Chamber and committees

Good morning. First, I want to take the time to apologise to the committee for the circumstances that bring me back here today. I appreciate that time is of the essence considering where we are in the parliamentary session, so I apologise for that.

As the committee knows, the instrument relates to antisocial behaviour fixed-penalty notices. That regime has remained unchanged in important respects—the penalty level, for example—since it was introduced back in 2005. Police Scotland approached the Scottish Government to ask for work to be undertaken to modernise the regime, and in particular to introduce the offence of threatening and abusive behaviour.

We introduced the original draft order following discussions with partners including Police Scotland and the Crown Office. Its purpose, as you know, was to make a series of targeted changes to keep the regime up to date. As part of the policy development work, Government officials reviewed the offence list and proposed removing two offences from the regime on the basis of apparent non-usage. Although Police Scotland supported the proposal, we have now identified that the understanding that we all had of recent usage data for one of those offences was incomplete.

The earlier conclusion was informed by an interpretation of the criminal proceedings in Scotland data that did not fully reflect the way in which such offences are categorised in the published statistics. Forty-three equivalent notices for an offence under section 115 of the Licensing (Scotland) Act 2005 were issued in the most recent reporting year, with a similar volume recorded in the preceding year. In the published statistics, such FPNs are classified alongside other 2005 act offences.

I apologise to the committee for the error. Officials have reviewed how it arose, and clear lessons have been identified to mitigate the risk of its happening in future. Officials have also discussed the corrected position with Police Scotland, and I can reassure the committee that the police considered that, even if we had proceeded with the original proposal, they would still have had been able to deal effectively with the types of cases that they encounter of disorderly behaviour by people who are drunk on licensed premises.

However, I acknowledge the concerns that members raised in the previous evidence session about removing offences based on a relatively short period of apparent non-use. I appreciate that those points were legitimate and I have reflected on them. After considering the complete time-series data and the committee’s remarks, I am bringing forward a different legislative approach through this revised instrument, which will allow us to make progress in the areas where there is strong evidence and broad support while at the same time pausing the proposed removal of offences so that they can be considered as part of the wider review of antisocial behaviour legislation that we discussed previously.

The revised instrument focuses on two amendments. First, it increases the FPN level from £40 to £70, restoring its real-terms value. Secondly, it adds offences under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 to the ASB FPN regime. That section is now routinely used for lower-level conduct and is already eligible for recorded police warnings.

I emphasise that the ASB FPN regime is operated by the police, using their discretion within a clear framework of safeguards. The Lord Advocate’s guidelines on direct measures set out the limits on the use of ASB FPNs, require consideration of victim impact, and provide for monitoring and annual reporting.

I hope that the revised approach demonstrates that we have listened carefully to the committee and have responded proportionately, under the circumstances. I apologise again for the need to come back to the committee, and I thank members for their patience.

For clarity, I note that my understanding is that the mistake arose because of the way in which officials interpreted the data, which does not fully reflect these offences, in the categories in published statistics. I know that this is quite confusing, but the heading “Riotous behaviour while drunk in licensed premises” covers only offences under the Licensing (Scotland) Act 1976. There is an equivalent offence in section 115 of the Licensing (Scotland) Act 2005, but that comes under a different heading in the data structure, which concerns refusing to leave licensed premises. The 43 ASB FPNs issued last year were issued under section 115 of the 2005 act and were not included under the old data heading. That is where some confusion has arisen. However, that has been picked up and measures have been put in place to ensure that that never happens again. The issue involved offences being categorised in different areas.

I have no further comments.

Motion moved,

That the Criminal Justice Committee recommends that the Antisocial Behaviour (Fixed Penalty Offences) (Miscellaneous Amendment) (Scotland) Order 2026 [draft] be approved—[Siobhian Brown].

I press the motion.

Motion agreed to,

That the Criminal Justice Committee recommends that the Antisocial Behaviour (Fixed Penalty Offences) (Miscellaneous Amendment) (Scotland) Order 2026 [draft] be approved.

Yes, that is what I am being told.

I am sorry—what did you say?

I cannot remember Police Scotland saying that—those remarks might have been misinterpreted.

I have been the Minister for Victims and Community Safety for close to three years and this has never happened before, so it is not something that happens all the time.

The first part of the question is about what will happen moving forward. I cannot speak on behalf of the Government in the next parliamentary session, but we know that there will be antisocial behaviour legislation, and we have the report on the review of antisocial behaviour.

A lot of work should be done in the next parliamentary session on antisocial behaviour and maybe there also should be an overhaul of fixed-penalty notices. The presumption about the current notices can definitely be considered, because lessons have to be learned from what has happened here. I do not want to be here, in this position, today, but I have been reassured by officials that lessons have been learned. I would be happy for officials to write to the committee to explain what procedures and safeguards have been put in place to ensure that this never happens again.

I note that some of the other proposals for reform to the regime are going to be more complex and will involve questions of principle and different penalty levels. What we have in place changes the statistical and policy side that directly address the cause of this error. The statisticians are reviewing similar clarifications across the bulletins, and policy processes are now included that strengthen verification and cross-checking. With the safeguards that have been put in place since we have been alerted to this, the specific circumstance that led to this mistake should not recur.