Official Report 595KB pdf
Antisocial Behaviour (Fixed Penalty Offences) (Miscellaneous Amendment) (Scotland) Order 2026 [draft]
09:30
Our next item of business is an oral evidence session on an affirmative instrument. We are joined by the Minister for Victims and Community Safety. I also welcome, from the Scottish Government, Robert Wyllie, policy lead for safer communities, and Nicola Guild, from the legal directorate. I refer colleagues to paper 1, and I intend to allow up to 15 minutes for the evidence session.
Minister, I invite you to make some opening remarks to set the scene for this Scottish statutory instrument.
Good morning. Thank you for the opportunity to address the committee on this instrument, which makes targeted and proportionate updates to the antisocial behaviour fixed-penalty notice regime. That regime enables the police to respond swiftly and appropriately to low-level antisocial behaviour and so ensure that such behaviour has meaningful consequences. Fixed-penalty systems are well established and the principle of the regime has not, to my knowledge, been questioned in the Parliament.
The draft order makes three updates. First, it removes from the regime two offences for which ASBFPNs were not issued in the most recent year for which data is available, which will help to keep the regime focused on offences for which it is actually being used.
Secondly, it adds to the regime the offence of displaying threatening or abusive behaviour under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. Section 38 is now routinely used for dealing with lower-level threatening or abusive conduct. The offence’s inclusion in the ASBFPN regime will align the scheme with current policing practice and the fact that such offences are already eligible for the use of recorded police warnings.
Thirdly, the order uprates the penalty amount from £40 to £70. Using the gross domestic product deflator, £40 in 2005 is equivalent to around £68 today, so the new level will restore the original penalty’s value.
The wider review of antisocial behaviour legislation that we have begun will give ministers in the next parliamentary session the opportunity to consider more substantial reforms.
In developing the instrument, officials have engaged with the Crown Office and Procurator Fiscal Service and Police Scotland. The Lord Advocate has highlighted the strengthened guidelines on police direct measures, which set clear limits on ASBFPN use, require consideration of victim impact and provide for monitoring, audit and annual reporting. Police Scotland is also working with Community Justice Scotland on a new referral and signposting pathway for first-time offenders, which aims to reduce reoffending. The pathway is expected to be introduced later this year.
Overall, the amendments update an established regime that operates within a framework of safeguards and oversight. I understand that the Delegated Powers and Law Reform Committee considered the instrument on 27 January and raised no points on it.
I am happy to take questions, convener.
I am grateful. I have a couple of questions, after which I will open up the questioning to colleagues.
As you have just detailed, minister, the instrument would add section 38(1) offences to the fixed-penalty notice scheme. That would create an overlap with the common-law offence of breach of the peace, which is already part of the FPN regime. Given that overlap, what evidence can you adduce that adding section 38 offences is the right thing to do? How will that overlap be dealt with in practice?
I might bring in Nicola Guild on the legal side of things. The order was drafted following discussions with Police Scotland, which has always said that it would welcome the ability to use fixed-penalty notices for section 38 offences. That is why we have introduced it. How the police would enforce matters, and how they would apply the two approaches, would involve following the Lord Advocate’s guidelines on fixed penalty notices. Perhaps Nicola Guild would like to add something.
I am not sure that I really understand the question. I suppose that there is an element of overlap between the two offences, but the overlap already exists. I am not sure that the inclusion of section 38 offences in the fixed-penalty notice regime would mean things operating any differently from how they do at the moment.
Section 38 does something that breach of the peace currently does, but breach of the peace is currently part of the fixed-penalty notice regime. By adding in the section 38(1) offence to the regime, you would have two legislative processes, in effect—although dealing with breach of the peace at common law would not involve applying legislation—that amount to the same thing. You would have two tracks running, would you not, for the same end?
I think that the same applies in terms of the behaviour, in general. I do not think that the disposal changes the fact that they are two separate offences. In the same way, a person could currently be reported to the procurator fiscal for either offence, and the police would use their discretion in deciding on what the person was charged with. The same applies when it comes to issuing a fixed-penalty notice; that would depend on the facts and circumstances of the case and whether the behaviour constituted a section 38 offence or a breach of the peace.
Minister, the fixed penalty is being raised from £40 to £70, and the thought behind that is that it will provide a deterrent. What evidence do you have that the £70 figure will provide the level of deterrent that the Parliament originally intended?
First, it is not being raised so as to be a deterrent.
