The Scottish criminal justice system’s reliance on the use of Alternatives to Prosecution.

Written By Holly Hay

Introduction

The fundamentally adversarial nature of the criminal justice process and proceedings is arguably one of, if not the, most intrinsic feature(s) of the Scottish criminal justice system.[1] The most prevalent and easily recognisable presentation of the system’s adversarial nature is via in-court litigious proceedings between prosecutorial representatives of the state and defence of the accused individual.[2] This represents the culmination of an extended process involving police, procurator fiscals, pleading and intermediate diets, in order to present and challenge evidence on both sides to determine whether guilt has been sufficiently proven to the required standard.[3] If applicable, this is followed by the sentencing diet, with potential for appeal.

Though inarguably a major – and vital – component of the Scottish system as a whole, official annual statistics for the 2021-22 term highlight that a significant 40% minority of criminal reports received by procurator fiscals were resolved by means of an alternative action to prosecution under summary or solemn procedure.[4] This consequently justifies a critical examination and evaluation of alternatives to prosecution in the Scottish system. After briefly outlining the governing framework, this essay shall consider merits and flaws of individual case disposal methods. Given the practically non-existent scope for private prosecution in Scotland, the focus remains with methods available to the public prosecutor.[5] Finally, the argument presented shall adopt a holistic perspective to demonstrate that whilst imperfect, alternatives to prosecution are in reality both necessary and effective devices, hence justifying their use and the current extent of reliance.

Understanding the governing framework

In order to fully appreciate the essay question, it is prerequisite to briefly outline the governing framework. Concurring with Croall, Mooney and Munro, the underpinning principle at the core of the state prosecution’s scope of the principle of expediency, generally facilitating greater discretion/flexibility in response to crime reports.[6] This is established by breadth of available options per the “soft law” of the official Crown Office and Procurator Fiscal Service (COPFS) Prosecution Code s4 (as supported by statutory definitions per the Criminal Justice (Scotland) Act 1995 Parts XI-XIII.)[7]

Sheehan and Dickson contend Scottish prosecutorial alternatives may be divided into categories by effect.[8] This is concurred, by identifying broad categorisations as follows. Firstly, pecuniary penalties (including statutory fixed penalty orders and compensation orders); secondly, penalties requiring devotion of time and/or labour (such as fiscal work orders); and thirdly, social justice-motivated responses (especially diversions to social work institutions for youth issues, mental health, addiction and more.) Furthermore, attention should be drawn also to the ‘suspensive’ effects of official procurator warnings which themselves pose no penalty to the accused, but may be escalated on instance of further offending.[9]

The identified groupings shall now be evaluated on basis of merits and flaws in turn.

Evaluation of individual/distinct approaches

An overview of the three categories

A prevalent objection to the use of pecuniary penalties is whether wrongs so reprehensible as to attract criminal liability can be fully recompensed and justice seen to be truly achieved by payment to the state. This argument is intrinsic to Gane and Stoddart’s position.[10] This is acknowledged – jurisprudentially, unlike contractual breach or delictual harm, criminal liability is attached to acts/omissions which strike a more fundamental and natural discord amongst society. This is difficult to reconcile with a pecuniary penalty that does not particularly encourage rehabilitation on the accused’s part once ‘out of the way.’ Munro and McNeill strengthen the disadvantage argument by recognising the further flaw of fine payments being seen as transferred back to the “government’s purse” with sometimes no obvious evidence of how this translates to tangible positives for the public.[11]

This is heightened in comparison to other alternatives such as the aforementioned fiscal work order aiming to foster positive societal contributions. Agreeing with Williams, where appropriate to the type/severity of the offence, this mechanism presents as an attractive alternative to custodial sentences imposed after prosecution as the ongoing nature of the ‘penalty’ serves not only with wider community but also provides scope for self-reflection.[12] Critically, in playing an active role out with the confines of prison allows the imposed responsibilities to be carried out by the accused alongside continuation of their life and support system, which has known benefits. It is contended this argument can be further extended to the prosecutorial alternative of diversion to other services. In agreement with Croall, Mooney and Munro, this reflects a transition away from a retributive stance in achieving criminal justice towards a position with a greater appreciation of the intrinsic link between perpetration of crime and the presence of negative social justice factors.[13]

