New and extended direct measure ( DM) disposals introduced under Summary Justice Reform ( SJR) can be issued by the police and procurators fiscal in Scotland. This evaluation examined to what extent they met their policy objectives and made a contribution to the SJR intended outcome - fewer low level cases going to court unnecessarily and the overarching SJR objective - a summary criminal justice system that is FAIR, EFFICIENT, EFFECTIVE and QUICK AND SIMPLE. An evaluation of a pilot programme of fiscal work orders a new type of DM introduced under SJR, is covered in an accompanying report.
- There has been a substantial increase in the use of DMs moving summary business 'downwards' in the system, achieving the intended outcome of contributing to the removal of a significant amount of business from the courts. The impact may increase further as the new system 'beds in'.
- The main component of the change was a substantial rise in the use of police DMs (the majority of which are anti-social behaviour, fixed penalty notices ( ASBFPNs)) from 5% of all summary business in July 2007 to 21% in July 2010. Although police ASBFPNs can be issued for a list of ten offences, in practice 96% are issued for only three; breach of the peace, urinating/defecating in public and drinking in public.
- DMs were seen as FAIR and proportionate by the vast majority of the accused and most professionals who participated in the reseach. Justices of the Peace and defence agents had some minor misgivings centring on the opt-out nature of DMs (deemed accepted if unchallenged), concerns that fiscals are acting as judge and jury and that although accepting a DM does not require an admission of guilt the acceptance of a fiscal DM is recorded on a persons criminal history. Adverse reactions from the public are reducing.
- DMs were seen as an EFFECTIVE deterrent but NOT multiple DMs for persistent offenders (although it's important to note that 98% of those given a fiscal DM only receive one or two). Identifying and defining persistent offenders was an issue as the police do not have access, in all cases, to the status of previous DMs and guidance on what constitutes a persistent offending is subject to differing interpretations both across forces and within forces. JPs were concerned that there is no mechanism in the DM process to address the offending behaviour of recipients and mitigating circumstances, for example drug and alcohol issues. A further issue for effectiveness is that police do not have a statutory authority to collect information on means to pay. A successful fines enforcement process is vital for the ultimate effectiveness of DMs.
- Most considered that the increase in use of DMs increased EFFICIENCY. The benefits are costed at £7.4 million a year but the costs at £5.6m a year leave a relatively modest net gain of £1.8 million. Further savings are expected. All agreed DMs are QUICK AND SIMPLE, as the sanction is instant in the case of an ASBFPN and entails a shorter time from the incident to the sanction for fiscal DMs than for court cases. There were also substantial time savings for the police and procurators fiscals.
The McInnes Committee on summary justice recommended that alternatives to prosecution be extended. From March 2008, the Criminal Proceedings etc (Reform) (Scotland) Act 2007 increased the maximum level of a fiscal fine ( FF) from up to £100 to up to £300. Fiscal compensation orders ( FCOs) were introduced for cases involving damage or loss of up to £5,000 along with combined orders ( FCoOs) of up to £300 fine plus £5,000 compensation. (Existing options of fiscal diversion, fiscal fixed penalties and fiscal warnings continue unchanged.)
The Antisocial Behaviour etc. (Scotland) Act 2004 created police powers to issue antisocial behaviour fixed penalty notices ( ASBFPNs) of £40 for ten crimes and offences of antisocial behaviour. These were in use nationally by the end of 2007. New formal adult warnings ( FAWs) formalised existing police warnings.
The policy objectives for DMs are to provide robust alternatives to prosecution in appropriate circumstances, stopping escalation of the offending behaviour and providing a quicker, more appropriate and publicly credible response to certain offences. Increased use of police and fiscal DMs aimed to remove substantial numbers of lower level offences from the courts, freeing them up for more serious business.
DMs are opt-out, if a person does not challenge the offer of a DM within 28 days to seek a court hearing, the penalty is deemed to have been accepted.
FAWs have formalised existing use of police warnings. While ASBFPNs can be issued on the spot, FAWs require sign off by higher rank officers and can be issued, for example, for shoplifting. FAWs are intended as a 'step-up' from ASBFPNs.
Accepting a DM is not an admission of guilt. A police DM is recorded on a persons criminal history for 2 years and can be disclosed. A fiscal DM is recorded for 20 years or until the person reaches the age of 40 whichever is the longest but can only be disclosed for two years.
