3. Alternatives to Prosecution, Remand and Custody

3.1 Alternatives to prosecution

a) General information

Alternatives to prosecution are used for low tariff offences. Disposals are available to both Police Scotland and Procurator Fiscal as direct measures. 

Victims of crime are not automatically told when a Recorded Police Warning or Direct Measure is used. However, the Police should provide updates to the victim on the progress of the case, and both the Police and the Procurator Fiscal’s office can be contacted for information. Victims and witnesses have the right to obtain information on the progress of their case.  For more information on how to access this right, please see the Part 2 – Information for Victims of Crime.

b) Police Direct Measure – Recorded Police Warning

What is a Recorded Police Warning?

Recorded Police Warnings are on the spot formal warnings, issued by the Police.

Main features

  • Age 16+
  • Low Tariff offences
  • Immediate on the spot
  • Recorded for a period of 2 years by the Scottish Criminal Records Office 
  • Does not count as a conviction

When is a Recorded Police Warning used?

There are often cases where incidents could be resolved quickly, without the need to submit a formal report to the Procurator Fiscal – these are crimes that would be unlikely to result in court proceedings. The circumstances of each incident are fully assessed by Police Officers when deciding on whether to issue a Recorded Warning or take another course of action. 

Why are Recorded Police Warnings used?

To provide a more proportionate, timely disposal for low level offences.

Recorded Police Warnings:

  • Significantly shorten the length of time that it can take for the same disposal to be achieved;
  • Reduce the volume of formal reports in the criminal justice system; and
  • Give Police Officers the ability to exercise their professional discretion on the spot.

c) Procurator Fiscal – Direct Measures

i. General information

Alternatives to prosecution are used for some low tariff cases. The Fiscal may take the view that it is in the public interest to take action, however, may not consider prosecution (taking the case to court) to be the most appropriate course of action. The Fiscal has a number of direct measures available. The accused may be:

  • Given a Fiscal Warning;
  • Offered the option of paying a fine, compensation or a combination of both;
  • Offered a Fiscal Work Order; or
  • Offered a chance of referral for specialist support or treatment – Diversion from Prosecution Scheme.

In these cases, the accused will not have a criminal conviction recorded against their name, and courts are freed up to spend time dealing with more serious cases.

ii. Fiscal Warning

What is a Fiscal Warning?

The Procurator Fiscal may decide to give the accused either a written or personal warning.

Main features

  • Age 16+
  • Low tariff offences
  • Once issued, the accused cannot be prosecuted for that offence
  • Does not count as a conviction

iii. Fiscal Fines and Compensation Orders

What is a Fiscal Fine and Compensation Order?

A Fiscal Fine requires the accused to pay a sum of money. The Procurator Fiscal can also issue a Compensation order requiring the accused to pay compensation to someone who was affected by the alleged offence. A combined offer can also be made, which includes a fine and compensation. Where both a fine and compensation are offered the whole offer needs to be accepted.

Action will be taken to enforce the fine if it is not paid.

Where a fixed penalty offer or compensation offer has been accepted, the Procurator Fiscal, if asked, may disclose that the case has been dealt with by an alternative to prosecution to the victim.

Main features

  • Age 16+
  • Low tariff offences
  • Dealt with outside of the Court
  • If accepted the accused cannot subsequently be prosecuted for the offence
  • Does not count as a conviction

When are Fiscal Fines and Compensation Orders Used?

In some low tariff cases, where the Procurator Fiscal may consider that it is in the public interest to take action but may not consider prosecution to be the most appropriate course of action. Each case is assessed individually with consideration given to: 

  • The seriousness of the offence;
  • The circumstances of the offence; and
  • Whether the person has the financial means to pay.

Why are Fiscal Fines & Compensation Orders used?

  • Fiscal Fines and Compensation Orders:
  • Deal quickly and simply with low tariff person who has committed an offence;
  • Provide speedy and appropriate resolution of cases; and
  • Provide a mechanism whereby people can make appropriate and fair reparation, deterring further offending.

iv. Fiscal Work Order

What is a Fiscal Work Order?

A Fiscal Work Orders is a requirement for a person to pay back to the community in which they have caused harm through constructive community work activities. The individual will be required to carry out between 10 and 50 hours over a maximum of a six month period, or, to attend a programme aimed at tackling the reason for their offending behaviour. Local Criminal Justice Social Work Services are responsible for supervising Fiscal Work Orders.

Main features

  • Age 16+
  • Low tariff offences
  • Where harm to the community such as vandalism has occurred 
  • Dealt with outside of the Court
  • Participation is voluntary
  • If accepted the accused cannot subsequently be prosecuted for the offence providing that they complete the Order
  • Does not count as a conviction

When are Fiscal Work Orders used?

