On 23 July 2023 at a public rally organised by the grassroots feminist group Women Won’t Wheesht, a transactivist punched a 54-year old woman, Julie Marshall. The assault resulted in bruising to Ms Marshall’s arm and eye. Ms Marshall reported the assault to an officer in attendance at the rally. In response, Police Scotland issued the offender with a Recorded Police Warning (RPW).
The decision to issue an RPW led to strong criticism from Ms Marshall, the rally organisers and others, including ourselves. Critical press coverage also drew attention to the Lord Advocate’s guidelines, which direct police officers on the scope of RPWs, but remain confidential. More recently, Police Scotland has stated that it is looking to expand the RPW scheme.
Against this background, this blog looks at the use of RPWs in Scotland. We argue that to secure trust in the scheme, greater clarity and transparency is needed.
Recorded Police Warning (RPWs) were introduced in January 2016, replacing and extended the existing Formal Adult Warning scheme. The new scheme allowed officers to issue warnings either on the spot or retrospectively, for a wider range of offences, and extended to 16 and 17 year olds (Scottish Government, 2022: 13).
As an alternative to reporting the case to the Procurator Fiscal. RPWs sit at the lower end of the disposal system and are modelled ‘as the first step in a three-tier disposal process’ (the respective disposals are: Recorded Police Warning; Fixed Penalty Notice (for specific offences); and Standard Prosecution Report) (MacDonald, 2016: 1).
A RPW requires the same sufficiency of evidence to prove the crime as would be required to report the circumstances to the Procurator Fiscal. As such, any incident resulting in a RPW is recorded as ‘cleared up’ (a crime is regarded as ‘cleared-up’ where there is sufficient evidence under Scots criminal law to justify consideration of criminal proceedings).
For alleged offenders, accepting an RPW is not an admission of guilt and the warning is not recorded as a conviction (Police Scotland, 2020: para. 2.2). Details are however held on the Criminal History System for two years and can be taken into account if the person comes to the further notice of the police. An alleged offender can also refuse a warning, in which case officers may escalate to an Anti-Social Behaviour Fixed Penalty Notice (for relevant offences), or report the case to the Procurator Fiscal (Ibid. para. 2.4).
2. A response to minor offending
The scope of the RPW scheme is a matter for the Lord Advocate, ‘as part of the Lord Advocate’s constitutional responsibility for the system of the investigation and prosecution of crime’ (Crown Office and Procurator Fiscal Service, 2021: Annex A, para. 10). As noted above, this guidance remains confidential. A 2015 BBC report explained:
Police Scotland has not revealed exactly what types of crime would be dealt with by recorded warnings. Officers will use guidelines provided by the Lord Advocate, which are not available to the public, and make a judgement on the circumstances of each case.BBC Scotland, 10 December 2015
It is nonetheless clear that RPWs are principally intended as a response to minor offending. On introducing the scheme, a Police Scotland spokesperson said the new warnings sought to provide ‘a consistent, swifter, more effective and efficient way of dealing with low level offences’ (Glasgow Evening Times, 10 December 2015), including people caught with small amounts of cannabis. At the time Crown Office spokesperson stated that:
This system, and the updated guidelines, gives police the discretion to issue a warning for offences which they consider to be very minor in nature. They will not be used for any offence of violence.Glasgow Evening Times, 10 December 2015
Police Scotland operational guidance also provides some information on when RPWs should and should not be used. This states, ‘An RPW may be issued by the enquiry officer in circumstances where the offence is minor in nature and suitable for being dealt with by an RPW’ (2020: para. 4.2.1). Situations when RPWs should not be used include offences that involve ‘persistent or alarming conduct which makes individuals scared for their safety’, and offences ‘which involves an aggravation (e.g. racial, religious, domestic, football, sexual, breach of a court order etc. or other hate related conduct)’ (2020: para. 4.2.3).
3. Expansion of RPWs: common assault and Class A drugs
The RPW scheme has expanded over time. From July 2018, it became possible to issue RPWs for less serious, non-sexual common assault, which made up 9% of RPWs issued in 2020-21 (Scottish Government, 2022: 55). In September 2021, in response to Scotland’s drug crisis, the scheme extended to Class A drug possession (Crown Office and Procurator Fiscal Service, 2021). The decision was largely welcomed by the drug and alcohol sector, as a part of a shift away from criminalisation, towards a harm reduction, public health approach (Release, 2021: 14).
4. Use of RPWs in Scotland
Chart one (reproduced from Scottish Government criminal proceeding data) shows that in 2020/21, of the various disposal/penalty options (for which data are available), the RPW was the most used. Looking at police disposals, the number of RPWs issued (21,000) was around four times higher than the number of Anti-Social Behaviour Fixed Penalty Notices (ASBFPNs) (5,200).
Chart 1: Overview of action within the criminal justice system 2020-21 (note 1)
Note 1. Figures rounded to the nearest 100, and based on activity during 2020-21. 13
Note 2. Crimes recorded in 2020-21 may not be cleared up or dealt with until 2021-22 or later.
