Police Scotland Direct Measures PDF

OFFICIAL Unit 3 Lesson 10.2...

OFFICIAL Unit 3 Lesson 10.2 Direct Measures Lesson Aim: The learner will be able to complete reports to the Crown Office and Procurator Fiscal Service (COPFS) and identify and utilise appropriate non-reportable methods Learning Outcomes: Introduction On successful completion of the lesson, Alternatives to prosecution are called Direct students will be able to:- Measures in Scotland. Direct Measures are used as non-reporting options by Police 1. Describe what a Recorded Police Warning is Scotland to deal with minor offences. Direct Measures provide an intervention 2. Explain criteria for issuance of a Recorded mechanism that is timely and proportionate, Police Warning avoiding the need for the preparation and submission of a SPR. This also enables the Criminal Justice System to focus on more 3. Submit a Recorded Police Warning serious crimes while giving police the range of powers they need to respond quickly and appropriately to minor offences. 4. Explain what an Anti-Social Behaviour Fixed On conclusion of an enquiry, you may Penalty Notice is establish sufficient evidence to report an individual for a crime or an offence. However, if this crime or offence is minor in nature and 5. Explain the criteria for issuance of an Anti- is covered by the criteria for a Direct Measure Social Behaviour Fixed Penalty Notice (non-reporting option) then you should utilise this. 6. Submit an Anti-Social Behaviour Fixed Penalty Notice 1 th Amended 24 April 2024 v.5 OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures Reporting Options If deemed appropriate, an individual may be reported through the Standard Prosecution Report (SPR), these include:- 1. Summons Report 2. Undertaking Report 3. Custody Report 4. Warrant Report. In this lesson we shall focus on the Non Reporting Options available to the investigating officers. Reporting Options will be covered within the lesson Standard Prosecution Reports. Non Reporting Options There are a number of non-reporting options available to Police Scotland to deal with minor offences, these include:- 1. Discretionary (verbal) warnings, 2. Recorded Police Warnings (RPW) and 3. Antisocial Behaviour Fixed Penalty Notices (ASB FPN). Note:- Under no circumstances are officers to accept payment of a Fixed Penalty Notice from offenders. 2 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures Discretionary (Verbal) Police Warnings It is a fundamental policing principle that officers have discretion to administer a verbal warning for minor offences, for example:- Instances of anti-social behaviour Minor acts of disorder Minor road traffic violations. Discretionary warnings should still be used where appropriate rather than moving straight to issuing an RPW or an ASB FPN. There may be occasions when priorities or a local initiative will limit the power of discretion to tackle specific local problems or to enforce new legislation. Upon issuing a discretionary verbal warning, the officer should record the following:- Full details of the incident including individual’s names within police issued notebook Full rationale of decision within notebook and any relevant Storm Incident Log If warranted, a Scottish Intelligence Database (SID) entry outlining any intelligence. Discretionary warnings are not recorded on any crime reporting system or PNC/CHS. The offender is NOT cautioned and charged. Recorded Police Warning The Recorded Police Warning (RPW) is designed as a means to address minor offending behaviour which would otherwise be reported to the Procurator Fiscal. Due to the minor nature of the offence, if reported, this would normally result in a non-court disposal or no action being taken on the grounds of triviality. There must be sufficient evidence to report the offender to the Procurator Fiscal and should be used as an alternative to reporting, not an alternative to a verbal warning. The RPW can be issued on the spot at the time of the offence, from custody or retrospectively following investigation. The individual is provided with a ticket which outlines the time, date, locus and nature of the offence. 3 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures Once issued, it is the issuing officer’s responsibility to update the relevant Police Systems with the details of the ticket. An RPW will be held on the Criminal History System (CHS) for two years and the warning is 'live' for three months from the date of the offence. Note:- You do not need corroboration to issue an RPW but you must have corroborative evidence of the offence. 