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The Summary Justice Review Committee: Report to Ministers

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The Summary Justice Review Committee: REPORT TO MINISTERS

Chapter 11: ALTERNATIVES TO PROSECUTION

11.1 We considered carefully the scope to provide the most appropriate disposal having regard to both the offender and the offence through increased use of alternatives to prosecution. This consideration was in the context of a system in which alternatives to prosecution have been increasingly used and cases processed through the summary courts have been in consistent decline (as evidenced by the figures in the table at paragraph 4.27). Over the 5-year period 1997-2002, for example, the number of persons proceeded against in the summary courts fell from 166,000 to an estimated 133,600, largely due to a substantial reduction in district court business, but also no doubt affected by industrial action at Glasgow district court in 2000-1 (the sheriff summary figures declined until 2000, but then rose sharply again, returning to a level similar to that in 1997).

Distribution of action taken on cases closed, involving non-court disposals

chart

11.2 Over the same period the figures show that non-court disposals including fiscal fines have played a significant part in the shift towards dealing with offences rapidly by diversion from prosecution rather than through the court process.

11.3 Figures also show, however, that reports to the procurator fiscal over the last year have been running at a consistently higher level. This is expected to feed into a significantly higher level of business in the summary courts in 2003-4.

11.4 The drivers for an increased focus on alternatives to prosecution are therefore more complex than (for example) those which applied when the Stewart Committee 43 reported 20 years ago on the same topic. Their context was a steady and apparently inexorable rise in the business of the summary courts - from 220,000 persons proceeded against in 1970 to 260,000 in 1980. The introduction of the fiscal fine which they recommended and the increase in other forms of diversion mean that today we already have a more flexible range of options available to the police and the procurator fiscal.

11.5 We consider, however, that it remains important to focus on making alternatives to prosecution more widely available, more flexible and more robust.

11.6 We have to recognise on the basis of the analysis in chapter 2 that the summary court system is far from summary in its effects. This impacts not only on system efficiency, but also on the effectiveness of the justice delivered. Where there is a long gap between offence and disposal, the offender may be less likely to perceive the clear link between the two and perhaps be less likely to modify his or her behaviour. For many less serious offences an appearance in court with the full panoply of a criminal prosecution is neither the most efficient use of resources nor the approach most likely to nip low level offending in the bud.

11.7 We also recognise that while the numbers dealt with by the summary courts have recently declined, more proactive policing to deal effectively with anti-social behaviour in particular is likely to generate not only more police fixed penalties but also an increase in reports to the procurator fiscal. We need to ensure that the criminal justice system as a whole has the range of options it needs to deal with the range of crimes and offences which disrupt our civil society. We also need to ensure that the system can deal effectively with increased numbers of crimes and offences, without bottlenecks developing that lead to a slowing down of the summary justice system once again.

11.8 We were conscious also of the need to maintain public confidence in the way in which we deal with minor offenders. In the public survey which we commissioned 44 we tested how far the use of alternatives to prosecution would be acceptable to the public. This survey showed that 60% of those questioned were in favour of alternatives to prosecution (as described to them in the course of the survey) with only 25% opposed to their use.

11.9 Our strategy is therefore to enable the courts to focus on more rapid handling of the more serious crimes and offences and those cases in which court ordered disposals are likely to have a beneficial effect on offending behaviour, while giving police and procurators fiscal the range of powers they need to respond quickly and appropriately to more minor offences, helping to forestall their escalation.

11.10 We have identified a number of principles which contribute to successful alternatives to prosecution:

  • clear guidelines on their use;
  • clarity in the minds of the police/procurator fiscal and the alleged offender about what the alternative means: for example, is prosecution still an option when diversion fails and on what timescale/terms?
  • sanctions which make the diversion effective;
  • avoidance of a formal criminal record wherever possible; but also
  • capacity in the management information system to retain information about alternatives used, so that if an alleged offender reappears in the system the police, procurator fiscal and courts can decide how best to deal with a new offence in the full knowledge of approaches already adopted.

Fiscal Fines

11.11 The fiscal fine was established by s56 of the Criminal Justice Act (Scotland) 1987. It is now established as a valuable and effective alternative to prosecution in less serious cases that would otherwise result in prosecution in the district court. The levels of fiscal fine have been set by an order of the Secretary of State and are currently 25, 50, 75 and 100. If payment is made no prosecution is brought and no conviction is recorded against the accused. The fact that a fiscal fine has been offered and accepted can be disclosed to an interested party in those proceedings. Where an offer of a fiscal fine is made and not accepted, the fact that an offer was made (but not its amount) can be disclosed to the court upon conviction in that case. Where a previous fiscal fine has been accepted, however, this fact is not routinely made known to a court before which the alleged offender appears in respect of other offences.

