Coronavirus Recovery and Reform (Scotland) Act 2022 - criminal justice measures: consultation

Chapter 4 – Fiscal Fines

Legislative reference: Part 2 of the Schedule of the Coronavirus (Recovery and Reform) (Scotland) Act 2022

Fiscal fines are disposals which are offered as an alternative to prosecution and are considered in appropriate cases, which would otherwise have proceeded in the lowest level of criminal court in Scotland – the Justice of the Peace Court, by the procurator fiscal. This enables cases to be resolved without the need for court procedure and associated appearance at court which enables the courts and prosecutors more time to deal with more serious cases.

Fiscal fines are offered as a penalty and allow the alleged offender to refuse the offer by giving notice to the court to that effect. In such an event the refusal is treated as a request by the alleged offender to be tried for the offence in which case the procurator fiscal will then decide whether to prosecute.

We propose to make permanent the increase in the maximum level of fiscal fine from £300 to £500 originally legislated for in the Coronavirus (Scotland) Act 2020, and retained on a temporary basis through the Coronavirus (Extension and Expiry) (Scotland) Act 2021 and the Coronavirus (Recovery and Reform) (Scotland) Act 2022 (the 2022 Act) to enable alternative action to prosecution to continue to be taken in a wider range of summary cases as an alternative to prosecution in court.

The proposal also seeks to make permanent the new scale of fixed penalties which may be offered by the Crown Office and Procurator Fiscal Service (COPFS) as an alternative to prosecution. The new scale is set out in the 2022 Act and ranges from £50 to what was a new maximum level of £500. The pre-Covid maximum level was £300.

The 2022 Act introduced a new, more balanced, nine-point scale to that which was originally introduced by the Coronavirus (Scotland) Act 2020. The new nine-point scale includes the seven levels of fiscal fine that were available to prosecutors before the 2020 Act (up to £300) and two new levels of fiscal fine of £400 and £500, reflecting the experience of using the seven-point scale put in place at the start of the pandemic.

Crucially, this will ensure there is no increase to the level of fiscal fine offered in individual cases which would previously have been dealt with in this way prior to the pandemic which therefore allows for proportionate penalties to be issued by prosecutors for lower-level offences while also providing a higher maximum penalty for appropriate cases. It will also better enable alternative action to prosecution to be taken in a wider range of summary cases without the need for court procedure and associated appearance at court.

In accordance with the revised policy guidance in relation to fiscal fines issued in April 2020 by the Lord Advocate as head of the prosecution system in Scotland, the increase in fine amounts has enabled alternative action to prosecution to be taken in a wider range of summary cases during the impact of the pandemic on the justice system, where such action is assessed as appropriate by prosecutors.

Information provided by COPFS outline that since implementation of the initial version of the revised scale on 7 April 2020, on average, 3% of individuals offered a fiscal fine and 0.4% of individuals offered a combined offer (a combination of both a fiscal fine and a compensation offer) have been issued with a fine amount between £300 and £500.

Any penalties offered by a procurator fiscal must reflect the scale prescribed under the Criminal Procedure (Scotland) Act 1995. If any changes to the scale of fiscal fines are decided upon, this could be possible through an affirmative order under section 302(7) and (7A) of the 1995 Act rather than through primary legislation.

Question 5

It is proposed that the provisions for Chapter 4 (Fiscal fines) will be made permanent. Which of the following best describes your view?

I think the provisions for Chapter 4 should be made permanent.

I think the provisions for Chapter 4 should be made permanent, with exceptions.

I do not think the provisions for Chapter 4 should be made permanent.

Unsure.

I have no view.

If you have any comments on the proposal for permanency of this provision, please

provide them below.