Justice Secretary Angela Constance is under fire after she claimed there was "nothing hidden" about the use of Recorded Police Warnings (RPWs) despite both Police Scotland and the Lord Advocate refusing to publish their guidance on how officers should use the low-level punishment.
More than 100,000 RPWs have been issued over the last five years, but there have been increasing concerns over transparency and accountability.
In Holyrood on Tuesday, the minister insisted the operating procedure used by the police in relation to RPWs was publicly available.
However, the document contains substantial redactions.
READ MORE: Recorded Police Warnings: Scotland's 'secret justice' system
When they were first introduced in 2016, the warnings were specifically to deal with minor offences, allowing them to be cleared up without having to go to the Crown Office and Procurator Fiscal Service (COPFS).
However, over the weekend, The Herald on Sunday shared research by the Murray Blackburn Mackenzie policy collective showing that the national force was now using RPWs to deal with serious crimes, including sexual offences.
Police Scotland’s use of RPWs was questioned over the summer after a woman was assaulted during a feminist rally in Aberdeen.
Julie Marshall was punched in the arm and head at the event in the city's Duthie Park.
The man responsible received an RPW.
Police defended the decision, saying they were acting ”in line with the Lord Advocate’s guidelines.”
The Herald on Sunday’s attempt to obtain the guidelines by requesting them through Freedom Of Information was rejected.
Police Scotland said 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."
While COPFS said the specific content of the Lord Advocate’s guidance was exempt from FOI because “disclosure would, or would be likely to, both prejudice substantially the prevention or detection of crime and prejudice substantially the apprehension or prosecution of offenders.”
Police Scotland’s Standard Operating Procedure covering RPWs is online and includes some of the criteria for issuing an RPW and details circumstances when an RPW should not be issued.
However, under the section Lord Advocate’s Guidelines, the instruction from the Scottish Government's most senior law officer has been almost entirely redacted.
READ MORE: Edinburgh: Rise in crime sparks police 'hard choices' admission
Despite that, in Holyrood on Tuesday, responding to a question from Conservative justice spokesman, Russell Findlay, the Justice Secretary said the “operational guidelines that Police Scotland operate to is indeed publicly available, and they're very clear about the types and severity of offences that are not appropriate for a recorded police warning.”
“That information is publicly available,” she added.
In response, the Tory MSP said there was a “fundamental lack of transparency about exactly how or why recorded police warnings are being used.”
“This risks creating a parallel system of secret justice,” he added.
He pointed out that “more than 7,500 shoplifters were issued with these warnings instead of being prosecuted” which he claimed meant the SNP had effectively “decriminalised shoplifting by stealth.”
Ms Constance claimed Mr Findlay’s “narrative does not stand up to the facts.”
She added: “As I indicated in my earlier response, in the operational guidance that Police Scotland work to, that guidance which is publicly available, there is nothing hidden about this, it clearly states that persistent or alarming conduct should not be considered for recording police warning.
“Neither should major disturbances not indeed offences where there are repeat victims. As I stated very clearly, the issue of Recorded Police Warnings is a matter for individual police officers to allow them to make greater use of discretion once they have fully assessed each individual incident.”
READ MORE: Lord Advocate under pressure over 'confidential' guidelines
Following the exchange in parliament, Dr Kath Murray from Murray Blackburn Mackenzie said “greater transparency” was necessary.
She said: "In many cases RPWs will be a proportionate response to minor offending that avoids unnecessarily drawing people into the criminal justice system.
“Police use of RPWs has, however, also increased significantly since 2016, with Police Scotland looking to extend the scheme further.
“To retain legitimacy, we think greater transparency is now needed.
“The police operational guidelines referred to by the Justice Secretary are redacted in parts and only provide a partial picture, whilst the Lord Advocates guidelines on RPWs remain private.
“When criticised about the use of RPWs in relation to the assault of feminist campaigner Julie Marshall, Police Scotland referred to the Lord Advocate's confidential guidelines.
“At the same time, the Crown Office declined to comment, as the use of an RPW meant it did not have sight of the facts. This leaves an obvious accountability gap that needs to be closed."
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