Criminal Proceedings in Scotland 2011-12

Annex E - Legislative and policy changes

Legislative changes

E1. On 6 October 2010, section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 was implemented. This introduced a new offence to combat threatening or abusive behaviour. Unlike the common law offence of breach of the peace, where it is necessary to show a "public element" to the conduct, there is no requirement in the new offence to demonstrate that the offending behaviour was in a public place.

E2. Community Payback Orders (CPOs) were also introduced by the Criminal Justice and Licensing (Scotland) Act 2010 and came into effect from 1 February 2011. A CPO can only be imposed in respect of offence(s) committed on or after 1 February 2011. The CPO replaces provisions for community service orders, probation orders and supervised attendance orders, and the former community reparation order. Other existing court orders including drug treatment and testing orders and restriction of liberty orders remain unchanged.

A CPO can consist of one of more of the following nine requirements at commencement:

• Offender supervision,
• Compensation,
• Unpaid work or other activity,
• Programme,
• Residence,
• Mental health treatment,
• Drug treatment,
• Alcohol treatment,
• Conduct.

In addition, after the original imposition of the order, if an offender has failed to comply with one or more of the requirements in the order, a further requirement can be imposed, namely a restricted movement requirement. Every order must contain either (or both) of an unpaid work or other activity requirement and an offender supervision requirement. An unpaid work or other activity requirement can only be issued to offenders aged 16 or over. A court must impose an offender supervision requirement if the offender is under 18 years of age at the time the order is imposed and/or if at least one of the requirements compensation, programme, residence, mental health treatment, drug treatment, alcohol treatment or conduct have been imposed.

E3. The Sexual Offences (Scotland) Act 2009 was implemented on 1 December 2010, making 2011-12 the first full year of data since the change. The act replaces a number of common law crimes such as rape, lewd and libidinous practices and sodomy with new statutory sexual offences. The act also created a number of new 'protective' offences which criminalise sexual activity with children and mentally disordered people. Protective offences are placed into categories concerning young children (under 13) and older children (13-15 years). The new legislation only applies to offences committed on or after 1 December 2010, with any offences committed prior to this date recorded using the previous legislation. The new legislation may result in some increases in Group 2 crime, though the more noticeable effect was a change to the distribution of these crimes among the sub classifications. For example, some crimes previously categorised as lewd and libidinous practices are now classified as sexual assault. The crime categories within the 'crimes of indecency' grouping have been updated to reflect the current legislative position.

E4. In order to more closely align these criminal proceedings statistics with recorded crime statistics, some crime/offence groups have been amended. Last year's 'Prostitution' category has been relabeled as 'Offences associated with prostitution', and now includes crimes such as soliciting services of person engaged in prostitution, brothel keeping, immoral traffic and procuration (which were previously included in 'other indecency'. Theft from a motor vehicle is now reported as a distinct category, rather than being included in 'other theft' as last year. Finally, theft from an ATM is now included within 'Fraud', in line with police recording practice.

E5. Section 3 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 made offensive behaviour at regulated football matches the eleventh offence for which a fixed penalty notice (ASBFPN) can be issued. This provision came into force on 1 March 2012 and so has had no effect on the statistics reported herein. Tables 20 and 21 of future iterations of this bulletin will be amended to incorporate this additional offence.

E6. In February 2011 COPFS carried out a review of the impact of the supreme court's ruling in Cadder v HMA. At the time of the ruling in October 2010, COPFS estimated that there were 3471 cases where the issue of the admissibility of evidence from police interviews had been raised by the defence. Over the three months after the judgment a total of 867 cases could not proceed or could not continue as a direct result of Cadder. The vast majority of cases affected were summary prosecutions, although 9 high court cases and 51 sheriff and jury cases were not able to continue as a result of Cadder. In addition, 3 summary appeals were conceded by the Crown. The details of the review were published on the COPFS website: http://www.copfs.gov.uk/News/Releases/2011/02/Crown-review-cases-after-Cadder-V-HMA

Summary Justice Reform

E7. The summary (i.e. non-jury) criminal justice system in Scotland has undergone an extensive and far-reaching programme of reform. Summary justice reform focused on all aspects of the summary criminal justice system and intended to create a system that is fair, effective, efficient and quick. 2008-09 was the first full year across which many aspects of summary justice reform were implemented.

E8. At an overall level, for example, the continued reduction in the number of people proceeded against in court since 2007-08 is consistent with the principal aim of the reforms - that fewer cases go to court needlessly and more are dealt with by non-court actions, where it is appropriate to do so. Similarly, the number of criminal reports received by the procurator fiscal has fallen year-on-year since 2006-07.

E9. A range of measures were implemented as part of the Anti-Social Behaviour (Scotland) Act 2004 and the Criminal Proceedings etc. (Reform) (Scotland) Act 2007, including:

• Increased roll out and use of alternatives to prosecution that can be offered by the police (e.g. Anti-Social Behaviour Fixed Penalty Notices and Formal Adult Warnings) and procurator fiscal (e.g. increased use of Fiscal Fines).
• Reforms to bail procedures.
• Increased use of undertakings.
• Increased sentencing powers in Summary courts.
• Enhanced fines enforcement.
• Replacement of district courts with Justice of the Peace (JP) courts.
• Reforms to appointing and training lay Justices of the Peace (JPs).
• Reforms to summary criminal legal aid.

E10. The provisions of the 2007 act were brought into force in stages. The changes to undertakings, bail, lay justice, sentencing powers and certain procedural reforms came into effect on 10 December 2007. Those relating to procurator fiscal alternatives to prosecution and fines enforcement came into effect on 10 March 2008. The unification of the administration of the sheriff and district/JP Courts was rolled-out on a sheriffdom-by-sheriffdom basis and completed in February 2010.