Background to this report and evaluation of summary justice reform
1.1 This is the second in a series of evaluations of summary justice reform ( SJR). It examines the use of new police and procurator fiscal 'direct measures' ( DMs) introduced under SJR. These are alternatives to prosecution, which it is hoped will contribute to fewer minor cases going to court unnecessarily, freeing up the courts to deal with more serious cases (Scottish Government, 2007).
1.2 The first in this series of evaluation reports was on fiscal work orders ( FWOs). These were the only type of DM not to be introduced nationally but on a pilot basis, in four areas. The evaluations of FWOs and the other DMs were let and conducted simultaneously and the two reports accompany one another. The SJR reforms are being assessed through a programme of related evaluations run by the Scottish Government ( SG), due to report into 2012;
- fiscal work order pilots (December 2010)
- direct measures (December 2010)
- lay justice (September 2011)
- victims, witnesses and public perceptions (September 2011)
- fines enforcement (October 2011)
- legal aid & disclosure (October 2011)
- bail & undertakings (January 2012)
- and a final whole system evaluation (to be confirmed).
1.3 Given this approach, several areas were excluded from the scope of this evaluation, notably changes to fines enforcement, lay justice, legal aid & disclosure, public perceptions, and reconviction rates (see Annex 3). The evaluations have access to considerable amounts of provisional data being collected nationally to monitor the effects of SJR. The Criminal Justice Board Management Information System ( CJBMIS) is a joint initiative between the SG and criminal justice agencies implementing SJR, who are collecting data at national and local criminal justice board ( LCJB) level (see also para 1.24).
Summary justice reform and direct measures
1.4 The accompanying FWO evaluation report sets out in detail the background to SJR. Briefly, summary justice accounted for 95% of all disposals in the Scottish criminal courts in 2008/09 (Scottish Government, 2010a). The McInnes committee on summary justice (McInnes, 2004) recommended a wide range of reforms including the introduction of new DMs. Accompanying changes include unification of the district courts into Justice of the Peace ( JP) courts, and changes in JPs' sentencing powers, so DMs are not alone in influencing court business. Fines enforcement has also changed significantly.
1.5 The SG's response to the McInnes Review was outlined in Smarter Justice, Safer Communities: Summary Justice Reform Next Steps (Scottish Executive, 2005) and a Summary Justice System Model Paper (Scottish Government, 2007). The overarching objectives are a summary justice system which is:
- Fair to the accused, victims and witnesses
- Effective in deterring and punishing offenders
- Efficient in the use of time and resources and
- Quick and simple in delivery
1.6 Achievement of one objective will only be regarded as successful where this is not at the expense of another. Most of the reforms requiring legislation formed the basis of the Criminal Proceedings etc (Reform) (Scotland) Act 2007.
1.7 McInnes (2004) recommended that alternatives to prosecution should be made more widely available, more flexible and more robust. Fiscal fines ( FFs) had been in use since 1987 as a result of the Stewart (1983) recommendations, as were fiscal fixed penalties for motoring offences, and fiscal warnings. Police fixed penalty notices ( FPNs) for road traffic offences were in use, as were adult warnings. Other FPN schemes existed (and still exist) for environmental offences, such as littering under the Environmental Protection Act 1990, since amended, and for dog fouling under the Dog Fouling (Scotland) Act 2003. This evaluation does not encompass the existing direct measures of police and fiscal fixed penalties, but the new suite of DMs, introduced by SJR.
1.8 The majority of the McInnes committee also favoured changing from an 'opting in' system to 'opting out'. Previously a person had proactively to accept a DM offer and no action was considered a rejection, but now a DM is deemed accepted if not challenged.
The suite of new direct measures
1.9 The Antisocial Behaviour etc. (Scotland) Act 2004 gave the police new powers to issue FPNs in relation to ten crimes and offences of antisocial behaviour ( ASB) committed by offenders aged 16 and over. These include the common-law offences of breach of the peace and malicious mischief, and 8 statutory offences (Table A1 in Annex 1 shows a list).
1.10 Persons offered ASBFPNs have 28 days to either pay a fixed fine of £40 directly to the court or to challenge the ASBFPN and request a court hearing. If the ASBFPN is not challenged within the specified time, a person is deemed to have accepted it. If the ASBFPN is not paid, the amount increases to £60 and it becomes a registered fine subject to fines enforcement procedures. Payment does not involve an admission of guilt or a criminal record, but ASBFPNs are recorded on the Scottish Police Services Authority ( SPSA) Criminal History System ( CHS) for two years and are disclosable in court.
1.11 ASBFPNs were piloted in Tayside from 2005 to 2006, and following evaluation (Eberst and Staines, 2006) were rolled out nationally during 2007. They were also reviewed by the SG during the course of this research (Cavanagh, 2009). Both evaluations were positive and made similar recommendations regarding detail (e.g. on the range of offences included; see para 2.52 onwards).
1.12 Formalised adult warnings have been used to a limited extent by some police forces for several years. SJR, however, strengthened this option to a Formal Adult Warning ( FAW) scheme for all forces and clarifying the circumstances in which these may be used, while retaining local discretion. Table A1 in Annex 1 shows the list of offences for which FAWs can be issued; they were gradually rolled out across forces and fully implemented by December 2007.
