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COPFS

Alternative to Prosecution

What are the alternatives to prosecution?

In some less serious cases, although the Procurator Fiscal may consider that it is in the public interest to take action, prosecution may not be the most appropriate course of action. In those cases there are a number of direct measures available.

As a direct measure, offenders may be:

  • given a warning by the Procurator Fiscal;
  • given the option of paying a fine;
  • given the option of paying compensation;
  • given the option of a Fiscal Work Offer;
  • offered the chance of referral for specialist support or treatment.

This way, the accused does not have a criminal conviction recorded against their name, members of the public are spared the inconvenience of attending as witnesses, and courts are freed up to spend time dealing with more serious cases.

What does a Warning involve?

The Procurator Fiscal may decide to give the accused either a written or personal warning. Once this happens, the accused cannot be prosecuted for that offence.

What does a Fine involve?

The 'fixed penalty conditional offer' (fine) is an effective direct measure for less serious offences. The levels of fine are set by the Scottish Government and are currently £50, £75, £100, £150, £200, £250 and £300. This fine will be registered against the accused (and there will be no court proceedings) unless he or she gives notice that he or she refuses the offer. If challenged, the Procurator Fiscal may prosecute for the offence.

What does a Compensation Offer involve?

The 'compensation offer' is an effective direct measure for offences where an individual has suffered loss. Compensation may be issued in respect of monetary loss, personal loss, or alarm or distress. The maximum level of compensation that can be offered is £3,000. The level of compensation will be registered against the accused as a fine (and there would be no court proceedings) unless he or she gives notice that he or she refuses the offer. If challenged, the Procurator Fiscal may prosecute for the offence.

If, following rejection of a fixed penalty offer or compensation offer, a prosecution follows, the accused's failure to take up the offer, and its amount may be disclosed to the Court.

Fixed penalty and compensation offers are not criminal convictions. However, they are recorded and can be disclosed to the court for a period of two years. Where a fixed penalty offer or compensation offer has not been rejected the Procurator Fiscal, if asked, may disclose this to any person whom he considers to have a legitimate interest in knowing the outcome of the case, for example, the victim or the media.                      

What does a Fiscal Work Offer involve?

A Fiscal Work Offer (FWO) is a direct measure which allows the prosecutor to offer an offender the opportunity of completing a Fiscal Work Order of between 10-50 hours of unpaid work. 

If the offer is rejected or the work order is not completed satisfactorily then the Procurator Fiscal may prosecute for the offence.

What about road traffic offences?

Fixed penalties are also offered as an alternative to prosecution for some less serious road traffic offences. In contrast to non road traffic fixed penalty offers and compensation offers, road traffic fixed penalties are only registered when they are actively accepted by the accused. If the offer is accepted and payment made, no prosecution is brought. If it is an endorsable offence penalty points are also endorsed on the accused's driving licence. Where the accused does not actively accept the fixed penalty, the Procurator Fiscal can bring the case to court as a normal prosecution.

Why would an accused be referred for specialist support?

In some areas there are schemes that allow accused to be diverted from prosecution in appropriate cases. This is called 'diversion' and involves offering the offender the option of referral to a scheme, which might involve social work, or psychiatric or psychologist support, treatment or other action. This is used where the support and treatment for the offender would be more beneficial than formal prosecution. The accused can decide not to accept the referral and the Procurator Fiscal may then prosecute the case.

Are there other diversions from prosecution?

In less serious cases where there is an identifiable victim, a conflict between two parties, or where the offender is able to make amends for his conduct, 'reparation and mediation' can be an effective alternative, in those areas where there is a scheme available. The accused can choose not to accept the reparation and mediation in which case the Procurator Fiscal may prosecute the case in the normal way