11.12 It is clear that since its inception the fiscal fine has been responsible for a significant reduction in the numbers of cases that would otherwise have been dealt with in the summary courts. The tables at paragraphs 11.13 and 11.18 demonstrate that a large number of less serious cases are now dealt with by the offer of a fiscal fine - and that, in around half of those cases, that offer is accepted.

11.13 Prior to 1996-7 the fiscal fine was fixed at a single level of 25. This was subsequently changed to variable levels of 25, 50, 75 and 100. The table below shows fiscal fine offers issued (i.e. offered but not necessarily accepted) since the introduction of the four levels. These data are not available for the previous years. It would appear from the table that, although the use of the higher level fiscal fines has increased since introduction, there has not been an overall increase in the number of fiscal fines issued and that the increased use of higher levels has been at the expense of lower level fiscal fines.

Financial Year Fiscal Fine Issued

25

50

75

100

Total

1996-7

23,930

5,879

472

163

30,444

1997-8

25,702

8,975

1,222

296

36,195

1998-9

23,843

12,442

2,662

1,303

40,250

1999-2000

19,057

11,858

3,031

1,383

35,329

2000-1

18,678

12,278

2,680

1,309

34,945

2001-2

17,739

12,062

2,397

1,031

33,229

2002-3

18,501

12,831

2,701

1,320

35,353

11.14 The Committee considered that there might well be scope to increase the use of fiscal fines. Looking at the existing legislative framework for such fines, however, against its framework of principles (see above) it identified several areas in which the fiscal fine as currently operated falls short of the clarity and robustness an effective alternative to prosecution requires.

Status of the Fiscal Fine

11.15 Previous fiscal fines imposed on an accused are not made known to a court before which an alleged offender subsequently appears on another charge. This leads on occasion to such a person being treated as a "first offender". Though technically correct, that was identified as a shortcoming within the system in consultation responses and on court visits. There is at present no central register of fiscal fines offered and accepted, although we understand that the new COPFS IT system will retain this data. At present it is not known to a procurator fiscal whether any other procurator fiscal has offered a fiscal fine to the same person.

11.16 It is recognised that acceptance of a fiscal fine is not an equivalent of admission of guilt, and that it would not be desirable further to increase the percentage of the population who have a formal criminal record. Nonetheless, it is considered that it would be proportionate to inform an accused person that, in accepting a fiscal fine, he or she should be aware that the court might be informed of that fact if it was relevant in a future case. Information about fiscal fines accepted should also be available to the police and to procurators fiscal so that their consideration of the action to be taken when someone re-offends can be taken in the light of all the facts of the case. Such information is in fact routinely recorded at SCRO at present, as a result of automatic updating through ISCJIS. Fiscal fines are appended as a separate list.

11.17 Proportionality is important here: it would not be reasonable to inform the court of a 10-year-old fiscal fine in relation to a subsequent prosecution for a minor offence. On balance, therefore, we recommend that the offer of a fiscal fine should be amended to state clearly that the non-acceptance of the offer may be disclosed to the court in connection with any prosecution for the offence alleged, and also that acceptance of the offer may be disclosed to any court in connection with any other current or subsequent proceedings commencing within a certain period, of at least 2 but no more than 5 years (c.f. similar proposal in relation to police recorded warnings in paragraph 8.19).

Ensuring that the Fiscal Fine is Paid

11.18 Currently, if only the first instalment of the fiscal fine is paid, the offer of a fiscal fine is deemed to have been accepted and the possibility of prosecution for the offence is removed. Civil diligence procedures are then required to enforce payment.

Collection of fiscal fines1

Financial year

Number offered

Number accepted

Number fully paid

Number fully paid as percentage of number accepted2

2000-1

33,233

13,715

12,723

89

2001-2

34,006

13,995

12,844

92

2002-3

34,697

17,648

13,985

79

Source: annual statistical returns from district court
1 Data not available for some district courts, as detailed below.
2 Percentage calculated only for those courts where data available for both number of fines accepted and number of fines fully paid. (Glasgow, which is not included in the 2000-1 and 2001-2 calculation, will represent a sizeable percentage of the overall figures.)

Missing district court data on fiscal fines

2000-1

2001-2

2002-3

Number of fiscal fines offered

Edinburgh

Stirling

Eilean Siar, Stirling, West Lothian

Number of fiscal fines accepted

Argyll and Bute, Edinburgh, Glasgow

Fife, Glasgow, Stirling

Eilean Siar, Stirling, West Lothian

Number of fiscal fines fully paid

Edinburgh, Glasgow

Fife, Glasgow, Stirling

Eilean Siar, Stirling, West Lothian

11.19 The figures suggest that the payment rate of fiscal fines is in fact fairly high, although it varies very much across the country (the figure for Glasgow in 2002-3 was 55%). But where fines are not paid, enforcement mechanisms are not particularly robust. Civil diligence is expensive and in the context of a fiscal fine of perhaps 50 is regarded by many in the district courts (which enforce fiscal fines) as not to be worth undertaking. In some areas it is therefore common knowledge that there is no risk of prosecution and little prospect of enforcement once a first payment has been made. The Committee considered that if fiscal fines were to be used more widely this issue had to be addressed.

