Criminal Justice and Police Bill

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Mr. Heald: We dealt earlier with most of the issues that arise under clause 2, but there was the lingering problem of what is the effect of paying the penalty as regards the discharge of liability to be convicted under subsection (4). Can the Minister confirm that that administrative disposal means not that an offence has not been committed, but that there is no finding of guilt when the fixed penalty is paid? He suggested that it will be possible for a record to be kept, especially if a fixed penalty notice is not paid; he also said that for a short period records may be kept of fixed penalty notices that have been dealt with. If records are available that show, for example, that an offender has failed to pay fixed penalty notices for six offences, and if that defendant then comes before a court for a seventh, can magistrates be told that there are previous unpaid fixed penalty notices, or even a notice that has been paid? In other words, will there be a record—which may not be complete—of non-payment of fixed penalty notices?

I understand that the Minister would not want to introduce the accelerator system suggested in the consultation document, because of the difficulties highlighted by ACPO, but if there is information available about the background of the accused that suggests that he is a serial offender, should not that be something for the court to take into account? Would that form part of the antecedents of the accused in the question of sentencing?

What does ``an authorised constable'' include? Would it include a special? Would it include a member of the British Transport police? Would it include a member of the Royal Parks police or the Royal Military police? Who qualifies as ``authorised''? Some of the penalty offences relate to the fire service. Is it thought that the police would have to be involved in the issue of penalty notices in such instances, or is it thought that in some way the fire service would have its own ability to do so?

Mr. Hughes: We have not yet discussed whether the Government, by adding offences to the list for which one may receive a fixed penalty notice, are creating something that is not a criminal offence in the traditional sense of the word. I ask that because clause 1(1) states:

    ``For the purposes of this Chapter `penalty offence' means an offence committed under any of the provisions mentioned in the first column of the following Table''.

If one ``commits'', say, a ``penalty offence'' one is able to discharge it—in the words of the clause—by paying the fixed penalty notice. As the Minister confirmed, that does not go on one's record. Are we therefore making a set of activities no longer criminal offences provided that one pays the fixed penalty notice? Does the only criminal offence become not paying the fixed penalty notice? If that is the offence, it begs interesting questions of jurisprudence and the criminal justice system. Are we therefore extending the range of criminal offences that one is charged with, but providing a way of getting out of them? That is an unusual new system.

11.45 am

Sir Nicholas Lyell: At the risk of doing the Minister's job—the hon. Gentleman is raising an important point, to which I hope the Minister is alert—clause 2(4) suggests that by paying a penalty one discharges the liability to be convicted, so there is no offence as long as one pays. However, I suspect that the hon. Gentleman, like me, is not yet satisfied.

Mr. Hughes: The right hon. and learned Gentleman raises an important issue. A fixed penalty notice is given for an activity that is unlawful. If it is rendered unlawful by statute, one would presume that committing it is an offence. Clearly, if one does something that discharges one's liability for conviction, one is being dealt with for an offence—it remains an offence. If I may use a parallel, if one does not fill in one's tax return by 31 January—this year the period was extended to two days later—a penalty arises. I cannot remember, if I ever knew, whether it is a criminal penalty or whether one incurs a charge as one would for keeping a library book too long. It is important, in the criminal law, for people to know whether they are in breach—whether they have done something that is a criminal offence, even though they do not get a criminal record. If it is not an offence, what is it? That is the big question.

The smaller question, and the reason why I shall not support the clause, is whether the Government gave serious consideration to the idea that penalty notices should be issued only in police stations. I would prefer that system for the notices under discussion. That could not be done for car parking offences, unlawful street trading and matters that we have argued can reasonably be dealt with on the street, because the offending item is apparent.

The Minister made a valid point about consultation, which I accept. I want to place it on the record that, in general terms, Liberal Democrats—and I, think, the Conservative party—do not respond formally to Government consultation, as we see it as our job to await the response of the public. We have our chance to respond when White Papers, Green Papers and Bills are produced. Otherwise, it looks as if we are forming a view before we have heard the view of the wider public.

Sir Nicholas Lyell: I want to take the opportunity to tease out from the Minister whether, if one accepts a notice and pays a penalty, one has any form of criminal record that may be kept by the police or national or local authorities and drawn to the attention of the court as evidence of previous guilt or to influence the court in relation to a penalty for an offence for which the person involved may be charged, tried and sentenced in future.

Subsection (4) expressly states that a ``penalty notice''

    ``means a notice offering the opportunity, by paying a penalty''—

in other words, people must pay up, not just accept the notice—

    ``in accordance with this Chapter, to discharge any liability to be convicted of the offence to which the notice relates.''

In principle I am prepared to support that, and that is what I understood that I was supporting on Second Reading. However, I am not prepared to support the idea that if people pay their £40, or whatever the penalty is, they have some kind of unofficial criminal record. I regard that as utterly wrong. The Parliamentary Secretary has had to slip out; no doubt he has discussed what he said with the Minister. On the afternoon of Tuesday 6 February, the Parliamentary Secretary said that

    ``it may be possible for police officers to keep local administrative records of fixed penalty notices''—[Official Report, Standing Committee F, 6 February 2001; c. 67.]

I regard that as undesirable, and I hope that the Minister will make it perfectly clear that if people pay the penalty notice, the slate is clean and no record—criminal, official or otherwise—is kept.

Mr. Blunt: I rise in support of my right hon. and learned Friend. It was in response to an intervention from me that the Parliamentary Secretary made that statement, which I find rather opaque—as, indeed, is subsection (4). The provision makes clear the issue of criminal liability, but it may be unclear in the minds of people who have accepted a penalty what sort of record will be kept on them. People have some idea that when they accept a caution they are making an admission of an offence that, in some cases, may be taken into consideration by the courts. That is certainly true for sexual offences, for example, although I do not know in detail to which offences that applies. People are aware that when they accept a caution, they are admitting formally in respect of the criminal system that they have committed an offence and, to some extent and for some purposes, have a record.

In the case of a fixed penalty notice, people are not accepting that they have committed an offence. It is designed, in effect, to short-circuit the system so that, rather than put the state to the inconvenience of a trial and the expense of exposing people to such a trial, people can discharge that obligation by paying a fine the amount of which we shall discuss when we debate the next clause.

Like my right hon. and learned Friend the Member for North-East Bedfordshire, I believe that the Government must, in either the response to the clause or guidance, be explicit that records on people who have admitted an offence and receive a caution are a different matter, and that people who have not admitted the offence but have accepted a fixed penalty notice in preference to standing trial should not have an unofficial police record lurking about for future reference. We go to enormous lengths under data protection legislation to ensure that such records are kept extremely tight for all other aspects of people's lives, and criminal records are an extremely serious aspect of people's lives. Paying the fine on time should completely discharge people's obligation and any form of record keeping, as should be explicit in the guidance that the Minister will offer or in some other form that I hope he will propose when he replies to the debate.

Mr. Hawkins: My right hon. and learned Friend the Member for North-East Bedfordshire, the hon. Member for Southwark, North and Bermondsey and my hon. Friend the Member for Reigate raised certain issues. They highlighted some of the strong worries expressed in the Criminal Bar Association's submissions in response to the Government's original consultation paper about how the new proposals would link into the fixed penalty notices for road traffic offences under the established law. They are right to say that there is confusion. The Government have not yet cleared it up, and I have little confidence that the Minister can give us a satisfactory answer.

Members of the criminal Bar will have to wrestle with such matters. Clearly, the Government's proposals will not work if there is confusion in the minds of judges, magistrates and the court clerks who advise them. The distinguished authors of the Criminal Bar Association's paper said that it was unclear whether the idea was to criminalise or decriminalise such conduct—the point made by the hon. Member for Southwark, North and Bermondsey.

Under schedule 3 of the Road Traffic Offenders Act 1988, the traffic offences listed to which fixed penalty notices already apply are non-criminal. However, if the conduct that the Government are dealing with under the Bill results in a notice being paid, not a court hearing, the Criminal Bar Association asks whether it will amount to a conviction. If not, the effect will be to decriminalise some behaviour that is currently criminal. The reverse will also be true in relation to other offences. The stated aim in the Government's original consultation paper that led to the Bill is to treat more seriously some cases that previously resulted, and continue to result, in cautions or small fines. That is set out in paragraph 18 of the Government's consultation paper. As Mr. Philip Katz QC, the senior author of the Criminal Bar Association's paper, rightly says, that ``confuses penalty with conviction.''

Members of the Committee will know that it has been sacrosanct in the English law down the ages not to confuse the offence and the conviction with the penalty exacted by the courts for that offence. The authors of the CBA's submission refer to the fact that the Customs and Excise practice of so-called compounding precisely demonstrates the issue at stake. The person who compounds avoids prosecution. That is what happens now under the fixed penalty notice provisions of the Road Traffic Offenders Act 1988. It avoids the risk of any conviction for a criminal record, but, as the authors of the paper say:

    ``Compounding is not a good analogy''

with what the Government propose because that relates to the payment of Customs and Excise duty

    ``which is in any event due, plus an element of penalty. It is more of an administrative procedure, which suits both sides and avoids the costs and consequences for both sides of a court hearing.''

The CBA paper states that, if the Government's proposal is to be operated on the basis of something that is equivalent to compounding, it should be made clear. It says that the Government should not attempt

    ``political justification on unproven grounds of `deterrent'''.

It says that, if the legal minefield that the Government want to create could be safety traversed, they would be wiser to introduce a pilot scheme such as they have done already in relation to vehicle emissions under the Road Traffic (Vehicle Emissions) (Fixed Penalty) Regulations 1997. Opposition Members are worried that the proposal was rushed. It was conceived in haste by the Prime Minister when he wanted to say something that could make a speech to theologians in Tubigen, Germany, of interest to the British press. It is a half-baked idea that was dreamed up on the back of an envelope.

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Prepared 13 February 2001