Aims and objectives
The overall evaluation aim was to assess the extent to which reforms to DMs had met their policy objectives and contributed towards the SJR intended outcome - fewer low level cases going to court, unnecessarily, freeing up the courts to deal with more serious cases and the overarching objective of SJR - a summary justice system which is fair to the accused, victims and witnesses; effective in deterring and punishing offenders; efficient in the use of time and resources, and quick and simple in operation.
The evaluation had 6 objectives; to examine the levels and circumstances of use of DMs including challenges, whether use of DMs was faster, more appropriate and proportionate post reform, their robustness, effects on courts, confidence in the summary criminal justice system and the extent to which the objectives of SJR had been met.
Out of scope
As forthcoming SJR evaluations will examine changes to lay justice, fines enforcement, legal aid and disclosure and public perceptions these were excluded from scope.
DMs are expected in the longer term to contribute to the SJR intended outcome - making a contribution to reducing re-offending by dealing with cases at the earliest possible stage in proceedings - this was ruled out of scope because of the relatively short timescale. Ways in which to take forward analysis of reconviction data for those who were given direct measures will be examined by the SG during 2011 and consideration given to how this might be used as a proxy for assessing reoffending behaviour.
The evaluation considered SJR monitoring data from all key agencies from July 2007 to July 2010. The majority of data used was from fiscal first markings which is provisional.
Other methods included 71 in-depth interviews conducted with JPs, fiscals, the police and crime management units sampled on the basis of the 11 local criminal justice boards, with Social Work staff at each FWO pilot and with national agencies; a focus group with JPs; a cost-benefit analysis and a survey of and interviews with people offered direct measures. Of 1,700 surveys administered 78 (5%) were returned and 19 persons offered DMs were interviewed.
Overall key findings
From July 2007 to July 2010 the number of cases dealt with by the sheriff summary court fell from 8,400 to 6,800 cases a month, or from 35% to 25% of all summary business.
The most significant change was a substantial increase in the use of police DMs (in the main ASBFPNs) from 5% of all summary business (1,300 cases) to 21% (5,400) in the same period. Although ten offences are permitted under the legislation in practice 96% of ASBFPNs were given for breach of the peace, urinating/ defecating in public and drinking in public.
District/ JP court business rose from 2,900 to 3,800 cases a month or from 12% to 15% of summary business over the same period.
Fiscal direct measures have fallen in use, from 46% to 37% of all summary business; post-reform.
These data and interview findings suggest that police ASBFPNs are dealing with many of the lower level offences that used to be dealt with by the fiscal through warnings, no proceedings (further action disproportionate) markings, and many lower level FFs.
In turn, fiscals are now handling cases previously dealt with by the district courts, including TV licensing offences, low level drug offences and cases such as shoplifting requiring compensation. JP courts now handle more offences of the type that used to be dealt with by the sheriff summary court including many serious road traffic offences. JP courts are seeing fewer cases involving low level disorder type offences such as breach of the peace.
By July 2010 new/ SJR-type DMs accounted for 35% of summary business (almost 5,500 police and 4,000 new fiscal DMs issued).
Overall, results suggest a significant change in mind-set, from the 'court as default', and that the increased use of DMs contributes to the intended SJR outcome of fewer low level cases going to court, unnecessarily.
The majority of professionals and those receiving a DM saw DMs as fair and proportionate.
JPs had some misgivings. They felt that the 'leap' from accepting to challenging a DM did not give an accused person the chance to make representation concerning mitigating or other circumstances and that the process has no mechanism to ensure offending behaviours are addressed especially for those given multiple DMs or persistent offenders. (98% of people who received a fiscal DM receive only one or two; data on multiple police DMs was unavailable at the time of writing.) There was also some concern that fiscals, particularly, might issue DMs without having access to sufficient information about someone who might need to have underlying issues addressed.
Other professionals, notably the police and fiscals, felt that the option to request a court hearing was fair. They pointed to low levels of challenges for DMs (around 0.5% for police DMs, data not yet available for fiscal DMs). Generally, the vast majority of professionals welcomed the lack of a full criminal record for what might be a low level, one-off offence.
There are some concerns about whether the consequences of accepting a DM are being understood by those accepting them in terms of jobs requiring disclosure checks, travel visas, and possibly the rules concerning criminal history even although the conditions are spelled out on FPN tickets and in fiscal offer letters.
