Criminal Proceedings in Scotland 2012-13

Annex E - Legislative and policy changes

Legislative changes

E.1 The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 was implemented on 1 March 2012. The Act criminalises behaviour which is threatening, hateful or otherwise offensive at a regulated football match including offensive singing or chanting. It also criminalises the communication of threats of serious violence and threats intended to incite religious hatred, whether sent through the post or posted on the internet.

E.2 The 2012-13 bulletin is the first full year which includes the new act. Offences under this legislation are included in the crime type breach of the peace. The table below is provided for information on the number of people proceeded against under the new legislation since the Act came into force in 2012.

People proceeded against¹ under the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012

1. Where main charge

E.3 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.

E.4 Section 17 of the Criminal Justice and Licensing (Scotland) Act 2010 included a presumption against short sentences (3 months or less). This presumption states that a court must not pass a sentence of imprisonment for a term of 3 months or less on a person unless the court considers that no other method of dealing with the person is appropriate.

E.5 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 has been imposed.

E.6 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 (sexual crimes), though the more noticeable effect was a change in 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 'sexual crimes' grouping have been updated to reflect the current legislative position.

E.7 This year's bulletin has renamed the previous 'crimes of indecency' crime group to 'sexual crimes'. There have been no substantive changes to the crime codes which are included in this group. The 2012-13 publication of recorded crime statistics used the term sexual offences and this will be reviewed next year.

E.8 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. Tables 20 and 21 of this bulletin have been amended to incorporate this additional offence.

Summary Justice Reform

E.9 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.

E.10 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.

E.11 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

E.12 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.