Scottish Sentencing and Penal Policy Commission report: Justice That Works

Chapter Three: Use of early interventions and alternatives to court proceedings

Summary

Many people who offend could be better supported through direct measures and early-intervention pathways instead of formal prosecution, which often escalates problems, increases stigma and limits opportunities for change. Acting earlier allows the justice system to respond proportionately while avoiding unnecessary criminalisation. Proportionate measures - such as warnings, fiscal penalties, restorative options and diversion linked to mental-health, substance-use or social-work support - show strong evidence of effectiveness.

Broader, more consistent use of these approaches across Scotland would reduce court demand, shorten delays, improve victims’ experience and provide constructive alternatives that interrupt cycles of offending. Inconsistent availability and use of direct measures risks undermining fairness and public confidence. Stronger partnerships between justice agencies, health services and community organisations would enhance delivery.

Clearer national guidance, improved public understanding and transparent monitoring of outcomes would strengthen confidence in direct measures as a credible and fair response. Used well, these approaches support both public protection and better long-term outcomes by addressing underlying needs rather than entrenching harm.

By “alternatives to court proceedings” we are referring to community-based actions that prevent escalation, potentially to a court, for example police direct measures and Crown Office and Procurator Fiscal Service (COPFS) alternatives to prosecution. In many cases, the use of alternatives to court proceedings can be the starting point for police and prosecutors when considering what action they should take in respect of adults who have offended. However, currently many cases dealt with in Justice of the Peace and Sheriff Courts have outcomes that could have been imposed much earlier by the police or prosecutors using a direct measure such as a fine or a recorded police warning.

All direct measures and diversions from prosecution are exercised under the independent authority of the Lord Advocate, who has overall responsibility for prosecution policy in Scotland. The Lord Advocate issues guidance³³ setting out the categories of offences and circumstances in which alternatives to court proceedings may be used. This is to ensure that decisions taken by prosecutors and police operate within a nationally consistent framework and remain subject to independent prosecutorial oversight.

If a person does not wish to accept an offer of a direct measure they can refuse it. A decision will then be made about potential proceedings in court. If a financial penalty direct measure is accepted but unpaid, then it becomes registered as a fine for collection purposes. If they are having financial difficulties, application can be made to pay in instalments. Work orders can be offered if it appears that a prosecutor financial penalty is not appropriate because of the person’s financial position or that contributing work for the benefit of the local community would be a better option. Accepted direct measures, while not treated as convictions, can be made known to the sentencer if the person appears in court on another matter within two years.

Although we are mindful that sometimes, regardless of the likely disposal, prosecution will be appropriate, using direct measures for many more cases that are assessed as unlikely to merit custodial sentences could allow resources to be freed up. These could be used to improve support for victims and allow the police, COPFS, defence solicitors and courts to better meet the increasing demands placed on the criminal justice system by those who cause serious harm to others.

Early interventions

“A key step forward for this more preventative approach would be to extend the Scottish Government’s WSA to all young people, up to the age of 26…Whilst this may require increased funding and resources, the strong evidence of the efficacy of WSA in reducing contact with the justice system, makes a very compelling case for preventative spend.” – Children and Young People’s Centre for Justice, Call for Evidence.

The Whole System Approach (WSA) which has been used in Scotland since 2011 involves “putting in place streamlined and consistent planning, assessment and decision making processes for young people who offend, ensuring they receive the right help at the right time.”³⁴ The aim is to reduce offending and reoffending through targeted use of early intervention and robust community alternatives.³⁵ Evaluation of the WSA in Scotland, as well as evaluations from other countries, highlight that swift tailored action, coupled with suitable social work support when needed, is more effective in reducing repeat offending than court outcomes,³⁶ although there are also some areas where further evidence is needed.

In most of Scotland, the WSA is only available for young people under 18. This is inconsistent with other current policies and the evidence which suggests young people should be treated differently until the age of 25³⁷ to reflect that they may not have attained full maturity and have a greater capacity for change and rehabilitation.³⁸ A WSA approach has been extended to young people up to the age of 21 in West Lothian, with some experts arguing that “the evidence presents a powerful case for extending the WSA to age 21” more widely.³⁹ Other experts in WSA and early intervention warn of a need to avoid the risk of net-widening in some cases, that is, the risk of further entangling some young people in the system and subsequently producing the very outcomes these approaches seek to prevent.⁴⁰,⁴¹

Looking further afield, other European countries have extended youth justice approaches and the ability to apply special legal provisions to young adults, promoting diversion and community-based alternatives to custody. Countries extending these to young people up to their 21st birthday include Germany,⁴² Austria,⁴³ and Croatia,⁴⁴ and it is up to age 23 in the Netherlands.⁴⁵

As set out in Chapter Two, the Scottish Government’s recently published Public Service Reform Strategy⁴⁶ sets out commitments to make public services better joined up, more efficient, and more preventative – to deliver for the people of Scotland.

