Item 2 is stage 1 consideration of the Criminal Proceedings etc (Reform) (Scotland) Bill. I am delighted to welcome to the Justice 1 Committee Sheriff Principal John McInnes, who, as members will know, is the former chairman of the summary justice review committee. We have a number of questions for him and probably have about an hour in total to question him on the bill and the report that he prepared for the Executive.
Most of the bill's provisions will not achieve that. It will be achieved through a combination of primary legislation, secondary legislation and, more important, changes in practice.
You might know that we had Executive officials along last week.
I did not know that.
We tried to tease out some of the detail on that with them. They told the committee that a lot of modelling is currently being done to bring about some of the detailed changes. Are you involved in any of those discussions?
I am not, but I am aware of some of that work. I have mentioned in my written submission the project that is going on in West Lothian. Everybody there, including the sheriff and the defence solicitors, has become involved in that project to work out how they can get cases into and through the court as quickly as possible. They are heading along the right lines, but they need some help. I cannot speak for them because I have not spoken to them recently, but they need the legal aid arrangements to be changed.
That is one subject that the committee is scrutinising; we are trying to identify whether the bill goes into detail on that. It is difficult for us to judge whether the bill will achieve a more efficient or speedier system without that detail.
I have not examined the Legal Profession and Legal Aid (Scotland) Bill, so I do not know what is in it. However, I know that the Scottish Legal Aid Board will need a change at least in regulations, if not in primary legislation, to enable proper remuneration to be given for the purpose of deciding whether the accused should plead guilty. That is not an easy quick fix. The reason for the premium on a plea of not guilty is that it puts the solicitor in the position of asking himself and his client whether a full investigation of the case is justified and whether the case is likely to have a defence—if so, an application for legal aid should be made.
You went on to say that a summary of the evidence should be made available at a much earlier stage in the proceedings. Will you clarify for us the stage at which that disclosure should be made?
Ideally, when a copy of the complaint is served on the accused, it should be accompanied by a summary of the evidence. Nowadays, in the more serious petition cases that may go before a jury, a summary of evidence normally accompanies the petition. When the court is addressing the question of bail, it is helpful for it to know roughly the nature of the Crown evidence.
Is the Crown equipped to make that change?
If the will is there, it will happen. When the Crown sees that things are beginning to work, change will happen quite quickly.
Do you accept that your proposal for a summary of the evidence to be provided when the complaint is served puts quite an onus on the Crown to change the system, at least in that regard?
The problem actually starts with the police. The question is whether they will be able to provide an accurate summary of the evidence. That said, the police do that at the moment in their standard police reports. The main issue is whether information from those reports can be cut and pasted. Is it possible to take something out of a police report without necessarily disclosing various confidential elements of the report? Technically, I think that that can be done.
Before we move on to explore the issue of intermediate diets, I have one further question. In terms of speeding up the system and making it more efficient, are there any significant changes that are missing from the bill?
Perhaps not significant changes. Yesterday, as I was working on some papers in advance of today's session, I jotted down a number of thoughts. One of them may be relevant in this context. The summary justice review committee report made a number of recommendations that related to issues of evidence and which are not in the bill. Another measure that is not in the bill is the creation of a summary criminal appeal court. This is not the occasion to go into detail on that proposal; it may be the subject of future legislative change.
In your report, you noted that the success of intermediate diets varies widely in different parts of the country. Why is that? Is legislation or a change in practice needed to address the problem?
Legislative changes that will have a bearing on intermediate diets are proposed in the bill. For example, provision is made for the intimation of special defences in advance of the intermediate diet rather than in advance or at the start of the trial.
Other members might return to that point, which is interesting.
The system can be made to work better. When I was a sheriff in Perth, we fixed the start of intermediate diets at 12 noon. We would deal with 30 to 45 cases in one sitting. During the two hours before noon, a procurator fiscal would be in the building discussing the cases with solicitors—they knew that they had two hours to sort out their cases. The trouble was that the solicitors all used to turn up at 11.45 am; they should have turned up at 10 am, but that is what people do. An appointments system would have dealt with that problem. The key objective was to enable the Crown and the defence to talk to each other about what the case was about, what was in dispute and whether a plea could be adjusted. The approach gave them time to sort everything out before the court sat.
It sounds as if some heads need to be knocked together.
Indeed.
But does that require legislation?
A lot of it requires not so much legislation as a lot of co-operation by the various agencies.
Can you point to any other examples where such co-operation exists? I believe that you mentioned Perth in that respect.
There are many examples of good practice around. However, if we can get people to plead guilty earlier, we will be able to clear the decks. Because far fewer cases will come to trial, the courts will have more time.
According to the statistics, an arrest warrant is issued in 8 per cent of summary cases because the accused fails to turn up. As a result, the bill—and indeed your committee—has recommended that trial in absence be extended. However, under section 14, that can be done only if
Actually, I do not agree with you. After all, there are people who, although they have been given every opportunity to turn up, have simply decided not to do so. Worst of all are cases in which there are three accused, one of whom does not show up each time the case is called. Although such actions seemed to have been planned, that is impossible to prove. If the accused does not turn up, but the case is straightforward and all the other witnesses are present, the question becomes whether the Crown can prove the charge, which will not be tested in the same way that it might be under cross-examination. However, I do not think that that is a problem if a person has been told that they must turn up on a certain day and that if they do not do so, the trial may proceed in their absence and they will be put at a disadvantage. If, for example, a person was taken into hospital as an emergency case and the court mistakenly thought that they had wilfully failed to turn up, one would need to be able to put things back on the rails, but that is a separate issue.
Does the logic of what you have said suggest that it is perfectly possible for a just case to be progressed and a just conclusion to be reached entirely in the absence of the accused and of any legal representation of the accused? Is that your position?
If the accused has no defence, which sometimes happens, there will certainly be no injustice. If the accused has a defence and an opportunity to present that defence, and has been told of that opportunity but has not availed himself of it, he will put himself at a disadvantage. Say a lady stole something from Marks and Spencer. There could be a difficulty with identification, but a witness could say, "I walked out, I stopped her at the door and she was taken to the back office." That evidence would be just as good in the absence of the accused. The only issue would probably be how much was stolen or whether the person was the accused. If the accused was not prepared to come along and say that he or she was not the person, what would be unfair about that approach?
Will you, by the explanation of principles or by example, if that is the best way of doing so, suggest circumstances in which it would not be in the interests of justice to proceed with a case in the absence of the accused? I ask you to leave aside the example to which you referred in which somebody is suddenly taken to hospital and there is therefore a just reason for their absence. If no just reason for the absence of the accused emerges, are there cases in which it would not be in the interests of justice to proceed in the absence of the accused and legal representation?
Yes. Information about the accused might suggest that they not only ought to be present, but ought to be represented. There may be information that the person has mental health problems or is not very intelligent and is vulnerable in some way. The Crown will normally have such information. Information may be evident from the nature of the charge that the field of law that is involved is contentious. The side of the fence that the case may come down on may not be apparent until late in the trial, and it may be better to have a legal argument. There may be issues relating to ECHR compliance that mean that one would in no way proceed in the absence of the accused.
There does not appear to be any provision in the bill that requires a court to explain why it is proceeding with a case in the absence of the accused and to justify its decision in that regard. If a case is to proceed in the absence of the accused, should such a requirement be placed on the court?
The court could be required to minute its reasons for deciding to proceed in the absence of the accused.
Should it be required to do that?