11.20 We examined the arrangements which are available to prosecutors in the Netherlands. There, the prosecutor may offer a prosecutor fine, which gives the offender a period of time in which to pay the penalty in full. The document also serves as a form of summons, and if the penalty is not paid by the specified date, the case will automatically call in court. We considered that this procedure would offer no significant improvements over the present arrangements, i.e. it would tend to encourage inactivity on the part of the accused and lead to cases ending up in the court process where the issue was not necessarily proof of guilt or innocence. Inactivity on the part of those offered fiscal fines causes significant additional resources to be deployed, especially in relation to those that have chaotic lifestyles. By and large they will be prosecuted, usually in the district court, where they will eventually plead guilty in most cases (see paragraph 7.45). This is a second process and a further expenditure of resources for a relatively minor offence.

Opting In or Out of the System

11.21 There are two alternative approaches when an offer of a fixed penalty or a fiscal fine or compensation offer is made. On one approach the alleged offender can accept the offer, with refusal of the offer or inaction leading to prosecution (in this context seen as "opting in" by acceptance of the offer). On that basis inactivity is seen as amounting to the same as refusal of the offer. On the other approach the alleged offender is seen as accepting the offer unless he or she elects to be prosecuted (in this context seen as "opting out" of acceptance of the offer). On the latter basis inactivity is seen as amounting to the same as acceptance of the offer. We are led to believe that many of those to whom offers are made take no action in relation to them. That seems to us to be confirmed by the numbers who are later prosecuted and eventually plead guilty.

11.22 We consider that those who are alleged to have breached the criminal law and who wish to have the matter heard in court can reasonably be expected to express a wish to exercise their right to have their case heard by a court. Provided that the alleged offender has been duly informed of the action to be taken against him or her, he or she can exercise his or her right to a hearing by completing and returning a form. In other words the alleged offender can, and in the opinion of a majority of the Committee should, be required to elect to be prosecuted. On that approach if the individual does not actively request a court hearing and the offer is simply ignored it would be treated as if it had been accepted. Failure to pay would then result in the normal procedures for fine enforcement applying automatically. In line with our commitment to clarity, the offer would have to state the exact action required on the alleged offender's part if he or she wishes to contest the alleged offence. It should also make it clear that inactivity will lead to the fine becoming enforceable without further reference to him or her.

11.23 We noted that the Stewart Committee considered the issues arising in systems involving opting into or out of a fixed penalty scheme 45 and recommended the opting in process, 46 in other words offenders are given the opportunity to opt in to the scheme by paying a fiscal fine or fixed penalty. If they do not they may be prosecuted. In line with our general proposition that the criminal justice system is entitled to assume a degree of acquiescence, a majority of us consider that the approach recommended by the Stewart Committee and later adopted should be changed from opting in to opting out. Accordingly we propose that an offender who is offered a fiscal fine or compensation or a fixed penalty notice should be required actively to opt out of the scheme in order to contest the charge in court.

11.24 Underlying the approach of the Stewart Committee was their concern about the "concept of deeming guilt by silence". We agree that it is important to try to ensure that every alleged offender is made aware of the offer at the time but we all agree that that will not always prove to be possible. In most cases FPNs will be issued to the offender on the spot and so the issue will not arise. However, fiscal fine offers are normally issued after the initial contact between the offender and the police. The same would apply if fiscal compensation were to be introduced. For an opt out system to work well there should, so far as practicable, be evidence of delivery to the person to whom it is made either at his or her home address or at his or her place of work and it should be signed for. If the police are in contact with the accused at the time of, or after the commission of, the offence they should make clear to the accused that any address he or she provides them with will be used for the service of any documents (such as FPN notices). We recommend that the service of such documents should be carried out by the use of the recorded delivery postal service and not by police officers in the first instance. However, we also take the view that if there is no response in reaction to the recorded delivery postal service there should be at least a single further effort to serve an FPN or an offer of a fiscal fine or compensation on the alleged offender in person before treating the FPN or fiscal fine or compensation as a registered fine for the purposes of enforcement.

11.25 We recognise that there are some practical difficulties with the approach which the majority of us recommend, as when, for example, the alleged offender is illiterate, is of no fixed abode, is absent from home for a prolonged period or there are other difficulties in effecting service. We regard the provision of a mechanism to prevent injustice in circumstances such as these as essential.

