In and out of court

One of the key aims of the summary justice reform programme is making the best and most efficient use of courts and valuable court time. The Criminal Proceedings etc (Reform) (Scotland) Act 2007 introduces a number of provisions designed to facilitate this. This article considers two examples of how the legislation provides non-court options for dealing with cases at different stages of their life cycles.

Direct measures

One of the recommendations of the McInnes Committee was that there should be an increase in the use of direct measures (alternatives to prosecution), and that to facilitate this, legislation should be enacted to make them “more widely available, more flexible, and more robust”. The 2007 Act makes significant changes to those direct measures which can be offered by the procurator fiscal in relation to their scope, rejection, enforcement, and effect. Practitioners will also be aware that the powers given to police officers to offer “on the spot” fixed penalties for various examples of low-level antisocial behaviour, under the Antisocial Behaviour etc (Scotland) Act 2004, have now been rolled out throughout the country.

There should be no doubt, though, that none of these reforms will fetter the discretion of the procurator fiscal in respect of cases reported to him or her; any case which should be prosecuted in court will continue to be so prosecuted. And an accused can always reject the offer of a non-court disposal with a view to having the case heard in court.

Section 50 of the 2007 Act contains the bulk of the reforms to the power of the procurator fiscal; it amends s 302 of the 1995 Act and adds ss 302A, 302B and 302C. The maximum fiscal fine is increased to £300. In addition, the fiscal is given the power to make a “compensation offer” to a maximum of £5,000, and a “combined offer” containing elements of both. The introduction of the compensation offer gives prosecutors the ability to offer a direct measure in cases which would currently be prosecuted because of the need for the sentencing court to consider whether the victim of the crime should be compensated.

Acceptance and recall

Perhaps the most significant change for recipients of offers relates to the method of acceptance. As recommended by the McInnes Committee, these penalties will now be offered on an “opt-out” basis: the alleged offender can accept by making payment, or decline by intimating refusal to the clerk of court. However, if the alleged offender does nothing within the period prescribed in the offer letter (generally 28 days), they will be deemed to have accepted the offer and will thereafter be liable to pay the amount specified in the offer in full, at the given instalment rate. It therefore becomes essential for the recipient to consider their position immediately.

In circumstances where deemed acceptance has taken place, the Act provides for a recall mechanism. The alleged offender can apply for recall where it is their position that they did not receive the offer, or did receive the offer but because of exceptional circumstances were unable to give notice of refusal. In both cases they must also claim that they would have refused the offer. Applications for recall should be made in the first instance to the relevant clerk of court; there is a right to apply to the court for review of the clerk’s decision. If the recall application is successful, the alleged offender can be prosecuted.

The Act continues to specify information which must be in the offer letter, now including the need to take swift action where the recipient wishes to decline the offer.

Section 51 adds s 303ZA to the 1995 Act, empowering the fiscal to offer a “work order” as an alternative to prosecution. This involves the performance of between 10 and 50 hours of unpaid work. The alleged offender accepts a work order by giving notice to the fiscal of that acceptance, and performance of the order to the satisfaction of the supervising officer discharges liability to prosecution. The work order will first be piloted before any decision is taken about nationwide rollout.

The period between the making of an offer and its refusal or recall is to be discounted for the purpose of considering any issues of time bar (s 54).

Future reference

It remains the case that acceptance of a direct measure is not a conviction. However, again as recommended by the McInnes Committee, it is provided that accepted direct measures can be disclosed to the court as if they were previous convictions if the alleged offender is convicted of another offence. This, however, can only be done if the direct measure was accepted in the two years preceding the date of the offence before the court (s 53).

The procurator fiscal’s power to set aside an offer of a direct measure is formalised. The fiscal can do this where information comes to their attention which indicates that, had that information been available at the time of marking, the offer should not have been made. Where the fiscal uses this power, both the offer and the right to prosecute are discharged (s 52).

An accepted fiscal fine, compensation offer, or combined offer is to be enforced as if it had been imposed by a court. However, enforcement can only take place after the alleged offender has been issued with an enforcement notice (s 50).

Fine enforcement

Fine enforcement generally is another area in which the law is substantially amended. The McInnes Report examined the present enforcement system and noted that while it was “successful in collecting and accounting for payments which are made, [it failed] to secure prompt payment of sums which those fined are unwilling to pay and [did] not cope well with those who genuinely cannot pay”. The legislative reforms which have been introduced aim to address those issues by increasing the efficiency and effectiveness of fine collection, including minimising the unnecessary involvement of the courts and police, while providing advice and support for those who are having difficulty.

