Permanence of Coronavirus Recovery and Reform Act measures: consultation analysis

5. Fiscal fines

It is proposed that several temporary changes to fiscal fines and financial penalties set out in the Coronavirus (Recovery and Reform) (Scotland) Act 2022 should be made permanent. Specifically, this would apply to the increase in the maximum level of fiscal fine from £300 to £500, and the new nine-point scale of fixed penalties.

The consultation paper notes that these measures have together enabled alternative action to prosecution to be taken in a wider range of cases, in line with revised policy guidance issued by the Lord Advocate in April 2020. It is also noted that the measures allow for proportionate penalties for lower-level offences, while providing a higher maximum penalty where appropriate.

Question 4: It is proposed that the provisions for Chapter 4 (Fiscal fines) will be made permanent. Which of the following best describes your view?

Responses to Question 4 by respondent type are set out in Table 5.

1 of the 30 consultation respondents did not answer this question and are not included in the results presented above.

Over half of those answering the question (18 of 29) felt that the provisions for Chapter 4 in relation to fiscal fines should be made permanent, including three who felt that there should be exceptions. Two respondents – a legal profession and health/social care respondent - felt that the provisions should not be made permanent.

If you have any comments on the proposal for permanency of this provision, please provide them below.

Twelve respondents provided further comment at Question 4.

Reasons for supporting the permanency of the provision

Reflecting the overall balance of views reported at Table 5, most of those providing further comment expressed general support for provisions to enable wider use of fiscal fines. This included a mix of legal profession, community justice, health/social care, advocacy and third sector respondents.

For some, this support was linked to the potential for provisions to reduce use of court prosecution, helping to reduce backlogs and prioritising court time for more serious cases. It was suggested that temporary provisions have been working effectively in this regard. This included reference to evidence on the use of revised fiscal fines and penalties to date, and a view that there is no indication that higher maximum fines were being used excessively or inappropriately. There was also specific support for higher maximum fines, including comments that this has in effect enabled fines to take account of inflation.

Reasons for not supporting permanency

Opposition to the permanency of fiscal fine provisions included comments from legal profession and health/social care respondents that increased use of alternatives to prosecution will negatively affect the ability of the criminal justice system to deliver its public protection function. A health/social care respondent suggested that alternatives to prosecution were being used during the COVID pandemic for offences that could be considered serious. It was also noted that individuals do not have to declare spent alternatives to prosecution in circumstances where they would have to declare a criminal conviction. This was seen as potentially limiting the ability of regulators and other bodies to carry out their public protection function.

Other points for consideration

Respondents also raised a number of considerations for the permanency of fiscal fines, including proposals for how fines should be applied. The most common was a view that provisions must take into account the individual’s capacity to pay and any potential impact of financial hardship on their family. This was raised as a concern by several community justice and health/social care respondents, including reference to ongoing cost of living pressures. The criteria and approach to assessing capacity to pay were also highlighted as a key consideration.

Other issues raised by respondents are summarised below.

• Any fiscal fines are proportionate to the severity of the offence.
• Fiscal fines should not be used for those aged under 18.
• An individual respondent suggested that the scale of fiscal fines is too low, noting that a £500 fine may have little impact on an individual with higher income.
• It was proposed that clear guidance will be required to ensure appropriate use of fiscal fines as an alternative to prosecution.

A specific concern was raised around the interaction between use of pre-conviction and diversionary processes and the current disclosure systems. The respondent recommended that provisions should include a requirement for the Procurator to be clear on how use of fiscal fines is disclosed within the terms of the Management of Offenders (2019) and Disclosure Scotland (2020) Act.