Thematic report on the use of compensation offers, and combined fiscal fines and compensation offers

3.1 Copious volumes over the years have been written about the purposes of the criminal justice system and in particular what the objectives of sentencing should be.

3.2 Currently Crown Office & Procurator Fiscal Service guidance indicates that there are 7 sentencing objectives consisting of one or more of the following:-

1. Restitution
2. Rehabilitation
3. Incapacitation
4. Denunciation
5. Retribution
6. Deterrence (personal)
7. Deterrence (community)

3.3 In any particular case there may of course be more than one sentencing objective.

3.4 The new "Direct Measures" available to prosecutors introduced by the 2007 Criminal Proceedings etc (Reform) (Scotland) Act gave enhanced powers to prosecutors to issue Fiscal Fines and also Compensation Offers or a combination of both.

3.5 This is the latest attempt to factor in compensation or restitution to the system. Prior to 1980 the only way a court could deal with restitution or compensation was to defer sentence on an accused to enable repayment to be made or other restitution to be effected. If this were done then the sentence would be adjusted accordingly. Alternatively if probation was competent then with the offender's consent there could be a condition of probation that the offender pay a fixed sum if necessary by instalments to the victim of the crime.

3.6 During the late 1970s there was increasing dissatisfaction with this system. The only additional remedy for someone suffering loss would be to raise a civil action against the accused which could be costly and time consuming.

3.7 This was linked with growing concerns that the victims of crime were not at the centre of processes involved in the criminal law. At the same time there was a substantial increase in the number of criminal prosecutions with an apparent emphasis on the offender rather than the victim.

3.8 This led to the creation of a committee under the Chairmanship of Lord Dunpark in 1977 whose remit was 'to examine reparation by the offender to the victim in Scotland and, in particular, whether there should be statutory provision empowering Scottish criminal courts to order the making of such reparation following conviction'. Lord Dunpark reported with his recommendations in July 1977. The report canvassed the various approaches to the problem about giving criminal courts power to order compensation to victims. The main recommendation of Lord Dunpark's committee was that all criminal courts in Scotland should have a discretionary power when sentencing someone to order that person to pay such sum of money that seems appropriate in the circumstances as compensation for any personal injury loss or damage sustained'.

3.9 This recommendation was largely implemented by Section 58 of the Criminal Justice (Scotland) Act 1980 with limits set depending on whether the proceedings were solemn or summary and whether in the Sheriff or District Court.

3.10 Following implementation of the 1980 Act Procurators Fiscal were encouraged to place relevant details before sentencing courts and forms were devised to be sent by the prosecutor to the victim which would show (preferably with receipts) the amount of loss or damage caused and these would then be laid before the court prior to sentencing being effected.

3.11 At this time the prosecutor had no power to directly order compensation by an accused person to a victim. The only exception to that would be very informal arrangements. Reparation could be made with a view to the prosecutor taking that into consideration as to whether to commence proceedings or not. There were some schemes run by some agencies who could mediate and provide information on repayment as part of a reconciliation process.

3.12 Implementation of these powers available to the court was somewhat patchy and the obtaining of information from victims by the prosecutor gradually fell into general non-use for a variety of reasons.

3.13 As we noted in our previous report Fiscal Fines were introduced in 1987 but previous Crown Office guidance on the issue of these precluded their use if it was thought that compensation should form all or part of the appropriate court disposal because there was no authority at that time for the Procurator Fiscal to seek compensation as well as offering a financial penalty.

3.14 In November 2001 the then Minister for Justice, Jim Wallace, created a committee under the Chairmanship of Sheriff Principal McInnes to review Summary Justice in Scotland. The formal remit of the committee included 'making recommendations for the more efficient and effective delivery of summary justice in Scotland'.