We accept that there is sensitivity about the £70 penalty level and that some people could perceive that the increase does not go far enough. Because the legislation has not been updated for more than 20 years, we are just bringing the level up to account for inflation. As we move into the next parliamentary session, I hope that, in future, our penalties for antisocial behaviour can be reviewed annually instead of every 20 years. The penalty level that the order brings in is to reflect inflation. As I said in my opening remarks, it would be about £68 if it were to be brought up to reflect inflation over the period from 2005 to 2026, which is why we have determined that it should now be £70.
I have a further question, but I will bring in Sharon Dowey now to ensure that all colleagues get appropriate time.
I have just one question on the two unused offences. They have been removed from the regime, so where do those offences now fall?
Sorry—would you repeat that?
Where do the two unused offences that have been removed now fall? I think that you said in your opening statement that, in the final year for which there are figures, two offences had not been used and will now be removed from the regime. Where will they now fall?
It is my understanding that they could still be charged. The offences being removed are
“Disorderly conduct while drunk in licensed premises”
and
“Being drunk … in charge of a child”.
The order will keep the legislation up to date, because no fixed penalties have been issued for those offences in the past year. However, the police still have the relevant powers if they want to charge someone for such behaviour.
The police have not used those powers in the past year, so what is the reason for removing the offences rather than keeping them in?
We are just updating the legislation.
Are they now classed as more serious crimes, so that an offender would get a more serious penalty instead of just a fixed-penalty notice?
That would be up to the police, I think. Perhaps Nicola could come in on that.
Yes, that would be for the police to decide in the same way as they would for any other offence that is not covered by the fixed-penalty notice regime.
Okay. The figures say that, of all the notices that are given out, 80 per cent of penalties are paid and 20 per cent are not. Do we have any figures on the number of penalties that are not paid?
The number of penalties that have been paid has been stable over the past 10 years, with around eight in 10 being paid in full. That proportion has remained broadly consistent with inflation, even though the penalty itself has reduced in real value over time. Collection of penalties is a matter for the Scottish Courts and Tribunals Service, and it has operational independence in doing so. I do not have specific figures with me, but I will be happy to write to the committee on that point.
That is fine. Do you know what crimes had been committed for which those fines are not being paid? Have you any information on the people who are not paying?
Bob Wyllie or Nicola Guild might have that information, but I do not.
Collecting those fines is part of the Scottish Courts and Tribunals Service’s operational work; we could liaise with it and provide a written reply to that question.
What further action would be taken if people did not pay the fixed penalty?
That would be up to the procurator fiscal.
Would the fine simply be written off?
I will bring in Nicola Guild to answer that. It would not be written off, but I think that any further action would be determined by the procurator fiscal. Is that correct, Nicola?
Under the legislation, if a fixed-penalty notice is not paid, the person is deemed to have accepted it, so enforcement action could be brought against them for payment of that penalty.
I appreciate that the level of fine is going up because of inflation, which seems to make sense, but has the Government any concerns that the number of people who do not pay will also go up because of that increase in cost?
No—that is not a reason why we should not increase the penalties.
I agree with the cost going up, but do you think that more people will not pay the fines because of that? Is there a concern about that?
No, there is not.
This might sound like a strange question, but has the offence of being drunk in a pub been removed from the FPN scheme?
Riotous behaviour while drunk in licensed premises has been removed.
What about threatening or abusive behaviour in a pub? How is that dealt with?
It would be up to the police to determine, in accordance with the Lord Advocate’s guidelines, but my understanding is that the police would still be called and the person could still be charged. The police might simply not be able to give a fixed-penalty notice.
So, the fixed penalty would not be applied at that point.
That is my understanding.
Good morning. You have answered Sharon Dowey’s question, and mine was on roughly the same area. You have removed those two offences because the police are not using fixed penalties for them. Is that right?
They have not been used for those offences in the past year.
In the past year?
Yes.
Oh, right. I presumed that it was from 2004—
And the year before.
Would it be helpful for me to go through some statistics from the past year for offences for which fixed-penalty notices have been issued?
In a second, possibly. What I do not understand is this. Two years is not a long time in the law, really. Did you just accept that the police wanted those two offences to be removed from the scheme because they had not been used for two years? They would now not be able to use them. Did you question the police about why they wanted those offences removed after such a short period of monitoring?
I might bring in Robert Wyllie on that.