Analysis of specific mechanisms

It is further contended there are additional specific considerations for individual mechanisms. For example, as per the Road Traffic Offenders Act 1988 s75, relevant driving offences incur set fixed penalties. In agreement with Ashworth and Zedner, on analysis indiscriminate approaches (in this case via a blanket sum) are inconsistent in effect and may present as an undue burden on certain individuals, or conversely may not be penal enough.[14] This is acknowledged especially in the context of additionally receiving a criminal conviction and/or licence points, which whilst caveats the leniency extreme, only worsens the alternative case. However, it is argued a recorded criminal conviction for the fixed penalty notice in itself is not necessarily flawed given the greater potential of serious harm with traffic offences in comparison to other types of offence.

With regards to fiscal fines, which are applicable to minor non-traffic related offences under the Criminal Procedure (Scotland) Act 1995 s302, there is a wider degree of discretion to tailor the penal sum as appropriate to the case at hand. On analysis this is more advantageous as it aligns more closely with the principle of expediency and need to judge each criminal report on individual merits. Meechan’s counter-argument, however, is less complementary and must be acknowledged.[15] Meechan draws attention to two interconnected disadvantages. Firstly, the relative ease for procurator fiscals to fine increasingly minor criminal law breaches risks a “trigger happy” willingness to impose liability. Young seconds this academic opinion by emphasising instances where punishment likely would never have been considered if prosecution in court was required.[16] Secondly, following from this, the prosecutor arguably exceeds competence and impinges upon judicial scope.

This is recognised. However, in contrast, the late respected academic Duff ultimately adopts a position of qualified acceptance.[17] On analysis this is justified: in practice prosecutorial discretion is unavoidably imperfect because it exists not as theoretical, black letter law but co-exists within the realities of an imperfect criminal justice system and political background. Duff’s position does not attempt to refute flaws and disadvantages within the system of prosecutorial alternatives, but correctly demonstrates the inherent need for flexibility and discretion to adopt a range of approaches in real world context.

Holistic evaluation – in theory and practice

Having established core advantages and disadvantages of particular alternative mechanisms to prosecution, it is imperative to also adopt a wider perspective and evaluate holistically whether such an overall scheme diverting away from the courts can be critically justified.

Efficiency argument

A core consideration concerning whether alternatives may be justified is the wider cost/efficiency implications. As per Ferguson’s formulation, the competing tensions between traditional litigious process and the perception of justice being delivered through the courts is at odds with our struggling justice system.[18] Today, this is in the context of a system that is not only significantly underfunded but is also failing to cope with demand and backlogs as caused and/or exacerbated by the global Coronavirus pandemic.[19]

On analysis this necessitates the principle of expediency approach in order to achieve a sense of justice in the most timely and efficient manner, also reserving the court resources for the more serious and/or complex cases where prosecution is essential. This presents tangible benefits for not only those accused individuals who are brought to trial with greater expediency but also benefits other important parties such as complainers who often feel ‘life is on hold’ whilst awaiting justice.

