In my last article, I said that significant changes are being made in the way the majority of offences will be dealt with. Some of these changes are already in place. For example the District Court [soon to become the Justice of the Peace Court under the supervision of the Sheriff Principal] now has the power to disqualify drivers in any case before it. Previously, disqualification was only possible in totting up cases. At the same time the sentencing powers of the Sheriff have been increased so that he can now send someone to prison in a summary case [that is without a jury] for one year instead of 6 months and impose fines and compensation up to £10,000.

More importantly, major changes are about to be brought in, which affect whether a case is to be taken to court at all, what ones are taken to court, how court cases will be commenced, the introduction of police bail and legal aid to pay for representation.

There has been a review of sentences passed in courts throughout Scotland. The information from that, together with a political push to have cases dealt with more quickly and cheaply, have caused the Executive to decide that more than 50% of cases reported by the police do not need to be dealt with by court proceedings. Instead they will be dealt with by a major expansion in the number of cases dealt with by “direct measures” ie police or fiscal issued fixed penalties and “fiscal fines”. Fiscal fines will also allow the PF to require payment of compensation to the victim of up to £5000.

Leaving aside the whole issue of whether simply making an offender pay money is the best way of dealing with offences and offenders, the proposed changes have some worrying features. At present, fiscal fines are an “opt in” system. If offered one, you have to do something [ie make a payment] for it to take effect. If you fail to pay, you will be prosecuted. The new system is the exact opposite. If you fail to positively respond by challenging it in writing to the court within 28 days, you are deemed to have accepted it! That then makes it a registered fine and enforcement proceedings taken, including imprisonment, if it remains unpaid.

Nor will it be easy to seek the recall of the now registered fine if, for example you simply did not receive it in time to respond or even not at all. There are specific and limited grounds for allowing a recall and you will have to show why it should be.

You can of course object [provided you do so in writing within 28 days] to the fiscal fine and then the PF will probably prosecute you and have the matter dealt with by a court.

In short don’t work away from home for more than 28 days at a time or take a long holiday… ever. Heaven help you in these times of increasing identity theft.

One of the problems in the current system, which will become much worse under the new regime as the values are to be increased, is that the PF has no idea what rate you can afford to pay and fixes it arbitrarily. Before the amount of, and the rate for paying, any fine or compensation order is fixed, all courts ascertain the offender’s means and financial responsibilities. Take a huge number of cases away from court and this essential element in justice disappears.

The whole point of a fiscal fine is to take cases away from court. That means that whether you actually committed the crime and if there are any mitigating circumstances has never been considered by a court. The PF makes a decision on the basis of a summary of evidence [not the full statements of the witnesses let alone anything the accused might have to say in response] provided, and as interpreted, by the police. It is not unknown for that summary to be less than accurate or fair. This may not matter where the level of the penalty is small and it avoids a conviction [see below] but how many of you could readily pay £5,000?

Under the current system, the advantage to the accused is that, by paying it, the fiscal fine does not become a previous conviction. If it wasn’t paid, he was prosecuted. If convicted, it was a conviction duly recorded against him. As a Fiscal at the time these were introduced, I was fascinated to read the extremely insulting debate in parliament justifying the decision not to make the accepted ones a conviction, implying as it did that PFs could not be trusted to do their jobs in ascertaining the requirements of justice when issuing such penalties. It was the clearly expressed and agreed view that only a court decision should result in a recorded conviction to be used in subsequent proceedings.

Well times change and a week is a long time in politics because the new regime makes these fiscal fines the equivalent of a conviction in certain circumstances. Not only that, some of them can be issued by the police without a PF having even heard about it let alone independently considered it. And all this without one iota of a clue about what the accused has to say about the allegation. From my extensive experience it is extremely rare for a victim to tell the police what he had done earlier to provoke the response he got. Remember too that these become registered fines simply by failing to object in the prescribed manner and time.

Finally on this point, there are to be changes made to the legal aid scheme which, as presently proposed, may well mean that you will have to pay a lawyer yourself if you wish to obtain advice about what to do if sent one of the new direct measures. More about this and the other highlighted issues next time. Jo Stalin would have been proud of our idea of justice!