1. Concerning the legal framework: does your country follow a system of mandatory or discretionary prosecution? Has the situation changed during the last two years or is a change envisaged? In your country, what is the percentage of criminal law responses to offences perpetrated by identified offenders in the years 2005 and 2006? Amongst those, what is the proportion of alternative to prosecution responses?
Scotland operates a discretionary prosecution system; there is no rule of law in Scotland that an offence must be prosecuted. Procurators Fiscal (prosecutors), acting on behalf of the Lord Advocate at a local level, take decisions on how to proceed with a case. Where there is sufficient evidence to proceed with a prosecution and it is in the public interest to do so, they will decide whether the accused should be offered an alternative to prosecution or whether an accused should be prosecuted. If an accused is to be prosecuted, the Procurator Fiscal will also decide, which forum the case should be heard in. In making their decisions, Procurators Fiscal adhere to the Prosecution Code published by the Crown Office and Procurator Fiscal Service, which is available to the public via our website: www.crownoffice.gov.uk.
This system has not changed during the last 2 years, nor is any change envisaged.
In the financial year 2005/2006 the Crown Office and Procurator Fiscal Service received 319,559 reports alleging criminal conduct. Of these, 197,963 reports were marked for court proceedings, 72,667 were dealt with by alternatives to prosecution and the other 48,929 were not proceeded with. Therefore, criminal responses were employed in 62% of criminal cases and alternatives to prosecution were used in 23% of cases.[1]
2. In the event of an offence, are your judicial authorities able to choose between criminal law measures and other responses? If so, please specify which. Is that choice definitive or can it be challenged?
Scotland operates an adversarial system of criminal law, and as such, the judiciary are not involved in making decisions as to whether an accused should be prosecuted. This decision lies entirely with Procurators Fiscal (prosecutors), who in Scotland, are employed by the Crown Office and Procurator Fiscal Service, headed by the Lord Advocate.
3. Who decides on this choice? What is the specific role of the prosecutor?
Procurators Fiscal, who act on behalf of the Lord Advocate are responsible for deciding whether to issue an alternative to prosecution or to raise court proceedings.
When the Procurator Fiscal receives a report, usually from the police but sometimes from one of over 50 other reporting agencies such as Customs and Excise or the Scottish Environmental Protection Agency (SEPA), he/she will consider it and determine whether there is sufficient evidence to proceed and if it is in the public interest to do so. If these criteria are met the Procurator Fiscal decides whether to issue an alternative to prosecution or whether proceedings should be raised and in which forum.
Serious cases, which are to proceed before a judge and jury, are investigated and prepared at a local level in accordance with guidelines issued by the Lord Advocate. This involves interviewing witnesses, gathering and reviewing other evidence and preparing a report, which is sent to Crown Counsel, who make the final decision on whether serious cases should be prosecuted and in which court.
4. Are there criteria for abandoning the criminal prosecution approach?
The first stage in deciding whether or not an accused should be prosecuted is to assess whether sufficient, admissible evidence is available. In general, for there to be sufficient evidence there must be corroboration, that is evidence from at least two separate sources to establish the essential facts of the case i.e. that the crime was committed and the accused was the perpetrator. If the Procurator Fiscal is satisfied that there is sufficient evidence, he/she must then consider whether it is in the public interest to raise proceedings.
In reaching this decision the Procurator Fiscal must consider all facts and circumstances of the case. There are a number of factors, detailed in the Prosecution Code, which are taken into account. These are:
The nature and gravity of the offence
One of the most important factors is whether the nature and gravity of the offence is one which merits a prosecution in the public interest, or whether the public interest would be better served by another means such as issuing an alternative to prosecution. In some circumstances a very minor offence would not merit the instigation of criminal court proceedings and it is possible that no action will be taken.
The impact of the offence on victims and witnesses
The affect of the crime on those who were victims or witnesses to it will also be a major factor in deciding whether a prosecution is in the public interest. The greater the detriment to those involved the greater the likelihood of a criminal prosecution rather than an alternative being considered.
The age, background and personal circumstances of the accused
The youth or advanced age of the accused may, depending on other circumstances, be a factor, which influences the prosecutor in favour of action other than prosecution. The public interest is more likely to require prosecution where the accused has a significant history of recent previous convictions, particularly where they include convictions for similar crimes.
However, where an accused person is already serving a lengthy custodial sentence, depending on other factors, there may be little to be achieved by a further prosecution. Finally, the prosecutor may consider that ill health or other adverse personal circumstances of an accused person may justify the exercise of discretion in favour of action other than prosecution.
The age, background and personal circumstances of the victims and witnesses
Similar considerations apply in relation to the victim; the youth, or advanced age or personal circumstances of the victim e.g. ill health, may be regarded as an aggravating factor tending to indicate that prosecution is appropriate. Conversely, it may be relevant to consider the possible impact on a witness of attending court and giving evidence; the age or state of health of an essential Crown witness, or some other personal factor may persuade the prosecutor to exercise his discretion otherwise than by prosecution. Such a situation might arise where the prosecutor considers that attending court and giving evidence regarding a relatively minor offence is likely to traumatise or seriously inconvenience a very young, elderly, vulnerable or infirm witness. However, in such circumstances the prosecutor will consider whether the evidence of such a witness can be considered by the court without the witness having to appear in court in person.
