Chapter 3 – Background
"There is at present and has been for some considerable time inordinate pressure on the criminal justice system……"
3.1 This could be a view expressed in relation to the current criminal justice system but is in fact a quotation from the Stewart Committee's second report on Keeping Offenders Out of Court: Further Alternatives to Prosecution published in 1983 1.
3.2 The remit of the Stewart Committee (which was appointed in 1977) was
"To consider the effect on the criminal courts and the prosecution system of the volume of minor offences at present dealt with by summary prosecution and whether some other process might be devised to deal with such offences while maintaining essential safeguards for accused persons."
3.3 Until the early 1980s there was little movement on alternatives to prosecution. A study in 1982 2 looked at the use of the Procurator Fiscal's discretion to prosecute and came to the conclusion that where there was sufficient evidence Scotland's prosecutors tended to prosecute and made little use of the (limited) alternatives available to them at that time.
3.4 Although Scotland did not have the principle of 'legality' as in some foreign jurisdictions where the prosecutor has no discretion and has a duty to prosecute if there is sufficient evidence (and at the highest level the facts warrant) nevertheless the decision making process was seen as coming down to whether there was sufficiency of evidence and choice of charges and forum. Discretion in this study was most prevalent in the negotiation of pleas once proceedings had commenced.
3.5 The pressure for change as demonstrated by the quotation from the Stewart Committee came not so much from any philosophical or jurisprudential shift but from pragmatism, the courts were struggling in the 1980s with the volume of business, especially minor motoring offences.
3.6 The Committee's first report 3 highlighted that in 1978 about 50% of prosecution in the summary courts related to motor vehicles with a large number pleading guilty by letter. The outcome of the work of the Committee included the introduction of Fiscal Fines (in 1987 4) and increased use of alternatives to prosecution such as Social Work Diversion and Procurator Fiscal Warnings.
3.7 During the 1980s and 1990s increased use was made of the available alternatives. Initially Fiscal Fines were set at £25 and then increased in 1996 to a maximum of £100 (in 4 levels, £25, £50, £75 and £100). This was an 'opt in' system where in the event of failure to accept the alternative prosecution would normally follow.
3.8 Although the initial impetus for alternatives to prosecution was pragmatism there began to be a feeling that minor offences should be taken out of the criminal justice system altogether, partly in order to expedite processing of the business but also partly to avoid convictions for persons with only minor offending behaviour. The sledgehammer to crack a nut argument.
3.9 The 1982 study referred to by Moody and Tombs was followed up by them in 1993 following the introduction of the various alternatives to prosecution and led them to the comment "Yet within the space of no more than 10 years there has been a major reversal of this 'pro prosecution' policy". 5
3.10 The ground was, therefore, prepared for a more radical approach. The next significant step was the establishment of a Committee to review summary justice in Scotland under the Chairmanship of Sheriff Principal John McInnes.
3.11 The remit of the Committee was
"To review the provision of summary justice in Scotland, including the structures and procedures of the Sheriff Courts and District Courts as they relate to summary business and the inter-relation between the two levels of court, to make recommendations for the more efficient and effective delivery of summary justice in Scotland."
3.12 The Committee reported in 2004 and covered a wide range of summary criminal justice topics. In particular a chapter of the report was devoted to alternatives to prosecution including proposals on new enhanced Fiscal Fines. The Committee quoted statistics showing that the introduction of Fiscal Fines in 1987 had been responsible for a significant reduction in the number of cases that would otherwise have had to be dealt with in the summary courts. The Committee came to the conclusion that there might well be scope to increase the use of Fiscal Fines but required some changes to make them more robust and effective. In particular the Committee came to the conclusion that the system of Fiscal Fines should be based on an opt out procedure rather than the opt in procedure adopted by the preceding Stewart Committee.
