Third Standing Committee on Delegated Legislation
Tuesday 18 June 2002
[Mr Peter Pike in the Chair]
Draft Criminal Justice and Police Act 2001 (Amendment) Order 2002
The Parliamentary Under-Secretary of State for the Home Department (Mr. Michael Wills): I beg to move,
That the Committee has considered the draft Criminal Justice and Police Act 2001 (Amendment) Order 2002.
I start by welcoming you to the Chair, Mr. Pike. As the Committee may be aware, the Government introduced in the Criminal Justice and Police Act 2001 powers for the police to issue penalty notices for disorder offences. Those powers are due to be piloted this summer so as to test their effectiveness. We did that to provide the police with a new disposal option for dealing with low-level nuisance crime, an option that reduces the amount of time that police spend on paperwork and courts spend dealing with prosecutions, yet still provides a punishment for the offender.
In preparation for the pilots, we are laying before the House a number of orders provided for under part 1 of the Act. The draft amendment order provides for the addition of a new penalty offence to those listed in section 1(1) of that Act. We will shortly lay before the House a further two orders, subject to the negative resolution procedure, which will set the level of penalties and the format of the penalty notice.
Part 1 provides for penalty notices to be issued for a number of disorder offences, which are listed in section 1(1). Section 1(2) allows the Secretary of State to amend this list of offences by order. This draft amendment order provides for the addition of the offence, under section 5 of the Public Order Act 1986, of using
''threatening, abusive or insulting words or behaviour, or disorderly behaviour''
or the display
''of any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress''.
Section 5 does not involve racially motivated behaviour, the threat of violence or the intent to cause harassment, alarm or distress, which are covered in other offences and would not be appropriate for penalty notice disposal. Section 5 was in the original list of penalty offences included in the Bill that became the 2001 Act. Hon. Members raised objections and we agreed to drop the offence before the Bill completed its passage through Parliament. However, my right hon. Friend the Member for Norwich, South (Mr. Clarke), who was then the Home Office Minister responsible, stated that the Government reserved the right to use the affirmative procedure to put back section 5 if, on
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further consideration, it was concluded that that should be done.
Further consideration has taken place. We have had time to consider the matter in greater detail and, in the light of representations made by the Association of Chief Police Officers, we have decided to lay the order. ACPO's view is that the penalty notice for disorder scheme would be seriously undermined by the omission of this offence. Its advice is that this offence is used operationally to deal with a similar type of offending to that covered by section 91 of the Criminal Justice Act 1967, which is disorderly behaviour while drunk in a public place. Section 91 is already a penalty offence, but while section 91 requires the offender to be drunk, section 5 of the 1986 Act does not. A significant number of offences occur under it.
In general, section 5 would be used in response to disorderly behaviour on the street, particularly on Friday or Saturday nights. It would cover persistent shouting, knocking over dustbins, throwing things down stairs or peering in windows. A typical example would be when a person or group of people on the street are being rowdy and using abusive language. Where such people are drunk, the police would be able to issue a penalty notice under section 91 of the 1967 Act. However, such behaviour often involves people who are not drunk or whose degree of inebriation is unclear. Section 5 does not require drunkenness to be involved and as such covers a significant number of offences, which is why ACPO considers that the penalty notice scheme would be undermined without this addition to the list of penalty offences.
The police envisage using a penalty notice in such cases probably after they have issued a warning to desist and in preference to going for a prosecution. They believe that the availability of a penalty notice disposal will provide both significant operational help and a deterrent to offending. Officers will be freed up to return to patrolling the streets and offenders will know immediately that they are being punished.
Simon Hughes (Southwark, North and Bermondsey): I apologise for missing the Minister's first words but I have heard all the matters of substance. Has he applied his mind to the proposal and does he live in the real world? In my part of the world, as I made clear to the right hon. Member for Norwich, South, a policeman with a fixed penalty coming towards someone would make them disappear. It would make me disappear—I would not stand on a street corner on a Friday night and wait for a fixed penalty notice to be given, and nor would most other people. It is a completely barmy idea. Has the Minister assessed the chances of people waiting to be given bits of paper by the police when the subjective judgment is that they have allegedly committed such behaviour and might be drunk as well? It is as bad an idea as the Prime Minister's cashpoint idea before the last election.
Mr. Wills: First, I reassure the hon. Gentleman that I have applied my mind to the matter, and I am slightly surprised that he thinks that I might have come to Committee having not done so. He asked me whether I live in the real world, but he will have to
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form his own views about that. However, I ask him to apply his mind to the issue. Whether or not he thinks that it is a barmy idea, the police must take some action when an offence is committed, and we are giving them another method of doing so.
