the
notice, rather than the enforcing agency having to
demonstrate that s/he had.
3.33 The concerns expressed have been
carefully considered. We remain committed to removing from
the courts, where possible, matters which need not go
before them. However, it is important that any system of
enhanced fiscal fines and fiscal compensation orders should
be both fair and robust, and should encourage the accused
who wishes to accept the fine to do so timeously. We
consider that it is possible to have a structure of
enforcement which requires the accused to opt out, while
balancing that with a fair procedure to allow the accused
to request recall in appropriate cases.
3.34 Accordingly, we propose that an
accused, on receipt of a fiscal fine or FCO notice, should
have to take positive steps to indicate if s/he wants a
court hearing. We agree with the McInnes report that
failure to make payment should result in the fine becoming
registered at its full value but believe that an accused
should receive a discount for early payment rather than an
enhanced penalty for late payment. Fiscal fines and FCOs
should no longer be enforced by civil diligence, but should
instead become registered fines and enforced as if they had
been imposed by a court, but without the ultimate sanction
of imprisonment.
3.35 This new system will be underpinned
by work that is presently underway between prosecutors and
police to improve the quality of police reports and
statements to ensure that full and accurate information is
provided about the circumstances of the alleged offence but
also about the circumstances of the offender, including
accurate contact details. We will also make sure that clear
and accessible information is made available to the public
in general and to those to whom the new fiscal fines are
issued, in a range of media and languages, about how this
new system will operate.
Disclosure of fiscal fines and FCOs in future court
appearances
3.36 Part of the McInnes proposals aimed
at making the use of alternatives to prosecution more
robust was the recommendation that, while such penalties
would continue not to be regarded as convictions, they
would be capable of being disclosed to a court in the event
of a subsequent conviction within a certain period of time,
thus allowing the court to make an informed decision as to
the appropriate sentence.
3.37 Concern was expressed by respondents
that this would remove an important incentive for the
accused to accept these penalties, and that it would lead
to the perception that acceptance of a fiscal fine would be
regarded as the equivalent of a guilty plea and a
conviction.
3.38 We agree that such disclosure should
be possible, but that it should be proportionate, and
should balance recognition of the offending behaviour
against the fact that prosecution in court was not deemed
necessary, and that no recorded conviction has
resulted.
3.39 Accordingly, we propose the
following:
- that prosecutors should be permitted to lay details
of accepted fiscal fines and FCOs before a court in the
event of subsequent conviction - but only for a period
of two years; and
- that this fact should be made clear to the accused
when the fiscal fine or FCO is issued.
'Community Fiscal Fines'
3.40 The Criminal Justice Plan proposed,
as part of a strengthened package of alternatives to
prosecution, that a prosecutor should have available the
option to fine an individual's time in suitable cases.
Where, for example, a community's wellbeing is undermined
by minor offences which damage the physical and social
environment, it may be appropriate to offer an alleged
offender the opportunity to make reparation to that
community in some way.
3.41 The underlying principle of a fine on
time is that the offender would be issued with a notice, in
much the same way as with a fiscal fine notice, specifying
instead a number of hours of unpaid community work to be
carried out. On satisfactory completion of a fine on time,
no conviction would be recorded against the accused and no
further financial penalty would be imposed.
3.42 We envisage community fiscal fines
being allocated very shortly after the offending behaviour.
We see this option as being a potentially valuable way to
engage local communities in the justice process: the
community fine would be reparatory in nature (although not
necessarily directly linked to the offending behaviour) and
local communities would have a say in the projects in their
area that should be supported by such work.
3.43 We believe that, alongside the other
diversionary and restorative disposals, community fiscal
fines will form a useful part of the reform toolkit,
enabling us to intervene quickly and appropriately to
reduce reoffending. We will consult further on the best way
to deliver community fiscal fines most efficiently and
effectively and will pilot and evaluate the idea.
3.44 Accordingly, we propose the
following:
- to consult further on how best the community fiscal
fines could be delivered.
Feedback to victims and communities about the use
of alternatives
3.45 We have also listened to the concerns
of victims - who wanted to be assured that appropriate
action is taken following an offence and to be kept
informed of prosecution decisions. Victims can already find
out whether the offer of a fiscal fine has been accepted
and are entitled to be informed of the reasons why a case
is not taken to court even if that decision follows the
imposition of a fiscal fine. These arrangements will apply
equally to FCOs when they are introduced (indeed, if the
victim is to receive compensation they will necessarily be
aware of the prosecutor's decision). And they will also
apply to community fiscal fines.
3.46 We also recognise the importance of
letting communities know what is happening in their area in
relation to alternatives. In the next chapter (see
paragraphs 4.43-4.45) we identify the importance for each
agency of having clear arrangements for engagement with
local communities. Where appropriate, we will ensure that
summary information about the use and impact of
alternatives to prosecution is included in the information
given to communities.
Alternatives to Prosecution -
Conclusions
Fixed penalty notices
- We remain committed in principle to a
further extension of the use of fixed penalty
notices, with appropriate guidelines and safeguards
in place.
- We will monitor the operation of the
anti-social behaviour pilot scheme (which has
extended the use availability of fixed penalty
notices to a number of 'nuisance' offences) before
taking a decision on whether to roll out their use
further.
Fiscal fines and fiscal compensation orders
- At the moment a procurator fiscal can offer
a fine of up to £100 to an alleged offender -
payment of which stops any further court action
being taken. We believe that the maximum 'fiscal
fine' level should be increased to £500, supported
by clear guidelines to prosecutors from the Lord
Advocate.
- We believe that the fiscal compensation
orders (FCOs) proposed by the Committee should be
introduced and that there should be an upper limit
on their use equivalent to level 5 on the standard
scale of summary fines (£5,000).
- FCOs should be available both for cases
where quantifiable loss has been established and
where the victim has been subjected to frightening
distressing or annoying behaviour, or behaviour
which has caused nuisance or anxiety.
- The impact of new provisions relating to
fiscal fines and FCOs will be closely
monitored;
- We will introduce a number of technical
changes to the operation of fiscal fines and
compensation orders to ensure that they are
effectively used and enforced. These
include:
- that, upon receipt of a fiscal fine or FCO
notice the accused should have to take positive
steps to indicate if s/he would rather have a court
hearing than pay the penalty;
- that timeous payment of the penalty will
entitle the accused to a discount;
- that failure to make payment will result in
the fine becoming registered at its full
value;
- that unpaid fiscal fines and FCOs should no
longer be enforced by civil diligence, but should
instead become registered fines and be enforced as
if they had been imposed by a court; and
- that prosecutors should be permitted to
provide details of previously accepted fiscal fines
and FCOs to a court in the event of subsequent
conviction - but only for a period of two years
following imposition of the penalty. This fact
would be made clear to the accused in the terms of
the alternative.
'Community Fiscal Fines'
- We will consult further on how best
community fiscal fines could be delivered.
Feedback to communities
- We will ensure that victims are able to
obtain information about the offer of a fiscal
fine.
- We will ensure that new arrangements for
liaison between the criminal justice agencies and
local communities include summary information to
communities about the use and impact of
alternatives to prosecution.
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