Fiscal Work Orders are often used in cases when: a low tariff offence that has caused harm to a community, such as vandalism has been committed; a first offence has been committed; the person is dependent on others; or the person is unable to pay fines. These cases could technically be prosecuted, but the Procurator Fiscal may consider that there is ‘no overriding public interest’ in taking the case to court.

The accused must:

  • Accept the details of the charge against them; and
  • Opt-in (the Order must be accepted by the person who has committed an offence).

Each case is assessed individually with consideration given to:

  • The seriousness of the offence;
  • The circumstances of the offence;
  • Whether the person has the financial means to pay for damage caused; and
  • Whether the community would benefit from payback.

Why are Fiscal Work Order used?

Fiscal Work Orders:

  • Deal quickly and imply with people who have committed low tariff offences;
  • Provide victims and communities with speedy and appropriate resolution of cases; and
  • Provide community benefit through supporting local unpaid work initiatives.

v. Diversion from Prosecution Scheme

What is a Diversion from Prosecution Scheme?

Diversion from Prosecution provides an option for the Procurator Fiscal to deal with someone accused of low level offences outwith the court system. The person will be required to work with a Criminal Justice Social Worker or other agency to address the problem areas of their lives that are underlying or contributing to their offending behaviour. In such cases, the person will receive appropriate support and the opportunity to avoid a potential criminal conviction.

The accused must:

  • Broadly accept the details of the charge against them;
  • Agree that there are problem areas in their life; and
  • Agree to work with Social Work and other agencies to address these difficulties.

If the accused does not agree with the above, the Procurator Fiscal may prosecute the case in the normal way.

Main features

  • Age 16 and 17 year olds+
  • Low tariff offences
  • Dealt with outside of the Court
  • Participation is voluntary
  • Does not count as a conviction
  • Failure to co-operate may lead to the case being prosecuted

When is a Diversion from Prosecution Scheme used?

There are often cases when a minor offence has been committed, where it could technically be prosecuted, but where the Procurator Fiscal may consider that there is ‘no overriding public interest’ in taking the case to court. 

Each case is assessed individually with consideration given to the:

  • Seriousness of the offence;
  • Circumstances of the offence; and
  • The person’s attitude (the person may choose to opt-out i.e. go to court)

Why is a Diversion from Prosecution Scheme used?

Diversion from Prosecution aims to address the underlying causes of offending behaviour through Social Work and other interventions. It also aims to prevent people entering into the formal criminal justice system too early. Evidence suggests that the earlier people enter the criminal justice system, the more likely they will be pushed towards more serious offending.

3.2 Alternatives to remand

a) Bail

What is bail?

Bail is the temporary release of an accused person awaiting trial. The accused person may be granted bail
when the judge has been persuaded by their lawyer that they can be trusted to adhere to certain conditions. This is an alternative to being kept in prison during the course of information being gathered about the case in advance of a trial – this can often be a lengthy process.

Main features

  • Dealt with by the Court
  • Is not a conviction
  • Breach of bail conditions is a criminal offence

i. Standard Bail Conditions

There are Standard Bail Conditions that will always be imposed. These are that the accused:

  • Must attend court every time their case is called;
  • Must not engage in any criminal behaviour whilst on bail – if this happens, the nature of this second offence will be considered to be more serious by the court – this is described as being an ‘aggravation’;
  • Must not interfere with, threaten or intimidate witnesses or any other party involved in the case (this includes for example, any co-accused person);
  • Must not obstruct the course of justice, for example, dispose of items which may be relevant to the case; and
  • Must be available to assist with the gathering of information relevant to the case.

ii. Additional Bail Conditions

In addition to the standard bail conditions, sentencers can impose extra bail conditions. The sentencer is given wide discretion in relation to this aspect of bail. This discretion is only limited by what individual accused, judges and prosecutors will accept; and the resources available to enforce the condition. Common additional Bail Conditions include:

  • Bail Accommodation – the accused is required to reside at a certain supervised address or premises whilst on bail (usually a bail hostel).  
  • Bail Curfew – the accused is required to be present in his or her place of residence during certain times of the day and present themselves to police officers should they visit the address. A common time for such a curfew is from 7pm-7am.
  • Attendance at Police Stations – the accused is required to regularly attend a particular Police Station, typically on a daily or weekly basis. The accused will usually be required to sign a register to provide evidence of attending.
  • Prohibition – Forbids the accused from entering particular areas or approaching certain people.

Breach of Bail conditions is highly likely to result in an accused being remanded in custody for the original offence and being prosecuted for the breach.

b) Bail Supervision Schemes

What is a Bail Supervision Scheme?