11.26 The first stage of a safeguard mechanism should, we suggest, be an application to the issuing agency (e.g. police or procurator fiscal) or to the enforcement agency (see chapter 32) after it has been passed for enforcement, requesting that the fiscal fine, FPN or other penalty is recalled or its terms altered. If it was apparent to the relevant agency that the penalty had been wrongly issued the action taken thus far should be recalled. If the applicant was able to demonstrate that he or she had not received the offer or penalty and wished to pay without the surcharge which had been levied, it should be possible to recall any surcharge and allow the time to pay which would have been allowed if it had been received in the usual way. If the applicant wished to contest the matter in court and had sufficient reason to have delayed expressing a desire to do so, the action taken thus far should be recalled and the usual procedure should be applied to a sanction of that kind when contested. In such circumstances it would be necessary to make provision for the interruption of the 6-month period within which proceedings for statutory offences must be commenced so that the period between the date of offer of the fiscal fine, FPN or other penalty and the date of its recall is not taken into account in calculating that period. We consider that it would be necessary in the interests of consistency to provide guidance to the issuing and enforcement agencies as to the circumstances in which applications for recall should be granted. We also consider that it would be necessary for there to be an appeal to a single judge of the summary court against a refusal by the relevant agency of an application to recall.

11.27 We are aware that the provision of such a safeguard may open the way to those who choose to ignore FPNs and fiscal fines in the hope that they will not be pursued. The experience of courts in parts of Australia where a similar approach is followed suggests that there can be difficulty separating genuine applicants from the less deserving. However if there were to be an administration fee payable with the application, which was returnable in the event of the application being granted, and if courts were to take a robust view of cases contested by this mechanism without good reason, groundless applications would be likely to be deterred. We also take the view that, in the same way that many do not actively contest fiscal fines and FPNs at present, they will be similarly unlikely to make active use of the safeguard mechanism unless they have a genuine case. We believe that a simple mechanism that enables apparent injustices to be righted without recourse to expensive and time-consuming procedures is consistent with the approach we take to summary justice throughout this report, and in particular our proposals at paragraph 25.18 for correcting mistakes and injustices in the summary courts.

11.28 A minority of the Committee take the view that it is not right to impose a penalty unless there is the clearest evidence that the offender knows about the procedure (as with a police fixed penalty which is delivered personally). The vagaries of the postal system, and the difficulties of achieving face to face personal service, suggest to them that the opt-in procedure recommended by the Stewart Committee is the only appropriate one, i.e. if the offender does not accept the offer sent to him or her within the specified period, he or she should not be required to take any action and that, if he or she takes no action, the matter should be considered for prosecution. Accordingly they consider that there should be no change to the present arrangements in relation to the enforcement of fiscal fines.

11.29 However, the majority of the Committee take the view that, with a safeguard mechanism along the lines described above in place, an opt out system, i.e. choosing to be prosecuted as set out earlier in this chapter, is the best approach and should now be adopted. Its advantages appear to them to significantly outweigh the disadvantages which could arise in a small minority of cases. Any injustice which arose in those cases could be swiftly and cheaply corrected by the operation of the safeguard mechanism. Overall we see this change as an efficient and useful way of dealing with the comparatively low level offences with which these forms of disposal deal. Accordingly the majority strongly recommend that such a system should be introduced.

Potential Impact of the Opt Out Approach

11.30 Figures quoted earlier (see paragraph 7.38) suggest that a substantial minority (up to 30%) of district court cases are prosecutions where a fiscal fine offer has not been accepted. If enforcement is made more robust, so that those offered a fiscal fine have to opt specifically to have the case tested in court, we expect that prosecutions in this category will decline significantly. The calculation in paragraph 7.45 suggests a potential reduction of up to 10,000 prosecutions.

Extension to Other Fixed Penalty Notices

11.31 We note that the opting out approach which the majority of us recommend has been adopted in the Anti-social Behaviour Bill currently before the Scottish Parliament in relation to fixed penalty notices. The majority strongly support this approach for FPNs and would recommend that it is applied to any extension of the scope of FPNs in Scotland.

11.32 The scheme of FPNs may be capable of application by enforcement agencies other than the police in suitable situations, for example by local authority officers in relation to offences involving dog fouling.

11.33 We recognise that these arrangements cannot apply to FPNs issued under the road traffic provisions, even where the offender is detected at the time, as the procedures are governed by United Kingdom legislation. We recommend though that consideration be given to adjusting the United Kingdom arrangements in accordance with the procedures we propose.

11.34 The Committee is also very conscious that taking forward this option, while it will relieve a good deal of pressure on both the police and the procurator fiscal, will require implementation in parallel of a more cost effective and robust system of fines enforcement. This is dealt with below in chapter 32. Without that improvement, this proposal will merely shift work from the procurator fiscal to the fine enforcement system. So - as in many areas - our proposals need to be considered as an overall package.

