Chapter 8 – Alternatives to Prosecution
"The use of non-reporting options can avoid the need for further, possibly disproportionate action and we see clear benefits from enabling the police to exercise a wider range of options appropriate for minor crimes and offences. Providing these options should limit the number of cases reported to Procurators Fiscal and hence the number of cases coming to court."
The Summary Justice Review Committee "Report to Ministers 2004
The ACPOS and COPFS Working Group considered alternatives to prosecution. In relation to trivial offences, it was noted that police already have discretion not to report to Procurators Fiscal. It found that while there was widespread practice of not reporting Drunk and Incapable cases, there was little evidence of local agreements on non-reporting of cases between police forces and local Procurators Fiscals. The Working Group saw no reason why greater use could not be made of such agreements based on local circumstances. This was addressed within the ACPOS/ COPFS Joint Protocol through the following:
- Area Fiscals and Chief Constables (or in Strathclyde, Divisional Commanders) should identify categories of minor offences in respect of which they agree that reports should not be submitted. Any such agreement should be reviewed annually as should the capacity to extend it to other offences [ ACPOS/ COPFS - Rec. 15]
The Working Group also considered the issue of police written warnings as an alternative to reporting cases. It made reference to a Joint Protocol that was agreed between ACPOS and COPFS in 2000, relating to the use of police written warnings to supplement informal verbal street warnings. It considered an adult written warning system to be an appropriate way of dealing with many minor offences and to be consistent with a policy of encouraging greater use of police discretion. It was noted that written warnings allow decisions to be made quickly and avoid the need to complete and submit a report to the Procurator Fiscal, who in such cases would most likely opt for a non-court disposal. The group believed that the nature of the offences in respect of which written warnings should be given would best be agreed at local level, taking into account local needs. This was addressed within the ACPOS/
COPFS Joint Protocol through the following:
- Area Fiscals and Chief Constables (or in Strathclyde, Divisional Commanders) should identify categories of minor offences in respect of which they agree that the Police may issue written warnings to offenders in accordance with the Joint ACPOS/
COPFS Protocol. Any such agreement should be reviewed annually as should the capacity to extend it to other offences. [ ACPOS/ COPFS - Rec. 16].
The working group expressed concern that such warnings would not be recorded, so that in the event of future offending no record would exist of prior involvement with the police. It was felt that some system of recording such warnings, albeit not as convictions and for a limited time, was desirable. This was addressed within the ACPOS/ COPFS Joint Protocol through the following:
- ACPOS should, with SCRO, consider the practicalities of maintaining a record of written warnings issued by Police Forces under the terms of the Joint ACPOS/ COPFS Protocol [ ACPOS/ COPFS - Rec. 17].
8.1 Criminal Justice Reform
HMIC considered non-reporting options in 2003 as part of the thematic inspection on crime management in Scotland - " Partners in Crime - Solving and Reassuring". This report identified that by non-reporting quality of life offences and dealing with these by warnings or fixed penalty notices, significant benefits could be realised through reduced bureaucracy.
The McInnes Report identified the potential benefits to the police and Procurators Fiscal of increasing the range of options available to the police for minor cases which do not require to be reported for prosecution. Procurators Fiscal are currently entitled to direct police not to report certain categories of offence, where they consider that to be appropriate. This is in keeping with the proposition that decisions should be taken and implemented at the earliest stage in the system, especially with regard to minor crimes and offences committed by first offenders.
Increased use of alternatives to prosecution can have a major impact on improving summary justice delivery. A significant proportion of minor, antisocial crimes and offences are committed by persons who would otherwise not come into contact with the police. A fair and effective non-reporting disposal at the time of offence or soon afterwards can have a positive impact on offenders, as well as improving public confidence. This approach removes the need for the offender to enter the criminal justice system and saves time for the police and Procurator Fiscal in terms of case reporting and preparing the case for court.
Non-reporting options require effective consultation between the police and Procurator Fiscal over the types of crimes and offences to be included. This should be informed by effective community engagement, where public concerns are linked to local police and prosecution priorities. The Antisocial Behaviour etc (Scotland) Act 2004 requires Chief Constables and Local Authorities to prepare a joint strategy for dealing with antisocial behaviour in their areas. Antisocial behaviour is generally understood to include offences such as breach of the peace, urinating in a public place, assault, vandalism and littering. Whilst it is encouraging that legislation was passed to tackle antisocial behaviour, joint strategies must take cognisance of criminal justice agencies' capacity to cope adequately with the increased focus on minor crimes.
