Further provisions on enforcement
297.Section 50(3) makes further provision in relation to enforcement of alternatives to prosecution, and amends section 303 of the 1995 Act accordingly.
298.Subsection (3)(a) provides that, where an alternative to prosecution has been accepted, any outstanding amount is to be treated for enforcement purposes as if it were a fine imposed by the court.
299.Subsection (3)(b) provides that no action is to be taken to enforce a “fiscal fine” or compensation offer where acceptance has been deemed by the alleged offender’s lack of action, unless a notice is sent to the alleged offender explaining that enforcement action is to be taken, and outlining the recall procedure. Action can only be taken once any application for recall has been dealt with.
Section 51: Work orders
New section 303ZA – Work orders
300.This section inserts a new section 303ZA into the 1995 Act. It creates a new alternative to prosecution – the “work order” (which has also been referred to as the “fine on time” or “community fiscal fine”).
301.Section 303ZA(1) empowers a procurator fiscal to make a ‘work offer’ to an alleged offender who appears to have committed a relevant offence (defined in section 303ZA(16) as one which is triable summarily). This offer will give the alleged offender the option of performing a period of unpaid work where a monetary penalty such as a “fiscal fine” or a compensation offer are not deemed appropriate.
302.Section 303ZA(2) sets the minimum (10 hours) and maximum (50 hours) number of hours work that can be offered under a work offer. Section 303ZA(3) outlines the information which will require to be contained on the notice of offer. In many ways this is similar to the information which requires to be on the notice of offer of the two other alternatives to prosecution which are described above. The circumstances of the alleged offence, the amount of work which will require to be completed, the date by which the work will require to be completed, and the consequences of acceptance and completion of the offer all require to be in the offer.
303.Section 303ZA(4) permits the work offer to be made in respect of more than one offence, and subsection (5) provides details on what the alleged offender requires to do to accept the offer. Unlike the new system for “fiscal fines” and compensation offers, the work offer requires to be positively accepted by the alleged offender.
304.Section 303ZA(6) provides that if the offer is accepted, the procurator fiscal can then make a work order against the alleged offender. On doing so, the procurator fiscal must send a notice to the alleged offender that a work order has been made, containing details of the amount of work to be carried out and details of the person who is to supervise performance of the order (section 303ZA(7)). Section 303ZA(8) obliges the procurator fiscal to advise the supervising local authority of the imposition of an order.
305.Section 303ZA(9), (10) and (11) deal with the manner in which the supervising officer’s duties are to be discharged. The officer is to determine the nature, time and place of the work to be done, and give directions to the alleged offender regarding its performance. The officer is also to provide the procurator fiscal with details of the performance of the order. The purpose of this last provision is to allow the procurator fiscal to consider whether, in the event that the order is not completed satisfactorily, further action is appropriate. The officer is under a duty, as far as practicable, not to direct the alleged offender to carry out work which would hamper the alleged offender’s attendance at work or education, or which would conflict with the alleged offender’s religious beliefs.
306.Section 303ZA(12) provides that where the alleged offender completes the work required in the order s/he will not face prosecution for the alleged offence. In the event that the entire order is not completed satisfactorily, the procurator fiscal will have the option of prosecuting the alleged offender for the alleged offence giving rise to the work order, even if some work has been carried out under the order.
307.Section 303ZA(13) and (14) give the Scottish Ministers a regulation-making power to make specific provision in relation to specific aspects of work orders as set out in subsection (9). In particular the Scottish Ministers may specify what kind of work may or may not be undertaken.
308.Section 303ZA(15) makes provision for citation of the alleged offender in subsequent prosecution. The position is similar to that for “fiscal fines” and compensation offers. Citation will be presumed to have taken place if it is effected at the address at which the alleged offender is proved to have received an offer, or any other address provided by the alleged offender.
Section 52: Setting aside of offers and orders
New section 303ZB – Setting aside of offers and orders
309.This section inserts section 303ZB into the 1995 Act. It formalises the power of the procurator fiscal to set aside an offer of an alternative to prosecution of the types listed in section 303ZB(1).
310.Section 303ZB(2) provides that the procurator fiscal can set aside an offer of such an alternative to prosecution where s/he is satisfied that the offer should have not been made, on the basis of information which comes to his/her attention after the making of the offer.
311.Section 303ZB(3) confirms that this power applies even if the offer has been accepted or deemed to have been accepted.
312.Section 303ZB(4) obliges the procurator fiscal when exercising this power to advise the alleged offender that the offer has been set aside and that any liability to conviction for the alleged offence is discharged.
Section 53: Disclosure of previous offers
313.This section amends section 69 (notice of previous convictions), section 101 (previous convictions: solemn proceedings), and section 166 (previous convictions: summary proceedings) of the 1995 Act, and makes provisions governing the circumstances in which an offer of an alternative to prosecution can be disclosed to the court. To all intents and purposes the amendments to each section have an identical effect.
314.The primary purpose of these amendments is to allow the prosecutor to include in any notice of previous convictions, whether in a solemn or summary case, details of an alternative to prosecution which has been accepted (completed in the case of a work order) by the alleged offender in the two years preceding the date of the new offence under consideration.
315.In the case of the financial alternatives to prosecution – the “fiscal fine” and the compensation offer – the procurator fiscal can disclose details of these alternative disposals to the court whether the offer has been accepted by payment having been made, or whether acceptance has been deemed by the alleged offender taking no action in respect of the offer.
316.It is not intended that accepted “fiscal fines” or compensation offers, or completed work orders, should be regarded as criminal convictions for this or any other purpose. The relevant sections of the 1995 Act are all amended to make it clear that accepted alternatives to prosecution are to be regarded as “alternative disposals” for the purposes of this part of the Act.
317.In addition, the statute will now explicitly permit prosecutors, on conviction for an offence where an offer of an alternative to prosecution was made, to advise the court of the terms of any such offer.
Section 54: Time bar where offer made
New section 136B – time limits where fixed penalty offer etc. made
318.This section inserts a new section 136B into the 1995 Act. The purpose of this section is to alter the operation of time bar in statutory cases where an alternative to prosecution has been offered. It is intended that this will avoid the situation where the time spent in offering an alternative which is then declined makes it difficult or impossible to take proceedings within statutory time limits.
319.Section 136B applies to conditional offers, compensation offers and work offers. Section 136B(1) provides that in connection with conditional offers and compensation offers, for the purpose of calculation of any period of time bar, the period between the date of any offer of an alternative, and the date of refusal of the offer or date of recall of deemed acceptance, is to be disregarded.
320.In the case of work offers, section 136B(1)(c) provides that the period between the date of the offer and the last date for acceptance of the offer is to be disregarded where the offer is refused. In addition, where the offer is accepted but not completed the time between the date of the offer and the date specified for completion of the order is to be disregarded.
321.Section 136B(2) provides that a prosecutor can certify the period of time which is to be disregarded for these purposes.