Section 55, therefore, introduces new ss 226A-226I into the 1995 Act. The mechanism through which fine enforcement will be secured is the enforcement order. The court can make an enforcement order in a number of situations, including:

• where a court has imposed a financial penalty and the court has granted time to pay, or further time to pay;
• where a person has accepted (including deemed acceptance) a direct measure and has not made a payment as required by the offer; or
• where a person is liable to pay a fixed penalty notice in terms of the Road Traffic Offenders Act or the Antisocial Behaviour etc (Scotland) Act 2004 and has not made a payment as required by the notice.

An order in relation to a direct measure is made on the application of the clerk of court. The offender need not be present.

Introducing the FEO

Perhaps the most significant reform is the creation of the new post of fines enforcement officer (FEO). The FEO has the statutory duty both to secure compliance with enforcement orders and to provide information and advice to those who have outstanding fines, and has a range of options to fulfil these duties. For example the FEO can allow more time, and fix lower instalments, for payment of a fine without needing to refer the matter to a court. This can be on the application of the offender.

But the FEO also has access to significant enforcement powers. They can make a “seizure order” in relation to a motor vehicle belonging to the offender; can request a court to make an application for deductions from benefits; and can arrest earnings or money held in a bank account.

A seizure order, once made, allows for the immobilisation or impounding of the vehicle. But the vehicle can only be sold or disposed of, and the proceeds applied towards any unpaid fine, on the order of the court. And a seizure order cannot be made in respect of a vehicle which displays a disabled person’s badge or is primarily used for the carriage of a disabled person.

The FEO can refer an enforcement order back to court where payment is unlikely to be obtained, or where they consider it expedient to do so. When taking that action the FEO must provide the court with a report about the offender’s case. Before considering what to do with the order, the court must enquire of the offender why any part of the penalty has not been paid. Thereafter the court has a number of options at its disposal, including revocation, confirmation or variance of the order. While an enforcement order is extant, the court cannot impose imprisonment in default of payment.

The offender, in turn, has the right to apply to the court for review of an FEO’s decision on an application to vary the terms of payment of a fine, and the making of a seizure order.

Conclusion

The original remit of the McInnes Committee was “to make recommendations for the more efficient and effective delivery of summary justice in Scotland”. The committee’s report therefore re-assessed what requires to be done in court and, on the other hand, what can appropriately and proportionately be done outside of court. The legislation discussed in this article, in addressing that issue, is intended to have a positive impact on both the efficiency and effectiveness of the courts.

David A Dickson is a procurator fiscal depute on part-time secondment to the Scottish Government.

LATEST COMENCEMENTS, AND OTHER ORDERS

The third commencement order made under the 2007 Act brought the following provisions into force on 10 March 2008:

• criminal proceedings (ss 7, 11, 12, 16, 17, 22, 23, 28, and 31);
• sentencing (s 49);
• direct measures (ss 50, and 52-54);
• enforcement of fines (s 55);
• unification of summary court administration in Lothian and Borders (ss 59, 61, 62, 63; further orders will be made as unification is extended to each sheriffdom);
• lay justice (ss 68(4) and (5), 74, 75 and 77(2), (3) and (5));
• certain minor and consequential amendments in the schedule.

The corresponding Act of Adjournal (Criminal Procedure Rules Amendment) (Criminal Proceedings etc (Reform) (Scotland) Act 2007) 2008 has also been made. Other orders coming into effect on 10 March, subject at the time of writing to parliamentary procedures, are:

• the Criminal Procedure (Scotland) Act 1995 Compensation Offer (Maximum Amount) Order 2008 (prescribing maximum amount of compensation offer);
• the Criminal Procedure (Scotland) Act 1995 Fixed Penalty Order 2008 (new scale of fiscal fixed penalty offers at £50, £75, £100, £150, £200, £250 and £300);
• the Criminal Proceedings etc (Reform) (Scotland) Act 2007 (Supplemental Provisions) Order 2008 (amending s 102A of the 1995 Act and s 7 of the 2007 Act).
• The Enforcement of Fines (Diligence) (Scotland) Regulations 2008 and the Enforcement of Fines (Seizure and Disposal of Vehicles) (Scotland) Regulations 2008 are expected to come into force on 1 April 2008.