I am not terribly keen on courts having to minute the reasons for everything that they do, because that takes a lot of time. When sitting as a sheriff, on some days I have dealt with 160 criminal cases at first calling, with pleas of guilty and not guilty. In such a situation, a sheriff does not have time to start framing reasons and ensuring that somebody has written them down or typed them into a computer.
At our meeting on 19 April, the Executive stated that it expected the trial in absence procedure to be used "very sparingly". If a minute from the court were required in those circumstances, that would help to ensure that the Executive's statement turns out to be true in practice and not just in theory.
There is a culture among people who appear in court. If the courts had the ability to hold trials in the absence of the accused, it would become known among those people that their cases would go ahead even if they did not turn up, which would make them more likely to turn up. The measure would put pressure on people to turn up if they wanted to argue their case. That is part of the pressure to get people to behave in a way that is conducive to an efficient summary justice system.
I want to explore the same issue. When I sat as a justice of the peace, I was told many times that one accused person in a case had turned up but the other had not. The next time that the case was called, the other accused did not turn up. Perhaps I am a little more cynical than Sheriff Principal McInnes is, because I think that they agreed that in advance.
That is exactly right. I agree entirely that that happens. People often have to give up a day's work or make childminding arrangements to go to court. If that happens two or three times, they get brassed off and can become reluctant to give statements to the police. That possibility is not good for the justice system in the broadest sense, but it happens. I would like the level of business in courts to reduce to a point at which it can be managed efficiently. People should, on average, not have to wait for more than an hour after they come to court. That should be set as a target and the system should be tested and measured. The target should apply not only to witnesses but to the accused.
As you probably know, the legal profession is not keen on the provision. When we considered the Bonomy reforms, we amended a similar provision substantially. If we proceed with the provision, how will the courts satisfy themselves that a citation has been served successfully on the accused? The use of the provision hinges on the point that the accused knew that they were due in court but chose not to be there. Is it important for the court to be satisfied that a citation was served successfully?
Yes. The situation will improve if e-mail addresses and mobile phone numbers are used to prompt the accused to turn up at court. The idea is that if that information is available, they will be sent an e-mail and a text message the day before the court hearing to remind them that they are due at court. That is what is happening in the West Lothian project. The situation can be improved in various ways.
We will come on to that.
If we are satisfied that a trial proceeded in the absence of the accused when the person had a good reason for not turning up and did not wilfully refuse to turn up, we ought to be able to fix a new trial date and rehear the trial. That would happen rarely; it certainly seems to happen rarely in England.
You mentioned witnesses. It is everybody's experience that witnesses are not necessarily treated all that well. In many courts, there is no separate waiting room for them. In a case in my constituency, a witness hung around all morning and nobody seemed to know that she was there and ready to give evidence. Work needs to be done on matters as basic as the provision of a place for witnesses to wait when they arrive at court and the presence of someone to look after them and explain the procedures. Do you agree that that is important?
It is important. The facilities for witnesses are not as good as they might be in some courts, but they are not as bad as some people make them out to be. Quite a lot of courts have quite pleasant witness rooms, although most of them do not provide—as they ought to—interesting magazines. Witness rooms ought to be at least as good as a doctor's waiting room, but they tend to be rather bare spaces. However, there are witness rooms and there are usually separate rooms for prosecution and defence witnesses. A problem is that witnesses encounter people in the corridors whom they do not wish to see. There can be problems in some courts—not in every case—with people who hang about in the corridors and intimidate witnesses. I have seen that happen, but it is difficult to know how to handle the issue.
I will raise a brief point about procedural irregularities. Your submission states that you want to widen the discretion of the court to correct procedural errors, but the Faculty of Advocates think that the current proposals are too wide. The bill allows the court to correct its own errors on periods, time limits and procedural requirements. Is that proper?
Yes.
Who should be responsible for the oversight of the court's use of that power to correct its own errors?
The court currently has the power to correct typographical or recording errors. Although the power is not used very often, it is used. If we are dealing with thousands of cases in a year, as sheriffs do, the chance of making no technical errors in a decade is quite low. Although sheriffs strive their hardest not to make any, I confess that they make the odd one. Usually those errors are not material. Sheriffs do not lock people up in prison for 10 years when the maximum sentence is a £500 fine.
In that example, are you making a distinction between an error whose consequences have not yet come into operation and one whose consequences have? In other words, are you saying that if the time in which something should have happened has been exceeded, you should not be able to correct that error, but that you should be able to reset a timetable before the time has passed? Is that the boundary that you are delineating?
I am not sure that I would draw it in quite that place. I have never done this, but let us suppose that I sentenced someone to 250 hours of community service on summary complaint when the maximum sentence is 240 hours. I think that I should be able to reduce the sentence to 240 hours, rather than make the High Court go to the trouble of doing that.
If the person concerned has already done 250 hours of community service, what should the consequences for the court be?
The error would probably become apparent on the day when the sentence was imposed. I would not look at the papers again, but I have seen technical errors that other people have made. I would have liked to be able to say that a sheriff made a mistake that should be put right, because it is in the interests of the accused that it should be.
Could the power to alter a sentence also be used if you made another error and sentenced someone to 50 hours of community service when you meant to sentence them to 150 hours?
If I have announced that someone should do 50 hours of community service, 50 it must stay.
So you could not use the power to top up a sentence.
At the moment, if I said that someone should serve 150 hours and the clerk of court erroneously recorded the sentence as 50 hours, that recording error could be corrected.
I am suggesting that you might have changed your mind.
I would not for a minute suggest that that is an error. What a sheriff does in court, right or wrong, is their decision. However, the decision may be technically wrong. Most, if not all, of the errors that I am talking about will be corrected in favour of the accused.
That is the point that I am getting at. Could an error be corrected only when it is in the accused's favour? What would happen if a correction was to the accused's detriment?
They would certainly have to have a hearing. I cannot think of any errors that might be corrected that would be to the detriment of the accused. It might be possible to argue that the error gave rise to an invalid sentence and that the conviction and sentence should therefore be quashed. In that case, the accused would be taking advantage of the fact that the sheriff had made an error. It would not be a situation in which he deserved to get off. What he deserved was that the error should be corrected. I cannot think of any errors that a court is likely to make that would operate to the disadvantage of the accused.
I move on to part 3 of the bill, which deals with penalties. Your report recommended an increase in the maximum financial penalty that is available to summary sheriff courts to £20,000. Will the proposal in the bill to increase the maximum to £10,000 equip summary sheriff courts with sufficient powers to deal with their predicted future case load?
In most instances, the difference between £10,000 and £20,000 would not have a major impact on the cases that the court could deal with. However, there is quite a large area of offending behaviour by companies or other corporate entities that is not very well dealt with by the courts at the moment. Any member of the committee who has experience of local authorities will know that environmental health or planning departments, for example, often encounter major failures to comply with environmental or planning regulations or other things that the local authority is interested in. Offences such as polluting rivers fall into the same bracket. Most of the offenders tend to be companies or businesses. If there were a maximum £20,000 fine, the court could deal realistically with a lot of the people who commit that kind of offence.
Should the bill be amended?
That is for you to decide.
Thank you. That is helpful.
The bill caps fiscal compensation orders at £5,000, but your committee did not prescribe a limit. Do you think that a cap at £5,000 will limit the effectiveness and scope of those orders?
