Recorded Police Warnings: Scotland's 'secret justice' system

Despite being used more than any other disposal or penalty option, the rules governing RPWs remain confidential, with police saying that making the guidelines public would allow "offenders to circumvent the law."

READ MORE: Lord Advocate under pressure over 'confidential' guidelines

Since 2016, RPWs have been used by Police Scotland to deal with low-level crimes, allowing minor offences to be dealt with without having to bother the Crown Office.

When they were brought in, Police Scotland said it was about providing a “ consistent, swifter, more effective and proportionate way of dealing with low-level offences earlier in the process than the current processes allow for.”

The Crown Office said it would allow the courts “to focus on more serious crimes while giving police the range of powers they need to respond quickly and appropriately to very minor offences.”

The scheme was then widened to include possession of Class A drugs, which was welcomed by campaigners as part of a wider public health approach.

Accepting an RPW is not an admission of guilt and the warning is not recorded as a conviction, though details are held for two years and can be taken into account if the person has any future dealings with the police.

Any incident resulting in an RPW is recorded as ‘cleared up.’

However, Police Scotland’s use of RPWs has come under scrutiny in recent weeks after a woman was assaulted during a rally in Aberdeen.

Julie Marshall said she was punched in the arm and head at a rally organised by Women Won’t Wheesht in the city's Duthie Park.

The man responsible only received an RPW.

Police defended the decision, saying they were acting ”in line with the Lord Advocate’s guidelines.”

Roddy Dunlop KC, the Dean of the Faculty of Advocates, tweeted that he could not "believe there are guidelines that say it’s ok to punch a woman, or it’s ok if the assailant is demonstrating."

READ MORE: Police Scotland in human rights row over Women Won't Wheesht assault

The Herald on Sunday’s attempt to obtain the guidelines by requesting them through Freedom Of Information was rejected, with the service saying publishing would "provide means to offenders to circumvent the law by restricting their offending to conduct which falls short of a prosecution threshold or, for example, a threshold which determines the prosecution forum."

In 2020/21, there were 21,000 RPWs issued, around four times more than the number of Anti-Social Behaviour Fixed Penalty Notices.

Police Scotland is keen to increase their use, prompting speculation that the cash-strapped force is relying on the measure as a means of cutting costs.

In their paper, Murray Blackburn Mackenzie share data gathered from Scottish Government reports on criminal proceedings, which shows that between 2018 and 2021 police officers have issued RPWs across every crime and offence category.

Under the offence group, most RPWs related to Breach of the Peace, followed by common assault, drunkenness and other disorderly conduct, and ‘urinating, etc.’

Under crimes, most RPWs issued in 2020/21 related to drug offences, with 6,448 handed out that year. That’s closely followed by shoplifting.

However, a small number were issued in relation to robbery, ‘other non-sexual crimes of violence’, housebreaking, and fraud.

There were 18 RPWs handed out for ‘other sexual crimes’ in 2020/21.

Murray Blackburn Mackenize warn that 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."

After Ms Marshall’s assault, the policy group wrote to Lord Advocate Dorothy Bain to ask if the RPW handed to her attacker was, as the police claimed, in line with her guidelines.

However, the Crown Office were unable to comment as “the use of a RPW meant it had not been sent a report of the facts.”

“The response brings out that there is a gap in transparency, and therefore accountability, around the use of RPWs,” Murray Blackburn Mackenzie write.

“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.”

“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.”

Scottish Conservative shadow justice secretary, Russell Findlay agreed. He told The Herald on Sunday: “The SNP’s chronically weak approach to justice has resulted in what appears to be a parallel system of secret justice in which serious offences result in a mild ticking off.

“If they genuinely believe that sex criminals, fraudsters and others should only receive an RPW then they should be confident enough to explain exactly how and why this happens.

“Victims - along with the law-abiding majority of Scots - have a right to know what is going on inside the justice system which is being corroded by the SNP.

“Given Police Scotland’s admission this week that some crimes will no longer be investigated, due entirely to SNP cuts, the fear is that RPWs will become used even more often.”

READ MORE: Scots possessing Class A drugs to escape prosecution in legal shake-up

A spokesperson for the Crown Office and Procurator Fiscal Service said: “Scotland’s prosecution service carefully balances the need for confidentiality in its procedures with a commitment to transparency and accountability.

“Guidance to police may be kept private to best ensure operational effectiveness. Decisions on publishing guidance are considered in detail.”

A Crown Office source said the RPWs “provide a timely and proportionate criminal justice response to some offending.”

“The use of an RPW depends on the specific circumstances of each case and the discretion of police officers,” they added.

Chief Superintendent Gordon McCreadie, of Criminal Justice Services Division, said: "Recorded Police Warnings are a tool available to officers to deal with a wide range of offences.

"Criteria is issued by the Lord Advocate and the scheme allows officers, in appropriate circumstances and on a case by case basis, to use their discretion to deal with offences on the spot.

"RPWs significantly shorten the length of time it can take for the same disposal to be achieved, reduce the volume of formal reports in the criminal justice system and give officers the ability to exercise their professional discretion."