There is clearly a strong preventative argument for focusing resources on people when they are younger, as any reduction in subsequent years of criminality and public service use should result in many fewer victims, improved life outcomes for the young people and significant future savings of public money. This is particularly true if prolific offenders are focused on. The Scottish Government’s own Youth Justice vision 2024-26⁴⁷ recommended extending the WSA beyond the age of 18 but there remains much to be done to achieve this goal.

Recommendation 3.1: Extend the whole system approach to those under 25, focused initially on particular cohorts such as prolific offenders. Lead partner – Scottish Government.

Alternatives to court proceedings for adults

While the use of swift, trauma informed, person centric, community-based actions in the WSA, rather than using court proceedings, delivers positive outcomes for many young people and therefore their communities, such opportunities are often missing when the justice system deals with adults who have offended.

Many adults who have offended will have experienced similar challenging environments and traumatic life events in their youth, but have become caught up in a cycle of offending,⁴⁸ court appearances and prison, with little or no rehabilitative opportunities. Historically there has been insufficient effective collaborative working to provide delivery of targeted support to tackle the issues that underpin offending behaviours and can help disrupt that cycle.

In some circumstances, rather than processing an older person who has offended through court, the most appropriate action by police or prosecutors may be to use an alternative to court proceedings. This approach aims to disrupt the cycle of repeated court appearances and offending by offering support for change through diversion from prosecution or by providing opportunities to contribute to the community through unpaid work.

Scotland’s police and prosecutor alternatives to court proceedings are important assets when creating conditions which support penal policy that works to reduce reoffending. These methods are designed to be both proportionate and effective, while providing victims with much swifter resolution than a court outcome. Direct measures are also much less cost and resource intensive than court proceedings, freeing money and resources which could be reallocated to better support victims and tackle serious crime.

However, responses to the Commission’s Call for Evidence raised the need for availability of wider options for diversion from court proceedings and direct measures to be used by police and prosecutors, and further innovation around their use.

Keeping victims informed of alternatives to court proceedings

Although not as well advertised or known to the public as court sentences, there are several alternatives to court proceedings in use. They have a range of benefits in addition to making sure expensive and lengthy court proceedings, often involving additional stress for victims, are reserved to deliver outcomes that only a court can impose. These alternatives include much earlier outcomes for victims and accused. In cases where diversion is possible, there is much quicker focus on beginning structured work with the person who has offended on underlying causes such as poor mental health or addiction, with the aim of preventing further offending, re-victimisation or future victims.

This can sometimes be more reassuring than lengthy court proceedings with accompanying uncertainty as to outcome. Evidence suggests that alternatives to court proceedings “are effective, compared to court prosecution, at reducing harm and reoffending and sustaining victim confidence and satisfaction.”⁴⁹

However, we recognise that some victims may not agree with a decision to use direct measures in their case – just as they may not agree with the outcome of some court proceedings. There are further improvements that could provide victims and the public generally with more confidence and reassurance about use of direct measures.

Recommendation 3.2: When using alternatives to court proceedings victims should be informed and supported throughout the process. Lead partners – Police Scotland and COPFS.

Police direct measures

Police officers are often the first point of contact with an alleged offender. They assess if there is sufficient evidence to prove that a crime has been committed, and whether it must be reported to COPFS or can be dealt with sufficiently by one of their own formal powers. These include issuing Recorded Police Warnings (RPWs) for certain crime types set out in the Lord Advocate’s guidance, or Antisocial Behaviour Fixed Penalty Notices (ASB FPNs). Both enable police officers to deal with low level offending behaviour without referring matters to the prosecution service.

ASB FPNs can be issued by police officers for a limited range of antisocial behaviour offences such as breach of the peace and alcohol related offences. ASB FPNs confirm to people that what they have done is not acceptable and has caused alarm or distress, with the intention of dealing with this at the earliest opportunity and preventing further antisocial behaviour and its effects on communities. The person who has offended has 28 days to challenge the FPN or pay in full.