The average plate-glass window costs more than £1,000, so fiscal compensation orders certainly have to go to £5,000. Some plate-glass windows are not broken maliciously but are broken as a result of rowdiness that leads to the window being smashed.
Would capping it at £5,000 mean that a tranche of potential compensation offers would be missed?
I really do not know the answer to that question.
Is there a link in the bill to suggest that, if even more damage were done—say £10,000 or £50,000-worth—the level of compensation should show that the offence was being taken more seriously?
Again, we can consider an environmental offence. Suppose you pollute my river—the river in which my angling association has fishing rights. The cost of restocking a river may be high and an accidental discharge of some chemical or other can poison a whole river system. The quickest, cheapest and most effective thing to do would be to say, "Do you accept that you have done this and are you prepared to pay compensation?" If the answer is yes, then—no matter the level of compensation—why go through the prosecution system? Why make a person go through a civil claim procedure in order to sort things out? I cannot tell you how many such cases might arise in a year because I do not know.
Your example makes the point well that we should not prescribe a limit.
I do not see anything wrong with a discount for early payment, if that is what the discount is for. However, I also do not see any reason why you should not—as we suggest in our report—add another 50 per cent if people do not pay within the set period.
You have touched on the enforcement of fines—an area that has huge potential for improvement so that we can improve summary justice. In your submission, you make a number of points and recommendations. You almost seem to feel that the bill has missed an opportunity to introduce consistency and flexibility and to minimise the involvement of the police in court. To get it on the record, will you elaborate on what you think has to be done that has not been included in the bill?
Most of the points that I wanted to make are in the written evidence that I submitted. However, I was looking at some statistics last night and I realised that I had erroneously said that there were about 300,000 fixed penalties in Scotland. In fact, the figure is about 400,000, according to statistics just released by the Scottish Executive.
Did you consider using sheriff officers for the enforcement of fiscal fines?
I personally did not. The analogue that attracted me—partly because I went there—is what happens in Australia with the State Debt Recovery Office. It does not have offices all over the place; it does not even have an office where a member of the public can turn up and pay a fine. Fines have to be paid electronically, by post, or through a bank or a post office. It has a call centre and one office in Sydney. New South Wales has a similar population to that of Scotland. People can ring up the call centre and find out how their various fines and fixed-penalty notices are getting on and what, when and how they have to pay, and ask for more time to pay. That cuts down on overheads. If the courts, local authorities or various other people are acting as agents, they will all incur overheads in order to process relatively small sums in not very large numbers.
Just before we leave that point, you mentioned a free-standing public sector agency. Is there any advantage in making that organisation rather than sheriff officers responsible for fine enforcement?
There should be an agency that could employ sheriff officers if that is the way forward. Sheriff officers have very good local knowledge of who is where, and they can tap on doors. However, as I understand the bill, the intention is that fines enforcement officers will be appointed and that in effect the agency will be the Scottish Courts Service or a division of it.
Would there be any difference in the charging regime?
The charging regime?
Yes. Sheriff officers take a percentage to collect the debt. Would that be any different with a public sector organisation? I notice that the service in New South Wales that you cited operates at a small profit. I am thinking of the roll-on effect. If a debt is not collected within seven days, the debtor has to pay substantially more and that rolls on. Are there any issues around that?
I think that the debt-collecting process ought not to be a burden on the taxpayer or the Scottish Executive. It should be set up in such a way that it covers its costs year on year. People who decline to pay their fines or fixed penalties should be charged for the privilege of having enforcement procedures taken against them. The addition of many extra £10, £15 or £20 levies on them for not paying up in the first place would meet the agency's costs.
Who should pay the cost of enforcement? You say that it should be those who do not pay their fines rather than the state or the taxpayer. I also hear what you say about sheriff officers and I wonder whether that could be got around by having agreed fees for particular tasks. Is there a danger that by setting up fines enforcement officers, we would be reinventing the wheel?
You would be recreating the problem in a different form. I would not go down that route at all. There should not be too many people out on the street and tapping on doors, whether they are sheriff officers or fines enforcement officers. The time to collect fines is just before the kick-off of a major football match that is being shown on telly, although it is not possible to get all the collectors out at the same time. A European cup final is a very good time to find people at home or in the local pub.
Many of the recommendations that your committee made on alternatives to prosecution have been taken up by the Executive. How did your committee decide in favour of opting out of such alternatives—I am thinking of fines, in particular—rather than opting in? Did members of your committee have any concerns about what effect that might have?
Yes. One or two members of the committee thought that people should have to opt in to whatever alternative was offered to them, but many offenders do not opt in and end up getting prosecuted, when they usually plead guilty. In other words, two separate processes are involved. I am afraid that the main reason for that is indolence. People are sometimes not good at responding, no matter how clearly their options are expressed.
Is there not a risk that while the culture is being changed, we might bump up the amount of work that is needed to bring about compliance, which could cause problems?
Any change from one system to another tends to generate more work because people have to deal with the existing system and the new system at the same time.
At the moment, is it not the case with a fairly minor offence that if someone accepts such an offer, it will not form part of their on-going history? It has been suggested that someone might not know to opt out, with the result that the offence will become part of their history. Is there not a concern that that lack of awareness flies in the face of natural justice?
Part of the proposal is that an offender should be told that it will be possible to refer to their offence if they are prosecuted in connection with some other matter in the succeeding two years. There is a good reason why the ability to refer to previous offences is important.
Your committee recommended the introduction of a system of formal police warnings, but that has not been included in the bill. What did you think would be the advantages of such a system?
There have been informal police warnings in Scotland for a long time. In England, there are systems of formal cautions that are recorded, although I cannot remember the details. There was a debate in the summary justice review committee on whether somebody would have to admit to an offence before they were warned. The view was that, because it was not necessary to admit to an offence for which a fiscal fine was offered, an admission should not be essential for a warning.
I suspect that we will come back to that.
In some places, it is doubtful that there is. However, that is not the case in a place such as Glasgow, where an enormous amount of work goes into the district court and some of it is dealt with by stipendiary magistrates. In Orkney and Shetland, there are no district courts. There are some rural areas in which, if there is more diversion to fiscal fines and other alternatives to prosecution, the level of business can drop.
Your point about locality is interesting. Justices whom we met on visits told us that their being local people is an advantage of the system, but I understand what you say about the quandary in which they find themselves.
Such magistrates have to be appointed and there has to be a budget for that, so the matter is not within the discretion of a sheriff principal. Stipendiary magistrates will continue to be necessary in Glasgow, because lay justices will not be able to cope with the flood of business in that jurisdiction. As matters stand, if we did away with stipendiary magistrates many road traffic offences would have to be heard in the sheriff court, which would not be able to cope.
Members of the committee who were JPs might want to come back to you on that.
The difficulties with a lay justice court are first, selecting enough of the right people; secondly, getting them trained; and thirdly, getting them to sit often enough. As somebody who has been on the sheriff court bench for 30 years, I would hate to sit only five or 10 times a year because I would lose touch. Until my recent retirement, I was a sheriff principal for six years, during which time I did not sit in criminal courts and I began to lose my confidence because I did not keep up to date and I was not sitting every day.
Do you have any reservations about the proposal for a fixed-term contract for stipendiary magistrates?
I am sure that that one has been round the ECHR circuit more times than I know about. Provided that the contract is for a renewable five-year term and that it cannot be cancelled at the whim of some other party, I do not see anything wrong with it.
It has been suggested that people of a certain calibre would not go for such positions if there were a prospect of their not being reappointed, because they would be better making their career in whichever area of law they were already in.