If there is a need or a desire from Police Scotland to have those offences integrated into the FPN regime in future, that could be done in the same way as this instrument is doing at the moment. I think that the motivation behind the change was to clarify and make amendments to keep the regime up to date. If the context is that no offences have been subject to the FPN regime for the past two years for which figures are available, it feels as though using it for those offences has fallen into disuse for the moment. However, that can certainly be kept under review and, as the minister has alluded to—
Is there a policy such that two years is the time after which you would review something? I honestly thought that you would say that those offences had not been used in 20 years—and I could see that—but in two years’ time—
09:45
The table of statistics for the year 2023-24 shows that the offence of riotous behaviour while drunk in licensed premises was not dealt with under the scheme. Refusing to leave licensed premises was dealt with 127 times; urinating in public, 765 times; being drunk and incapable, 90 times; being drunk in charge of a child, no times; playing loud music, 43 times; vandalism, 108 times; consuming alcohol in a public place, 1,033 times; breach of the peace, 1,947 times; and malicious mischief, five times.
It was a matter of looking at the list of offences and deciding that we would update it and, as the police had asked, add the section 38 offence of threatening or abusive behaviour.
I understand. For thoroughness, if that situation arose again, perhaps it would be worth asking the police why they were not using the fixed-penalty approach for certain offences. I had understood that that is what it is for. Would that mean that the police would then charge people with those offences in the usual way?
Yes, if they were—
With all the paperwork attached to that, it could be still a fairly low—
Police Scotland raised no concerns about that. For example, the offence of being drunk in charge of a child perhaps does not happen these days as much as it did historically. I do not know—I am just guessing at that. When we engaged with the police on the instrument, it was not an issue that they raised, but they wanted that offence kept on the list.
I will conclude with this question. I would like to think that, if this situation happened again, the Government would ask more questions about why the police were not using the scheme for an offence, so that a committee could make a more informed decision and not simply say, “The police are not using it. Well, that is that—just strike it off, then.” The offence was on the list in the first place for a reason, so the scheme was meant to be used. I just make the point that, in future, it might be worth interrogating the police—
I think that it is because—
—about why they are not using it. What happens if, as Robert Wyllie said, two years down the road, the police say, “We would like it back, please”?
I do not know whether it is helpful, but I make the point that the next Government might want to consider a broader revision of the fixed-penalty notice regime in light of developments such as the Sentencing and Penal Policy Commission’s report, which suggested different tiers for fixed-penalty notices. For example, some offences would attract a higher level of penalty, a bit like how things are done in England and Wales with penalty notices for disorder. So, there might well be an opportunity for the Parliament to come back and look at the issue more broadly.
Certainly, for our part as officials, we are reviewing the whole of the Antisocial Behaviour etc (Scotland) Act 2004 right now, which gives us an opportunity to tease out some of those points. As the minister has outlined, this instrument just tries to bring things up to date and into line with current practice. We are certainly engaging with Police Scotland as part of our review.
That is very helpful.
I suppose that we have to be a little cautious when we are talking about removing offences, which is what we are literally doing in this process. People out there might suddenly think that those offences will not exist any more, but, as you say, they will clearly still exist in law and have legal effect. No fixed-penalty notices have been issued, but are we aware of whether people are still being charged under those offences?
My understanding is that they are not, but Robert might have something further on that.
Sorry, I mean outwith the fixed-penalty notice scheme.
That issue has not been raised with me by Police Scotland, but it may have raised it in conversations with Robert.
They are certainly offences that can be prosecuted, and this instrument does not change that at all.
I understand that—that was the basis of my question. Are we aware whether people are still being charged under those offences?
I do not have the figures available to hand, but I can certainly write with the details.
I think that, if it was a concern and people were still getting charged, Police Scotland would have raised it in our discussions, but it did not. However, we are happy to write to the committee regarding that.
That would be helpful, as it would give us wider context about the utility of those offences in general.
I will pick up on Pauline McNeill’s point and the point that Robert made about officials continually keeping these things under review, as we would expect. I would like to understand a wee bit more about the work that is being taken forward in that regard. I presume that the process of adding or removing offences for which fixed-penalty notices could be issued is as straightforward as the process that we are going through right now—it would just be another affirmative instrument.
As I said, police told us during our conversations that removing the charges would be beneficial for them, and we have been able to work on that in the current parliamentary session through this piece of secondary legislation.
Looking forward to the next parliamentary session, we all appreciate the issues that exist with regard to antisocial behaviour. An independent report came out last year and we have been working with the Convention of Scottish Local Authorities and Police Scotland regarding its recommendations. One of the recommendations was to fully review antisocial behaviour legislation. That will be for the next Government to do, and I hope that it will be taken forward.