8.2 Tackling Triviality
It is a fact that a high percentage of offences that can be classed as minor are currently reported to Procurators Fiscal. However, the inspection team accepts that the term "minor" is relative and that the impact of a minor crime can be significant to the victim and wider community. Strategies to deal effectively with minor crimes must take account of local concerns and be agreed by police and Procurators Fiscal. It should be possible to agree what cases should result in non-reporting options by the police and what cases should be reported to the Procurator Fiscal for a non-court disposal. The inspection team reviewed the "Quality of Life" protocol developed by Grampian Police and the Procurator Fiscal at Aberdeen. This established a consistent approach to investigating, reporting and prosecuting quality of life offences. The offences featured were intelligence led and identified by Grampian Police through their problem solving policing approach within local communities. The offences listed are reviewed quarterly and new offences added according to current intelligence.
A significant proportion of the minor crimes reported to Procurators Fiscal will result in the case being marked "no proceedings". In such cases, fiscals are required to record the reasons for their decision against one of thirteen specified categories (Section 4.3). COPFS previously marked cases ' No Proceedings - Triviality', where it was considered that further action by Procurators Fiscal would be disproportionate to the nature, circumstances and level of seriousness of the offence. However, COPFS acknowledges that offences at the lower end of the criminal scale may not be regarded as "trivial" by those affected by them. In order to reflect better the circumstances in which this marking should be used, it has now been re-termed " No Proceedings - Further Action Disproportionate" ( NPFAD). Procurators Fiscal are instructed to take particular care when marking cases where the offence involves antisocial behaviour within local communities. They are aware of the importance which the Lord Advocate places on dealing appropriately with antisocial behaviour in a way that reflects and takes into account local sensitivities and concerns.
The inspection team considers that greater use can be made of the statistical information relating to cases marked "No Proceedings", and in particular those cases which are marked " NPFAD". The table below shows the number of cases by force area marked " NPFAD" by Procurators Fiscal during 2004/05.
Figure 7 - Breakdown of cases marked NPFAD in 2004/05
No. of NPFAD cases
Percentage of all Cases Submitted
D & G
L & B
Source - COPFS Business Improvement and Innovation Unit
During the year 2004/2005, some 19,128 cases reported to Procurators Fiscal were marked "no proceedings", on grounds that further action by the Procurator Fiscal was disproportionate. The inspection team believes that this is an area where an effective strategy for alternatives to prosecution could make a significant impact.
It seems obvious to the inspection team that forces should not waste valuable resources reporting cases to Procurators Fiscal that will result in no proceedings on the grounds of " NPFAD". While there will always be cases where reporting in such circumstances is appropriate, many of the cases currently marked " NPFAD" would most likely have been worthy of some form of non-reporting option. HMIC and IPS consider the management information provided by COPFS in relation to " NPFAD" to be a useful measure of how effectively forces and Procurators Fiscals are applying non-reporting and non-court options. When viewed in conjunction with information for non-reporting options, a reduction in the percentage of cases marked " NPFAD" would tend to indicate a more positive outcome. HMIC and IPS highlight the importance of this information in the context of recommendation 6 (Section 4.3).
8.3 Police Non-Reporting Options
Since the agreement of the Joint Protocol in 2004, there has been a number of different approaches to police non-reporting options across Scotland. The current non-reporting options for police forces are Discretionary Warnings, Formal Police Warnings and Penalty Notices for Disorder ( PND). An effectively implemented warning system reduces the need for police to prepare and submit a full Standard Prosecution Report and for the Procurator Fiscal to process this. Additionally, it provides a faster and more appropriate response to the offences covered.
Discretionary or notebook warning
It is a fundamental policing principle that officers have discretion to administer a verbal warning for minor offences. While discretionary warnings can be an effective response to minor street disorder, the development of a performance culture and the introduction of a new national crime recording standard 15 create pressures for officers that mitigate against using discretion. The inspection team considers that the introduction of formal police warnings and Penalty Notices for Disorder ( PND) should not in themselves discourage officers from issuing discretionary warnings and, if circumstances so dictate, these should continue as an effective response to deal with a situation.
Formal Police Warnings
All forces, with the exception of Tayside Police which was committed to developing the Fixed Penalty Notice pilot scheme, have introduced a formal adult warning scheme as an alternative to prosecution. Formal warnings administered by the police are not new. Some forces have had systems in existence for a number of years, to address issues such as prostitution. The range of offences referable for formal warnings is similar across Scotland and includes street drinking, drunk and incapable, urinating, minor theft by shoplifting, assault, breach of the peace and vandalism. Other offences specific to certain forces include dog-fouling, litter, possession of cannabis and various road traffic offences.