This is not say this argument, whilst strong, is not infallible, as per Sanders, Young and Burton who highlight that for those cases which are resolved via alternative means, the accused may feel they are denied their opportunity to plead their case before a criminal court (unless, of course, a proactive challenge to the state is made in defiance of the mechanism issued.)[20] It is contended whilst this weakens the robustness of the prior argument, it does not change the practical realities facing the courts and demonstrates compromise remains unavoidable, restating Duff’s aforementioned position.[21]

Rule of law argument

In creating alternative channels for case resolution beyond traditional adversarial prosecution in court, this arguably presents a circumvention of equal treatment for all before the law as per the foundational rule of law. Concurring with White, given the prevalent use of alternatives to prosecution, this prima facie risks creating a two tier criminal justice system.[22] To expand by taking the example of those charged with a fiscal fine, such accused individuals are denied the opportunity to go before the court as presumed innocent to refute evidence presented by the state to prove guilt. This is a fundamental human right enshrined in international legislation via the European Convention of Human Rights (ECHR) Article 6, (which in turn domestic Scots law subscribes to and is bound by under the Human Rights Act 1998.) This would not be the case in a principle of legality system, where all cases meeting the sufficiency of proof threshold would be compulsorily prosecuted.

This argument cannot be ignored due to the core role the rule of law embodies in the Scottish legal system. Nevertheless, counter-arguments persist in seeking to justify this framework. It is contended there are two primary responses as follows. Firstly, concerns about contraventions of the rule of law principle and potential for corruption and/or abuse of power are significantly mitigated by Scotland’s (and the wider United Kingdom’s) strong democratic profile. Concurring with Ferguson and McDiarmid, this is evident from a variety of factors including: widespread freedoms and civil liberties; legitimation of the criminal justice system through popular support and demand; and crucially the practical operation of the COPFS as free from direct measures of governmental control on prosecutorial basis, despite existing as a department of the executive.[23]

The second interconnected counter-argument is the extensive checks and balances ensuring the accountability of Scotland’s prosecution service. As per Duff, the COPFS network is not only a well established and ingrained feature of the adversarial criminal justice system in Scotland, but is operated by expertly trained professionals, and additionally is more widely a core feature of a heavily regulated profession.[24] This is strongly evidenced by the variety of internal and external controls such as the Prosecution Code and the Law Society of Scotland standards.

Looking specifically to the Prosecution Code, it is contended that the guiding framework has also been specifically formulated to provide the scope required by practical realities whilst additionally maintaining core themes and duties/responsibilities to guide procurator fiscal decisions. Primarily, this is apparent by the emphasis placed on assessing each case report on individual merits, and using a default position of assessing relevant factors as neither inherently mitigating against/advocating for alternative case resolution.[25] Indeed, this arguably links back to governing ECHR authority which advocates strongly for discretion to be wielded in line with the doctrine of proportionality.

Overall, these rule of law consideration, while not to be dismissed, can be quite persuasively mitigated against in counter-argument, hence reassuring concerns about the discretionary use of alternatives to prosecution.

In context – prosecution’s place in the criminal justice system

A final important consideration in evaluating whether alternatives to prosecutions – for all their merits and flaws – can be justified, looks to the role of the prosecutor within the criminal justice system as a whole.

Tombs and Moody seek to highlight the significance of the prosecutor’s role as, to quote, “conducted in public, for the public.”[26] On analysis, this connects to the COPFS’ duty to act in the best interests of the Scottish public, which requires procurator fiscals to not only primarily observe hard law but also to reflect societal values/sentiment when engaged in decision making. Of course, the COPFS is a fallible human enterprise and cannot – and will not – always succeed in doing so. However, this underpinning obligation is fundamental in guiding sound assessment, including the decision whether to prosecute.

As such, this could arguably include the option of differential treatment on a case by case basis when considering whether to elect for prosecution or an alterative resolution, particularly in line with the public sense of natural justice and perceived malevolencies or vulnerabilities. This is further evidenced by modern introductions such as the Victim’s Right to Review (not to prosecute) as addressing public interest/natural justice concerns.[27]

Moreover, the procurator fiscal does not work in isolation in their role, but rather contributes as a part of an entire public law network demanding input of the police, judiciary, social work and prisons. As such, flexibility is an advantage to best facilitate co-operation on all fronts and forge a better functioning system overall.

