Police Scotland faces questions over whether or not it flouted guidelines from Scotland’s top prosecutor, letting serious offenders off with warnings meant for low-level crimes.

Previously unseen advice from Lord Advocate Dorothy Bain KC on the use of Recorded Police Warnings says the force should only use them for “less serious offending” and “minor instances of offending behaviour".

However, the most recent statistics on criminal proceedings show they have been issued for sexual crimes, housebreaking and fraud.

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Both Police Scotland and the Crown Office and Procurator Fiscal Service (COPFS) refused to release the guidance given to officers on issuing RPWs when asked to do so by The Herald last year.

Police said making the guidelines public would allow "offenders to circumvent the law," while the Crown said it would "prejudice substantially the apprehension or prosecution of offenders".

But they U-turned in August with the “Lord Advocate's guidelines on the use of the police direct measures for adult offenders” quietly published on the COPFS website. 

A spokesperson told The Herald the prosecution service was “committed to transparency and accountability".

They also said the guidelines had “been carefully revised," though they did not say what these revisions included.

The guidance sets out a number of offences which “may be considered suitable for an RPW.”

These include assault, breach of the peace, wasting police time and attempting to pervert the course of justice.

While theft is considered suitable, the guidelines say this does not include housebreaking or opening a lock fast place.

According to COPFS statistics for 2021-22 — also published in August — some 21 people have been given RPWs for housebreaking and six for theft by opening lockfast places.

The guidelines also include a number of general principles for all police direct measures, which state that neither RPWs nor Antisocial Behaviour Fixed Penalty Notices (ASB FPNs) are appropriate where the offending involves, an allegation of a sexual offence.

However, there were two issued in 2021-22. One for a crime associated with prostitution and one for “causing to view sexual activity or images".

The principles say they should also not be issued for conduct involving hate crimes, but one RPW was issued for racially aggravated conduct.

The guidelines also say no warnings should be issued for "substantial economic harm to an individual or community where no reparation has been made".

However, there have been 299 RPWs handed out by police officers for fraud.

In total, 20,093 RPWs were issued in 2021-22. Of those 7,462 were for antisocial offences, including threatening and abusive behaviour, drunkenness and other disorderly conduct and “urinating, etc”.

Another 2,675 were issued for common assault.

Because the unrevised guidelines were never made public it is possible that the Lord Advocate previously allowed police to use RPWs for housebreaking and some sexual crimes. 

(Image: Agency) Asked why they had decided to publish the guidelines and if RPWs had previously been handed out for offences where the guidance says they should not be, a spokesperson for the COPFS said: “Scotland’s prosecution service is committed to transparency and accountability and where appropriate will publish guidance when it does not prejudice the work of police and prosecutors.

“The published guidelines have been carefully revised to ensure they continue to provide the necessary general principles to be followed by police while offering clarity to the public on when police direct measures may be offered.

“The use of a Recorded Police Warning depends on the specific circumstances of each case and the discretion of police officers.

“The scheme provides a timely and proportionate criminal justice response to lower-level offences which do not need to be prosecuted in court.”

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When RPWs were brought in eight years ago, 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".

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.’ They currently make up almost two-thirds of police disposals.

Asked about the guidance, and asked specifically if RPWs had been handed out when they should not have been, a Police Scotland spokesperson said: "We welcome the publication of the revised guidelines and are working to embed them into our processes.

“Recorded Police Warnings are a tool available to police officers to address specified offences where it is justifiable and proportionate. Guidance on their use is issued by the Lord Advocate and permits officers, in appropriate circumstances to resolve offending behaviour at, or near the time of the offence and in a proportionate manner.

“They ensure the offence is recorded and that victims can see justice delivered at the earliest point to the commission of the offence. This can also prevent people from entering the criminal justice system unnecessarily and allows those cases that need to proceed to court, to do so more efficiently."

Lucy Hunter Blackburn, from the Murray Blackburn Mackenzie policy analysis collective, which has long probed the use of RPWs, said: "This U-turn by COPFS is overdue, reducing the secrecy surrounding one of the most widely used criminal justice sanctions in Scotland.

“However, the Crown Office still needs to confirm whether or not its revised guidance has changed the list of offences eligible for warnings.

“We know, for example, that RPWs have been issued in the past for more serious offences, including housebreaking and sexual offences, than the new published guidance covers.

“We hope that publication of the guidelines will now provide for much more robust scrutiny in this area."

Sharon Dowey, the Scottish Tory shadow minister for victims and community safety, said: “The SNP’s relentless weakening of the justice system has led to a parallel system where serious offences now result in a mild ticking off.

“SNP ministers promised this would not be the case when recorded police warnings would be used, but now violent offenders and fraudsters are among those being given a free pass.

“Rather than flip-flopping on policy, the Crown Office should urgently provide clarity on what offences warrant a recorded police warning and stick to it.

“Victims deserve to see some common sense being used and their needs being prioritised for once on the SNP’s watch, rather than those of criminals.”

Scottish Lib Dem Justice spokesperson Liam McArthur said there needed to be more clarity: "It seems as if there is a degree of confusion about what should be handled with a recorded police warning and what should be dealt with using sterner sanctions.

"At least the public can now see the Lord Advocate's guidance on when these measures are appropriate.

"The Lord Advocate and Chief Constable would be doing everyone a favour if they were to set out whether they think that these warnings are a tool which is proving successful and whether improvements are needed."

Police Scotland’s use of RPWs came under scrutiny last year after a woman was assaulted during a rally in Aberdeen.

Julie Marshall said she was punched in the arm and head at an event 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".

The Herald's bid to obtain the guidelines by requesting them through Freedom Of Information was rejected.