The overwhelming view was that DMs can act as an effective deterrent, but not for persistent offenders. The deterrent effect was linked in many professionals' opinions to the immediacy and certainty of the penalty, with outcomes resembling those of the courts in terms of levels of financial penalties.
The police find DMs effective in dealing with low level offending and in addressing difficult situations. The introduction of ASBFPNs was considered to have contributed to a reduction in street drinking in some study areas.
Fiscals' SJR training emphasised outcomes and fiscals felt one of the great advantages of DMs was achieving the same outcome without the time and expense of a court case. JPs disagreed and felt the use of DMs skipped the denunciation element of a court appearance.
JPs and defence agents were in general agreement that for some first time offenders, a DM might contribute to reducing reoffending. But they cited examples of repeat offenders receiving very high numbers of DMs ( NB 98% of those receiving a fiscal DM receive only one or two). Some felt that SJR had simply made the system more efficient at processing more cases without addressing underlying causes, while more needed to be done for persistent offenders.
Fines enforcement was excluded from the remit of this evaluation but in very many cases, professionals qualified strong support for DMs by voicing concerns about fines enforcement. A forthcoming SJR evaluation will provide analysis of this issue.
60,500 police DMs were issued in 2009/10, including 6,500 FAWs. Issuing a ASBFPN took 5-15 minutes compared to an hour to 90 minutes for submitting a standard prosecution report ( SPR) to the fiscal. This suggests annual time releasing savings of 40-54,000 hours, worth £0.7 to £0.9 million to the police annually. (The effect of 50,000 fewer SPRs on fiscal costs cannot be quantified since COPFS staff costs by grade are unavailable.)
For fiscal DMs, despite the drop in FF numbers overall, almost 10,000 cases were removed from court in 2009/10 as a direct result of allowing fiscals to issue higher level FFs (above £100) and compensation. This is lower than the 12-20,000 anticipated by the bill's financial memorandum but being only the second year of operation, may well increase. Based on the bill's estimates of the cost to COPFS of trying somebody in the district court (approximately £40 greater than that of issuing a FF or FCO) this suggests time releasing savings of around £0.4 million annually.
Tentative estimates of JP court costs suggest corresponding savings of around £1.4 million annually in the district/ JP courts. The cost of challenges is insignificant as yet so in all, efficiency savings of at least £2.6m annually arising through DMs can be quantified.
The full picture is highly sensitive to estimations of changes in fine income, with total calculated net benefits of only £0.7m in real terms depending on the levels of fines from DMs that are recovered and how much of the decrease in sheriff court fine income is attributed to DM type cases being removed.
DMs are reducing the effects on many people's criminal records, employment chances and possibly chances of reoffending. There are concerns that for persistent offenders or those with underlying issues, they may be delaying interventions needed and not contributing to addressing a cycle of offending. If this is an issue the numbers are very small. (98% of those given fiscal DMs receive only one or two.)
Economic effects of FAWs are slight since the most issued in any month was 702 in May 2009. Most police constables were not aware of their existence or that they could recommend their use.
Quick and Simple
As above, issuing DMs was quicker and simpler for agencies than taking a case to court. ASBFPNs were normally issued on the spot or the next day, and FAWs often within a week of the event. For fiscals, the marking of a case is followed by the issuing of an offer letter.
Time periods for speeds of processing now exceed national targets and have improved since pre-reform. Improvements cannot be attributed solely to DMs but professionals' perceptions were that they had contributed significantly.
The police ASBFPN tickets and FAW letters were straightforward; with mostly clear small print. The fiscal letters were improved after a review including feedback from defence agents. The survey and those interviewed did not raise ease of understanding of the process, tickets, letters or their options as an issue at all. Several people interviewed had previous experience of the criminal justice system, and thought that the court process was very drawn out in comparison to DMs.
DMs are highly valued and seen as summary in nature, proportionate, fair, efficient and effective and quick and simple to process.
Concerns expressed almost entirely by JPs and defence agents, centred on the interests of justice and appropriate use, particularly regarding persistent offenders (which, in numerical terms is a minor issue). These issues could be addressed by considering and reviewing guidance on issuing DMs if necessary (the Lord Advocate's guidelines to fiscals and the police are confidential).
There were no issues which in themselves constitute arguments against the retention or indeed the extension of DMs.
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