Overall conclusions

In overall conclusion, it is evident there is no easy or straight forward answer to the question of whether alternatives to prosecution, as elected for at the COPFS’ discretion, are justified. Different mechanisms produce different consequential effects, and are both supported and rejected by a variety of academic arguments.

On evaluation, it is contended the core recurring theme in the analysis explored is the unavoidable practical realities of the complexities and fallibilities of the criminal justice system, ultimately demanding the intervention of this framework. Duff’s position remains strong throughout – it is a balancing act yet to be perfected, but needless to say, a very necessary one to have. The alternative – of no alternatives – is not something that is or should be on the horizon.

Bibliography

Articles

Ashworth, A., and Zedner, L., ‘Defending the criminal law: reflections on the changing character of crime, procedure and sanctions’ (2008) 2 Criminal Law and Philosophy 21

Croall, H., Mooney, G., and Munro, M., ‘Criminal justice in contemporary Scotland: themes, issues and questions’ in Hazel Croall, Gerry Mooney and Mary Munro (eds), Criminal Justice in Scotland (Willan 2010)

Croall, H., Mooney, G., and Munro, M., ‘Social inequalities, criminal justice and discourses of social control in contemporary Scotland’ in Hazel Croall, Gerry Mooney and Mary Munro (eds), Criminal Justice in Scotland (Willan 2010)

Duff, P., ‘The fiscal fine: how far can it be extended?’ (1996) 19 SLT 167

Duff, P., ‘The prosecution service: independence and accountability’ in Peter Duff and Neil Hutton (eds) Criminal Justice in Scotland (2nd edition, Routledge 2018)

Ferguson, P., ‘Reforming Scottish criminal procedure: in search of process values’ (2017) 4(2) Bergen journal of criminal law and criminal justice 139

Meechan, K., ‘Extrajudicial punishment and procurator fiscal fines’ [1991] SLT 1

Moody, S.,‘Victims of Crime’ in Peter Duff and Neil Hutton (eds) Criminal Justice in Scotland (2nd edition, Routledge 2018)

Munro, M., and McNeill, F., ‘Fines, community sanctions and measures in Scotland’ in Hazel Croall, Gerry Mooney and Mary Munro (eds), Criminal Justice in Scotland (Willan 2010)

Tombs., J and Moody, S., ‘ Alternatives to prosecution: the public interest redefined’ (1993) 5 CLR 357

White, R., ‘Out of court and out of sight: how often are “alternatives to prosecution” used?’ (2008) 12(3) ELR 481

Young, P., ‘The fine as an auto-punishment: power, money and discipline’ in Peter Duff and Neil Hutton (eds) Criminal Justice in Scotland (2nd edition, Routledge 2018) 182

Books

Ferguson, P., and McDiarmid, C., Scots Criminal Law: A Critical Analysis (2nd edition, EUP 2016)

Gane, C.H.N., and Stoddart, C.N., Criminal Procedure in Scotland (2nd edition, Butler and Tanner 1994)

Jones, T., and Taggart, I., Criminal Law (7th edition, W Green 2018)

Nicholson, D., Evidence and Proof in Scotland (Edinburgh University Press 2019)

Sanders, A., Young, R., and Burton, M., Criminal Justice (4th edition, OUP 2010)

Sheehan, A., and Dickson, D., Criminal Procedure (2nd edition, LexisNexis Butterworths 2013)

Thesis

Williams, R., ‘Tripartite interaction in the community payback order’ (DPhil thesis, University of Edinburgh 2019)

Websites

Crown Office and Procurator Fiscal Service, Case Processing Statistics 2017 – 2022 (COPFS 2022) <https://www.copfs.gov.uk/media/ohsnz1cw/case-processing-statistics-2017-to-2022-1.pdf> accessed 20 November 2022

COPFS, Prosecution Code (COPFS 2022) <https://www.copfs.gov.uk/for-professionals/prosecution-guidance/prosecution-code/html/#options> accessed 20 November 2022