It might suit some people to do a five-year stint. For example, a woman with young children might want to do the job on a part-time basis for five years, after which time her children would be older and she could seek a full-time job.
You do not think that there is a problem with ECHR compliance.
I am not in a position to advise you on that—I would want to take advice. It is a touch-and-go area.
Have you considered the role of honorary sheriffs in lay justice?
Considered it in what context?
My understanding is that honorary sheriffs are not trained in the law, but that they still sit in courts. Were they considered?
Most of those who sit in courts are local solicitors.
But not all of them.
No. When I was in Cupar, one of the honorary sheriffs who sat regularly was a lady who had been the chairman of the children's panel. There was not much that she needed to be taught about the law; she was extremely switched on and still is.
So they are in a category apart.
Basically they have the powers of a sheriff, but for much of the time they sign documents. The sheriff clerk can give them guidance if it is needed, or they can ring up a sheriff and say, "I am confronted with this", although they do not usually do that. A solicitor would not normally have to do that; an honorary sheriff might.
Your report did not refer to such people.
No.
I was formerly elected as a councillor, so I agree that training is needed before any document can be signed—documents vary hugely. I agree entirely that a deficiency in the bill is that councillors will not have been trained. We will have to consider that seriously.
With difficulty. You are right to say that there are two categories of justice of the peace: those who sit on the bench and those who have just a signing role. As far as I can tell, the bill does not make that distinction. From the day on which the bill comes into force, all those people will be able to sit on the bench, provided that they have done the training.
They will also be offered a five-year contract.
They will be offered a five-year contract. That situation would worry me if I were in your seat.
That ends our questioning. On the committee's behalf, I thank you for your evidence, your report and your written evidence. You have given us much information, which we will consider carefully. Thank you for being so thorough.
I thank you all for being so courteous. To my astonishment, I have enjoyed the experience. This is the first time in a long time that I have been subjected to questioning by anybody; it has invariably been me who has done the questioning. When faced by a whole lot of people who have been briefed, I thought that I would be in for a rough ride, but I have thoroughly enjoyed the experience.
I am glad that you had a good experience. If nothing else, we will tell the Executive that it ought to have better-quality magazines in witness waiting rooms.
Good morning. Could the witnesses outline how breach of bail impacts on the police's work? Will the bill help with that problem?
First, I thank the committee for inviting ACPOS and the police service to give evidence.
Aside from the issue of public confidence, does a breach of bail conditions also mean more work for the police, because, for example, a warrant has to be issued?
I echo Mr Strang's comments about public confidence, but I should point out that police officer confidence in the current bail system has also been undermined. After all, our people are important stakeholders in the criminal justice system.
So you feel that, overall, the bill's provisions will help and that you have no other suggestions to make.
The bill represents a major step forward by addressing the matter explicitly. However, like anything, the proof of the pudding is in the eating and in how the various parts of the system—and, indeed, accused persons—comply with and adhere to the provisions.
I welcome the comment in your submission that public safety should be a separate ground for refusal of bail. What factors should the court take into account in assessing whether there is a public safety issue?
The court could consider an offender's background in offending and undertake some form of community impact assessment on the implications of granting bail. The test set out in the bill, which appears to take public safety into account, is probably too high, because it almost suggests that there need to be more victims before the public safety element kicks in.
As no other panel member wants to comment, I presume that everyone is happy to leave it at that.
The panel will be familiar with the themes of the McInnes report, one of which is the need to speed up summary justice. I think that I am right in saying that that is the view of most of those who have given evidence to the committee. The issue for us now is the detail in relation to how we can achieve that end. We have heard evidence about the 28-day target within which the police have to submit their initial report of a case to the Procurator Fiscal Service. Are the police meeting that target at the moment?
Yes, in part. We have begun to move incrementally towards speeding up our reporting to the fiscal, using the 28 days as a target. Of course, the percentage of cases that are reported on target varies among forces, which might achieve the target in 50, 60 or 80 per cent of cases.
Given what you said about the blunt nature of the target, what mechanisms would ensure that we achieve the objective of speed within the system?
There are a number of measures in the bill in that regard, including the notion of liberation on an undertaking. Frankly, part of the problem is that the police ought not to have to report to the fiscal many of the cases that require to be reported at the moment. Change is needed to reflect the broadening of the role that the police now undertake. The traditional view of the police is that our job is to patrol and prevent offences and, if a crime is committed, to investigate, detect and report it to the fiscal. That is seen as the end of the police bit of the job; it is then up to the fiscal to make the decision on prosecution.
To what category of cases are you referring? You seem to be suggesting that some cases will not be reported or that the police will make a judgment that certain cases will result only in a warning or a fiscal fine. How will the police determine those cases?
The Antisocial Behaviour etc (Scotland) Act 2004 already allows the police to issue fixed-penalty notices, generally for minor offences. However, there is no blanket rule, because obviously we take the circumstances of the offender into account. Normally, notices relate to first and minor offences. The Lord Advocate agreed to a schedule of offences that allows the police to issue either a warning or, as a pilot in Tayside, a fixed-penalty notice.
I would like to summarise what you have said. Are you saying that a category of cases will be virtually taken out of the system by the police, which will reduce the number of cases that you have to report to the fiscal and improve your efficiency in dealing with the cases that you report?
The McInnes report indicated that there were too many minor cases in the system that ought to be dealt with in another way. We are not saying simply that if someone commits an offence, they should go to court to be punished; our approach is much more sophisticated than that.
It is not unreasonable for the committee to want to know what category of cases you intend take out of the system. I understand why you want to do that, but how will it be done? Will the police make a judgment?
No. There is a list of minor offences, and only first-time offences would be affected.
We are already taking on the good practice that is in place in some forces and trying to develop a national framework. We are trying to strike a balance. On the one hand, we do not want postcode justice and how people are prosecuted to depend on where they are in the country. Equally, as I am sure members appreciate, we want local communities, police forces and command units to have the flexibility to deal with local issues. It is about setting a framework that is agreed with the Crown Office and Procurator Fiscal Service and which takes into account the local context. We must be careful to ensure that the approach is not seen as a soft option for dealing with antisocial behaviour. Many of the issues that are regarded as being at the low end of the tariff are the very issues that the Executive, the Parliament and police forces are trying to tackle through the antisocial behaviour agenda. Some work is developing in that area.
When will the committee be able to see information about that work? One of the problems that I encountered last week when talking to officials is that a lot of work is on-going. I understand why that is the case, but it will be difficult for us as politicians and legislators to judge whether you have properly categorised the cases and to understand which cases you will take out of the system. Do you see what I am driving at? It seems that we are taking a lot on trust and leaving you to get on with it. At what stage will we get to see the on-going work to which you refer?
I understand your frustration, but many things that do not require legislative change can be done to improve the system. That is what we are trying to do through local criminal justice boards, the national board and our joint work with the Crown Office.
The police will get more powers under the bill. That is the reason why I am pressing you on the issue. I can speak only for myself, but if you want me to agree to the provisions in the bill, I will need to know what the effect of giving you the powers will be. It is not unreasonable for me to say that I want to see the on-going work, so that I can satisfy myself that we are giving you the correct powers for the correct reasons and so that I can tell the people whom I represent in which category of cases they will deal with a police officer as opposed to a fiscal.
