Letter from the Lord Advocate to the Convener, Criminal Justice Committee, 9 June 2021
I refer to my letter of 19 March 2021, in which I provided the Justice Committee (the Committee) with an update on the operation of fiscal fines under the Coronavirus (Scotland) Act 2020 (the 2020 Act).
I confirmed that COPFS would continue to monitor the use of fiscal fines under the 2020 Act, and that I would provide the Committee with a two-monthly update as more cases progress through the system and further data on fiscal fines becomes available.
COPFS has produced an updated indicative analysis of relevant marking decisions for cases reported between 1 April 2020 and 30 April 2021, where a fiscal fine was offered.
To provide the Committee with a wider picture of the impact of the revised fiscal fine scale, the analysis also includes relevant figures on fiscal combined offers for cases reported to COPFS over the same period. A combined offer is a combination of both a fiscal fine and a compensation order.
It may be helpful, if I set out some general information, by way of context for the statistical information which I set out below, as the Committee will be aware, the “fiscal fine” (technically, a conditional offer of a fixed penalty under section 302 of the Criminal Procedure (Scotland) Act 1995) is one of a suite of direct measures which, by statute, may be offered by the procurator fiscal to an accused person. The other direct measures are a fiscal work order, a fiscal compensation offer and a combined fixed penalty and compensation offer. These direct measures are alternatives to prosecution in court, provided that the accused pays the “fiscal fine” or otherwise fulfils the offer. Other European jurisdictions have, in recent times, established analogous regimes for the conditional disposal of cases. The maximum “fiscal fine” which may be offered was increased to £300 by the Criminal Proceedings etc. (Reform) (Scotland) Act 2007, and remained at that level until the maximum was increased to £500 by the 2020 Act.
Direct measures are among a range of prosecutorial options available to the prosecutor; others include the initiation of proceedings, diversion and a warning. Assuming that there is sufficient evidence in law to justify prosecutorial action, the prosecutor’s decision as to which of those options should apply in any particular case will be taken, on the basis of the particular circumstances of the case, by reference to the considerations set out in the Scottish Prosecution Code. In cases where they are offered, direct measures represent a proportionate response to the offending behaviour.
The revised fiscal fine scale continues to enable a wider range of cases to be dealt with by fiscal fine. Although a relatively small proportion of the fines issued have been above the previous scale maximum, I remain of the view that the change has been a useful modification, which has allowed the Crown to respond proportionately and immediately to offending for which such a measure is appropriate, particularly at a time when summary criminal court capacity has not yet returned to prepandemic levels.
Since implementation of the revised scale on 7 April 2020, on average, 3% of individuals offered a fiscal fine and 1% of individuals offered a combined offer have been issued with a fine amount between £300 and £500. COPFS analysis of Justice of the Peace court disposal data is that approximately 4% of relevant cases were formerly disposed of with a fine amount between £300 and £500.
These statistics demonstrate that prosecutors are continuing to apply the revised policy guidance that I issued in relation to fiscal fines in response to the increase in maximum by (i) not increasing the fine amount in individual cases which would previously have been dealt with by way of fiscal fine, and (ii) 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.
COPFS will continue to monitor the use of fiscal fines under the 2020 Act and I am happy to continue providing the Committee with a two-monthly update.
Yours sincerely