Note 3. A report to the procurator fiscal may involve more than one crime or offence and more than one alleged offender.
Note 4. Reports to the fiscal on non-criminal matters such as sudden deaths, are not included in this total.
Note 5. Number of people from CHS, Recorded Police Warning also includes 18 Formal Adult Warnings.
Note 6. Number of cases; Data taken from Crown Office Case Processing statistics 2016 to 2021.
Note 7. Figures for people with a charge proved count the number of different proceedings in which a person is convicted. People may be convicted of multiple charges in one proceeding, but this is counted as one person convicted per proceeding. Note 8. It may be deemed that an incident does not warrant recording e.g. if there is a lack of evidence that a crime was committed.
A number of outcomes may result in subsequent prosecutions or referrals to other agencies, for example if a condition such as payment of a fixed penalty is not complied with. For simplicity, these pathways are not shown Chart 1.’ Source: Scottish Government Criminal Proceedings in Scotland 2020/21: 12. Chart 1.
Figure 1 looks at longer-term trends in the use of police disposals. This shows a huge fall in the number of police ASBFPNs issued from around 2014 onward. Following the introduction of RPWs in 2016, the number of warnings issued more than quadrupled between 2015/16 and 2016/17, far exceeding the previous use of Formal Adult Warnings, and has since remained at a high level.
Figure 1. People given police disposals by disposal type, 2011-12 to 2020-21
Source: Scottish Government (2022) Criminal Proceedings in Scotland 2020-21. Final Bulletin Tables: Table 17: ‘People given police disposals by disposal type, 2011-12 to 2020-21. For ease of interpretation, data labels are only shown for ASBFPNs and RPW.
5. Criminal Proceedings in Scotland data
Although the Lord Advocate’s guidelines remain confidential, Scottish Government data on criminal proceedings provides some insight into the types of crimes and offences to which the warning is applied (detailed data is only available from 2018/19 onwards).
Table 1 shows that between 2018 and 2021 police officers have issued RPWs across every crime and offence category. Within the crime group, most RPWs issued in 2020/21 related to drug offences, followed by shoplifting, which appears consistent with the focus of the scheme, as a response to minor offending and drug possession. Within the offence group, most RPWs related to Breach of the Peace, followed by common assault, and drunkenness and other disorderly conduct, which again, appears in line with the focus of the scheme.
More surprisingly, Table 1 also shows a small number of RPWs have been issued in relation to robbery, ‘other non-sexual crimes of violence’, ‘other sexual crimes’, housebreaking, and fraud.
Table 1. Police use of Recorded Police Warnings in Scotland, by crime and offence type,
2018-19 to 2020-2021.
|Crimes and offences||2018-19||2019-20||2020-21|
|Non-sexual crimes of violence||1||3||–|
|Attempted murder and serious assault||–||–||–|
|Domestic Abuse (Scotland) Act||–||–||–|
|Other non-sexual crimes of violence||1||2||–|
|Rape and attempted rape||–||–||–|
|Crimes associated with prostitution||–||1||2|
|Other sexual crimes||9||18||18|
|Crimes of dishonesty||4,545||3,992||2,558|
|Theft by opening lockfast places||4||14||7|
|Theft from a motor vehicle||–||1||–|
|Theft of a motor vehicle||4||1||4|
|Fire-raising, vandalism, etc.||851||870||880|
|Crimes against public justice||147||196||242|
|Handling offensive weapons||4||–||5|
|Breach of the peace etc.||5,299||5,566||5,749|
|Drunkenness and other disorderly conduct||1,890||1,610||1,726|
|Motor vehicle offences||162||236||259|
|Dangerous and careless driving||14||17||33|
|Driving under the influence||2||–||1|
|Unlawful use of motor vehicle||129||211||205|
|Vehicle defect offences||1||–||–|
|Seat belt offences||–||–||–|
|Mobile phone offences||–||–||–|
|Other motor vehicle offences||15||8||17|
RPWs are intended to provide a proportionate response to lower-level offending that avoids unnecessary criminalisation (Police Scotland, 2020 para. 2.2). Their use in this respect is most likely to be relevant to first-time offenders and/or young people. As noted above, the extension of RPWs for possession of Class A drugs was also welcomed, as part of a wider public health approach.
In practice, the use of RPWs is not weighted towards younger people. Figure 2 shows the distribution of RPWs by age in 2020/2021 was in fact lowest among those under 21 years, and highest among those aged 40 years or over (percentages do not sum to 100, due to rounding).