We recommend that alternatives to prosecution should be made more widely available, more flexible and more robust, to enable the courts to focus on more rapid handling of serious crimes and offences while giving police and procurators fiscal the range of powers they need to respond quickly and appropriately to minor offences.

We recommend that non-acceptance of a fiscal fine offer may be disclosed to a court in connection with any prosecution for the offence alleged, and also that acceptance of an offer may be disclosed to any court in connection with any other current or subsequent proceedings commencing within a period of not less than 2 and not more than 5 years.

We recommend that information relating to fiscal fines accepted should be available to the police and procurator fiscal so that their consideration of the action to be taken when someone re-offends can be taken in the light of all the facts.

We recommend that, if fiscal fines are to be used more widely difficulties relating to enforcing their payment should be addressed.

We recommend that the calculation of time bar should be suspended for the period between the offer of a fiscal fine and notification as to whether the offer has been accepted or not.

We recommend that, as with FPNs, it should be necessary for the person to whom an offer of a fiscal fine is issued to take positive action if he or she wishes to contest the allegation. In other words, to opt-out of the fixed penalty scheme or fiscal fine or compensation offer, he or she should be required to complete and return a form indicating that the fine is to be contested.

We recommend that, as with FPNs, if the offender chooses to do nothing, the fiscal fine offer will become registered as a fine on the lapse of a fixed period.

We recommend that, as with FPNs, all unpaid fiscal fines which are registered should be subject to a 50% increase.

We recommend that a safeguard mechanism should be introduced to avoid injustice in relation to FPNs, fiscal fines and fiscal compensation orders where, for example, they have been wrongly issued or the person to whom one was issued was unaware of it having been issued and wished to contest it in court or to contend that no surcharge should be added for non-payment within the prescribed time.

Fiscal Fine Levels

11.35 On the assumption that changes on the lines above are implemented to make fiscal fines more robust, the Committee considered carefully the potential for increasing the use of fiscal fines. It looked at the level of court fines imposed by the summary courts, noting that these are relatively modest. In 2001 the average fine imposed in the sheriff summary court as a main penalty was 277. In the district court the average fine imposed by justices of the peace was 98; it was 190 in the stipendiary magistrate's court.

11.36 The table below shows the number and range of fines imposed by each level of court in 2001:

Number:

District Court

Stipendiary Court

Sheriff Summary

Total

<100

18,527 (56%)

276 (9%)

3,731 (10%)

22,534 (30%)

100-199

11,652 (35%)

1,370 (43%)

11,517 (29%)

24,539 (33%)

200-299

2,310 (7%)

1,120 (35%)

10,675 (27%)

14,105 (18%)

>300

663 (2%)

425 (13%)

13,230 (34%)

14,318 (19%)

Average fine ()

98

190

277

195

Source: SEJD Court Proceedings database 2001

11.37 As noted in paragraph 11.30, the opt out approach could significantly reduce the number of failed fiscal fines coming to court. The Committee considered carefully the additional reduction in court cases likely to be achieved by an increase in the value of the fiscal fine (see paragraph 7.41). The table at paragraph 11.36 appears to suggest that a doubling of the fiscal fine to 200 could potentially impact on around 24,500 cases currently prosecuted each year in the summary courts because of the number of fines of between 100 and 200 currently imposed in those courts. The actual impact from that increase (rather than from the tightening up of enforcement) is likely to be lower, both because up to 30% of district court prosecutions are related to failed fiscal fines (so it is important to avoid double counting of impact) and because the statistics tell you nothing about the record or status of offenders being fined. Many will have a recent relevant criminal record or a track record of rejecting or failing to pay fiscal fines which may have made them unsuitable for a fiscal fine offer. Nonetheless, it seems not unreasonable to assume that around half of the cases currently prosecuted in the first instance and fined between 100 and 200 might be suitable for diversion.

11.38 The Committee recognises the number of likely constraints on the potential effectiveness of an increase in the level of fiscal fines. In particular there is concern on the part of the courts, procurators fiscal, police and the community generally that certain types of offence should be prosecuted in the courts. It was apparent to the Committee from court visits and from discussions with procurators fiscal that they are more reluctant to use fiscal fines for more serious offences and particularly for more serious common law crimes. There are also some practical issues: although a police report always informs the procurator fiscal as to whether the alleged offender is working/on benefit, some procurators fiscal feel that this does not give them enough information about the financial circumstances of the offender and therefore the appropriate level of fine: again this is a sharper issue if the fine is higher. The use of fiscal fines also builds in an unavoidable element of delay in that the accused are given 28 days to decide whether to accept. Although our proposal above would streamline the process thereafter, some feel that extending the use of fiscal fines might conflict with the general effort to reduce delay.