The attitude of the victim
In addition to considering the impact of the alleged offence on the victim and other witnesses the prosecutor must take into account any available information indicating the views of the alleged victim about whether prosecution or alternative action is appropriate. However, any views expressed by a victim or witness will only be one factor in the assessment of the public interest.
The motive for the crime
The public interest is likely to require prosecution where criminal behaviour was sexually motivated or motivated by any form of discrimination against the victim’s ethnic or national origin or religious beliefs. It may also be relevant to consider whether the behaviour of the accused was spontaneous or planned in advance and whether it was part of a course of criminal conduct by the accused.
The age of the offence
A significant delay since the date of an offence may indicate that a prosecution will no longer be in the public interest. However, other factors will also be relevant, particularly the nature of the offence; the more serious an offence the more likely that a prosecution will remain appropriate. In considering this factor, prosecutors must have in mind the relevant legal considerations, which may affect the Crown’s ability to prosecute viz. statutory time-bars, the requirements of domestic law and the European Convention on Human Rights
Mitigating circumstances
The prosecutor may have reliable information indicating that the accused’s actions are mitigated by circumstances such as extreme provocation. Depending on the other circumstances of the case, strong mitigating circumstances may persuade the prosecutor that the public interest would not require a prosecution. Similarly, the fact that the accused has offered restitution, which has been accepted by the victim, may, depending on other circumstances, persuade the prosecutor that prosecution is not necessary and that the case can be dealt with appropriately by other means.
The affect of the prosecution on the accused
In some cases prosecution may have the potential to affect the accused in a way or to an extent, which is wholly disproportionate to the gravity of the alleged offence. For example, a criminal conviction is likely to have an adverse effect on a person’s prospects of employment. If the offence is relatively minor and an isolated incident the Procurator Fiscal might consider it more prudent to employ an alternative to prosecution.
The risk of further offending
Where there is information regarding the likelihood of further offending this will be relevant in deciding whether to prosecute. A legitimate purpose, both of prosecution and of the use of alternatives, is to select the best course of action to prevent/deter further offending.
The availability of a more appropriate civil remedy
On consideration of the whole circumstances of a case, civil proceedings may offer a more appropriate method for settling the conflict or issue, which forms the core of the case. The right of a party to seek civil redress may, depending on other circumstances, influence the prosecutor in favour of a disposal other than prosecution.
Powers of the court
The ability of the court to take certain action following conviction may
be a factor which weighs in favour of prosecution. Examples include the power to award compensation, to disqualify from driving or to order a driver to re-sit the driving test. Alternatives to prosecution are detailed below and, although they are useful tools, they are limited to general remedies such as fines and warnings. The courts, on the other hand, possess more extensive powers, which can be employed to tailor their response to the particular crime concerned.
In assessing the public interest the prosecutor will take account of general public concerns as well as local community interests. Arrangements can be made to enable local community representatives to discuss general matters of concern with the Procurator Fiscal although the final decision is the responsibility of the prosecutor.
It should be stressed that no single factor will take precedence over the others when making decisions regarding prosecutions. The overarching, guiding principle in making these decisions is that the course of action taken should be the one, which best serves the public interest, and the factors listed above are pieces of a jigsaw, which make up the greater public interest.
5. Could it happen that a serious offence escapes any prosecution because of alternative measures?
There are comprehensive guidelines on which course of action to take in relation to different categories of offence. If these guidelines are followed, as they should be, then it is very unlikely that a serious offence will not be prosecuted in favour of an alternative measure. Only where the Procurator Fiscal, having considered the case in terms of the factors listed above, believes that the public interest is best served by employing an alternative to prosecution would he/she take such a course of action.
Furthermore, serious offences are not only scrutinised by Procurators Fiscal at a local level; they are referred to Crown Counsel or Advocates Depute for further consideration. Therefore, unless there are some extreme mitigating circumstances a serious offence will not avoid prosecution in favour of an alternative.
6. Are victims informed beforehand, consulted, and can they challenge the decision in the case when criminal prosecution was dropped, and how are their rights preserved?
Criminal proceedings are only raised where is it in the public interest to do so. Several factors relating to victims, as detailed above, are taken into account in determining whether it is in the public interest to raise proceedings. In cases involving domestic abuse, for example, there is a robust policy in favour of prosecution and the views of the victim are important but they are not the only factor, which will be taken into account.
.
It is a fundamental aim of the Scottish Criminal Justice System that the prosecution of crime in this country is immune from political influence or other pressure. The Lord Advocate (the head of the prosecution service) is independent of all other government ministers and any other person. Therefore, no one can compel the Lord Advocate to bring criminal proceedings or to abandon them.