The main benefit of an adult warning scheme is that it avoids the need to submit reports to Procurators Fiscal. Although no report is submitted, the initial investigation should be the same as if the case were to be reported, with the same standard of evidence against an offender. There should also be a reasonable prospect of a warning having a deterrent effect. If an offender has been previously warned, it may be inappropriate to issue a further warning, unless there has been a substantial intervening period of good behaviour that indicates that the earlier warning had a positive impact. Similarly, a warning is unlikely to be appropriate if the offender has a recent previous conviction, particularly for a similar offence.
HMIC and IPS were encouraged that protocols for enforcing adult warning schemes had been drawn up by forces in consultation with the respective Procurator Fiscal, and that guidance had been issued to operational officers prior to introduction. However, as most systems are at an early stage of implementation, the full impact of police warnings has yet to be realised. Of the systems introduced, only Fife Constabulary and Strathclyde Police had conducted any initial impact assessment of benefits. Fife Constabulary introduced its scheme in May 2005 and estimates that operational officers will save two hours per case by not having to submit a report. In September 2005, this equated to a saving to the force of 610 hours.
Strathclyde Police introduced a formal warning system for "drunk and incapable" cases in December 2005. It is expected that approximately 4000 cases per annum will be removed from divisional caseloads, as a result. Strathclyde Police has limited the use of formal police warnings solely to drunk and incapable cases. This was informed by research, which concluded that formal police warnings were "process and resource heavy, if fairness and the rights of accused were considered". This view is shared by one other force, which saw the introduction of a formal warning scheme as "labour intensive" in terms of complying with the Scottish Crime Recording Standard. The inspection team accepts that the level of bureaucracy in administering and recording police warnings will be largely dictated by the sophistication of the force case management system. HMIC and COPFS acknowledge that the benefits to forces in applying formal warnings should not be outweighed by the effort in administering the process. Forces will be better placed to assess the benefits once the current warning systems can be formally evaluated.
In terms of the concerns expressed by ACPOS and COPFS in 2004 surrounding the practicalities of maintaining a record of written warnings, the inspection team confirmed that agreement has since been reached with the Scottish Criminal Record Office ( SCRO). Formal police warnings are to be recorded on the Criminal History System for a period of two years. This agreement allows for information on formal police warnings to be shared across all forces and should prevent offenders being warned repeatedly for minor offences.
Penalty Notices for Disorder
As part of the Scottish Executive commitment to tackle antisocial behaviour, the police were given new powers under the Antisocial Behaviour etc (Scotland) Act 2004 to issue Penalty Notices for Disorder ( PND) for a range of minor crimes and offences committed by offenders aged 16 and over. This tackles offending behaviour where officers would previously have submitted a report to Procurators Fiscal, and covers cases which would have potentially been marked "no proceedings" on grounds of disproportionality. The Lord Advocate has set clear guidelines in regard to these powers, and a £40 penalty was agreed in consultation with COPFS and representatives of the District Courts. The offences subject to the new powers are broadly similar to those currently covered by formal police warnings and include drunkenness, urinating, street drinking, breach of the peace and vandalism.
Tayside Police is piloting this initiative, which began on 1 April 2004 and will continue until 31 March 2006. The force has completed an interim evaluation covering the first six months of the project and the inspection team is encouraged with the initial observations:
- a total of 1443 PND notices were issued during the six-month period, saving officer time and reducing the number of less serious cases submitted to Procurators Fiscal
- the reduction in less serious cases being submitted has coincided with a decrease in the number of cases marked for no proceedings on the grounds that further action was disproportionate
- overall, stakeholders views of the pilot have been positive
- media coverage has been widespread and positive.
The inspection team is aware of some technology issues in relation to administering PND notices, which forces will have to consider in advance of a national roll out. This depends on existing force systems and the extent to which they are ISCJIS compliant. There are also proposals to change the list of offences, including the addition of possession of personal amounts of controlled drugs, minor assault and minor theft.
While HMIC and IPS do not want to pre-empt the formal evaluation of the PND Pilot, there would appear to be real benefits for the police, Procurators Fiscal and local communities in tackling antisocial behaviour in a manner which does not place an unnecessary burden on the criminal justice system. However, there would appear to be significant overlap between the offences covered by PND legislation and those by formal police warnings, which may question the benefits to forces in adopting or sustaining both systems. It is important that forces and Procurators Fiscal take cognisance of the evaluation of warning schemes to determine the relative benefits from different non-reporting options.