11.39 Finally, the non-acceptance rate of fiscal fines is fairly high. As the table at para 11.18 above shows, in 2002-3 34,697 fiscal fines were offered and 17,648 accepted - a non-acceptance rate of almost exactly 50%. This non-acceptance rate might increase at a higher level of fiscal fines and if higher sums were offered than at present for particular offences. But the numbers of those who opt for prosecution would be likely to be markedly lower than 50% of those who are offered fiscal fines because that percentage includes those whose only reaction to the offer was inertia.

11.40 Nonetheless, the Committee invites the Executive to consider two options. Increasing the scope of fiscal fines from 100 to 200 would, we believe, have an impact on court business, though we consider that it would need to be accompanied by the structural changes in fiscal fines proposed above. It is in accordance with our proposals for a graduated system of alternatives to prosecution that procurators fiscal should have the power to offer fines at a higher level than police FPNs. We have noted (at paragraph 9.4) that a police fixed penalty notice can now be issued for 200 for using a motor vehicle without insurance. We would expect the maximum amount of a fiscal fine should be not less and preferably more than that. A higher level of fiscal fine would enable fiscals to offer higher levels of fine where the offence had particular features or where the offender had previously received an offer of a fiscal fine.

11.41 The Executive might want to take a more radical approach, increasing the potential limit of a fiscal fine to 500, in the clear recognition that the upper reaches of this would be relatively infrequently used and probably mainly for only for certain road traffic offences and for businesses which committed strict liability regulatory offences. The level of fiscal fine levied on a business might reasonably be higher than the level imposed upon an individual. Fiscal fines for businesses which offend have considerable attractions. They offer a speedy and simple way of dealing with regulatory infringements which is highly likely to be acceptable to businesses who wish to avoid the acquisition of a criminal record, while ensuring that infringements are penalised and those penalties recorded against any future infringement. Fiscal fines at the higher level could help to meet COSLA's concern that offences within local authorities' regulatory regimes should be effectively dealt with by the justice system. Those instances apart, the Committee does not envisage widespread use of fiscal fines at this level, and notes that procurators fiscal will often have insufficient information as to the means of an individual. But it believes that the upper limit would be best set at a level which allows considerable flexibility to procurators fiscal, rather than at a level of 200 which may turn out to be too low for some types of case. Many regulatory offences in which local authorities have an interest, such as non-compliance with planning conditions, for example, might be dealt with in this way. In the Netherlands the prosecutor has the power to impose penalties similar in nature to a fiscal fine, subject to a maximum of E450,000 (approximately 300,000).

11.42 We also note in connection with the present level of fiscal fines that there is a "double discount" element. This arises because offenders who are offered a fiscal fine benefit both from avoiding a prosecution (and a criminal record) and from a fine which is usually significantly lower than would have been imposed in the courts. We see no reason for this to continue. We do not suggest that fiscal fines should be equal to or greater than court fines as we do not wish to create a disincentive for them to be accepted when offered. However there would appear to be scope to bring fiscal fines up to a level closer to that of court fines without a significant disincentive to their acceptance. The avoidance of prosecution and a criminal record would continue to be a strong incentive for many offenders, although it is accepted that this element is of limited value to offenders who already have a criminal record.

We recommend that the Executive considers increasing the scope of fiscal fines from 100 to either 200 or 500 - increasing the range of cases in which they could be used and bringing fiscal fine levels closer to that of court fines.

Fiscal Compensation Orders

11.43 Guidance issued to procurators fiscal on the use of fiscal fines states that a fiscal fine should not be offered if it is thought that compensation should form all or part of the appropriate court disposal. The Committee therefore considered whether there was potential, in the interests of reducing the number of cases appearing before courts, to propose the introduction of a compensation order to be fixed by the procurator fiscal in the same way as a fiscal fine.

11.44 In 2001, compensation orders were imposed in 4% of cases proved in the sheriff summary courts, 7% in the district court and 1% in the stipendiary magistrates court, with average values of 310, 116 and 162 respectively. The table below shows the categories of cases where a compensation order was imposed, either as the main penalty in court or in addition to some other main penalty.

Number of persons with a charge proved in summary courts, by main crime or offence and whether compensation order imposed as a main or secondary penalty, 2001

Main crime or offence

Compensation order imposed as a main penalty

Compensation order imposed as an additional penalty

Total where compensation orderimposed

Number

Percentage of all persons with a charge proved

All crimes and offences

1,128

4,725

5,853

5

All crimes

733

2,838

3,571

9

Non-sexual crimes of violence

24

74

98

15

Crimes of indecency

2

4

6

2

Crimes of dishonesty

294

1,174

1,468

7

Housebreaking

39

140

179

8

Theft by opening lockfast places

43

136

179

13

Theft of motor vehicle

12

51

63

5

Shoplifting

33

214

247

3

Other theft

95

381

476

11

Fraud

41

176

217

15

Other

31

76

107

6

Fire-raising, vandalism, etc.