The Crown Office and Procurator Fiscal Service has a Victim Information and Advice service to which all victims or witnesses who are considered to be vulnerable are referred. Cases involving: child victims or witnesses, the most serious offences, sexual offences, racial or religious aggravations must be referred to the Victim Information and Advice service. The principal aims of this service are to offer practical and emotional support to victims as well as providing case specific and general information to victims and vulnerable witnesses.
7. Given that the response chosen gives rise to obligations in respect of the persons subjected to it - such as the reparation of damage - are they able to lodge an appeal with an impartial authority (for example, for validation by a judge of a restraining order or an obligation to undergo training proposed by way of settlement)?
There is no means of appeal to an impartial authority for persons offered an alternative to prosecution.
However, where the alternative is a fine, the accused can chose not to accept the fine in favour of a court hearing.
Personal or written warnings cannot be challenged. Regardless of the accused’s attitude to the warning no further proceedings may be initiated by the Procurator Fiscal after the warning has been issued.
8. Can you give specific examples of alternatives to prosecution, which you see as particularly well suited to the prevention of re-offending by the perpetrator and consideration of victims' interests?
There are a wide range of alternatives to prosecution. When an alternative has been accepted, this precludes the Crown from taking any court action against the accused in relation to the offence for which it was issued.
The range of alternatives to prosecution that are available in Scotland is as follows:
Warning by Procurator Fiscal
The prosecutor may issue a personal or written warning to an accused. This warning will make the accused aware that a report has been received regarding his conduct and that any repetition of the behaviour alleged will result in proceedings being initiated against them. In many instances this course of action will act as a strong deterrent to re-offending particularly where the individual is a first-time offender and the offence is relatively minor.
Fiscal Fine
A person accused of an offence, which would otherwise be prosecuted at District Court level, may be offered a Fixed Penalty (of up to £100) by the as an alternative to court proceedings. The individual has 28 days to pay the fine, otherwise court proceedings may be initiated. If the fine is paid then the prosecutor is precluded from taking any other action against the accused in respect of that offence.
Conditional Offer of Road Traffic Offences Fixed Penalties
Fixed Penalties can be issued by police officers for specific road traffic offences. If the conditions of the offer are complied with within the timescale set, that is the end of the matter. Otherwise a report is submitted to the Procurator Fiscal. The Procurator Fiscal may re-issue the Offer.
Diversion
Diversion involves the referral of an accused person to a social worker, psychiatrist, psychologist or mediator. This option is usually taken in relatively minor cases, where the prosecutor considers that further offending can be best avoided by some form of support from a locally based scheme. The availability of this disposal is dependant on the local provision of such schemes.
If such facilities are available this alternative it is hoped that this will be highly effective in combating re-offending as it should be targeted at resolving the circumstances, which have led to the original offence. The idea is that by investigating the reasons why the accused has offended any problems can be addressed and thus limit the likelihood of re-offending.
In addition to the alternatives to prosecution already available in Scotland, there are further alternatives, which will be brought in by the Criminal Proceedings etc. (Reform)(Scotland) Act 2007
Fixed Penalties (Fiscal Fines)
The way that fixed penalties are dealt with will change to a scheme of “deemed acceptance.” As currently, the individual offered the fixed penalty will have 28 days to respond. However instead of court proceedings being initiated if there is no response after 28 days, the individual will be deemed to have accepted the fine, and steps will be taken to enforce the fine. This is to counteract the large numbers of people who currently do not respond to a fixed penalty notice, but who then go on to plead guilty in court and who are ultimately issued with a fine by the court. The statutory maximum of the fine which can be issued by Procurators Fiscal, will be increased from £100 to £300.
Compensation Order
Where suitable, an offender may be offered the opportunity of paying compensation to the victim of the crime in reparation for damage or injury caused in a case. Compensation orders will also be subject to the policy of “Deemed Acceptance.”
The basic principle is that the victim should be directly recompensed for the wrong perpetrated by the accused.
Another new option is that an offender may be offered the opportunity of performing unpaid work in lieu of facing criminal proceedings. The accused will be offered between 10 and 50 hours of work, which if successfully completed, will preclude the Procurator Fiscal from raising court proceedings. These orders must be explicitly accepted by the alleged offender.
Fiscal Fines, Compensation Orders and Work Orders are not convictions.
9. Is there a method in your country for assessing the effectiveness of alternatives to prosecution and what is it?
There is currently no method for assessing the effectiveness of an alternative to prosecution in Scotland. However case disposals are recorded to enable the police and procurators fiscal to take into account any previous warnings or alternatives to prosecution issued to an accused.
10. Can you provide the contact details (with their consent) of someone clearly identified as a specialist on these questions and supply examples of their work to back up your choice?
All Procurators Fiscal are involved in marking cases and have experience of issuing alternatives to prosecution. If you require further information about the issue of alternatives to prosecution, please contact:
Operational Policy
Business & Police Development Division
Crown Office & Procurator Fiscal Service
25 Chambers Street
Edinburgh
EH1 1LA