Thematic report on fiscal fines

6.1 Looking at the number of cases we examined, the range of offences and the range of levels, the overarching conclusion is that the use of Fiscal Fines was proportionate and in line with the philosophy of the enhanced use of these. Most of the queries we made related to the inevitable initial bedding in of a new system and the revised guidelines issued in October 2008 went a long way to addressing issues identified in the early operation of the new system.

6.2 As we have previously stated the Crown Office and Procurator Fiscal Service has taken the opportunity to substantially update and expand its policy and guidance relating to the marking of cases. In particular the resulting set of offence specific guidance available to Deputes throughout the country is an extremely useful piece of work. It provides a concise summary of substantive law, procedure and guidance on acceptable further procedures based on Crown Office policy eg where Direct Measures are likely to be appropriate and if so level of fines; where court proceedings are appropriate and if so the appropriate court etc.

6.3 We think it entirely appropriate to commend Crown Office and Procurator Fiscal Service and those responsible for the provision of this piece of work.

6.4 Many of the queries we made related to the inevitable initial 'bedding in' of a new system. It must be anticipated, and indeed is good practice, that any system, particularly when involving change, is subject to assessment, review and improvement in light of practice and experience. The revised guidelines issued in October 2008 went a long way to addressing those few issues recognised in the original guidance once put into operation.

6.5 There does however remain the issue of balancing the dual concerns of encouraging the careful consideration of each case (on its own facts and circumstances) while ensuring a consistency of approach to marking and decision making. We feel that there is potential conflict in aspects of the policy with the overarching general guidance which is outcome focussed, prohibited categories of offence and offenders and the detailed case specific guidance. Some of the feedback we obtained supported this. It is not immediately clear which should take priority and we accordingly recommend -

Recommendation 1

That the hierarchy of the guidance be clarified by Crown Office.

There requires to be a clear indication as to which aspects of the policy take precedence over others. To do otherwise risks too wide a discretion being employed by individuals and/or offices to interpret similar cases but in different ways particularly in relation to the level of fine imposed.

6.6 Our second recommendation is based on our finding that in a number of cases Fiscal Fines were issued despite a prohibition contained in the overarching guidance against doing so because of the status of the offender eg when the offender was on bail for similar offences, or on deferred sentence for similar offences or were in breach of a court order (such as probation/community service order). Most of these "breaches" arose because of the very minor nature of the current offence eg littering or drinking in the street. While the aggravation that an offence has been committed at a time the accused was subject to a court order should be brought to the court's attention, the use of prosecution essentially for that purpose seems slow, expensive, unsuitable for witnesses and unwieldy. Accordingly we recommend -

Recommendation 2

Where an accused is reported for an offence which would otherwise result in a Fiscal Fine being issued but for the fact they are subject to an existing court order, a Fiscal Fine may still be issued subject to (a) intimation to the court which made that order, (b) notice to the offender the acceptance/deemed acceptance of the Fiscal Fine will be so intimated and (c) approval so to do by the District Fiscal or equivalent.

6.7 In a very small number of cases it was not clear whether consideration had been given to the possibility that the offender suffered from mental health disorders. These cases related to offences of a minor nature and there did not appear to be a direct correlation between the offending behaviour and the offences but nevertheless some of these reports did flag up the possibility that mental health problems needed to be addressed. The guidance does include instructions on that point and it would simply be a matter for highlighting it again to staff carrying out this type of work. Equally in again a very small number of cases apparent non English speaking accused were issued with Fiscal Fines without a translation being given. This would be contrary to Crown Office general policy and all that is required is to remind staff of the need to translate. We do not consider a formal recommendation is required to address these communication issues.

6.8 It was recognised at the outset of this inspection that issuing Fiscal Fines for assaults was likely to be the most contentious area. Although the issuing of Fiscal Fines for assault is not new there has been a marked extension of the types and nature of assault now considered suitable for Fiscal Fines in terms of Summary Justice Reform. It is clearly a high risk area for the Crown Office and Procurator Fiscal Service in retaining public confidence. It is the area which has been subject to most public and media scrutiny. The guidelines issued by Crown Office relating to assaults (subject to the qualification referred to in Recommendation 1 above) provide reasonable clarity and guidance for those who come to mark and make decisions on these cases. The Crown Office and Procurator Fiscal Service has introduced a system of 100% monitoring for restricted classes of cases including assaults. This ensures there is a second (more senior) opinion provided before a Fiscal Fine is issued for assault. In this high risk and fairly new area we consider this good practice. Accordingly we recommend -

Recommendation 3

The current 100% monitoring of all Fiscal Fines issued for assault be retained for the time being (until Summary Justice Reform is embedded).