Supervised Bail Schemes are designed to reduce the risk of offending whilst on bail. These cases are supervised by Social Work or Third Sector (non-governmental and non-profit making) organisations.  Supervision will include regular appointments with the Bail Supervisor (usually 2-3 times per week), until they are removed by the Sheriff – usually following trial. 

Main features

  • Age 16+
  • Dealt with by the Court
  • Is not a conviction
  • Intensive level of supervision by Social Work or other responsible organisation appointed
  • Aim to reduce the risk of offending whilst on bail
  • Participation is voluntary
  • Breach of bail conditions is a criminal offence

When is Supervised Bail used?

Bail Supervision is primarily used for borderline cases where the accused is not considered to pose a danger to members of the public and there is no real concern that the defendant will not show up for a court hearing. It is also used for certain vulnerable groups, for example, those with mental health problems, single parents, drug or alcohol addiction issues, or children aged between 16 and 21, who may suffer extreme difficulties if remanded to custody. The Court makes the final decision as to whether Supervised Bail will be granted. Referrals can be made by Sheriffs, Procurator Fiscals, Defence Agents and Social Workers. 

The accused must:

  • Agree to work with Social Work and other agencies to meet the bail conditions which can include undertaking a programme to address the underlying drivers of their offending behaviour.

Each case is assessed individually with consideration given to the:

  • Seriousness of the offence; and
  • Circumstances of the offence

Why is Supervised Bail used?

A significant number of accused who are remanded to custody do not go on to receive a jail sentence. The service enables people to remain in the community, continue with their employment (where relevant) and reduces the risk of further offending through supervision, monitoring and support to address life issues. At a system level it aims to reduce the prison population. Supervised Bail:

  • Prevents unnecessary custodial remands whilst people are awaiting trial;
  • Reduces the risk of re-offending whilst on Bail;
  • Reduces the prison population and the costs associated with custody.

3.3 Alternatives to custody

a) Structured Deferred Sentence

What is a Structured Deferred Sentence?

When a person has been found guilty of a crime, a Structured Deferred Sentence gives sentencers an option to delay the final decision about any punishment to another date (usually 3 or 6 months). Social Work intervention will be provided to the person prior to final sentencing. It is an opportunity for the person to prove to the Court that they can stay out of trouble and are willing to make positive changes to reduce their risk of re-offending. 

A person’s progress following a period of Structured Deferred Sentence will be taken into consideration by the Court in the final sentencing decision.

Main features

  • Dealt with by the Court
  • Targeted at low risk people who have committed an offence
  • Individual already convicted (not used for serious, violent or sex offences)
  • Aimed at individuals with high social needs
  • Delays final decision on sentencing (3-6 months)

When are Structured Deferred Sentences used?

Structured Deferred Sentences are primarily aimed at people with underlying problems such as drug or alcohol dependency, mental health or learning difficulties, or unemployment. It is not used for people who have committed serious, violent or sexual offences. Each case is assessed individually with consideration given to:

  • Seriousness of the offence;
  • Circumstances of the offence; and
  • Underlying problems which may be contributing to offending behaviour.

Why are Structured Deferred Sentences used?

  • Structured Deferred Sentences provide an opportunity to tackle underlying reasons for offending behaviour. Structured Deferred Sentences are designed to:
  • Reduce or restrict the frequency or seriousness of offending behaviour; 
  • Avoid premature or unnecessarily intensive periods of supervision in the community; and
  • Withhold people, wherever and whenever appropriate, from other, less appropriate, community disposals/custody.

b) Community Payback Order

What is a Community Payback Order?

A Community Payback Order is a sentence served in the community rather than prison by a person convicted of a crime in a court. Community Payback Orders are designed to ensure that those who commit offences pay their dues to the communities that they have harmed. Firstly by requiring the person to make amends, often in the form of unpaid work and other activity, and secondly by requiring them to address any underlying problems that may be fuelling crime through imposing one or more of nine provisions or requirements available to sentencers.