Since ASB FPNs were first introduced in 2004,⁵⁰ the penalty payable has remained at £40. While any fines must take account of a person’s income, and some whose behaviour might otherwise attract a FPN may not have the disposable income to pay any fine, some have suggested an option allowing police to offer a higher rate of penalty in circumstances where the person does have ability to pay, and which may act as a more appropriate penalty/deterrent.

Recommendation 3.3: Consider introducing higher tiers of Antisocial Behaviour Fixed Penalty Notices to allow the police to offer these proportionate to an individual’s ability to pay. Lead partners – Scottish Government and Police Scotland.

Currently, police officers do not have the power to issue direct measures for threatening and abusive behaviour in terms of section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. The most recent official statistics show that more than 30,000 instances of Threatening and abusive behaviour (under Criminal Justice and Licensing (Scotland) Act 2010 Section 38) were “cleared up” by police in 2023-24⁵¹ meaning there existed a sufficiency of evidence to justify consideration of criminal proceedings.⁵²,⁵³ In the same year, 10,599 people were proceeded against in court for a main charge of threatening and abusive behaviour, 5,209 Recorded Police Warnings were issued for the offence, and COPFS issued a further 1,497 Fiscal Fines.⁵⁴

Any expansion of police direct measures would require Police Scotland, Scottish Police Authority (SPA), and HM Inspectorate of Constabulary in Scotland (HMICS) to remain vigilant in scrutinising inequalities in implementation. Research on uses of FPNs recommends that “if eligible offences are tightly defined and narrow in scope, with clear criteria on which to base decision-making, the risk of unequal impact can be reduced, and legitimacy of the sanction increased”.⁵⁵ Any expansion in this area should have due regard to outcomes of the recommendation by the Independent Working Group on Antisocial Behaviour that there be a review of the statutory framework and range of orders specified in antisocial behaviour legislation. The Scottish Government have said this is being undertaken and will report in the next Parliamentary session in 2026.⁵⁶,⁵⁷

Recommendation 3.4: Consider making s38 offences eligible for Police Antisocial Behaviour Fixed Penalty Notices and ascertain if there are further statutory offences that would be suitable for police direct measure. Lead partners – Scottish Government, COPFS, and Police Scotland.

Prosecutors can refer people to Justice Social Work for diversion to services that are designed to address underlying issues and unmet need, such as addiction or poor mental health which may be leading to offending behaviours. However, there is no similar option for the police to refer people as a final outcome. We have heard that this could be an appropriate tool for people who have offended to access support to change behaviours at the earliest opportunity.

Increasing the scope and volume of police formal direct measures and enabling police to divert an individual to Justice Social Work or appropriate third sector services has the potential to reduce the number of reports being sent to COPFS, freeing up significant police and COPFS resources to be used in supporting victims and dealing with people who have committed the most serious offences. Wise safeguards against risks of net-widening at this early stage of intervention, and monitoring of implementation, can be a focus for the Inspectorates of Prosecution and Constabulary.

Recommendation 3.5: Consider widening the actions available to the Police to include the ability to divert an individual to Justice Social Work or third sector services. Lead partners – Scottish Government, Police Scotland, COPFS, Justice Social Work and third sector.

Alternatives to court proceedings

When the police do report a case to COPFS, and there is sufficient evidence to allow for prosecutorial action, the procurator fiscal must then decide whether it is in the public interest to take any action.

The Prosecution Code sets out criteria for assessing the public interest test: the nature and gravity of the offence; the impact on victims and witnesses; the age, background and personal circumstances of both the accused and of victims and witnesses; the attitude of the victim; the motive of the crime; how long since the offence; mitigating circumstances; the effect of prosecution on the accused; the risk of further offending; the availability of a more appropriate civil remedy to settle the conflict or issue; powers of the court to take certain action on conviction; and public concern.

Other than taking proceedings in court, prosecutors can instead refer a case to the local Justice Social Work team to assess the accused for possible diversion from prosecution, if it appears that there are underlying factors which have contributed to the offending behaviour such as addiction or mental health issues. Or they can issue a COPFS direct measure including a warning in person or by letter, a fixed penalty for certain road traffic offences, a fiscal work order, fiscal fine and/or compensation order.