4 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures Criteria for Issuing a Recorded Police Warning An RPW notice may be issued by the enquiry officer in circumstances where:- The offender is 16 years of age or older (and not subject to a compulsory supervision order) The offence is minor in nature and suitable for being dealt with by an RPW There is sufficient evidence to report the offender to the PF The offender is suitable and able to understand the RPW that is being issued The identity of the offender can be proved, should this be disputed at a later date. Where a Recorded Police Warning May NOT Be Issued An RPW Notice may NOT be issued in circumstances where:- There is persistent or alarming conduct which makes individuals scared for their safety There is conduct involving a major disturbance There is conduct related to or involving an aggravation (e.g., racial, religious, domestic, sexual, breach of a court order etc., or other hate related conduct) The offence relates to a repeat victim There is significant harm to an individual or community, including economic harm The offender is known to be subject to bail The offender is the subject of a supervision order or an antisocial behaviour order (ASBO) The offender is to be charged with a more serious offence (any lesser offence from the same incident should not be dealt with by way of an RPW) The offender has a previous conviction in court for an analogous (similar) charge in the previous three years The offender has any link to serious and organised crime groups. 5 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures One or More Co-Accused When one or more co-accused does not meet the criteria for an RPW then all of the offenders will be reported. The co-accused who do meet the criteria for an RPW should be highlighted in the Remarks section of the SPR. Offenders aged 18 and Over Offenders aged 18 and over should not be issued with more than one RPW in a three month period. They should not be issued with more than three RPWs over a 12 month period. Offenders aged 16/17 (not subject of Compulsory Supervision Order (CSO)) Offenders aged 16/17, and not subject of a CSO, may not be issued with more than two RPWs in a three month period. They cannot be issued with more than four RPW’s over a 12 month period prior to their 18th birthday. In terms of 16/17 offending, a VPD must also be submitted. Escalation Procedure Once an RPW has been issued it cannot be escalated, i.e. this is the end of the process unless further evidence becomes available. Should offenders reach their maximum number of RPWs and continue to commit qualifying offences, then they should be issued with an ASB FPN by way of escalation. Where the offence committed is not relevant for the issuance of an ASB FPN, then an SPR would be submitted to COPFS. Note:- An offender has the right to refuse a RPW in which case the next stage of escalation would be an ASB FPN of where no qualifying offence exists, an SPR. 6 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures Recorded Police Warning Offences 1 Any offence under section 128 of the Antisocial Behaviour etc. (Scotland) Act 2004 2 Threatening or Abusive Minor Section 38 (1) Behaviour Criminal Justice and Licensing (Scotland) Act 2010 3 Minor Breach of the Peace 4 Minor Theft (including shoplifting, fraud, reset etc.) 5 Any other common law *See (1) crime causing no harm to individuals or the community (including economic harm) 6 Non-endorsable road Included but currently traffic offences not used 7 Offences under the Included but currently vehicle defect not used rectification scheme (VDRS) 8 Very low level Section 5(2) Misuse of possession of controlled Drugs Act 1971 *See (2) drugs (where circumstances are indicative of personal use and no other vulnerabilities are identified) *(1) For minor thefts (including shoplifting, fraud, reset etc.) there is no guidance in respect of value and should be assessed on a case- by case basis. Officers should take into account the value of the property stolen, recovery of property, the impact on the victim, vulnerability of both the victim and the offender and where appropriate the type of premises affected. 