1.13 A person offered a FAW is sent a letter and given 28 days to challenge this. The letter explains that if the offer is declined, the matter may be referred to the Procurator Fiscal ( PF). As with ASBFPNs, FAWs are recorded on the CHS for two years, allowing information to be shared across all forces with the intention that repeat offenders should not be warned repeatedly. Although FAWs do not require an admission of guilt, they are referable to in court proceedings.
Procurator Fiscal DMs
1.14 Fiscals already had the power to issue fiscal warnings and also fixed penalties, used mainly for motoring (e.g. speeding) offences. Both continue to be used. Excluding fiscal work orders (which are pilots in four areas only), procurators fiscal now have three types of new or strengthened DMs nationally.
1.15 Fiscals could already make conditional offers of a fiscal fine ( FF) of up to £100, for offences that may be tried under summary procedure. From 10 March 2008 these powers were extended, through the 2007 Act, allowing FFs of up to £300.
1.16 The 2007 Act also introduced the new power for fiscals to offer fiscal compensation orders ( FCOs) up to £5,000. These can be used both for cases where personal injury, loss or damage is caused directly or indirectly, or alarm or distress is caused directly to a victim. Finally, FCOs can also be offered in combination with a FF as a fiscal combined offer ( FCoO). The maximum combined offer ( FF plus FCO) can therefore be £5,300.
1.17 As with ASBFPNs, previously a person offered a fiscal fine accepted it by making a payment, and if no payment was made he/she was regarded as having rejected the offer. (But in many cases only one instalment was paid, see paras 2.15 and 4.28.) Now, persons offered DMs must be proactive in challenging a DM and formally intimate a request for a court hearing to the clerk of court within 28 days. A request for a court hearing may lead to a prosecution being raised against the alleged offender. If nothing is done the offer will be deemed to have been accepted.
1.18 If a person defaults on payment of a FF, FCO or FCoO, a fines enforcement order can be put in place, giving a fines enforcement officer ( FEO) powers to collect and enforce the penalty. Previously, unpaid fiscal fines would have returned to procurators fiscal to prosecute. Before the reforms, FFs were not regarded as convictions. This continues to be the case, but information about FFs, FCOs or FCoOs which are accepted or are deemed to have been accepted are recorded on the CHS for twenty years or until the age of 40, whichever is longer, and prosecutors are permitted to lay details of these before a court in the event of subsequent conviction for a period of two years. The accompanying report on FWOs describes key comment on such issues from during the bill's passage.
Summary of methods
1.19 The evaluation ran from early April 2009 to end November 2010. The DM and FWO policy objectives and the research objectives are shown in Annex 3, along with the exclusions to the work, which included considering areas being covered by related SJR evaluations. An important exclusion was considering reconviction rates, given the timetable for the evaluation. Reoffending may be considered by later research conducted by the SG.
1.20 Methods (see Annex 3) included 71 face to face interviews with justice professionals and national agencies, a focus group with JPs, a cost-benefit analysis, and a survey of persons offered DMs and 19 follow-up interviews.
1.21 Professional interviewees were sampled on the basis of the 11 LCJB areas, with two fiscals, two police officers and one JP from each (some JP interviews were later diverted to a focus group). Two police crime management units were interviewed, and also social work staff at each FWO pilot.
1.22 The evaluation design included interviews with defence agents and sheriffs. Because other SJR evaluations were interviewing these professionals, these were diverted to additional JPs, social work staff and police case management units. The evaluation which was to provide sheriffs' views has been delayed because of access issues. However, many professionals think that JPs, rather than sheriffs, will notice effects of DMs most because district/ JP courts dealt more often than sheriff summary courts with DM type offences. The views of 7 defence agents were however provided by the legal aid contractors Scotcen at the end of October 2010, sampled on the basis of four sheriff courts.
1.23 The survey of persons offered DMs was administered by the agencies involved (Crown Office Procurator Fiscal Service ( COPFS), the SPSA for police DMs and social work staff for the FWO pilots) and Annex 3 includes more information on the sampling method. Of 1,707 questionnaires sent out, 78 were returned, a response rate of 5%. The target was 20 interviews and, in all, 19 persons offered DMs were interviewed.
1.24 The evaluation also analysed extensive data held within the CJBMIS and unless otherwise stated, data in this report are from this source. It includes a wealth of almost real-time and very detailed data. Its main limitations are that it is based on provisional data which may be updated, and that many measures are based on data from fiscals' first markings of a case, which may change.
1.25 Simultaneously with this report, the SG is publishing the latest Criminal Proceedings in Scotland 2009/10 statistical bulletin ( SG, forthcoming) which uses the SPSA's Criminal History System as a source. This is able to show FAW offence breakdowns for the first time, which were otherwise unavailable to this evaluation (see para 2.62 and Annex 3 for more on data sources).
1.26 In this report, when looking at offence breakdowns, closed case data extracts (based on fiscals' final markings) were used instead of the CJBMIS data. Also, some of the data in table A7, which forms the basis of the economic analysis, used sources to supplement those in the CJBMIS. However, because the latter provides extremely detailed information on, for example, levels of financial penalties and geographical breakdowns, it is used where possible.
1.27 Annex 1 includes tables with detailed data breakdowns to supplement those in the text. Annex 3 provides more background on the choice of analysis and baseline periods, and on data analysis and sources throughout.