I understand that. I can provide two examples to the committee. One is the fixed-penalty system for the list of offences that is produced under the Antisocial Behaviour etc (Scotland) Act 2004. Another example is the adult warning system that we have in Dumfries and Galloway. I can provide information on the framework for that and the type of offences that are involved. Decisions are based on the merits of each case. Particular factors might mean that a case ought to be prosecuted. We consider the circumstances of each case and offender.
That information would be helpful.
On that point, the offer to give us information is not unreasonable, but will you say whether, in your area and in the appropriate circumstances, a warning can be given for a breach of the peace, common assault, drunk and disorderly behaviour, theft or shoplifting? Are those the type of offences that we are talking about? I presume that warnings are not given for murder.
Absolutely not. The system is used for minor offences for which it is felt that a warning is appropriate.
Assault might not be regarded as minor by the person who is assaulted.
Absolutely. That is why we take into account the impact on the person who has been offended against. My argument is that if the system of adult cautions works and people do not reoffend, we will have achieved our goal. Of course, if people reoffend, they do not receive a second adult warning. The issue is about the most appropriate response to behaviour.
It would be useful for the committee to have more details of the pilot on fixed penalties in Tayside that you mentioned. I know that Tayside police are pleased with the way in which the pilot is running but, as yet, the system has not been rolled out throughout Scotland. I also know that local police think that, as well as the roll-out throughout Scotland, that way of working should be extended. However, I do not want the scheme to run away with itself without being monitored. It would be useful for the committee to have information on the pilot.
We can provide the evaluation report on the pilot. One of our concerns was about widening the use of police powers—we did not want more people to be dealt with under the system than would have been dealt with informally, but that has not been the case. I am happy to provide the details.
Do you know when that evaluation took place?
I do not have the details, but I will let the committee have the report.
I have one final question on speeding up the system. Sheriff Principal McInnes talked about the need for the available evidence to be ready when a complaint is served, so that the accused can decide whether or not to plead guilty. Is that realistic for the police?
I have a few points on improving the speed of the process. On the 28-day target for reporting cases, it is important to highlight that, because of the focus on summary justice in the past year or 18 months, ACPOS has set up a business area for that and has made month-on-month improvements in relation to the target. The situation is perhaps not as bleak as it once was.
I appreciate that. At what stage in the process is it realistic to expect the evidence against the accused to be available so that you can bring some of the decisions further forward in the system?
The period that we are considering as the most practical and pragmatic is the lead-up to the intermediate diet. During that period, we will have provided the Crown Office and Procurator Fiscal Service with the appropriate statements and evidence and anything else that it requires that allows it to make disclosures to the defence. That will mean that when the intermediate diet goes ahead, people are prepared and the intermediate diet becomes a meaningful part of the process. That is absolutely crucial to progress and to reducing the churn that we currently face.
I want to move on to the subject of undertakings. What is the current police practice in relation to liberating an accused person on an undertaking? Has practice changed during the past few years?
I will take as an example the case of a drink-driver. If detaining someone in custody is not in line with the Lord Advocate's guidelines, our next step is to release them on an undertaking. Therefore, if someone is arrested on a Saturday evening for drink-driving, they will be released from custody on an undertaking once they are sober. They will receive written instructions from the officer in charge of a police station to appear in court on a particular date. In my force area, the person would appear in court the following Thursday. If possible, the court will deal with the case there and then; if necessary the process will allow the court to impose special bail conditions.
I will come back to that in a wee second.
No. It is an undertaking court.
You mentioned problems with gang fights. Are you saying that, at the moment, you have the power to prevent someone who is on an undertaking—for want of a better expression—from entering a public park or wherever the gang fights take place?
We do not have that power at the moment. The court has such a power and we can apply for special bail conditions that people must do things, or not do things, depending on the circumstances of the crime and how practical the bail condition is.
I wanted you to clarify that because I understood that the police do not have such a power at the moment, although the court has. Of course, the bill could give the police that new power.
There are several concerns about the power. The current process is that an arresting officer applies for special bail conditions in a report that goes through at least one form of supervision in the police. The report then goes to a procurator fiscal, who applies his or her legal mind to the case, after which it is presented to a sheriff and is the subject of debate between the prosecution and the defence. The sheriff makes the ultimate decision as to whether special bail conditions should be applied. Those are powerful measures.
I understand the problem; I am trying to find out what the solution is. For example, what would be a reasonable rank in the police force at which an officer can impose such special conditions? I presume that that will not be done by a rookie cop with six months' experience.
We suggest that ratification or review of a decision should take place at the rank of inspector.
I presume that that would necessitate taking an individual back to the police station and detaining him or her.
The key point is that the bill tries to give us flexibility by allowing us to operate from the street and giving us another tool in the toolbox. However, I want members to be clear that we still expect officers' baseline stance to be to control a situation, to ensure that we obtain DNA, fingerprints and photographs and to interview the suspect. In most cases, we will still expect people to be taken into custody.
The significance of the provision is that it fills the gap between the offender being dealt with by a police officer and their first appearance at court. At the moment, no conditions can be imposed if somebody is at liberty, whereas the bill will provide the ability to impose conditions that might protect a witness and prevent the offender from going to a location.
I presume that if you thought that a witness was in danger, you would not release someone on an undertaking.
As Kevin Smith said, the bill deals with the gap that arises when someone does not fall into the custody category and the police are trying to get them into court more quickly. At the moment, the person involved could be at liberty for about a week before they go to court, as that is the only place where special conditions can be applied.
Could the public safety test provide another way of filling that gap?
Not absolutely. In lots of cases, releasing someone on an undertaking is perfectly legitimate. However, the imposition of conditions can assist them in not reoffending, by keeping them away from places such as shopping centres if they have been shoplifting.
I want to raise another matter so that you are aware of some of the limitations that would apply. It would be a significant challenge to give an officer on the street the information about the court scheduling system that would allow him or her to advise the offender that they had to appear at a certain time on a certain day. Such challenges are obstacles to be got round rather than total bars to progress, but there are a number of key practical operational issues that we need to overcome.
I appreciate that.
Staying on the same subject, how would a police officer know on which date the accused had to appear in court?
We have raised that issue. If the proposal goes through, there would a difficulty in accessing the systems of the Scottish Court Service. The solution to that would be shared information technology systems. In the future, officers on the street will have personal digital assistants that will allow them to have access to court systems' data while they are mobile. There are futuristic aspects to the solution.
It is quite a long way off.
I do not think that the success of the proposal depends entirely on the availability of such systems, but the Court Service would have to be able to advise us of particular time slots that could be used. In the sheriffdom of Glasgow and Strathkelvin, for example, it would be difficult to manage the court scheduling system across what are four very busy territorial police divisions so that an officer could know at any given time whether a particular slot was available. That is just another practical difficulty that must be got round.
The provision on undertakings is designed to shortcut the process of getting the accused to court.
I think that the release of the accused on undertaking will be a bit less problematic because it will be the subject of a great deal of thought, organisation and joint planning. Bail and undertakings are slightly sporadic in nature. The practice on undertakings would be planned. Along with the Crown Office and the Court Service, we would adopt an incremental approach. We would consider the types of cases for which we wanted to use that provision and the courts' capacity to deal with them. The capacity exists because, ultimately, the accused must appear in court anyway. It is just a question of bringing the process forward in a managed way and ensuring that we do not front load the system.