We are offering the police the option of a penalty notice, and they have told us that it will be a significant operational help. We have considered the matter, and listened to what the police have told us about how they need to operate. We all know how deeply distressing the matters can be to our constituents. Every Member has had some experience of often very upset constituents complaining about such behaviour, and if the police tell us that they need extra help to deal with it, it is incumbent on us to give them that help.
Mr. George Howarth (Knowsley, North and Sefton, East): It is worth giving the proposal a fair wind, and only one thing concerns me. On page 12 of the operational guidance, paragraph 3.6 details the circumstances in which a penalty notice will not be appropriate. They are when
''the suspect is known to be already subject to: police or court bail; a custodial sentence, including HDC; a community penalty other than a fine''.
I am puzzled as to how police officers will know when the circumstances are inappropriate.
Mr. Wills: My hon. Friend refers to draft operational guidance. I have registered what he has said, and we will return to that at the appropriate time.
Adding section 5 in this way will allow the police to deal speedily and efficiently with a wide range of abusive and antisocial behaviour on the streets. As I have said, ACPO believes that the addition is essential for the effective operation of the penalty notice scheme, and the five forces involved in forthcoming pilots also support its addition. We must do all that we can to provide the police with the tools that they need to deal effectively and quickly with such low-level nuisance. I hope that the Committee agrees and will support the order.
Mr. Dominic Grieve (Beaconsfield): I welcome you to the Chair, Mr. Pike, as I welcome the Minister's comments this afternoon.
The Minister is seeking to reintroduce a measure that came in for considerable criticism in another place, as a result of which the Government sensibly agreed to withdraw section 5 from the original legislation and to consult further. I listened carefully to what the Minister said about consultation and I am swayed by the fact that ACPO supports the measure. Anything that will help to reduce disorder on the streets in a simple and efficacious way should be supported and welcomed by Conservatives.
In those circumstances, we shall not stand in the Government's way this afternoon. However, I should like to highlight some of our continuing reservations, which I hope will be dispelled in the implementation. The proof of the pudding will be in the eating—when we see that it works.
The Minister will recall that when the 2001 Bill was debated, one objection was that this sort of offence
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was a serious matter, so the fact that no record of the conviction would be made was a serious problem. Personally, I believe that one can properly take the view that a record is not needed for this public order offence. If a person behaves persistently and to the police's knowledge in this fashion, an arrest and prosecution for a more serious offence is likely. That causes me some anxiety, but not sufficient to oppose the measure on the grounds that the offence is not recorded.
Another problem canvassed in the House of Lords was that it was a subjective test offence. It is unusual to have a fixed penalty notice for an offence that in old-fashioned circumstances would have led to the presentation of certain facts for the subjective consideration of justices. I equally take the point that pleading guilty is always an option. If the imposition of the fixed penalty notice is merely an invitation to accept the wrongdoing and pay the penalty, the option to contest the matter in the courts leads to no great injustice, albeit that it is always a matter for some worry when individuals are handed a fixed penalty notice because it has the immediate implication that they have been judged and found wanting, which may incline them to fail to secure adequate advice about their legal rights. That should give the Committee pause for thought. The reality is that many people who do not have access to legal advice or much knowledge of the law may feel that they are guilty, even though the surrounding facts and circumstances suggest the contrary. That is why such orders should be used sparingly.
Another concern may not entirely be the Government's fault in the context of the 2001 Act. In all probability, another such Act will soon be introduced, which suggests a rather piecemeal approach to the problem—exacerbated by the fact that we are now using a statutory instrument and the affirmative resolution procedure to reintroduce the measure. I wonder whether the subject should generally be revisited, although some knowledge of the practical implementation of this measure will help us to decide.
We shall not stand in the Government's way, but we may take a different view of the other offences removed during the Bill's passage through the House of Lords. We would consider each offence separately rather than generically. I hope that the Minister will bear that in mind if he chooses to reintroduce some of the other offences under the affirmative procedure. In conclusion, we share ACPO's desire for the legislation to work.
We will be doing a good job if it turns out that people will be deterred from such behaviour by being handed fixed penalty notices. The hon. Member for Southwark, North and Bermondsey (Simon Hughes) believes that they are more likely to run off into the crowd, and I can see the force of that argument. Because of the nature of the offence, it may not matter if they run away into the crowd, as long as they do not commit the crime again. I hope that the matter will be kept under some review, as on the whole the picture is not completely happy for fixed penalty notices for such offences. At the same time, if the order helps to
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prevent disorder, it should merit some sympathetic consideration.