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Crown Office and Procurator Fiscal Service Response to the Criminal Justice Committee

Follow up to an evidence session on the Coronavirus (Recovery and Reform) (Scotland) Bill

Dear Convenor

Response to the Criminal Justice Committee

I refer to the evidence session which was held on the morning of 9 March 2022, in relation to the Coronavirus (Recovery and Reform) (Scotland) Bill, and paragraphs 114-118 of the published Stage 1 Criminal Justice Committee Report (“the Stage 1 Report”) to the COVID-19 Recovery Committee on the justice provisions in the Coronavirus (Recovery and Reform) (Scotland) Bill.

1. During the evidence session, Mr Russell Findlay asked, in relation to fiscal fines, what offences would now be capable of being dealt with using a fiscal fine, given the revised upper limit of £500 (previously £300).

Paragraph 114 of the Stage 1 Report suggests that there should be more transparency and improved reporting of the use of fiscal fines, and paragraph 115 requests information from COPFS in relation to what types of offences are dealt with by fiscal fines and, in particular, the types of offence brought into the new, temporary, £325-£500 range of fines.

The Crown Office and Procurator Fiscal Service (COPFS) publishes, as standard, statistics on case processing over a 5-year period (attached at Annex A for reference). The published statistics provide a breakdown of non-court disposals including fiscal fines.

The Lord Advocate has, since the Coronavirus (Scotland) Act 2020 (the 2020 Act) came into force, provided a two-monthly update to the Criminal Justice Committee on the use of fiscal fines. The most recent update was provided on 13 April 2022.

Section 302 of the Criminal Procedure (Scotland) Act 1995 (the “1995 Act”), permits a Procurator Fiscal to issue a conditional offer, otherwise known as a “fiscal fine”, for, “a relevant offence”. Section 302(9) of the 1995 Act provides that “a relevant offence” means, “any offence in respect of which an alleged offender could be tried summarily, but shall not include a fixed penalty offence”, as set out in Schedule 3 and Schedule 5 of the Road Traffic Offenders Act 1988”.

Consideration of whether a fiscal fine is an appropriate response as an alternative to prosecution will depend on the facts and circumstances of each case, taken alongside the considerations found within the published COPFS Prosecution Code. There is no definitive list of offences which can be considered for a fiscal fine, however, cases which have been considered appropriate for the issuing of a fiscal fine include (but are not limited to) less serious public disorder offences, less serious dishonesty offences and less serious offences of violence.

A breakdown of the charges where an accused was offered a fiscal fine can be found at Annex B.

The Coronavirus (Scotland) Act 2020 increased the maximum level of fiscal fine from £300 to £500. The revised scale continues to enable a wider range of cases to be dealt with by fiscal fine.

Since implementation of the revised scale on 7 April 2020, on average, 3% of individuals offered a fiscal fine have been issued with a fine amount between £325 and £500. Prosecutors continue to apply the revised policy guidance in relation to fiscal fines, in response to the increase in maximum, by offering a direct measure, in particular a fiscal fine in relation to appropriate cases which would otherwise have proceeded in the Justice of the Peace court. Fiscal fines were, prior to the Coronavirus (Scotland) Act 2020, and continue to be, issued for less serious offending. Whilst a relatively small proportion of the fines issued have been above the previous scale maximum the change has allowed the Crown to respond proportionately, efficiently and in a timely manner to offending for which such a measure is appropriate.

A breakdown of the charges where an accused was offered a fiscal fine in excess of £300 can be found at Annex C.

COPFS will explore publishing expanded statistics to include offence types going forward.

2. Comment was sought on a Freedom of Information request from July 2021.

During the evidence session. reference was made to a Freedom of Information (FOI) request from July 2021. The FOI response from July 2021 provided the following information:

The above table reflects outcomes in summary cases where a charge was first marked to be dealt with by issuing a fiscal fine but that offer was either rejected, in line with the relevant statutory procedure, or a subsequent decision was made to deal with the charge in a different way.

Further context may assist in the interpretation of these figures.

The undernoted table provides figures for the financial years 2018/19, 2019/20, 2020/21 and 2021/22 (up to 28 February 2022), and relates to all charges where the charge was first marked to be dealt with by issuing a fiscal fine.

It is not possible from the information available, without manual interrogation, to identify all charges where a relevant fiscal fine was “rejected” by a person, however, it is possible to establish the number of charges that were not ultimately concluded on the basis that the offer of  a fiscal fine  was paid or deemed accepted, and thereby ascertain the number of charges not concluded by issuing a fiscal fine which were ultimately marked for no further action.

On average, 3.8% of charges first marked to be dealt with by issuing a fiscal fine were subsequently marked no further action.

3. During the evidence session, the Committee asked, in relation to solemn level organised crime cases with multiple accused, if COPFS could (i) quantify the backlog in cases of that nature and (ii) quantify any disproportionate delays in respect of multiple-accused cases compared with single accused cases.    