I want to move on to citations. For some time, it has been suggested that the amount of work that the citation of witnesses involves for the police and civilians who are employed by the police—who I think are mostly former police officers—takes up a lot of time. How could that be changed? I am talking about the citation of witnesses and accused persons in criminal cases. I understand that in many circumstances sheriff officers handle defence witnesses. Has any consideration been given to the use of sheriff officers to cite witnesses for the Crown? I believe that sheriff officers are legally entitled to do that, even though it seems to have been the practice not to permit that.
I am conscious that I may be speaking for the Crown, but my understanding is that its primary focus has been on postal citation, with which it has had some success. Once a postal citation has failed, the task of citation falls to us. We employ people specifically for that purpose. In my view, it is an area of work in which there is some duplication. The Crown employs people to process the citations, which are then passed on to us. Although we do not quite repeat the process, there is an element of overlap.
Is anything blocking that? You seem to be saying that, in the police's view, there is no block to using another agency. Is the Crown Office blocking that? Has current practice simply built up over the years?
I would not say that the Crown is blocking it. There has been a view that it is an area of work that could sit elsewhere and I am not sure why it has not been progressed. The area of work is ripe for being taken on by another agency. The reality is that, although we employ support officers, who are civilian staff, to undertake the work, there are often short-notice citations, countermands, re-cites and urgent citations, and the sheer volume of work means that the citation server cannot get the work done and operational officers get drawn into the process. That is just a fact of life. Some of the work could be taken on by another agency.
Postal citation works with those who accept the citation. I am not quite sure how to prove that an e-mail citation has been delivered, but such a system would work for those who are more amenable to it. Presumably if the police have to make arrests, they are arresting those who are less amenable. Do you have any idea of the costs? Are they identified separately?
I do not have that information with me, but we could certainly provide indicative costs.
That would be useful.
Part 3 of the bill is about penalties. Scottish Executive officials have stated that fiscal fines offer a proportionate and prompt response to particular types of low-level offending and that prosecutors will use the higher level responsibly. However, concern has been expressed that imposing fines up to the maximum level of £500 without sufficient knowledge of the background to the case or the circumstances of the offender, including his or her ability to pay, will inevitably lead to higher levels of default. Will the police be able to provide sufficient timely information to allow fiscals to make informed decisions on fine levels?
You make a good point that the police or the procurator fiscal might need more information to make an informed decision about what is an appropriate disposal. We expect that our reports to the fiscal in cases in which an increased fine or fiscal compensation order is being considered will have to contain more evidence of someone's income and ability to pay. That is a natural consequence of asking the fiscals to make those higher-level decisions.
In your submission you expressed concern about the operation of a time bar for conditional offers of fixed penalties. Will you elaborate on those concerns?
Our concerns relate to cases in which an accused tries to thwart the system by responding only in part or by not responding to an offer. We welcome the provision that an accused cannot use their not responding, delaying responding or responding only partly to an offer as a means of avoiding prosecution, because of the implementation of the time bar.
You are talking about an accused deliberately making use of the time bar.
Yes.
Good afternoon. I want to ask you about the establishment of JP courts, which you seem to support in your submission, and the fact that they will now be part of the Scottish Court Service, rather than being run by local authorities. You raise an issue about the timescale for the changes that will be introduced. Will you say a bit more about that?
Most people acknowledge that the greatest difficulties are in Glasgow but, according to the proposed timescale, the reforms in Glasgow would take place in about 2014. However, if there is a big problem, it should be tackled sooner. I accept that it might be necessary to move forward incrementally, but if the proposed new system will bring about the biggest gains in Glasgow, we should act sooner.
What gains do you expect will be made?
I am sure that someone from the Crown Office could give you more details, but it takes significantly longer to get someone into the district court in Glasgow to be prosecuted. The thrust of the bill is about speeding up the system, which is what the committee, ACPOS and other partners want to do. There are significant delays in Glasgow. We listened to part of Sheriff Principal McInnes's evidence and he acknowledged the huge number of cases that Glasgow district court hears. Why should we wait until 2014 to reform a system that is crying out for earlier intervention?
Should just Glasgow be dealt with sooner, given the workload of its district court, or should there be a shorter timescale for reform everywhere?
Both things should happen. Glasgow should be moved up the timetable. If the situation can be resolved in Glasgow, it can be resolved everywhere else. Perhaps my answer is straying into another agency's area of work, but the situation has a huge impact on us and 2014 seems to be too long a timescale. We hope that consideration will be given to the particular issues that Glasgow district court must deal with given the volume of cases that it hears.
Sheriff Principal McInnes said that a huge range of motoring offences could be heard by JP courts. Would such an approach be appropriate? On a more general note, do JP courts still have a role? How often should JP courts sit? Who should sit and what training do they need?
I declare an interest, because I was a member of the majority on the McInnes committee whose view on the matter was not accepted by the Executive.
I will take you back a little bit to fines enforcement officers and their functions, because I want to tease out the reasons for your support for their introduction. You say that:
I can understand your charge that our response is motivated purely by self-interest, but it is wider than that. Fines enforcement has fallen into disrepute. I refer you to my earlier comments about bail. It is widely known that people get away without paying their fines or with paying a bit of a fine, which is then recorded as having been completely paid and is not pursued, so the system is in need of overhaul.
I am sorry to interrupt you, but I think that you misunderstood me. I accept that the system is in disrepute and that there is a major problem, but I am asking about the proposal in the bill. Is your enthusiasm for that proposal based on a detailed understanding of how it would work compared with alternatives?
Yes, because the power for fines enforcement officers to deduct fines from income and the provisions on seizing vehicles, for example, give greater powers to fines enforcement officers and mean that it is much more likely that fines will be collected and that the system will work more properly than it does at the moment.
However, with the exception of the power to seize a vehicle, sheriff officers have those powers just now, mostly in relation to civil cases, do they not? Are we in danger of reinventing the wheel by creating a new post of fines enforcement officer and giving fines enforcement officers essentially the same powers and almost the same operating practices as sheriff officers?
Fines enforcement officers will exist solely for fines enforcement. There is a provision in the bill that will allow them to try to separate those who have difficulty paying from those who choose not to pay. There is an element of supporting people who are having difficulty to manage the competing demands on their finances and a harder edge for those who choose not to pay and for whom enforcement needs to be part of the approach. There is a bit of both sides.
Okay. I just wanted to tease that out a bit.
As we know—because we had a briefing from Strathclyde police, in which we examined the issue of warrants—the fact remains that if the police were not involved in pursuing means inquiry warrants, they could focus their attention much more effectively on warrants for non-appearance in court. That would be of major advantage.
We agree. Our thinking is that there should be a focus on apprehension warrants, particularly because of the risk and danger that the offender poses of committing serious and violent crime or creating havoc within communities with minor offending.
I want to wind up, but Margaret Mitchell has a question, which I can take if it is brief.
Sheriff officers would maintain that they have expertise, have IT systems in place and already assess means. All of that is already in place, so why would we want to go to the extra expense of creating fines enforcement officers when sheriff officers already exist and using them would arguably be a better use of resources? That is the main point that we want you to address.
The system is not working. That is part of the message.
Can I interrupt you? Is it not the case that sheriff officers are not given the job to do at present? The system is not working just now, but the sheriff officers have not been given the role. Therefore, they are untested and unproven, but they have all the credentials that I mentioned.
My view is that it for the Scottish Court Service to make the business case for the proposed fines enforcement officers and everything else that the SCS wants to put in place match up against what you propose. Probably none of us is able to answer the question of why sheriff officers are used or not used.
It would have efficiency and resource implications, which must be of interest to you.