409

1,545

409

50

Other crimes

4

41

45

0

All offences

395

1,887

2,282

3

Miscellaneous offences

378

1,233

1,611

5

Simple assault

250

856

1,106

11

Breach of the peace

50

195

245

2

Other

78

182

260

3

Motor vehicle offences

17

654

671

2

Source - SEJD Court Proceedings database 2001

11.45 The Committee also looked at the types of offences for which a fiscal compensation order might be appropriate, provided that the offence in question was the most serious or "main" offence faced by the accused:

Persons fined in summary courts for selected offences, 2001

Type of offence*

Number of persons

Simple assault

5,555

Shoplifting

3,329

Vandalism

2,327

Other property offences

3,475

* where main offence
Source - SEJD Court Proceedings database 2001

11.46 From these figures it appears that there are just over 1,000 summary cases per year where the main penalty is a compensation order. Many of these will be suitable for fiscal compensation orders, though the Committee recognises that some prosecutions will not just be because of the unavailability of a fiscal compensation order, but also because it was a repeat offence, or was considered too serious.

11.47 Secondly, there are around 5,000 cases where a compensation order is additional to the main sentence and it might well be that a large number of these could be dealt with by way of a combination of a fiscal fine and fiscal compensation order. Most of these will involve a fine as the main sentence. In about 12% of cases in which compensation is ordered as a secondary penalty the main penalty is a community service order or a probation order.

11.48 Finally, there are around 15,000 cases of simple assault, shoplifting, vandalism and other property offences which are dealt with by way of a fine, where prima facie an alternative financial penalty, i.e. a compensation order, might have been appropriate but for the traditional reluctance of the courts to use this latter option (for example compensation was awarded in only 44% of all vandalism cases). It should be noted that there will be considerable overlap between the 5,000 cases in the second category and the 15,000 or so in the third category.

11.49 Vandalism and shoplifting offences might be particularly appropriate for fiscal compensation orders. We did note during the course of consultations on this proposal that among the generally very strong support, there was a commonly held view that fiscal compensation would not be appropriate for physical injuries. Within the Committee there were those who supported this view, while others took the view that this was an issue that could be dealt with through the use of appropriate and sensitive guidelines.

11.50 Nonetheless, it is possible that a significant proportion of these cases could have been dealt with by way of a compensation order, rather than a court fine. On the assumption that at least 50% of the cases in which a compensation order forms a main or ancillary penalty could be dealt with through a fiscal compensation order (with or without a fiscal fine in addition), and that a significant proportion of certain other minor offences currently dealt with by prosecution and fine could be so dealt with, we estimate that between 5,000 and 10,000 cases could be diverted.

11.51 It is considered that in addition to the possibility of reducing the number of cases appearing in court, a fiscal compensation order might offer benefits in that it could lead to increased levels of payment as offenders recognise the value of directly compensating victims rather than making fine payments to the state. Similar considerations could also lead to witnesses being readier to indicate their willingness to come forward.

11.52 A key issue here is the circumstances in which compensation may be ordered. At present compensation orders can only be made by a court, and Section 249 of the Criminal Procedure (Scotland) Act 1995 empowers the court to make a compensation order where a person has been convicted of an offence requiring that person to pay compensation "for any personal injury, loss or damage caused, whether directly or indirectly by the acts which constituted the offence".

11.53 Section 250 of the Criminal Procedure (Scotland) Act 1995 requires a court to prefer a compensation order where both a compensation order and fine might be appropriate in respect of an offence, but the offender is thought to have insufficient means to pay both. We recommend that a similar approach should be taken by procurators fiscal to fiscal fines and fiscal compensation orders.

11.54 In recommending the extension of power to make compensation orders to procurators fiscal, we would also support an extension of the circumstances in which they may be made by both the court and the procurator fiscal. Both should be able to make a compensation order where the victim of offending behaviour has been subjected to behaviour which is frightening, distressing or annoying or has caused nuisance or anxiety. The test would require to be largely objective, i.e. whether the behaviour would have that effect on a reasonable person. It might also include recognition of the fact that certain individuals - such as those suffering from a physical or mental disability - are more likely to be intimidated or seriously concerned. Much of the conduct which is caused by anti-social neighbours or youths in a neighbourhood falls within what we have in mind, and we consider that these proposals would complement those within the Anti-Social Behaviour Bill. Such moves would be consistent with present efforts to make the criminal justice system more victim-focused.