7 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures *(2) In respect of offences under Misuse of Drugs Act 1971, Section 5(2), RPWs will be issued for offences of very low level possession of controlled drugs where circumstances are clearly indicative of personal use and no other vulnerabilities are identified. There is no guidance in respect of amounts however, RPWs are for very low level offending and an officer must justify the RPW, linking their decisions to the offender, amount in their possession and circumstances of each case. Further guidance can be found on the Direct Measures SOP. Issuing a Recorded Police Warning A RPW can be issued in a ticket book format or through the Mobile Device. The officer will obtain the individuals full details (PNC/CHS checks must be conducted to confirm eligibility) and thereafter complete an RPW. The officer must record sufficient information within their notebook outlining the offence and any evidence. On issuing an RPW the enquiry officer will:- Upon issuing to the offender, provide an explanation of the RPW, the offence committed and the process, ensuring this is fully understood. Create a crime/case on local crime/case recording system, prior to finishing their tour of duty Ensure relevant tasks are completed prior to the end of duty, including updating CHS Record the crime/case number on the “evidential notes” section of the police copy; and Where possible ensure the “ticket” is checked by a supervisor and thereafter stored as per local arrangements. There is no requirement to caution and charge the offender in this instance. See Appendix A - Process Map. 8 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures Activity 1 A1 Recorded Police Warning It is 1300 hrs on today’s date and you are called to Asda, Main Street, Brookbank. On arrival you are taken by the Security Guard into an office where you meet an elderly woman who has been found to have £5 worth of food in her bags which she has not paid for. On speaking to the woman you establish that she has difficulty with her finances and her deteriorating health. She is embarrassed and upset by her actions. A check reveals that she has no criminal history and no previous dealings with the Police. She gives her particulars as Janice Whyte, born 30/09/39 at Brookbank, retired teacher, 2A Culzean Gardens, Brookbank, FK10 2ST. Mobile 07967363345. A blank copy of an RPW can be found in Appendix B. Complete an RPW concerning the offence and note any further actions you would take. Feedback 1 F1 A completed example is provided in Appendix C. What is an Anti-Social Behaviour Fixed Penalty Notice? Part 11 of the Antisocial Behaviour Etc. (Scotland) Act 2004 relates specifically to Fixed Penalty Notices issued by police officers. Section 128 of the Antisocial Behaviour Etc. (Scotland) Act 2004 (Fixed Penalty Offences) contains a table of 10 offences which have been agreed upon as "sufficiently minor" to be dealt with by the Police by way of an Anti-Social Behaviour Fixed Penalty. 9 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures Fixed Penalty Notice Offences 1 Riotous behaviour whilst Section 115 drunk in licensed Licensing (Scotland) premises Act 2005 2 Refusing to leave Section 116 licensed premises when Licensing (Scotland) requested to do so Act 2005 3 Urinating/defecating Section 47 Civic causing annoyance to Government others (Scotland) Act 1982 4 Being drunk and Section 50(1) Civic incapable in a public Government place (Scotland) Act 1982 5 Being drunk in a public Section 50(2) Civic place in charge of a child Government *(1) (Scotland) Act 1982 6 Persisting to annoyance Section 54(1) Civic of others in playing Government musical instruments etc. (Scotland) Act 1982 and refusing to desist 7 Vandalism *(2) Section 52(1) Criminal Law (Consolidation) (Scotland) Act 1995 8 Consume alcoholic liquor Sections 201 & 203 in a public place Local Government (Scotland) Act 1973 9 Breach of the Peace *(3) Common Law 10 Malicious Mischief *(2) Common Law 10 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures *(1) The Lord Advocate Guidelines - Offence No. 5: “It will rarely be appropriate to issue an ASB FPN in respect of this offence. It would only be a suitable option where the offender’s ability to care for the child in his/her charge did not appear to be significantly impaired by the fact of being under the influence of alcohol. It would not be appropriate to issue a FPN if an offender had a criminal history of offences involving children or there was criminal intelligence available which raised concerns for the safety of children. *(2) The Lord Advocate Guidelines - Offence No. 7 and 10 “It will be appropriate to consider the issue of a ASB FPN in respect of offences of vandalism and malicious mischief where there is minor damage caused to property. Where an incident has resulted in substantial damage, and/or damage which is likely to result in significant cost to the owner of the property it would not be appropriate to issue the offender with an ASB FPN.” *(3) The Lord Advocate Guidelines – Offence number 9 “An ASB FPN should not be issued in relation to S38 of Criminal Justice and Licensing (Scotland) Act 2010 (Threatening or Abusive Behaviour)” The ASB FPN can be issued on the spot at the time of the offence or subsequently by an officer reviewing the circumstances i.e. Custody officer or Crime manager. The individual is provided with a