Lord Advocate's guidelines on the use of the police direct measures for adult offenders

1. These Guidelines should be applied by police officers issuing a police direct measure to an adult offender (aged 18 years and over).

2. A police direct measure is a Recorded Police Warning (RPW) or Antisocial Behaviour Fixed Penalty Notice (ASB FPN).

3. Police direct measures provide officers with a means of enforcing the law and dealing proportionately, promptly, and efficiently with less serious offending.

4. Offering a police direct measure is not mandatory and police officers retain the ability to report appropriate cases to the Procurator Fiscal. Police operational independence remains unaffected by these Guidelines.

5. It is a fundamental policing principle that police officers have discretion to issue a verbal warning and take no other action in relation to minor instances of offending behaviour. Nothing in this guidance detracts from that principle and verbal warnings may continue to be administered in appropriate circumstances.

6. A police direct measure may only be issued where there is sufficient evidence that a crime has been committed.

7. The use of police direct measures should only be used for less serious offending and must be proportionate to the alleged offending.

8. Assessing whether an offence is "less serious" will be fact specific and involve the exercise of professional judgment on the part of a police officer. Whilst the classification of the offence may appear serious, the circumstances of a specific offence may not and vice a versa.

9. A police direct measure will not be appropriate where the offending involves:

• an allegation of a sexual offence;
• an allegation of domestic abuse;
• conduct involving hate crime;
• the infliction of injury which is more than superficial (superficial injury in this context would include for example, a minor cut, scratch or reddening);
• behaviour deliberately targeted at a vulnerable individuals (including children);
• persistent or alarming conduct which causes individuals to fear for their safety, or the safety of others;
• conduct which is part of the operation of serious and organised crime;
• substantial economic harm to an individual or community where no reparation has been made.

10. Offending of these types should be reported to the Procurator Fiscal who will consider what action, if any, is in the public interest in line with the Prosecution Code.

11. Officers should take into account the impact of any alleged offending on a victim or community when assessing seriousness. Where a victim’s views on disposal are known, they should be considered.

12. Where a child is a victim, police officers must have regard to the United Nations Convention on the Rights of a Child (UNCRC). In particular, the best interests of any child victim should be a primary consideration, in terms of Article 3 of the UNCRC and the views of the child (where known) should be taken into account in terms of Article 12 UNCRC.

13. Local concerns about particular types of offending behaviour should also be considered when officers are deciding whether a direct measure is appropriate.

14. Police officers must consider the offender’s criminal history, and any other available information about them, before deciding on appropriate action.

15. Police officers should take a graduated approach when dealing with offenders and consider what previous action has been taken in relation to the offender. If there is information to suggest that the offence is part of a wider pattern of criminal conduct (including repeat or escalating conduct), then it is unlikely that a direct measure would be appropriate.

16. Repeat offending due to an offender’s identified needs or vulnerabilities may lead to the conclusion that a police direct measure is not appropriate. In these circumstances, consideration should be given to reporting the case to the Procurator Fiscal so that diversion from prosecution may be considered in order to address the underlying causes of offending. Any identified need or vulnerability should be clearly specified in the report.

17. Neither the issuing of a direct measure, nor the reporting of an offender to the Procurator Fiscal, constrain the police from making a parallel referral of an offender to treatment and support services. Where an individual is reported to the Procurator Fiscal and such a referral has already been made, the circumstances of the referral should be set out in the police report.

18. There is no requirement for an admission of guilt for a direct measure to be offered, however offenders must be given the opportunity to accept or reject the offer.

19. If a direct measure is refused, any subsequent report to the Procurator Fiscal in relation to the offence should highlight that refusal.

20. Where there are multiple offenders, acting together, and it is decided that at least one should be reported to the Procurator Fiscal, no individual direct measures should be issued. All the accused should be reported together in order that the full circumstances can be considered by the Procurator Fiscal. This information should be included in the ‘Remarks’ section of the report, to assist the Procurator Fiscal in identifying a proportionate response in respect of each accused person. Nothing in this guidance prevents all the multiple offenders involved being offered a direct measure if that is appropriate in each case.

21. The exception to this is children: where a child is involved in offending behaviour with an adult, they may be dealt with as a child, and do not require to be reported as an adult.