I will come back to the two offences that are being removed from the scheme, and my question follows on from what Pauline McNeill asked. It is only in the past two years that the offences have not been used. They are tools in the toolbox, but if they are taken away, the only option left will be to charge, which would take up police and court time and create paperwork.
I still do not understand why we should remove those two offences from the scheme. Would it not be better to keep them in so that the police can use them, rather than take them out and leave only the option of spending more time in court and having more prison sentences?
I will bring in Bob Wyllie to answer that. Police Scotland did not ask for the charges to be kept in the scheme; that is the only reason that we have removed them.
It is important to make the point that a report could be made to a procurator fiscal, and they may decide on direct measures such as fiscal fines that do not involve court appearances, or anything of that nature. Court proceedings would not automatically ensue as a result of removing the charges from the fixed-penalty notice regime.
It may also be helpful to make the point that the fixed-penalty notice is one of two types of direct measures that can be issued by the police; the other is a recorded police warning. The measures are subject to the Lord Advocate’s guidelines, which set out the circumstances in which they can be used. The two offences that are being removed from the fixed-penalty notice regime cannot be given recorded police warnings. Again, that is about bringing consistency to the regime.
However, as the minister has outlined, we can certainly continue to clarify and discuss that point with Police Scotland as the review continues. If the police wish for the charges to be introduced to the FPN regime in the future, we can look to do that.
It just seems that removing the offences will add more paperwork to a system that is already under pressure. I still do not understand why the charges need to be taken out of the scheme; I do not think that it would make any difference if they were to be kept in.
As no other members have any questions, I want to clarify something, minister. In response to my second question at the start of the meeting, you told me—I am paraphrasing what I think that I heard—that raising the fine from £40 to £70 is not about providing a deterrent. However, the Scottish Government’s policy note on the SSI states in bullet point 3 that
“without revalorisation it no longer provides the proportionate deterrent originally envisaged by Parliament.”
That suggests that the raise is about providing a deterrent. Will you clarify that?
Apologies, convener—I may have taken your question as a suggestion that the only reason that we are increasing the fine is to provide a deterrent. All fixed-penalty notices provide a deterrent, but the increase is about bringing the fine up in line with inflation since 2005.
I am grateful for the clarification. As there are no further questions, we will consider a motion to approve the affirmative SSI on which we have just taken evidence. For good order, I remind officials that only MSPs may speak in a debate on a motion. I invite the minister to move motion S6M-20475, in her name, and to briefly make any additional comments that she wishes to make.
I have no further comments to make. I move,
That the Criminal Justice Committee recommends that the Antisocial Behaviour (Fixed Penalty Notice) (Miscellaneous Amendment) (Scotland) Order 2026 [draft] be approved.
Do members have any points that they wish to make?
It is important to draw out the fact that we have heard this morning that two offences will be removed from the list on the basis of monitoring over a two-year period, which I do not think is that long. I will not vote against the motion, on the basis that, as the ministerial team has said, it would be easy enough to bring the order back to Parliament.
However, in the future, there should be a longer period and perhaps more interrogation of the police, who are the ones asking for this, as to why they have not been using the offences. As Sharon Dowey said, the whole point of fixed-penalty notices is that the police can use them for lower-level offences if they think that it is not appropriate to charge someone, as charging them would involve a more formal process that goes to the fiscal—albeit that it is for the fiscal to decide whether it should proceed. We would not want there to be a back and forward situation with the police not using FPNs for an offence this year but wanting to use them next year, or whatever.
I am not going to stand in the way of the draft order, but it might be important to draw that out for future reference.
It is an interesting point. If no other members have any comments, I invite the minister to wind up and respond to the points that have just been made, and to press or withdraw the motion.
I press the motion. I take on board Pauline McNeill’s point. We brought forward the draft order following discussions and engagement with Police Scotland about what it thought would be beneficial. As I said, any further changes in the next parliamentary session would involve broader consultation. I am happy to write to the committee with further figures regarding the two offences.
Motion agreed to,
That the Criminal Justice Committee recommends that the Antisocial Behaviour (Fixed Penalty Notice) (Miscellaneous Amendment) (Scotland) Order 2026 [draft] be approved.
Are members content to delegate responsibility to me and the clerks to approve a short factual report to the Parliament on the affirmative instrument?
Members indicated agreement.
The report will be published shortly. We will have a short suspension before we move to the next item of business. I thank the minister and her officials.
09:57
Meeting suspended.
09:59
On resuming—