Introduction Penalties as alternative to prosecution New section 302C – recall of fixed penalty or compensation offer
291.Section 302C provides a mechanism for recalling a “fiscal fine” offer or compensation offer. Section 302C(1) provides that the alleged offender can make a request for recall where s/he has taken no action in respect of the offer and it is deemed to have been accepted.
292.Section 302C(2) provides that recall of deemed acceptance can be sought where the alleged offender claims that s/he did not receive the offer; or where the offer was received but the alleged offender claims that it was not practicable because of exceptional circumstances for notice of refusal of the offer to be given. In both cases the alleged offender must also claim that the offer would have been refused.
293.Section 302C(3) provides that where the alleged offender wishes to apply to have the deemed acceptance recalled, s/he must apply to the clerk of court within certain time limits. However, section 302C(4) permits the clerk to consider a request for recall outwith those time limits on cause shown. In terms of section 302C(5), on receipt of an application for recall the clerk of court may either uphold or recall the offer.
294.Section 302C(6) gives the alleged offender the right to apply to the court which is specified in the offer for review of the clerk of court’s decision, and section 302C(7) gives the court power, in turn, to confirm or quash the clerk’s decision. Section 302C(8) provides that the court’s decision is final.
295.The clerk of court is obliged by section 302C(9) to inform the procurator fiscal of a request for recall, an application for review of the clerk’s decision, and any decision taken either by the clerk or the court in connection with the application.
296.Section 302C(10) provides that for the purposes of considering an application for recall the procurator fiscal can certify when the offer was sent.