Some prosecutor direct measures are not currently being used as frequently as might be expected. We learned that each year many thousands of people are receiving court disposals,⁵⁸ such as relatively low fines or unpaid work orders, that could have been dispensed by COPFS within a few weeks of the offending event. In contrast, the median journey time from offence to verdict in the Sheriff summary court is eight months.⁵⁹

Diversion from prosecution

“Greater use of initiatives such as diversion from prosecution can provide an opportunity to provide support at the right time to address emerging risks. In many cases this may be effective in reducing the risk of future offending by maintaining protective factors and community ties.”

– The British Psychological Society, Call for Evidence.

Diversion is an option when the accused person has an identifiable need that has, or appears to have, contributed to their offending. As set out above, prosecutors can refer people to Justice Social Work for diversion to services that are designed to address the underlying causes of their alleged offending behaviour, and unmet need. COPFS may decide to waive prosecution at the outset or to defer a decision on prosecution pending the successful completion of the diversion.

Effective diversion can reduce reoffending, increase stability in people’s lives, and protect communities from further harm.⁶⁰,⁶¹ “It offers an intelligent form of justice, recognising that punishment alone rarely addresses the root causes of offending behaviour. Prosecutors can intervene before an individual becomes entrenched in the cycle of prosecution and conviction, or to disrupt an existing cycle, while requiring substantially less delay and public expenditure than a court case.

Diversion has been advocated in appropriate cases with specific groups; for example, by the Scottish Drugs Death Taskforce⁶² for use with people who use drugs, and by the Scottish Mental Health Law Review for use with people with a mental or intellectual disability.⁶³

The Joint Review of Diversion from Prosecution (2023)⁶⁴ conducted by HM Inspectorate of Prosecution in Scotland, HM Inspectorate of Constabulary, the Care Inspectorate, and HM Inspectorate of Prisons, concluded that diversion is working well in many respects and provides an effective alternative to prosecution. The review found high levels of satisfaction among participants and partner agencies, with around 90% of those who commenced diversion completing it successfully. Diversion was shown to be particularly effective when referrals were timely, interventions were tailored to individual needs, and local partnerships between prosecutors and justice social work were strong.

However, the review also identified significant inconsistency in how diversion operates across Scotland. Access to services, the quality and speed of referrals, and the level of engagement with victims varied markedly between areas, producing what inspectors described as a “postcode lottery.” Some local justice social work services reported limited capacity to take on referrals, leading to cases assessed as suitable for diversion not being progressed. Information gaps in police reports and inconsistencies in communication between Police Scotland, COPFS, and justice social work were also found to limit effective decision-making. The recommendations from the Joint Review of Diversion from Prosecution should be implemented as soon as possible to improve processes, consistency, measurement of outcomes, and public awareness.

Post COVID-19 pandemic, the number of cases diverted has increased substantially, however, we have also heard that there is scope to further expand the use of diversion and improve the rates of those referred for assessment who go on to be diverted. The latest figures available show that a large number of cases referred to Justice Social Work for assessment were not able to be progressed,⁶⁵ while in some instances individuals were assessed as suitable but lack of capacity meant that diversion could not progress. That must be addressed urgently.

Recommendation 3.6: Increase the number of accused persons diverted from prosecution and ensure that all people referred by COPFS for consideration are assessed for diversion and when suitable are diverted from prosecution. Lead partners - COPFS and Justice Social Work.

Understanding of and legislation on domestic abuse has developed over time, in line with research evidence and growing awareness of the issue. Preventing and tackling domestic abuse is a critically important priority for policymakers in the Scottish Government and Scottish Parliament, as part of their obligations,⁶⁶ and for all decision-makers across Scottish Justice. We want to be clear that serious domestic abuse will always require to be prosecuted. The Lord Advocate and COPFS have demonstrated that this is a priority area.⁶⁷ Some behaviours that may be just over the threshold of what is in scope for prosecution as domestic abuse, however provide opportunities for prosecutors to act in the interests of prevention.