As Kevin Smith has said, the witnesses have a view on the matter, but they are not experts on it.
We would be happy to respond to any questions that you have. Although the bill sets out what will happen in principle, the detail will have to be worked up in protocols with the Crown Office. However, we will answer any questions that you have.
I thank you very much for your written submission and the evidence that you have given this morning. They have been helpful to us in scrutinising the bill.
Meeting suspended.
On resuming—
I welcome our third panel, which is John Campbell, the president of the Society of Messengers-at-Arms and Sheriff Officers. I thank him for his submission. We move straight to questions from the committee.
You probably heard some of the questions that we put to the previous panel. I will give you the easy ones first. What is the current role of sheriff officers and messengers-at-arms in relation to the citation of witnesses?
At present and historically, we are engaged in the citing of criminal witnesses for the defence. In effect, the defendant in the action consults his solicitor, who prepares the defence and instructs the sheriff officer to serve upon the witnesses the prescribed schedule of citation.
I read your submission. Will you put on the record how you would like that role to develop in relation to criminal cases, and in particular, when citing witnesses for the Crown? Are there sufficient sheriff officers to undertake such a role without impacting on your civil duties?
I confirm that our society agrees with the general principle that certain duties, such as the citation of witnesses and the recovery of fines, could and should be removed from the police force to allow them to concentrate on what we would call core police duties.
Some of my colleagues want to ask about the enforcement of fines, but I put it to you that one of the biggest reservations is that, to be blunt, you guys have a reputation for charging an arm and a leg for pursuing civil diligence cases. If I owed £100 and the job of collecting it was given to you, how much would be added to my bill on account of your simply knocking on my front door?
There are many erroneous perceptions of my profession and how its members behave. We are trying to overcome those. The Scottish Executive has agreed with us that we need to change our image in the near future as a consequence of the Bankruptcy and Diligence etc (Scotland) Bill that is currently being considered in Parliament.
That obviously depends on whether I were to pay you.
Yes. A schedule of charge for payment is official notification to the defendant that the fine will be enforced by means of civil diligence recovery and serves to point out the possible diligences—enforcement action—that could be taken following the expiry of the 14 days of charge. Effectively, we warn the defendant of the actions that could be taken.
As I said, I am sure that others will want to take that up later.
We have tried for a number of years to obtain that information from the Crown Office, the police and the court service, but to no avail.
You do not know. How much does it cost to serve a warrant? You are probably aware that I asked that question of the previous panel of witnesses.
We are happy to engage in some research to focus on the numbers and thereafter to determine, if necessary, a separate bespoke fee for the citation of criminal witnesses. We have wanted to do that for some years, but unfortunately, the figures have not been passed to us so we cannot undertake the research.
I will take you back a step. In your submission, you argue that sheriff officers are best placed to enforce fines. For the record, will you say why that is?
We have a minimum educational requirement before we can even submit ourselves to study to become an officer of court. Currently, it is five highers and eight education certificates. We train for a minimum of three years. Before we do that, we must undergo two years' training with a sheriff officer in the field. In effect, it takes five years to pass the examination, and only after passing the examination can an officer petition the sheriff principal for a commission to practise. The examination is very difficult to pass. We also have a great many years of experience. As you can imagine, our procedures have evolved through centuries.
Is that it? From your submission, there seemed to be quite a little bit more.
Oh yes, there is.
There are certain reservations. Would you be able to decide on the proper means of collection? You may be going directly for payment within seven days and no questions asked, but how can you determine whether a person has the means to pay or whether your action is the most appropriate?
We have great experience in determining the most appropriate method of proceeding further—if indeed any further steps should be taken—following the serving of the charge for payment. The charge for payment is physically delivered by the sheriff officer to the defendant's residence. At that point, the officer is asking questions with a view to making that very determination and reporting back to the creditor or the creditor's agent on what appears to be the most appropriate method of proceeding—
I will interrupt you there. What if the person is not in?
If the person is not in we will be able to view the property, any vehicles that may be in the driveway, and any evidence of any such assets. We can discreetly interview neighbours to determine whether a person is employed.
There are other things that fine enforcement officers may be asked to do in relation to flexibility in methods of payment.
We have all such things in place already. At present, firms of sheriff officers represent the vast majority of Scotland's local authorities in the recovery of council taxes and non-domestic rates. As you can imagine, it requires fairly sophisticated computer systems and operations, and all the variety of methods of payment, to recover those great many millions of pounds.
Will you elaborate on the working of the internal performance monitoring that your submission says is in place?
Do you mean the internal monitoring of officers or—
That is what I took it to mean although it could be ambiguous. It could refer to local authorities' internal performance monitoring in relation to collection rates, but I took it to mean the performance monitoring of your sheriff officers, to ensure that a certain standard was maintained.
The Society of Messengers-at-Arms and Sheriff Officers has its own code of practice, which it requires all officers to abide by. Beyond that, individual employers—who are invariably sheriff officers themselves—insist on certain standards among their employees. Firms that provide services to local authorities and other such organisations are required by contract to meet certain standards.
What if the code of practice was broken?
A complaint would be lodged with the society and investigated. If necessary, a hearing would take place and some form of penalty imposed.
That would depend on the complaint being reported.
Yes, but all these matters are currently being considered within the Bankruptcy and Diligence etc (Scotland) Bill, which proposes the creation of the Scottish civil diligence commission, which, we are pleased to say, will take on the responsibility of receiving and dealing with complaints.
I have another question before I go on to the self-financing aspect that you say could be achieved. If a case is passed to you as a sheriff officer, how many days does the person have to pay?
The first document to be served is generally the schedule of charge for payment, which provides a 14-day period for payment or for an arrangement for payment to be made.
Is it always 14 days?
It is.
It would never be within seven days?
No. It is always 14 days.
And what about a follow up?
In the absence of payment or an offer of payment at the expiry of the 14-day period, a variety of actions could be undertaken. An earnings arrestment could be lodged with an employer or a non-essential moveable article could be attached, with a view—following various other procedures—
I would like to stop you there. After the 14-day period expires, are you looking to do something else?
Yes.
Is the 14-day period broken up? Might people get a communication that tells them to pay within seven days and, if that does not happen, a follow-up letter that tells them to pay in the next seven days?
The charge for payment clearly confirms that the defendant has 14 days in which to pay the debt or to make proposals regarding payment of the debt that are acceptable to the creditor.
I am not clear about that issue. There may be instances in which people have been told to pay up in seven days and, if they fail to do so, have been given another seven days. Another expense has then been whacked on. That is the next issue.
I know nothing of that practice.
Margaret Mitchell may be referring to the seven-day notice that is issued by local authorities, after which 10 per cent is added by the authority concerned before the matter is passed to sheriff officers.
Perhaps that is it.
They will be added to the debt and paid by the defendant.
How will that work? Is there a danger that the recovery element could become larger than the original debt?
The current law in Scotland prescribes the order in which the debt should be settled in such a situation. First, the diligence expenses—the expenses of the sheriff officer who serves the various documents—must be paid. Thereafter, any interest that has accrued on the debt must be paid. Next, court expenses are to be settled. Lastly, the original debt should be paid. If in the 14-day period a defendant makes acceptable proposals for payment to the creditor, those payments will be allocated in the first instance to the expenses incurred and lastly to the fine.
I have a question about service. What guarantee do you have that someone has received the notification? They may be on holiday or have a second property.
