Thematic report on fiscal fines

5.1 As previously indicated a random selection of approximately 1500 Fiscal Fines was examined as the core piece of work of this inspection. Because of multiple accused and multiple charges this translates into approximately 2000 individual charges (about 40% of the cases closed that month).

5.2 This covered all 7 possible levels and the numbers examined by Area according to the level is as per the undernoted tables. A higher proportion of cases in Levels 5-7 were examined on the assumption these would be more 'serious' cases.

Argyll and Clyde

Ayrshire

Central

Dumfries and Galloway

Fife

Glasgow

Grampian

Highlands and Islands

Lanarkshire

Lothian and Borders

Tayside

TOTAL = 1,457 CASES

5.3 The type of cases covered included a wide range of both statutory and common law offences.

5.4 Common law offences included:-

• Assault
• Theft
• Breach of the Peace
• Malicious Damage

5.5 Statutory offences included a wide range, the most common were as follows:-

• TV licensing
• Drinking in public
• Misuse of Drugs Act (possession of Class B or C drugs)
• Littering
• Vandalism
• Certain transport offences
• Certain licensing contraventions
• A miscellaneous group of rather esoteric offences

5.6 It is too early to say what long term impact Fiscal Fines and other Direct Measures will have but the Annex shows figures obtained from the Crown Office and Procurator Fiscal Service database. It shows an initial drop in the number of Fiscal Fines issued between April and September 2008 compared to the same period in the previous year when the increased powers were not available.

5.7 All of these cases were examined against the Crown Office guidance and those with apparent non compliance were raised for comments from the issuing Procurator Fiscal's Office.

5.8 207 cases were 'queried' with the issuing offices (about 14% of the total).

5.9 The most frequent query was regarding the level of Fiscal Fine issued. Most commonly this was on the basis of a level below the recommended minimum level and on a few occasions it was also queried on the basis of being too high. In total 63 such queries were made which was approximately 30% of the total number of queries.

5.10 The majority of responses were to the effect of accepting that there had been non compliance with the instructions given on level although there were usually explanations given in each case such as the age of the accused, the ability to pay or the very minor nature of the offending conduct.

5.11 25 queries related to charges of assault and given the prevalence of concern regarding assault these are dealt with later.

5.12 The remainder of the queries tended to fall into one of the following categories:-

• The accused was subject to a bail order or on deferred sentence for an analogous matter
• The accused was subject to an order of court ie community service or probation order, drug treatment and testing order, restriction of liberty order, supervised attendance order and licence
• That there was information to suggest that the accused might be suffering from a mental disorder

5.13 A very small number related to non English speaking accused with no translation offered.

Assaults

5.14 Most of the concerns raised about the use of the new Fiscal Fines centred on assault. The Solicitor General as recently as November 2008 in answer to a Parliamentary Question gave figures for the number of "direct measures" (including Fiscal Fines) issued for assault and assault to injury.

5.15 It is important to remember that the issue of a Fiscal Fine for assault was not new and has been in use since 1987. The previous limits were £25 (in 1987) and £100 in 1996. The new provisions extend this to £300 with the possibility of combining this with compensation offers or a stand alone compensation offer. The new system is not, therefore, innovative but an extension of the old system.

5.16 Public perception and confidence is, however, important and we therefore looked closely at the assault cases thrown up in our random sample. 142 charges of assault were examined (out of the total case sample of 1437 cases or 9.8%). This corresponds closely to Crown Office figures for direct measures used for assault as a percentage of all such issued.

5.17 The following table shows the level of Fiscal Fine issued for the 142 cases.

Assaults (by Level of Offer)

5.18 As at 26 January 2009 the average Sheriff Court Fine for assault was £292, the average District Court Fine for assault was £150. The average fine issued in the above 142 cases was £140.

Assaults Queried

5.19 We asked for comments from the issuing Procurator Fiscal Offices on 25 out of 142 assault charges examined (17.6% of the total). This did not mean we thought the decisions were 'wrong' but wished clarification of the action taken. The following table shows the breakdown by type of query and the percentage that category of query represents out of the total number of assaults examined.

5.20 From our examination of these 142 cases in only 5 cases did we take issue with the use of the Fiscal Fine looking at the nature of the assault. This is not, of course, an exact science and these cases are not 'unlawful' but we think they should have been prosecuted. In October 2008 the guidance given to staff was tightened up and all 5 of these cases would, in our opinion, now be excluded from the issue of a Fiscal Fine. This also applies to 4 of the 9 cases where we were persuaded the issue of a Fiscal Fine was not inappropriate ie in 4 of these cases this would not now be allowed.

5.21 3 of the cases queried breached other prohibitions based on the status of the offender eg on probation. We would not have taken issue with their use in the circumstances of the case but for that self imposed Crown Office rule.

5.22 The 4 cases in the 'other' category included situations where the mental health of the accused might be an issue or where translations had not been done.

5.23 Overall the vast majority of Fiscal Fines for assaults were appropriate and proportionate especially looked at from the general principles of summary justice reform, in particular speedier disposal (most cases were dealt with within a few days of receipt from the police) and less inconvenience to witnesses etc.