8.4 Procurator Fiscal Non-Court Options
Procurators Fiscal have a range of options available to them on receipt of a Standard Prosecution Report from the police. As already discussed, they can, if circumstances dictate, mark a case "no proceedings" (Section 4.3). Alternatively, they can select a suitable non-prosecution means of disposal.
Procurator Fiscal Warning
Where sufficient evidence exists to institute proceedings, Procurators Fiscal may issue a written warning to an accused. Such warnings are only issued in respect of minor offences where, having taken all the circumstances of the offence into account, including an offender's lack of prior involvement with the police and likelihood of re-offending, it is felt that a warning would be appropriate. A record confidential to the Procurator Fiscal is kept when such a warning is issued and it is highly unlikely that the offender would ever be offered another. Whilst there is value in Procurators Fiscal retaining this option, it may be that some cases presently dealt with in this way would be more appropriately dealt with by police non-reporting options.
Where a Procurator Fiscal decides that Prosecution is appropriate but that the likely outcome is a fine, a Conditional Offer of Fixed Penalty (Fiscal Fine) may be offered. Currently these can be for £25, £50, £75 or £100 and must be paid to the Clerk of the District Court within 28 days. Non payment leads to the start of Court proceedings for the original offence. Fiscal Fines cannot be issued where penalties in addition to fines are appropriate, such as Road Traffic Offences, where endorsement of a licence is imposed, or where compensation for a victim is sought. The take up rate for Fiscal Fines is high and provides an effective disposal of cases without resorting to a court hearing. Following recommendations from the McInnes Report, the Scottish Executive has announced its intention to increase the maximum Fiscal Fine to £500 and to introduce fiscal compensation orders ( FCOs), up to a maximum of level 5 on the standard scale of summary fines (currently £5000). This will increase the range of offences which can be disposed of by Fiscal Fines and will potentially further reduce the volume of cases taken through the courts.
Various schemes exist throughout the country where offenders agree to take part in various diversion schemes as an alternative to prosecution. In the majority of cases Procurators Fiscal waive prosecution where offenders agree to take part in a diversion scheme. However, in some cases deferral of the decision whether to prosecute may be more appropriate. Diversion schemes lie outwith the scope of this inspection, although HMIC and IPS acknowledge the valuable role played by Social Work departments to which minor offenders with particular problems are diverted. Mention must also be made of the success of the Mediation and Reparation Schemes run by SACRO in Edinburgh and elsewhere, and of the usefulness of the various schemes throughout the country to divert offenders suffering from mental health problems to treatment centres without the need to appear in Court.
8.5 Benefits from Non-Reporting AND Non-Court Options
A number of benefits can be achieved from non-reporting and non-court options. In a business sense, time can be saved by police officers who no longer need to complete full reports for minor offences. In respect of issuing fixed penalty notices at the scene of the incident, officers are no longer required to make time-consuming journeys to custody centres after arrest. Business benefits potentially accrued by Procurators Fiscal include less time being spent marking minor reports received from the police. This has a knock-on effect in allowing both police and Procurators Fiscal to spend more time on more serious cases. Additionally, cases can be disposed of without recourse to a warrant and the full court process, leading to a lower number of trials held. This has obvious benefits in saving the amount of time spent at court by witnesses and in preparing cases.
A number of benefits can also be seen in respect of communities. It would be fair to assume that members of the public are generally unaware of that action is taken when a person is reported by the police to Procurators Fiscal. Many people will be unaware of the levels of bureaucracy and time involved in taking an offender through the criminal justice system. If there is a clear, consistent approach in tackling minor offences by issuing formal warnings or fixed penalty notices or by Procurators Fiscal alternatives to prosecution, then public visibility of summary justice would be increased.
HMIC and IPS are encouraged by recent advances in non-reporting and non-court options However, the recent introduction of Public Notices for Disorder ( PND) and proposals to increase Fiscal Fines would suggest the need for a joint national review by ACPOS and COPFS. This should also consider a national framework to inform forces and Procurators Fiscal of which offences are most suited to particular non-reporting and non-court options.
Recommendation 9 - that ACPOS and COPFS review the current and proposed range of non-reporting and non-court options, with a view to establishing a national framework to inform forces and Procurators Fiscal of which offences are most suited to which disposal.