ticket which outlines the time, date, locus and nature of the offence. Once issued, it is the issuing offers responsibility to update the relevant Police Systems with the details of the ticket. An ASB FPN offers the offender the opportunity to pay a Fixed Penalty of £40.00 within 28 days after the day of issue. If this is not paid within the 28 day period the fine is increase by 50% to £60.00. If paid, this discharges any liability to be convicted of the offence to which the ASB FPN relates. Alternatively the offender can request a Court Hearing. Note:- The issue of a ASB FPN does not preclude the offender's right to a fair trial under Article 6 of the Human Rights Act 1998. If the offender requests a hearing, the matter may be referred to the Procurator Fiscal. 11 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures Criteria for Issuance of an Anti-Social Behaviour Fixed Penalty Notice Sec 129: (1) Fixed Penalty Notices-Offence Section 129 of the Antisocial Behaviour Etc. (Scotland) Act 2004 states that a Constable who has reason to believe:- That a person aged 16 years or over (not subject of CSO) Has committed a Fixed Penalty Offence In a prescribed area, i.e. anywhere in Scotland, may give the person a Fixed Penalty Notice in respect of the offence. Considerations for issue of an ASB FPN’s:- When they have reason to believe a person has committed an ASB FPN offence and there is sufficient evidence to charge The offence is minor and suitable for being dealt with by an ASB FPN The suspect is suitable, compliant and able to understand what is going on The offence did not involve an offender below the age of 16 Sufficient evidence is available as to the suspect's age, identity and place of residence 12 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures Circumstances When an ASB FPN May NOT be Issued Lord Advocates Guidelines indicate that ASB FPN’s should NOT be issued where the offence:- Is persistent or alarming conduct Is homophobic, racial, and religious or is motivated by hate Forms part of a pattern of harassment or intimidation Relates to domestic violence The offender has a recent analogous (similar) previous conviction The offender has recently been issued with a PF fine or warning for a similar offence or more than one FPN for the same offence The offender has recently* been issued with more than one ASB FPN for the same offence 13 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures The offender is known to be already subject to bail An Anti-Social Behaviour Order exists for the offender The offender has no verifiable satisfactory address for enforcement purposes If the offender is to be charged with a more serious offence, any lesser offence should not be dealt with by way of FPN Note:- The Lord Advocate defines ‘recent’ as being within the last 6 months. Issuing an ASB FPN An ASB FPN should be issued following the relevant caution and charge. An ASB FPN can be issued in a ticket book format or through the Mobile Device. The officer will obtain the individuals full details, and thereafter complete an ASB FPN. The officer must record sufficient information within their notebook outlining the offence and any evidence. The officer must explain the ASB FPN process to the individual receiving the ASB FPN. On issuing an ASB FPN the enquiry officer will:- Caution and charge the offender in the usual manner State the full wording of the alleged offence, e.g. “breach of the peace.” Give such particulars of the circumstances alleged to constitute the offers as necessary to prove reasonable information about it, e.g. shout and swear to the annoyance of the lieges State the amount of the ASB FPN State the clerk of the court to who, and the address at which, the ASB FPN may be paid (although, it may be paid at any Scottish Court) Update the relevant data systems prior to finishing their duty Where possible ensure the “ticket” is checked by a supervisor and thereafter stored as per local arrangements 14 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures Where Can They Be Issued? On the street once an offender has been cautioned and charged At a Police Station once an offender has been arrested and cautioned and charged Retrospectively once the accused has sobered up, or once an offender has been traced, e.g. vandalism offence. Retrospective ASB FPN Whilst the law is silent on this area, legal advice suggests that the retrospective issue of an ASB FPN is competent, e.g. a person having been arrested for being Drunk and Incapable may be issued an ASB FPN on being released a period of time later, an ASB FPN may be issued in respect of an offence of vandalism albeit that the offender was not detected until some hours/days later, etc. The issue of the ASB