A. Recorded police warnings

22. Subject to the general principles above being met, the following offences may be considered suitable for an RPW:

Common law offences

• Assault
• Breach of the peace
• Malicious mischief
• Wasting police time
• Attempting to pervert the course of justice - where the offence is quickly remedied, for example initially providing a false name but later providing a correct one
• Theft (not including house breaking or opening a lock fast place)
• Any other common law offence (where the general principles are met)

Statutory Offences

• Section 67(1) and (6), Civic Government (Scotland) Act 1982 - theft by finding
• Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 - threatening or abusive behaviour
• Section 127(1) and (2) of the Communications Act 2003 - misuse of communications network
• Section 13 of the Criminal Procedure (Scotland) Act 1995 - failure to give name, address, date of birth, place of birth or nationality to a constable when required to do so
• Section 90(2) of the Police and Fire Reform (Scotland) Act 2012 - resisting, obstructing or hindering a constable or member of police staff or a person assisting that constable or member of police staff (assaults on police officers are not eligible)
• Section 5(2) of the Misuse of Drugs Act 1971 - possession of controlled drugs, where the circumstances are clearly indicative of personal use
• Section 23(4)(a) of the Misuse of Drugs Act 1971 - obstructing a person in the exercise of their powers under section 23
• Section 19(a)(b) and (c) of the Criminal Law (Consolidation) (Scotland) Act 1995 - possession of alcohol on a PSV/train or drunk on a PSV/train, on the way to or from a sporting event
• Section 20(2)(a)(b) of the Criminal Law (Consolidation) (Scotland) Act 1995 - possession of alcohol in a sports ground or while attempting to enter a sports ground
• Section 20(7)(a)(b) of the Criminal Law (Consolidation) (Scotland) Act 1995 - drunk in, or drunk while attempting to enter a sports ground
• Section 111(1) and (2) of the Licensing (Scotland) Act 2005 - drunk person entering or in premises in which alcohol is sold
• Section 112(1) and (2) of the Licensing (Scotland) Act 2005 - obtaining of alcohol by or for a drunk person
• Section 116 of the Licensing (Scotland) Act 2005 - refusal to leave premises
• Section 52(1) of the Criminal (Consolidation) (Scotland) Act 1995 - Vandalism and Malicious Mischief, particularly where the alleged offender has made, or is in the process of making reparations
• Section 92(9) Civic Government (Scotland) Act 1982, and section 87(1) Environmental Protection Act 1990 - littering
• Section 56 Civic Government (Scotland) Act 1982 - lighting a fire to the annoyance of another
• Section 1 of the Dog Fouling (Scotland) Act 2003
• Section 3 of the Trespass (Scotland) Act 1865 - persons trespassing on private property without consent of owner
• Section 53 Civic Government (Scotland) Act 1982 - obstruction in a public place
• Section 98 of the Roads (Scotland) Act 1984 - allow animal to stray onto the road
• Section 99 of the Road Traffic Act 1988 - failing to change address on licence
• Section 4(1) of the Pedlars Act 1871 - acting as a pedlar without a certificate
• Section 7(1) Civic Government (Scotland) Act 1982 - specified categories only - street traders licence (section 39); late hours catering licence (section 39); and window cleaners licence (section 43)
• Any byelaw prohibiting the consumption of alcohol in designated places
• Any offence for which an Antisocial Behaviour Fixed Penalty Notice may be offered.

23. This list should be kept under regular review by both the Police Service of Scotland and the Crown Office and Procurator Fiscal Service.

B. Antisocial behaviour fixed penalty notices

24. Only certain offences are eligible for Antisocial Behaviour Fixed Penalty Notices. They are listed in section 128 of the Antisocial Behaviour etc. (Scotland) Act 2004 as follows:

• Section 115 of the Licensing (Scotland) Act 2005 - Disorderly conduct while drunk in licensed premises and other relevant premises
• Section 116 of the Licensing (Scotland) Act 2005 - Refusing to leave licensed and other relevant premises on being requested to do so
• Section 47 of the Civic Government (Scotland) Act 1982 - Urinating or defecating in circumstances causing annoyance to others
• Section 50(1) of the Civic Government (Scotland) Act 1982 - Being drunk and incapable in a public place
• Section 50(2) of the Civic Government (Scotland) Act 1982 - Being drunk in a public place in charge of a child
• Section 54(1) of the Civic Government (Scotland) Act 1982 - Persisting to annoyance of others, in playing musical instruments, singing, playing radios etc. on being required to stop
• Section 52(1) of the Criminal (Consolidation) (Scotland) Act 1995 - Vandalism
• Sections 201 and 203 of the Local Government (Scotland) Act 1973 - Consuming alcoholic liquor in a public place
• Breach of the Peace
• Malicious Mischief

25. Issuing an ASB FPN rather than an RPW, may reflect increased seriousness of an offence or repeat offending.

26. A key advantage of direct measures is that they are timely. Police direct measures should, wherever possible, be issued within 28 days of the commission of the alleged offence.

27. Police Scotland will ensure officers are trained on the use of police direct measures.

28. Police Scotland will regularly review the use of police direct measures to ensure that they are being used appropriately and are not being used for categories of cases which are excluded: for example, sexual or domestic offending.

29. Data relating to the appropriate use of direct measures will be collated and included in police performance meetings on a local, regional and national basis.

30. A report will be provided to the Lord Advocate on an annual basis setting out the use of police direct measures and the actions taken to ensure compliance with these Guidelines.

31. These Guidelines will themselves be subject to regular review.