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

4.1 Section 50 of the 2007 Act was brought into force on 10 March 2008. In the event it provided that a Compensation Offer or a combined Fiscal Fine and Compensation Offer could be offered by a Procurator Fiscal for any relevant offence which was defined as an offence which could be tried summarily and for which a court could competently make a Compensation Order. The Act provides that if a Compensation Offer is accepted no prosecution can take place and no conviction will be recorded. A maximum sum for compensation (of the prescribed sum of £5,000) was imposed.

4.2 Prior to the coming into force of the Act an extensive training programme was rolled out by Crown Office and Procurator Fiscal Service in the then newly opened Scottish Prosecution College in Glasgow. As stated in our report on Fiscal Fines staff involved in the decision making process were initially targeted for this training which was wide ranging and covered practical exercises as well as theory. Initially 410 staff were trained between January and March 2008.

4.3 Policy and guidance was issued on the use of Fiscal Fines and Compensation Offers but remains confidential as the Lord Advocate considered that it would not be appropriate to issue the guidance into the public domain as there was a danger that accused persons might tailor their behaviour accordingly (Justice 1, May 2006).

4.4 Nevertheless the Law Officers have made as much information as possible public and in particular to the Scottish Parliament by way of detail on the number and type of offences for which Fiscal Fines and Compensation Offers have been issued.

4.5 Extensive written guidance was provided to Crown Office and Procurator Fiscal Service staff in the form of circulars and the Case Marking Guidance Manual (which are the standard instructions given to Procurators Fiscal on how prosecution decisions should be taken). Compensation Offers and combined Fiscal Fine and Compensation Offers are included under the heading of "Direct Measures" (ie cases where prosecution in court in the first instance would be a disproportionate response). The Crown Office has made public a prosecution code which lays out the broad guidelines for prosecutors in deciding what action to take in relation to reports of crime they receive. This code applies to Direct Measures as much as any other area of activity.

4.6 The general approach, however, is based on the over-arching objectives of reducing offending and re-offending and maintaining and improving public confidence in the criminal justice system.

4.7 There is for the first time a presumption in favour of taking action and the decisions are outcome focused requiring the issuer to decide on the appropriate outcome for the offender, the victim and the wider community and the most suitable option to achieve it. Particular regard is to be had to previous convictions and the likelihood of re-offending which can "lift" a non-serious offence into the prosecution in court option.

4.8 Sentencing objectives, as previously indicated, are broken into 7 categories with indicative disposal shown for each of these. Some of these would attract court action rather than the issue of a Fiscal Fine or Compensation Offer.

4.9 The guidance having established the general ground rules gives staff a list of situations where Fiscal Fines (and by extension combined Fiscal Fines and Compensation Offers) must not be issued and these include categories which are in the public domain such as violence likely to attract imprisonment, violence against police and emergency workers, the use of knives or offensive weapons, racial or religious prejudice, domestic abuse and cases where there is a significant sexual element or the accused suffers from a mental disorder.

4.10 In addition to the categories of crime/offences which are struck at by the nature of the offence themselves there are prohibitions on the issue of Fiscal Fines (and by extension combined Fiscal Fine and Compensation Offers) dictated by the circumstances of the offender such as the offender's record or status. This prohibition applies irrespective of what might otherwise be a minor offence.

4.11 There is then another general category where the issue of Fiscal Fines may be inappropriate and there is in effect a presumption against their use although they are not automatically excluded.

4.12 Detailed guidance is then given to staff on when to consider the making of a Fiscal Compensation Offer. In addition detailed information is given on assessing the appropriate level of compensation and the various factors which should be taken into account. Similarly guidance is given where the loss is non-quantifiable. In addition there is instruction given on when a combined Fiscal Fine and Compensation Offer should be offered and determining the appropriate level of the fine and the compensation element.

4.13 The new system then commenced in operation in March 2008. Since then there have been various attacks on the new system and accusations of soft touch justice.

4.14 The Inspectorate carried out this thematic report (as with the earlier one) in an effort to get away from "anecdotal" evidence and to look at decisions actually made by prosecutors across the country.