Chapter 4 – Implementation by Crown Office and Procurator Fiscal Service
4.1 Section 50 of the 2007 Act was brought into force on 10 March 2008. Prior to that an extensive training programme was rolled out by Crown Office and Procurator Fiscal Service in the then newly opened Scottish Prosecution College in Glasgow. Staff involved in the decision making process were targeted for this training. It was wide ranging covering all aspects of summary justice reform including the availability of the new Fiscal Fines. Practical exercises as well as theory were included in this training which was run over a period of 2 days. 410 staff were trained between January and March 2008. E-learning was also used extensively in addition to face to face training. Fiscal Fines are part of 'Direct Measures' which also include compensation offers and in pilot areas, work offers (excluded from this report).
4.2 The policy and guidance on the issue of Fiscal Fines remains confidential. The then Solicitor General explained in Parliament during the passing of the Bill that it would not be appropriate to issue this into the public domain as there was a danger that accused persons might tailor their behaviour accordingly. (Justice 1, May 2006)
4.3 In recent years the Crown Office has tried to be as forthcoming as possible on policy matters. Extensive consultation has been made and advice taken in the areas of race crime, domestic abuse, knife carrying, sexual assaults and others. Giving detailed lists of offences/crimes with indicative penalties was unsurprisingly not deemed in the public interest.
4.4 Nevertheless the Law Officers have made as much information as possible public and in particular to the Scottish Parliament by way of detail on the number and type of offences for which Fiscal Fines have been issued since their introduction.
4.5 Extensive written guidance was provided to Crown Office and Procurator Fiscal Service staff in the form of circulars and updates to the Crown Office Book of Regulations (which is the standard book of instructions given to Procurators Fiscal on how they should conduct their activities). Fiscal Fines in the Book of Regulations are included under the heading of "Direct Measures" (ie cases where prosecution in court in the first instance would be a disproportionate response) and include powers available to the police to deal with minor level offending. These are in addition to the Prosecution Code which is a public document.
4.6 The usual rule of sufficiency of evidence applies to Direct Measures and presents a first hurdle. Thereafter the rules of the Code apply.
4.7 The general approach, however, is based on the overarching objectives of reducing offending and re-offending and maintaining and improving public confidence in the criminal justice system.
4.8 There is, for the first time, a presumption in favour of taking action and the decisions are outcome focussed requiring the issuer to decide on the appropriate outcome for the offender, the victim and the wider community and the most suitable option to achieve it. Particular regard is to be had to previous convictions and the likelihood of re-offending which can 'lift' a non-serious offence into the prosecution in court option.
4.9 Sentencing objectives are broken into 7 categories with indicative disposals shown for each of these. Some of these would attract court action rather than the issue of a Fiscal Fine.
4.10 The guidance having established the general ground rules then gives staff a list of situations where Fiscal Fines must not be issued and these include categories which are in the public domain such as violence likely to attract imprisonment, violence against police and emergency workers, the use of knives or offensive weapons, racial or religious prejudice, domestic abuse and cases where there is a significant sexual element or the accused suffers from a mental disorder.
4.11 In addition to categories of crime/offences which are struck at by the nature of the offence themselves there are prohibitions on the issue of Fiscal Fines dictated by the circumstances of the offender such as the offender's record or status. This prohibition applies irrespective of what might otherwise be a minor offence.
4.12 There is then another general category where the issue of Fiscal Fines may be inappropriate and there is in effect a presumption against their use although they are not automatically excluded.
4.13 Following all these general principles there is very detailed guidance on individual offences and crimes including guidance on an indicative level for the Fiscal Fine. This is done "in order to achieve a consistent approach to the use of Fiscal Fines". This detailed guidance covers an array of the most common statutory and common law offences.
4.14 The guidance is provided on the level of Fiscal Fine and this is split into 7 segments (£50, £75, £100, £150, £200, £250 and £300).
4.15 All this guidance and background material was provided, among other reasons, to honour the undertakings referred to given to the Scottish Parliament by the Law Officers and represented a considerable body of work for those involved.
4.16 The new system then commenced in operation in March 2008. Such a change although not in principle fundamentally different from what had preceded it attracted a lot of media attention and comment from defence lawyers and others. Some 'individual' cases were cited as being inappropriate use of the new measures.
4.17 Information on the use of Fiscal Fines was provided by the Crown Office and Procurator Fiscal Service and the Law Officers in accordance with the undertakings given to the Scottish Parliament including an early indication of the numbers being used.
4.18 Letters were sent by the Law Officers to the Justice spokespersons in July 2008 in connection with implementation of the summary justice reforms and on 4 September 2008 the Lord Advocate wrote to the Justice Committee of the Scottish Parliament and the Law Society of Scotland to provide information on the implementation.
4.19 As recently as January 2009 updates on the number and type of Fiscal Fines issued have been given to Members of the Scottish Parliament.
4.20 Prior to that on 26 June 2008 the Lord Advocate when answering questions and concerns raised by MSPs at Law Officer's Question Time (when it was suggested that there were reports that cases had been 'diverted' from prosecution including cases of domestic violence and serious assault) in reply indicated that close monitoring was taking place to ensure compliance with the guidance. She also indicated that this Inspectorate intended to carry out an inspection of the implementation.
4.21 In particular she stated -
"We should be cautious of becoming hysterical about the use of Fiscal Fines on the basis of anecdotal evidence. Members are aware that many solicitors in defence practice are very apprehensive about the potential loss of income because of the changes."
4.22 The Inspectorate carried out this thematic report in an effort to get away from "anecdotal" evidence and to look at decisions actually made by prosecutors up and down the country.