11.55 Where such offences are at the lower end of the spectrum, we therefore recommend that a procurator fiscal should be able, in conjunction with or separate from a fiscal fine, to impose a compensation order on an alleged offender. The means of enforcement should be the same as those for fiscal fines.

11.56 In this context we recognise that there will be difficulties for procurators fiscal in assessing the level of compensation where there is not a readily quantifiable loss, as when a broken window requires to be replaced at a particular cost. To achieve consistency clear guidance to procurators fiscal will be important. In this context the Executive may wish to consider examples such as that of the Netherlands, where there is a computer software programme enabling prosecutors to identify characteristics present or absent in any particular case. The computer "calculates" on the basis of all the information an appropriate sum to offer both for a fine and for compensation. Such a system is particularly valuable where compensation is not readily quantifiable as it can be when it is for the cost of repair. It has been introduced with a view to securing consistency in decision making across the Netherlands. In the interests of transparency and public confidence in the system we would recommend that guidelines on the amounts and applicability of fiscal compensation orders are publicly available. (We are aware that COPFS are giving consideration to the publication of some guidelines in relation to fiscal fines, but that there are concerns that this information should not be of use to offenders in planning criminal acts. We recognise that concern, but welcome moves to greater transparency.)

11.57 Most of us believe that so far as fiscal compensation orders are concerned there should be no prescribed upper limit. If the offender is prepared to pay compensation in full for the criminal act which caused loss, and provided that the sum is paid, we consider there may be no reason to justify a prosecution in addition. There are criminal acts which are themselves relatively minor, but which cause substantial loss. The plate glass window of a shop may cost 1,000 to replace. Its damage may have been incidental to a breach of the peace rather than the consequence of a deliberate attempt to break it. The payment in full of compensation may markedly exceed the amount of any fine which is likely to be imposed by a court. We consider that the system should be sufficiently flexible to allow compensation to be paid and the issue to be resolved in this manner, rather than to bring about a situation where prosecution is thought necessary solely because of the amount of loss that was caused. If, of course, the size of the loss reflected a serious offence, a fiscal compensation order would not be appropriate.

We recommend that a procurator fiscal should be able, in conjunction with or separate from a fiscal fine, to impose a compensation order on an alleged offender. We recommend that in parallel with s250 of the 1995 Act, the procurator fiscal should prefer a compensation order where an offender's means appear to be insufficient to pay both a fiscal fine and a fiscal compensation order.

Guidelines on the use of compensation orders should be produced. The guidelines should, as far as possible, be publicly available.

We recommend that both the courts and the procurator fiscal should be given power to make a compensation order where the victim of offending behaviour has been subjected to behaviour which is frightening, distressing, annoying or has caused nuisance or anxiety.

We recommend that fiscal compensation orders should have no prescribed upper limit.

We recommend that the arrangements for enforcement of fiscal compensation orders should be the same as for fiscal fines/FPNs.

Other Diversion from Prosecution Schemes

11.58 Information from 2002-3 shows that 2173 cases were referred to diversion schemes, of which 1,744 cases were accepted by the schemes concerned. Schemes are generally run by the Criminal Justice Social Work Departments of local authorities, often in partnership with voluntary organisations. Health Boards are also occasionally involved. Schemes seek to provide support which focuses on offenders with particular social or mental problems, such as drug or alcohol addiction or mental health issues. In addition, there are a limited number of mediation and reparation schemes run by SACRO providing full restorative justice. Although there are schemes in each of the areas currently covered by the social work groupings, coverage varies between localities.

11.59 It appears that schemes are limited by the number of places available, rather than by the number of suitable clients and it might be that the increase in the availability of places on such schemes could reduce the number of court prosecutions. The Committee was, however, very aware of the risk that the extension of such schemes could lead to a degree of net widening - in effect, providing an alternative to "no proceedings" rather than to prosecution.

11.60 In discussing the further use of diversion schemes, the Committee noted that there was little evaluation available of the costs and benefits of the schemes. Although those schemes the Committee examined appeared to work well and were supported by procurators fiscal and social workers, the Committee considered that recommendations on their relative efficacy as a diversion measure was on the margin of their remit. It did not feel that it had enough information firmly to recommend their wider use. It did, however, consider that more should be done to evaluate the costs and benefits of diversion schemes as compared to other types of disposals. The Committee was concerned that good schemes should, where possible, be available nationally. Consistency of provision across the country would ensure that offenders could be dealt with similarly no matter where they live, which is not the situation at present.

We received very positive feedback from sentencers, procurators fiscal and social workers about the value of diversion schemes and recommend that effective schemes be made available nationally. We note, however, that little has been done to evaluate the costs and benefits of diversion schemes compared with other types of disposals.

We recommend that steps should be taken to ensure that, where a scheme has proved to be successful, it is available consistently across the country.