FPN need not immediately follow the commission of the offence. Decision Not to Issue RPW/ASB FPN Where an officer opts NOT to use one of the Direct Measures available in circumstances which do fit the criteria for their use, the officer’s rationale must be included in the Standard Prosecution Report (SPR2), i.e. there is a presumption toward the use of Direct Measures. Revocation of Fixed Penalty Notices A FPN may be revoked if:- The offence was not committed, or The FPN should not have been issued to that person - for example, false details given If revoked, no amount is payable and any amount paid will be refunded to the person who paid it 15 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures Activity 2 A2 It is 1400hrs on today’s date and you and a colleague are on uniform patrol on Mains Road, just past the Clansman Public House, 45 West Street, Brookbank, FK10 3RD You notice a man standing by a lamppost, urinating into the bushes. As this is an offence contrary to Section 47 of the Civic Government (Scotland) Act 1982. You check CHS and discover he has previously had a RPW for the same offence so you decide to issue an ASB FPN. He gives his particulars as Bryan Park, born 23/09/71 at Brookbank, self-employed taxi driver, 21 Burnside Walk, Brookbank, FK10 3RT. 07956 789645 A blank copy of an ASB FPN can be found in Appendix D. Complete an ASB FPN concerning the offence and note any further actions you would take. Feedback 1 F1 A completed example is provided in Appendix E. Co-accused Committing Offences Where an offence is committed by several accused, careful consideration must be given to the appropriate disposal for each individual. It is competent to deal with some accused by ASB FPN and the others by a report to the Procurator Fiscal. All Persons involved in Offence over 16 Years, an ASB FPN may be appropriate for any offenders involved. Note:- One Person involved in Offence under 16 Years, an ASB FPN is not appropriate for any offenders involved. Alternative procedures should apply. 16 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures Repeat Offenders It is not the intention of the scheme to routinely allow repeat offenders to avoid court proceedings. Each offence/offender should be assessed individually to ascertain the appropriate disposal. The ASB FPN may be used at any stage in a person’s offending career. Where an offender has been issued with two ASB FPNs in the previous six months normal reporting processes must be followed. Serious Offences Where a penalty notice is issued for an ASB FPN offence and it transpires after the incident that a more serious or non-ASB FPN offence was also committed, officers may bring a charge for the subsequent offence. Payment of an ASB FPN discharges the recipient's liability to conviction only for the offence for which the ASB FPN was issued. Conclusion A number of benefits may be achieved by employing Non-Reporting and Non-Court options:- Can save Police Officers time as they no longer need to complete full reports for minor offences. When issuing Antisocial Behaviour Fixed Penalty Notices at the locus of an incident, officers have the discretion whether to remove offenders to custody centres or not. Procurator Fiscals spend less time "marking" minor reports. Police and Procurator Fiscal can spend more time on the serious cases. Cases can be disposed of without full recourse to the Court process. The police can operate a clear and consistent approach to tackling minor offences. 17 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures Appendix A 18 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures Appendix B 19 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures Appendix C 20 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures Appendix D 21 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures Appendix E 22 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures For further information, use the resources shown below:- Police Scotland Intranet - Direct Measures SOP V2.00 Review: You can describe what a recorded police warning is You can explain criteria for issuance of a Recorded Police Warning You can submit a recorded police warning You can explain what an Anti-Social Behaviour Fixed Penalty Notice is You can explain the criteria for issuance of an Anti-Social Behaviour Fixed Penalty Notice You can submit an Anti-Social Behaviour Fixed Penalty Notice 23 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 10.2 Direct Measures Learning Log: How will what you have learned in this module impact your day-to- day role? Are there any skills or knowledge you would like to develop further following this module? End of Module 24 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL