Criminal Justice and Police Bill

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Mr. Heald: The hon. Gentleman is right. In proposing the two deletions, I have looked at submissions from ACPO, the Association of Chief Officers of Probation, Bedfordshire police and others. I was persuaded by their arguments in respect of those particular offences. However, I am not trying to establish a principle that evidence needs to be left, or anything like that. I am saying that the representations were made by people who understand the issue, and I have been guided by them.

Will the hon. Gentleman comment on a thought that his observations have prompted, namely that some offences require a mental element? Criminal damage is one. I think that it would be true of threatening, abusive and insulting words or disorderly behaviour. Misusing the public telecommunications system and wasting police time would probably come into the same category. They are all offences with a mental aspect. For example, there has to be an element of intent or recklessness to commit criminal damage. An offender could say that the offence was an accident. How would that be handled under the fixed penalty notice regime?

Mr. Hughes: I understand why the hon. Gentleman is arguing for and against certain omissions and deletions. It is the result of a speedy consultation process. At least there was one, and there were submissions in response to it. He also raised intent, which I was about to illustrate. When I was practising at the Bar, I was involved in the case of a man called Gary Docherty, whom I came to know fairly well. I think that he was aged 18 at the time. He was pushed off the balcony of a block of Lambeth-owned council flats in Kennington and landed on the roof of a car below. It was clearly criminal damage. The car was severely dented. He was pretty well dented too, but that was a separate matter about which no allegation was made. In that case, the whole argument was about whether the damage was intentional. Was Mr. Docherty reckless in damaging the car? In the end, he got off, thanks to my good offices, and lived to fight another day.

Mr. Charles Clarke: This is almost a point of order, Mr. Gale. Is it appropriate to advertise one's services, either as a barrister or as a Member of Parliament?

The Chairman: Happily, that is not a point of order for the Chair. As the hon. Gentleman knows, hon. Members are responsible for their own words and actions.

Mr. Hughes: If the Minister thinks that I am canvassing for even more casework, I am certainly not. I have enough to keep any Member of Parliament busy for more than a normal life span.

Mr. Hawkins: How can the hon. Gentleman be so certain that it was thanks to him that the defendant got off? It could have been a bizarre jury or bench of magistrates.

Mr. Hughes: At least in those days the defendant had the consolation of being able to choose trial by jury, which, if the Government have their way, he will not be able to do in future. That is another of the Government's wicked and malicious plans that will probably not reach the statute book before the general election and therefore, I hope, will never reach it.

The offence that amendment No. 22 would delete is hugely subjective and easily misused by the charging officer, and it would not necessarily evidence the intention that the hon. Member for North-East Hertfordshire asked about. I support the proposal to remove the offence altogether. We know from experience that it is exactly the sort of thing for which police officers nick people regularly, to show that they are doing their job. They often have no idea whether the person in question committed the offence; they just go into a group of people and nick one of them.

11.30 am

The reality is that officers often do not know which one of a gang used certain words, what is disorderly or what is abusive. What might be abusive to someone who has lived in refined circumstances might not be abusive to people like me who have lived on the Old Kent road for half their life. What is disorderly among a group of six pensioners aged 70 might not be disorderly among a group of 19-year-olds. It is entirely subjective. In a different way, what causes harassment, alarm or distress is also subjective and, for those reasons, this approach is wrong. The police should not have the power; it will give them all the cards and will give none to the citizen, and is a sign of an imbalance that could lead to more severe problems.

As I said on Second Reading, these offences are mischievous and inappropriate because it is fine for well-heeled, intelligent individuals to get fixed penalty notices if they happen to be messing around on the streets one evening, having been to a posh dining club. It is no trouble for them because they would just write out a cheque the next day. It would make no difference to their bank accounts and would be just one of those things. Many people regularly take parking fines as par for the course. On the other side are people like a lad from my constituency, who I recently tried to help. He was a 19-year-old, sleeping rough in a car and not of high intelligence, who was trying to cope with life and hold down a part-time job. Such people are much less likely to manage if they have to deal with a fixed penalty notice. They would have trouble organising themselves, ensuring that they had the money to pay on time and understanding what to do if they wanted to challenge the notice.

The system would break up England and Wales even more into two societies: the well-heeled and intelligent and the less competent and well-off. If people do not have the money and cannot pay within the time limit, the only way out is to challenge the case, which poorer people are less likely to do.

Mrs. Helen Brinton (Peterborough): I see the hon. Gentleman's point about how those who have, can, and those who have not, cannot. However, whatever walk of life people are in—even professional people—those who continually receive a series of fixed penalty notices will be affected. Surely there will be a record of the fines, which might get into the newspapers, and that would be embarrassing and affect their professional status at work. Therefore, is it not better to have the fixed penalty notices?

Mr. Hughes: I understand the hon. Lady's question. An extraordinary number of people incur fixed penalty notices regularly. They can be seen in London, parking big cars on the pavement day after day. They have one, two, three tickets, their cars are towed away and they collect them. It does not matter to them; they can afford it. To them, it is part of the disbursements of life.

As the hon. Lady well knows and as the hon. Member for North-East Hertfordshire mentioned, there are huge numbers of unpaid fines. These are not my figures; they are set out in the Library briefing on the Bill, which cites a Home Office report that states that 60,000 fines totalling £4 million were written off in 1986. By 1994-95, the figure had risen to nearly 500,000 fines totalling £33.4 million.

Last July's article in the Sunday Telegraph reported that the police and courts had been unable to collect nearly £72 million of fines and costs from convicted criminals and defaulters over the previous year. According to a Police Review article, in the financial year 1998-99, £220 million was received in paid fines but write-offs due to non-payment amounted to £43.6 million. We must think carefully about a fining system that is so flawed and ineffective for so many people—some 20 per cent. of those concerned.

Miss Geraldine Smith (Morecambe and Lunesdale): Does the hon. Gentleman suggest that we should abolish all fines because some people do not pay them?

Mr. Hughes: No, I do not suggest that all fines should be abolished. There are many people in prison who should have been dealt with through financial penalties and many who are in prison because they have not paid fines. That is nonsense because it is an inappropriate remedy. We must ensure that fining is appropriate when the court assesses what is likely to be effective. The system assumes that fining will be effective and leaves it open to the defendant to get out of it. Effectiveness is not a question for the court. Such decisions should be taken after proper assessment of whether, and how soon, a person is likely to pay. When someone has been socked on the street at 1 am, there is no way of knowing the financial circumstances of the offender and whether there is any chance of a fine being paid.

Mr. Hawkins: In answer to the hon. Member for Morecambe and Lunesdale (Miss Smith), the hon. Gentleman said that many people in custody should be dealt with by financial penalty. That may be Liberal Democrat policy, but I hope that he does not suggest that he, as a parliamentarian or a member of the Bar, should substitute his decision about what is right for defendants for those of the courts. That would be arrogant and undermine his own argument.

Mr. Hughes: I do not want to be drawn into other arguments. Such decisions are, of course, for the courts, within the range of penalties provided by the law. We can debate penalties and sentencing. We shall submit further suggestions to the Government's review of sentencing. We are sure that there must be greater flexibility in the supervision orders that go with small sentences of imprisonment. Prison governors and the probation service regularly tell me that.

Mr. Heald: I want to take the hon. Gentleman back to the discretion of police officers. With offences such as threatening behaviour or criminal damage, an officer might decide to issue a fixed penalty notice rather than a caution or making a charge. If different disposals were made in the cases of two defendants in the same situation or two similar cases arose within a short period, allegations of discrimination could be made. It could be alleged that a decision was taken for racist reasons or for a host of other religious or other reasons. Unless the officer can show that his decision was taken for a good reason, it could be justiciable under human rights legislation. Is the hon. Gentleman worried that such a decision could be subject to judicial review?

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Prepared 6 February 2001