Criminal Proceedings in Scotland 2015-16

Annex E: Legislative and policy changes

Legislative changes

E.1 There were no major legislative changes in 2015-16 but it may be useful for users to be aware of the following changes in more recent years:

E.2 On December 5th 2014 the alcohol limit for drivers in Scotland was reduced from 80 mg to 50 mg per 100 ml blood. This publication contains the first full years' worth of data (2015-16) since the limit was changed.

E.3 Aside from the changes in drink driving legislation there have been no other major legislative changes throughout 2015-16 which impact on the comparability of the statistics. However, it should be noted that legislation introduced in more recent years prior to 2015-16 will continue to have an impact on the statistics as people are charged under the new legislation and proceeded against in court. Some of these changes are outlined below.

E.4 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.5 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.6 Section 39 of the same act also introduced a specific criminal offence of stalking. It is based fairly closely on the offence of harassment in the Protection from Harassment Act 1997, although with important differences. Section 39 of the Act defines conduct which amounts to stalking by means of a list of behaviours. This includes following or attempting to contact the victim; monitoring electronic communications; watching and spying. It also includes a "catch all" "acting in any other way that a reasonable person would expect would cause (the victim) to suffer fear or alarm".

E.7 Section 17 of the same act 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.8 The Sexual Offences (Scotland) Act 2009 was implemented on 1 December 2010. 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).

E.9 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.

Summary Justice Reform

E.10 Summary justice (i.e. non jury) reform focused on reducing the number of cases that go to court needlessly with more people being dealt with by non-court actions, where it is appropriate to do so. 2008-09 was the first full year across which many aspects of the reform were implemented.

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