Figure 2. Use of Recorded Police Warnings in Scotland by age-group, 2020/2021
Source: Scottish Government Criminal Proceedings in Scotland, Main Bulletin Tables: Table 18a
For police officers and prosecutors working in a criminal justice system under significant pressure, one of the main advantages of the RPW scheme is expediency. On introducing the scheme, a Crown Office spokesperson explained:
This system provides a mechanism that is timely and proportionate, avoids the need for the preparation and submission of a standard police report, and enables the Procurator Fiscal and court to focus on more serious crimes while giving police the range of powers they need to respond quickly and appropriately to very minor offences.Glasgow Evening Times, 10 December 2015
A Police Scotland briefing paper (2016) explained further:
The new Recorded Police Warning system allows officers to make a decision on the spot whether or not an RPW is relevant and issue a ticket at the time. This will negate the need for letters to be retrospectively produced and signed by Area Commanders (or equivalent) across the organisation.MacDonald, 2016: 1
Despite the ubiquity of RPWs as a disposal, there is a lack of transparency around the scope of the RPW scheme. This matters because the credibility and legitimacy of the criminal justice system hinges in part on making moral distinctions between how different crimes and offences are responded to.
The recent police response in Aberdeen is a case in point. If the criminal justice system is seen to respond to the physical assault of a feminist campaigner in the same way as it does to minor offences, such as drunkenness in public, or the possession of small amounts of cannabis, the implication is that the State views the conduct as broadly equivalent in moral terms. Similarly, that the Police Scotland response showed no interest in defending Ms Marshall’s ECHR rights reflects badly on its attitudes towards freedom of expression and the ability of women to express legitimate views. It also appears to be at odds with Police Scotland strategy on tackling violence against women and girls, which seeks to ‘build trust and confidence’ in the police, and to challenge male attitudes and behaviours. At face value, it is also surprising to see RPWs issued in relation to more serious offences, including robbery, crimes of violence, and sexual offences.
9. Transparency and accountability
As Police Scotland pointed to the Lord Advocate’s guidelines to defend their handling of Ms Marshall’s assault, and these are unpublished, we wrote to the Lord Advocate on 28 July, to ask (a) whether she agreed that this action was in line with the guidelines (b) and if so, whether she would review them to give more weight to rights of freedom of expression and assembly under the ECHR and (c) urging her to meet groups such as Women Won’t Wheesht and For Women Scotland to learn about their experience of organising public meetings (see appendix below).
On 29 August we received a response sent from the Crown Office on the Lord Advocate’s behalf (appendix below). The Crown Office declined to comment on whether the case fell within guidelines, as (by definition) the use of a RPW meant it had not been sent a report of the facts. The second and third parts of our letter were ignored.
The response brings out that there is a gap in transparency, and therefore accountability, around the use of RPWs. No-one knows what the guidelines for their use say, Police Scotland closes down any question about the use of an RPW by referring to the guidelines, and the Lord Advocate closes down any questions about Police Scotland’s use of one by pointing to their inevitable lack of information about the case.
This means there is no way to tell if, in cases where an RPW appears inappropriate, it is because the police have applied the guidelines improperly, or because the guidelines themselves are the source of the issue. For the single most-used disposal/penalty in Scotland, this does not seem right.
Although widely used, RPWs do not appear to be particularly well understood. We are not, for example, aware of any published evaluations or academic research on the effectiveness or otherwise of RPWs. With the exception of the high-profile expansion of the scheme to Class A drug possession, the increasing use of RPWs in Scotland appears to have largely passed unnoticed.
The data above suggests that for the most part RPWs are used as intended, in relation to lower-level crimes and offences. There are, however, some exceptions that require further explanation. The recent use of an RPW in relation to the assault of Ms Marshall raises further questions around legitimacy and transparency.
Whether it is appropriate that guidelines for a warning scheme that is so widely used by the police remain confidential is questionable. Whilst the Lord Advocate has described the guidelines as ‘properly confidential’, we note the Ministry of Justice has opened to consultation a new Draft Code of Practice on its revised warning scheme (Diversionary and Community Cautions), which explains the scope of the scheme and sets out specific excluded offences (see Annex C). Under ‘Scrutiny and Transparency’ the consultation paper states ‘The use of [Out of Court Disposals] requires forces and prosecution authorities to be open, transparent, and accountable in their decision making’ (2023: para. 11.4) and ‘In order to improve public confidence in the use of [Out of Court Disposals], the Police and other prosecution authorities must be transparent about their use, including where inappropriate decisions were made, and lessons learnt to improve future decision making’ (2023: para. 11.6).
The availability of Police Scotland’s Operational Guidelines on RPWs already provides a partial window on their expected use. That this says they should not be applied in cases of ‘conduct which makes individuals scared for their safety’ suggests that one ought not to have been used in a case such as Julie Marshall’s.
At a recent Scottish Police Authority board meeting, Deputy Chief Constable Malcolm Graham indicated that Police Scotland want to extend the use and range of FPNs. That Police Scotland is facing intense financial pressure after budget cuts is a likely motivating factor here. If RPWs are to remain such an important element of the police response to offending in Scotland, the secrecy surrounding the Lord Advocate’s guidelines and lack of any formal evaluation or scrutiny of their use looks unsustainable.