3.13 Under this new system an offender would be deemed to have accepted the offer unless action was taken to dispute it. The Committee invited the then Scottish Executive to consider two options, increasing the scope of Fiscal Fines to £200 or a more radical approach increasing to £500. Statistical data was given showing the impact on the courts of such rises in the level. In addition to that the Committee recommended that consideration be given to increasing the range of cases in which Fiscal Fines could be issued. The Committee also recommended that a Procurator Fiscal should be able in conjunction with a Fiscal Fine or separate from it to make a compensation offer to an alleged offender.
3.14 Following the publication of the McInnes Committee's Report in 2004 legislation was introduced into the Scottish Parliament in the form of the Criminal Proceedings etc (Reform) (Scotland) Bill which subsequently became the Criminal Proceedings etc (Reform) (Scotland) Act 2007.
3.15 Extensive consultation followed the publication of the McInnes Report and the then Scottish Executive agreed to implement many of its recommendations accepting at that stage the proposal to increase Fiscal Fines to a new limit of £500 along with detailed guidance from the Lord Advocate and that the use of the new levels of Fiscal Fines should be closely monitored 6. It was also proposed that Fiscal Compensation Offers be introduced with an upper limit of £5,000, again subject to comprehensive guidelines provided by the Lord Advocate and their use and impact closely monitored.
3.16 The Bill when introduced increased the top level of Fiscal Fine to £500 but this was reduced during the Parliamentary process to £300. The relevant provisions are now contained in Section 50 of the 2007 Act.
3.17 During its course through the Scottish Parliament evidence both written and oral was obtained on the various proposals from various interested and relevant parties. There was considerable interest and discussion surrounding the proposed changes to Fiscal Fines.
3.18 Various objections were made in particular -
- the Procurator Fiscal would be both prosecutor and judge/sentencer
- full facts about the offence or offender's circumstances might not be known
- it would be a 'secret' system with justice not seen to be done
- victims and the public would not see the outcome
- against the flow of increased 'transparency'
3.19 The then Lord Advocate in response to a question from an MSP seeking reassurance that the wider use of Fiscal Fines would be the correct disposal said -
"It is important that Procurators Fiscal use the powers responsibly and proportionately, so a training programme will of course be involved…." (Scottish Parliament 2006)
3.20 Also the then Solicitor General in response to another query regarding what guidance was then in place to ensure alternatives were used only in relation to appropriate offences and how such existing guidance would be developed to take account of the provisions of the Bill replied -
"There is extensive guidance for Procurators Fiscal on the alternatives. It is internal confidential guidance about what type of cases would be suitable for their use. We have a work stream…..which is considering the guidance that is expected for the implementation of these provisions." (Justice 1, May 2006)
3.21 The Solicitor General was asked for an example of some of the offences that she thought would be covered replied -
"That is difficult to do because there is such a wide range of summary offences……it will be important to examine the range of offences as we develop the guidance." (Justice 1, May 2006)
3.22 At the meeting of the Justice 1 Committee in May 2006 concern was also expressed that if someone who had a drug and/or alcohol problem was given a Fiscal Fine the opportunity for a court issuing for example a Drug Testing and Treatment Order ( DTTO) would be lost. In reply the Solicitor General indicated that the quality of information supplied by the police to the Procurator Fiscal was important in that regard (borne out by our case examination). Wider information would better inform the prosecutor's choice. In particular she was asked if any summary offences would be excluded from the use of Fiscal Fines and replied that there would be summary offences excluded as a result of the Lord Advocate's guidance which would remain confidential but certain cases would be obviously excluded such as knife crimes.
3.23 On being asked if the Committee should not be given some idea of how the Crown intended to use these new extended provisions the Solicitor General replied to the effect that it was a matter for an independent prosecution service and that the application of the policy would be informed by guidance and by changing circumstances that might occur. She indicated that if particular problems arose there might be variations of the policy.
3.24 She was again pressed on this point in Committee and the Solicitor General replied to the effect that she and the Lord Advocate were accountable to Parliament for how the disposals were used and would be reporting on that subsequently.