Department for finance and economy, ‘Scottish Budget 2022 to 2023’ (Scottish government, 9 December 2021) <https://www.gov.scot/publications/scottish-budget-2022-23/pages/9/> accessed 24 November 2022

[1] Timothy Jones and Ian Taggart, Criminal Law (7th edition, W Green 2018) 1-02 [2] Andrew Sanders, Richard Young and Mandy Burton, Criminal Justice (4th edition, OUP 2010) 13 [3] Donald Nicholson, Evidence and Proof in Scotland (Edinburgh University Press 2019) 14 [4] Crown Office and Procurator Fiscal Service, Case Processing Statistics 2017 – 2022 (COPFS 2022) <https://www.copfs.gov.uk/media/ohsnz1cw/case-processing-statistics-2017-to-2022-1.pdf> accessed 20 November 2022 [5] Sweeney v X [1982] HCJAC 1 [6] Hazel Croall, Gerry Mooney and Mary Munro, ‘Criminal justice in contemporary Scotland: themes, issues and questions’ in Hazel Croall, Gerry Mooney and Mary Munro (eds), Criminal Justice in Scotland (Willan 2010) [7] COPFS, Prosecution Code (COPFS 2022) <https://www.copfs.gov.uk/for-professionals/prosecution-guidance/prosecution-code/html/#options> accessed 20 November 2022 [8] Albert Sheehan and David Dickson, Criminal Procedure (2nd edition, LexisNexis Butterworths 2013) 118 [9] COPFS, Prosecution Code (n6) [10] C.H.W Gane and C.N Stoddart, Criminal Procedure in Scotland (2nd edition, Butler and Tanner 1994) 40 [11] Mary Munro and Fergus McNeill, ‘Fines, community sanctions and measures in Scotland’ (n5) [12] Ralph Williams, ‘Tripartite interaction in the community payback order’ (DPhil thesis, University of Edinburgh 2019) [13] Hazel Croall, Gerry Mooney and Mary Munro, ‘Social inequalities, criminal justice and discourses of social control in contemporary Scotland’ (n5) [14] A Ashworth and L Zedner, ‘Defending the criminal law: reflections on the changing character of crime, procedure and sanctions’ (2008) 2 Criminal Law and Philosophy 21 [15] Kenneth Meechan, ‘Extrajudicial punishment and procurator fiscal fines’ [1991] SLT 1 [16] Peter Young, ‘The fine as an auto-punishment: power, money and discipline’ in Peter Duff and Neil Hutton (eds) Criminal Justice in Scotland (2nd edition, Routledge 2018) 182 [17] Peter Duff, ‘The fiscal fine: how far can it be extended?’ (1996) 19 SLT 167 [18] Pamela Ferguson, ‘Reforming Scottish criminal procedure: in search of process values’ (2017) 4(2) Bergen journal of criminal law and criminal justice 139 [19] Department for finance and economy, ‘Scottish Budget 2022 to 2023’ (Scottish government, 9 December 2021) <https://www.gov.scot/publications/scottish-budget-2022-23/pages/9/> accessed 24 November 2022 [20] Andrew Sanders, Richard Young and Mandy Burton, Criminal Justice (4th edition, OUP 2010) 25 [21] Peter Duff, ‘The fiscal fine: how far can it be extended?’ (n17) [22] Robin White, ‘Out of court and out of sight: how often are “alternatives to prosecution” used?’ (2008) 12(3) ELR 481 [23] Pamela Ferguson and Claire McDiarmid, Scots Criminal Law: A Critical Analysis (2nd edition, EUP 2016) 10 [24] Peter Duff, ‘The prosecution service: independence and accountability’ (n16) [25] COPFS, Prosecution Code (n6) [26] Jacqueline Tombs and Susan Moody, ‘ Alternatives to prosecution: the public interest redefined’ (1993) 5 CLR 357 [27] Susan Moody, ‘Victims of Crime’ (n16)