3.15 The McInnes Committee in its report in January 2004 as part of its consideration of alternatives to prosecution looked at the possibility of creating Fiscal Compensation Offers. It noted that in 2001 Compensation Orders were imposed by courts in only 4% of cases proved in the Sheriff Summary Court, 7% in the District Court and 1% in the Stipendiary Magistrates Court. Statistics obtained for the Committee showed there were just over 1,000 summary cases a year where the main penalty was a Compensation Order and the Committee felt that many of these would be suitable for Fiscal Compensation Offers. In addition there were some 5,000 cases where a Compensation Order was additional to the main sentence and it felt that a large number of these could be dealt with by way of a combination of Fiscal Fine and Fiscal Compensation Offer. Finally it noted that there were around 15,000 cases of simple assault, shoplifting, vandalism and other property offences which were dealt with by fine where a Compensation Offer might have been appropriate. It noted the courts imposed compensation in only 44% of all vandalism cases.

3.16 Evidence gathered by the committee showed support for Fiscal Compensation Offers in the arena of vandalism and shoplifting but not for physical injuries arising from assault. There was however a view that compensation offers for assault could be supported by the issue of appropriate and sensitive prosecution guidelines.

3.17 The committee noted that the then law contained in Section 250 of the Criminal Procedure (Scotland) Act 1995 required a court to prefer a Compensation Order where both a Compensation Order and a fine might be appropriate but the offender was thought to have insufficient means to pay both. The committee recommended that a similar approach be taken by prosecutors in the issue of Fiscal Fines and Fiscal Compensation Offers. The committee also recommended an extension to the types of offending behaviour which could be covered by Compensation Orders both by courts and by the prosecutor including cases where loss was not immediately quantifiable. The committee noted that to achieve consistency clear guidance to Procurators Fiscal would be important. Interestingly the committee did not think there should be any upper limit on Fiscal Compensation Offers.

3.18 The committee therefore recommended that a Procurator Fiscal should be able, in conjunction with or separate from a Fiscal Fine, to issue a Compensation Offer to an alleged offender and that guidelines on the use of Compensation Offers should be produced and that these guidelines should, as far as possible, be publicly available. A Compensation Offer was to be preferred where an offender's means were insufficient to pay both a Fiscal Fine and a Compensation Offer.

3.19 The government consulted widely on the recommendations of the McInnes report following its publication and in March 2005 published its response under the banner of Smarter Justice, Safer Communities, Summary Justice Reform Next Steps. The response outlined opinions on the proposals in relation to Fiscal Fines and Compensation Offers but indicated that the Fiscal Compensation Offers proposed by the committee should be introduced with an upper limit on their use equivalent to the Level 5 of the scale of summary fines which at that time was £5,000. The government accepted that Fiscal Compensation Offers should be available both for cases where quantifiable loss had been established and where the victim had been subjected to frightening, distressing or annoying behaviour or behaviour which could cause nuisance or anxiety. In particular as noted in our report on Fiscal Fines a system of presumed opt in was indicated, ie upon receipt of a Fiscal Fine or Fiscal Compensation Offer the accused would have to take positive steps to indicate if he or she would rather have a court hearing than pay the penalty. In addition prosecutors would be allowed to provide details of previously accepted Fiscal Fines or Compensation Offers in any subsequent court conviction but only for a period of 2 years following their offer.

3.20 These accepted recommendations were implemented by Section 50 of The Criminal Proceedings etc (Reform) (Scotland) Act 2007 which introduced new provisions into the 1995 Criminal Proceedings Act.

3.21 During the passage of the Bill through Parliament various objections were made in particular -

• That the Procurator Fiscal would be both prosecutor and judge/sentencer
• That 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 at the very time when courts were being encouraged to be much more open in sentencing policy
• Victims and the public would not see the outcome

3.22 Several of these concerns were debated in the Scottish Parliament at the time of the Justice 1 Committee Report on the then Bill (May 2006). In particular there was concern expressed about the difficulty of assessing human distress.

3.23 The then Solicitor General responded to those concerns in 2006 and assured the committee that Compensation Offers for assault would be supported by guidance and prosecutors would use their experience to assess the level of compensation. Crown Office and Procurator Fiscal Service officials confirmed that detailed work on the operation of Compensation Offers was being undertaken and that detailed guidance would be provided to prosecutors particularly on their use for offences of violence.