The law prescribes certain modes of service of legal documents in Scotland that is undertaken by a sheriff officer. All documents are served in the context of those rules. If a defendant is on an annual two-week holiday during the summer, after discreet inquiry and being satisfied that the defendant is resident at the address, the officer can lawfully deposit the document in the dwelling-house, via the letter box. That is followed up by an additional copy, which is sent by first-class ordinary postal service.
What happens in the case of a second residence?
A second residence is not a residence, so the document would not be deposited there, but at the main residence.
So inquiries would be made to find out what the main residence was.
Yes.
That is interesting.
I refer you to the reply that you gave to Margaret Mitchell about the process when a fine or debt is involved. You are suggesting that a £50 debt may end up costing the debtor a great deal more. Do you agree that that may be the reason why the Executive is not keen to employ sheriff officers?
I am not entirely sure. It is ironic, because the individuals in the Scottish Executive who are presently considering the Bankruptcy and Diligence etc (Scotland) Bill have come to the clear conclusion that sheriff officers pay a key role in Scotland's legal system. They have acknowledged the dilution of our work and are fearful that, if things continue in the same way, certain areas in Scotland may not be provided with a sheriff officer service. They have agreed that all steps should be taken to increase our workload. There may be a breakdown of communication somewhere in the Scottish Executive.
I listened as a layperson to your description of all the different processes that are involved, which are presumably costing someone money. Is it fair to say that, if a person is fined £100 but fails to pay and we employ sheriff officers to recover the debt, that process, which you have described, could be costly?
Yes. However, under the model that we have in mind—I have provided your clerk Allan Campbell with a flow chart of that, which we hope will be readily understood—rather than a fine enforcement officer, there would be a fine enforcement administrator. In the first instance, the administrator would request payment of the fine and, if that failed, they would arrange for a field visit with a view to determining whether the case in question should be passed to the sheriff officer. If the likelihood of recovery at the outset is good, and if the offender can pay, I, for one, do not see why we should be concerned about the offender covering the expenses as well, if he is wilfully withholding payment of a fine.
That is your view. I am open-minded about the matter. We have heard from Sheriff Principal McInnes, who has strong views on the process. You have supporters out there, but I am concerned about adding substantial costs to what is after all a fine. That is not really what I want to achieve. If you are confirming that considerable costs attach to the collection of a low-level fine, I can understand why the Executive has reached the view that it has.
I am not confirming that at all.
You said that my assumption that considerable costs would be attached to the collection of a £50 or £100 fine was correct.
Yes, but if the selection process works properly at the outset, vulnerable individuals or people who are in genuine need and who cannot afford to pay the fine should not have their cases passed to the sheriff officer. Our suggestion is that only those who clearly can pay but who are withholding payment should have their cases passed on for recovery by means of civil diligence. Another point is that Scotland probably already has the most debtor-protective laws in the world, because of the sort of concerns that you obviously hold.
Okay. What costs would be involved in the process of recovering a debt such as a fine?
That depends on the method that is used. For example, in an earnings arrestment, the first step is to serve a schedule of charge for payment. If the fine was £100, the fee for that would be £25.75. Following a failure to pay after the expiry of a 14-day period, an earnings arrestment process would be started with the employer. The fee for that verges on £27 or £28.
I would be grateful if you submitted details on that to the committee, because we would like to see that.
As I said, we can provide the committee with a copy of the table of prescribed fees.
We have the prescribed fees, because we are often the committee that agrees them.
So it is our fault.
However, it would be useful to have some examples of how, in the process that you describe, the fees clock up.
I want to pursue that point to its conclusion. Mr Campbell said that the initial charge was £25 or so and that, after a 14-day period has expired, an arrestment is then placed on the person's wages, which carries a charge of £28. Would the charge be £25 plus £28?
Yes.
I understand that, if, after having arrested the person's wages, you fail to get the money for one reason or another—perhaps the person realises that he will get done and hands in his resignation and disappears—the next step in the process is that the person could appear in court. Could the person have to pay court costs, too? If, after having carried out the processes that carry fees of £25 and £27-odd, you do not get the money, what happens next? Is the person likely to have to make further payments?
Other diligences or enforcement actions can be taken, such as the attachment of non-essential moveable articles.
Is there a charge for that?
Yes.
So a person could build up a charge.
Yes. However, in the situation that you describe, if the debt was unrecovered through the earnings arrestment prior to the resignation, the fees that relate to that arrestment would be abortive fees.
You mean that you would not get them.
Correct, because the diligence was unsuccessful.
So the charges could effectively go up to about £50, come back down to £25 and then go back up again later. One or two examples like that would be very useful.
The issues of the citing of witnesses for the prosecution and the recovery of fines have been under consideration in our society for several years now. We have regularly attempted to engage in dialogue. We have repeatedly written to the Crown Office, the police forces and others. Unfortunately, our submissions and requests to meet and discuss matters appear to have been ignored.
It probably is not for this witness, but I will try to put this point in the form of a question. You will be aware of the proposal under the bill to discount fines by up to 50 per cent. Effectively, if somebody can and does pay, they will pay £50 of a £100 fine. If they cannot, they will end up paying £100. Is that a form of taxation on those who cannot afford to pay as well?
This is why—
That is a difficult one for the witness before us, but perhaps the committee should discuss that point.
I take the point. There is no fixed view about fine enforcement; we are just listening at the moment. It would be helpful, Mr Campbell, if you could set out for us some examples of, for instance, collecting a £100 fine as a debt. What are the processes? Where could the situation end up? What could it end up costing the person?
The flow chart that I am leaving with the committee illustrates the various avenues that are open to a creditor. If I were to go down the attachment and exceptional attachment route and set out the fees besides each action, I am sure that, by the end of it, you would be fairly horrified to see how the costs add up. The system works, however, and there are a great many individuals who intentionally withhold payment.
You outlined to the committee the fact that the fee for the citation of a witness is £25.75.
That is the fee for the service of a charge for payment.
Yes. Is there an outwith-hours charge, or is that it?
There is. The fee after 5 pm on a weekday, not including Friday, is one third of the prescribed fee in addition. After 5 pm on a Friday evening, and on a Saturday, it is 75 per cent of the prescribed fee.
Added on.
Yes. As I said earlier, those are the present prescribed fees. We have been anxious to consider the numbers, complete some research and possibly come up with an alternative table of fees for prosecution witness citations.
We have noted that you have said that. That is helpful.
Presumably, as your members are all private companies, it will be a matter for them whether or not they wish to engage in this type of work, as it was for the collection of the poll tax, for example, which some companies opted not to do for a number of reasons, including the small size of the debts involved. It would be a matter for the Parliament to set the fees should the work that we are discussing be pursued, if that is the route that is followed.
Yes.
And it would be a matter for your members to decide whether or not to take up such work.
Correct.
So the fees would not simply be imposed by your members.
Correct.
There is the small matter of the public sector budget that would be required to use the fee system to cite witnesses, but we will just have to weigh that consideration up against the current costs and the effectiveness of the system.
That is why I asked about the cost for serving a warrant; the question was not answered.
That brings us to the end of our questions. Thank you very much for your concise evidence and for the flow chart that you have submitted to us. We will have a chance to look at it in some detail. Any examples that you can give us on the subject that we were just discussing would be highly appreciated.
I will send those to you.
Thank you. That ends this evidence-taking session. We will briefly go into private session to draw out some of the main issues for our report on the bill.
Meeting continued in private until 13:09.
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