Article 16 of the Istanbul Convention sets out expectations on nations offering “preventative intervention and treatment programmes” for violence against women and girls.⁶⁸ However the complaints we have heard about the “post-code lottery” currently limiting the opportunity for people who have offended in some areas of Scotland to participate in intervention work, apply to referrals by both prosecutors or courts and includes those interventions aimed at preventing further domestic abuse. This is not acceptable and cannot be reconciled with the Scottish Government vision of a Scotland where women and girls live free from all forms of violence and abuse, as well as the attitudes that perpetuate it.⁶⁹

If there were suitable interventions available it may be an appropriate response in some instances for prosecutors to be able to offer diversion. This would be in recognition of behaviours being displayed by an individual in a relationship that may escalate to abuse, in order to reduce the likelihood of that happening. Some of these instances could be dealt with appropriately and more swiftly if COPFS had the ability to issue an order around an accused person’s behaviour similar to measures found in some non-harassment orders (NHO) which may be granted by a court after conviction on the application of the prosecutor.⁷⁰

As set out in Chapter Five, victims’ groups have highlighted the importance of NHOs and noted that in some circumstances they can be felt by victims to be preferable to a short sentence. Alongside an alternative to court proceedings a “behaviour order” issued by COPFS could for example, require an accused to refrain from particular behaviour which may cause alarm or distress for a given period – or throughout the period of a diversion from prosecution. If the behaviour order or participation on the preventative programme was not adhered to, COPFS could then consider whether to prosecute that individual.

Recommendation 3.7: COPFS should have the ability to issue “behaviour orders” to the accused. Lead partner – COPFS and Scottish Government.

Fiscal Work Orders

Fiscal Work Orders (FWO) provide the procurators fiscal with the option of offering an accused a period of unpaid work of between 10 and 50 hours, as an alternative to prosecution and an opportunity to make reparations to their community. Fiscal work orders have a number of advantages over fines in that they require a person who has offended to make reparations directly to their community, and unlike a fine, they can be appropriate regardless of a person’s income.

However, despite these advantages the numbers of FWOs issued by prosecutors have declined substantially over the last ten years and there were only 40 fiscal work orders imposed in 2024-25.⁷¹

Figure 3: Number of Fiscal Work Orders commenced, 2015-16 to 2024-25

Source: Justice Social Work Statistics in Scotland: 2024-25 – Part 1 – gov.scot

In addition to this, in 2024-25 there were only 82 fiscal work order assessments undertaken by local authorities. These orders were accepted in less than half of these assessments primarily due to a lack of engagement by the person who has offended, although assessments did not always indicate the extent of the efforts made by Justice Social Work to engage the accused person.⁷²

Source: Justice Social Work Statistics in Scotland: 2024-25 – Part 1 – gov.scot

Recommendation 3.8: Substantially increase the use of Fiscal work orders. Lead partners – COPFS and Justice Social Work.

Fiscal fines and Fiscal compensation orders

Fiscal fines are financial penalties offered by the Procurator Fiscal as an alternative to prosecution for certain offences. The upper limit of these fines was increased to £500 in 2020 – prior to that the limit was £300. This enables cases to be resolved within weeks of being reported to COPFS without the need for court procedure which could take months and cause additional inconvenience and stress for victims and witnesses cited to give evidence.

In 2023-24, there were 25,082 financial penalties issued by Scottish courts. Of these, 24,326 were fines and the median fine was £300 meaning that half of all fines were £300 or less.⁷³ Although there will sometimes be other considerations that COPFS take into account when deciding that court is the only option, it appears as if there is scope for some offences to be dispensed with substantially earlier in the system by use of fiscal fines and/or compensation orders.

A fiscal compensation order requires an accused to pay financial compensation to a victim as part of a decision not to prosecute. Compensation orders may be issued by COPFS for up to £5000 for monetary loss, personal loss, or alarm or distress. As with a fiscal fine, the level of compensation is registered against the accused as a fine. The compensation part is paid first from the payments made by the accused, then the fine amount. Official Statistics show that in 2023-24⁷⁴ there were 4,912 Combined Fine Plus Compensations (16% of COPFS disposals) and 841 stand-alone fiscal compensation orders (3% of COPFS disposals).

Fiscal compensation orders (alone or combined with another direct measure such as a fiscal fine) provide an opportunity to make it clear to the accused that their behaviour has impacted the victim. We consider that the use of fiscal compensation orders is to be encouraged as they provide victims with direct compensation substantially quicker than court proceedings which often result only in a fine.

Recommendation 3.9: COPFS, should carry out an analysis in consultation with victims’ groups, of a sample of recent cases which attracted a fine of less than £500 from courts. This will provide a better understanding of which types of offences could be more effectively addressed with a fiscal fine and/or compensation order. Lead partners – COPFS and victims’ groups.