There are 82 active solemn level cases with multiple accused involving organised crime for the financial year to 29 March 2022. The crime types for these cases includes (but are not limited to) all levels of sexual offending, all levels of violence, all levels of disorder, all levels of dishonesty and all levels of offending related to controlled drugs. 

It is not possible to quantify any disproportionate delay in respect of multiple‑accused cases compared with cases involving one accused person. By their nature, multiple accused cases, particularly where they relate to organised crime, tend to be more complex and increased resource, including time, may be required to prepare the case.

This does not necessarily mean that this results in disproportionate delay when compared with cases involving one accused person. Except for delay caused by restriction on the number of accused persons who could appear together physically in a court during the coronavirus restrictions, analysis has shown that there are no other discernible factors which have impacted on the progress of these cases.

4. Paragraph 116 of the Stage 1 Report asked COPFS to provide reassurance sought by Scottish Women’s Aid that fiscal fines have not been used in domestic abuse cases and will not be in the future.

Domestic abuse cases continued to be prosecuted vigorously and fairly during the coronavirus pandemic and the Crown’s robust policies on domestic abuse and commitment to tackling domestic abuse are unchanged. In terms of the Joint Protocol with Police Scotland in Partnership Tackling Domestic Abuse, where there is sufficient evidence, there is a presumption in favour of prosecuting all cases involving domestic abuse. In cases involving violence or the threat of violence, there is a further presumption that proceedings will be taken in the Sheriff Court or High Court.

Prosecution policy on domestic abuse is to the effect that prosecution in the Justice of the Peace Court will only be appropriate for domestic abuse cases in limited circumstances, and specifically not in cases involving violence, threats of violence or courses of abusive behaviour prosecuted under the Domestic Abuse (Scotland) Act 2018. The limited category of cases which would be appropriately prosecuted in that forum are considered for prosecution rather than a fiscal fine.

Prosecution policy is that, in exceptional domestic abuse cases, direct measures (including Diversion and warning letters) may be the appropriate prosecutorial action. Given the presumption in favour of prosecution, our policy is that the use of a direct measure in cases of domestic abuse requires particular consideration and caution and is subject to an internal authorisation process.

COPFS publishes annual statistics on domestic abuse and those from 2020-21 are available (attached at Annex D for reference) 

As the statistics show, the overwhelming majority of domestic abuse charges reported to COPFS by the police result in prosecution, with the percentage in 2020‑21 being 92%. A small percentage of domestic abuse cases have always been dealt with by direct measures, although this represented only 2% of the charges reported in 2020-21, and the vast majority of those direct measures were warning letters or diversion.

In 2020-21 13 fiscal fines were offered in cases involving domestic abuse. Upon review of the data, it appears that these fiscal fines were inappropriately issued. Further guidance on the use of fiscal fines in domestic abuse cases has been published for prosecutors.  

5. Paragraph 117 of the Stage 1 Report asks how communication with victims of crime can be improved so that they are better informed when an alternative to prosecution is taken forward by a prosecutor and recommends that if an accused person rejects a fiscal fine, any relevant victim should be told of the outcome of the case, including any decision by to take no further action

In terms of existing statutory obligations under section 6 of the Victims and Witnesses (Scotland) Act 2014, COPFS advises all victims of all case outcomes on request, including where a case is dealt with by an alternative to prosecution or where a decision is made to take no further action.

COPFS goes further than this statutory obligation, by proactively notifying all victims of case outcomes in all cases which fall within the remit of the Victim Information and Advice (VIA) service. The VIA Remit includes all cases involving: deaths reported for consideration of criminal proceedings; solemn level offending, domestic abuse; hate crime; sexual crime; child witnesses; and witnesses who may be vulnerable and may require help giving evidence or may have additional support needs.

COPFS will launch a new digital Witness Gateway service later this year to provide witnesses with secure online access to statements and other services. The Witness Gateway is included in the Scottish Government’s Vision for Justice in Scotland 2022 and is deliverable in the published year one delivery plan. Delivery in the first year will focus on providing witness access to statements and confirming availability for trials. Further services and functionality will be added as part of planned continuous improvements. The communication of case outcomes to victims via the Gateway will be explored as part of this process.

I trust that this information is of assistance to the Committee.

Yours faithfully

Kenny Donnelly
Procurator Fiscal Policy and Engagement

List of Annexes:

Annex A: COPFS statistics on case processing in the last 5 years (2016-2021)

Annex B: Breakdown of charges where accused was offered a Fiscal Fine

Annex C: Breakdown of charges where an accused was first marked to be dealt with by the issuing of a fiscal fine over £300

Annex D: Domestic Abuse and Stalking Statistics 2020/21

Annex B: Breakdown of charges where accused was offered a Fiscal Fine

Annex C: Breakdown of charges where an accused was first marked to be dealt with by the issuing of a fiscal fine over £300

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