Main features

  • There is no minimum age for a CPO except were unpaid work and other activity requirement is made. In these circumstances it can only be imposed on a person aged 16 and above.
  • Low to medium level offences
  • Dealt with by the Court
  • Is a conviction 
  • Non-compliance (breach) is addressed rigorously 
  • Continued breach may result in a custodial sentence

Requirements available to sentencers

  1. Unpaid work & other activity
    The Court will require the person to undertake a form of practical work as well as other activity that promotes desistence from offending. The duration of the work can be anywhere between 20 and 300 hours, and the work will have to be completed within a designated timeframe. 
  2. Alcohol treatment
    The Court requires the person to undertake treatment where there is an alcohol dependency identified as contributing to offending behaviour.
  3. Compensation
    The Court requires the person to pay a sum of money to the victim(s) of their crime for damage, loss or personal injury.
  4. Conduct
    The Court requires the person to do, or refrain from doing certain actions.
  5. Drug treatment
    The Court requires the person to undertake treatment where drug dependency is identified as contributing to offending behaviour.
  6. Mental health treatment
    The Court requires the person to undertake treatment (including care and support) where a diagnosed mental health condition and/or learning disability has been identified as contributing to offending behaviour.
  7. Supervision
    The Court requires the person to attend appointments with a Criminal Justice Social Work Case Manager for a specified period of time.
  8. Programme
    The Court requires the person to undertake a course or other planned set of activities, over a period of time.
  9. Residence
    The Court requires the person to live at a certain address to reduce the likelihood of re-offending. 

Breach (failure to comply) of a Community Payback Order, including individual requirements imposed by the sentencer, can lead to the person having a prison sentence imposed.

The consent of the person who has committed an offence to the requirements of a CPO is required
before it can be imposed by a court – except where the order is to be imposed following fine default. 

When are Community Payback Orders used?

Community Payback Orders are used for low to medium level offences. Since 2011 there has been a ‘presumption against’ short prison sentences of 3 months or less, meaning that sentencers are still able to impose a sentence for low level offences but there is an expectation that people who commit offences will instead be sent out to do unpaid work.

Why are Community Payback Orders used?

Bringing together the options for judges in this manner provides scope for courts to punish individuals in a way which also addresses the areas of their lives which need to change. There is strong evidence to suggest that short prison sentences do not provide enough time to address the underlying causes of offending behaviour, known to reduce re-offending rates. Community Payback has far better results when dealing with people who have committed low level offences that cause havoc, disturbance, upset and fear in communities. For many, the punishment could be a short prison sentence. But if the aim is to punish and prevent repeated re-offending, the evidence shows that prison is not working for people who are committing lower level offences. 

c) Restriction of Liberty Order (tagging)

What is a Restriction of Liberty order?

A restriction of Liberty Order restricts an individual to a specified place (normally a home address) for up to 12 hours per day and/or from a specified place for up to 24 hours (for example, a town centre where the majority of their offending is taking place). These can be imposed for periods of up to one year. People subject to a Restriction of Liberty Order will wear an electronic monitoring device or ‘tag’ to monitor compliance with the order and be supervised by Criminal Justice Social Work Services. 

Main features

  • Higher level offences
  • Dealt with by the Court
  • Is a conviction
  • Supervised by Social Work
  • Breach can result in a custodial sentence

When is a Restriction of Liberty Order used?

A Restriction of Liberty Order is a Community Sentence imposed by the court for higher level offences. It is used by the court as an option in cases where they might otherwise be thinking of a prison sentence or another community penalty that would impose substantial demands on the person. 

Why are Restriction of Liberty Orders used?

Restriction of Liberty Orders provide an option for punishment whilst addressing the areas of a person’s life that needs to change to prevent re-offending and further harm to victims of crime and communities.  

Research shows that electronic monitoring works best when accompanied by a wider programme of supervision and support, rather than being used as a stand-alone measure.

d) Drug Treatment and Testing Orders

What is a Drug Treatment and Testing Order?

A Drug Treatment and Testing Orders (usually referred to as DTTO) is a direct alternative to custody for serious drug misusers who commit crime to fund further drug misuse and who might otherwise have received a custodial sentence. The Order contains features unique to this community disposal, including a requirement for regular reviews of progress by the court and a requirement that the person consent to frequent random drug tests throughout the lifetime of the Order.

Main features

  • Dealt with by the Court
  • Is a conviction
  • Aimed at people with an extensive offending history linked to drug misuse
  • Intensive supervision by Social Work and Addiction Services
  • Regular drug testing 
  • Monthly Court reviews
  • Breach may result in a custodial sentence

When is a Drug Treatment and Testing Order used?

Drug Treatment and Testing Orders are used when an individual’s offending is assessed as directly resulting from their complex and deeply entrenched drug-misuse, for example, people who steal to fund their habit. 

Serious drug dealers will continue to receive custodial sentences.

Why are Drug Treatment and Testing Orders used?

People with drug problems often commit crime in order to be able to finance their addiction. Evidence from research suggests that getting drug users into the appropriate treatment and support service to promote recovery from drug addiction will better reduce drug-related crime and re-offending and result in fewer victims of crime.

3.4 Sentencing Options and Offender Pathway Visual

Sentencing Options Pathway Visual for People who have Committed an Offence

There is a range of options available to courts which have different consequences for the person who has committed an offence

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