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

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 Compensation Offers and combined Fiscal Fine and Compensation Offers was proportionate and generally in line with the philosophy of the enhanced use of these measures. The queries we made were generally of a minor nature.

6.2 As stated in our previous report on Fiscal Fines 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 (ie deciding on what course of action to take). As we mentioned in that report the Case Marking Guidelines provide to Deputes a concise summary of substantive law, procedure and guidance and particular guidance on where Direct Measures are likely to be appropriate and relevant levels.

6.3 Revised guidelines on the use of Direct Measures were issued by Crown Office and Procurator Fiscal Service in October 2008 and these addressed some of the teething problems we outlined in our previous report.

6.4 As with our previous report there does 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 again feel that there is potential conflict in aspects of the policy. It is not entirely clear from looking at the policy as to whether compensation should be considered first and only excluded for good reason. For example in our previous report on Fiscal Fines a number of Fiscal Fines were issued for vandalism with no compensation offered and it is not clear why these would be distinguished from cases where compensation was included. Accordingly we recommend:-

Recommendation 1

That the guidance on the use of Compensation Offers be clarified by the Crown Office. There requires to be a clear indication as to whether compensation should be a first consideration and only excluded for good reason.

To do otherwise risks too much discretion being employed by individuals and/or offices to interpret similar cases but in different ways with compensation being offered only in some cases and not in other almost identical cases. A presumption in favour of compensation would be in line with the thinking of the McInnes Committee.

6.5 Our second recommendation relates to combined offers. The guidance suggests that these will be used infrequently and we found the guidance as to how to calculate the balance between the Fiscal Fine element and the Compensation Offer to be extremely complicated and consider that it is likely to have discouraged the use of combined offers. Accordingly we recommend:-

Recommendation 2

In the case of combined Fiscal Fines and Compensation Offers that revised guidance on the calculation of the relative amounts should be issued and the system simplified.

6.6 In virtually all cases the default payment setting of £10 per fortnight was chosen by the marking Depute. This appeared to be divorced from consideration of the means and circumstances of the offender and in some cases led to long repayment periods. Accordingly we recommend:-

Recommendation 3

That revised guidance be issued to marking Deputes on the choice of the payment period with regard being given to the circumstances and means of the offender.

6.7 The Prosecution Code which is a published document does deal with Fiscal Fines but requires to be updated to reflect the changes to direct measures and accordingly we recommend:-

Recommendation 4

That the Prosecution Code be updated to include information on the new provisions on Direct Measures.

6.8 As part of this review we examined a number of cases involving assault and in two of these we took issue with the use of a Fiscal Fine based on the circumstances of the assault and other considerations. We looked at assault in our previous report on stand alone Fiscal Fines and therefore adhere to our earlier recommendation in that report that all direct measures for assault continue to be monitored.

6.9 We also adhere to the second recommendation from our previous report that the self imposed restriction on the issue of Fiscal Fines (and by extension Compensation Offers) because of the status of the offender be relaxed subject to the same safeguards.