Joint Committee On Human Rights Minutes of Evidence


Annex D

RESPONSE OF THE CRIMINAL BAR ASSOCIATION TO THE CONSULTATION PAPER "REDUCING PUBLIC DISORDER—THE ROLE OF FIXED PENALTY NOTICES."

  1.  It is no part of this response to argue with the political statement set out in the first sentence of Paragraph 1 of the Consultation Paper ("the Paper").

  2.  Caution is always advisable, however, before enacting penal legislation which may create more problems than it solves, or which is likely to be unduly complicated to enforce, or which may bring the law in question into disrepute. The Dangerous Dogs legislation might be seen as something of a warning.

  3.  Further, strictly practical issues relating to enforcement and administration of the suggested scheme are not for us to comment on, but are no doubt being addressed by those who will have the relevant duties.

  4.  There are however, obvious issues which whilst relating primarily to enforcement and administration, do carry legal implications. Some examples which occur to us are:

    (a)  Disorderly drunks are by definition not in a fit state to be served with a legal document with penal consequences. Paragraph 2 of the Paper suggests that the type of conduct aimed at by the suggested scheme is often connected to the problem of public drunkenness. Whether the drunkenness is public or private, whether it is associated with other criminal conduct or not, it does not provide any sensible or fair opportunity for the issue of a penal Notice. Most parking tickets etc are not issued to anyone in person. When they are served personally there is occasional unpleasantness for the issuer. Many speeding offences result in summonses served by post.

    (b)  Drunk and/or disorderly persons are unlikely to be alone or compliant. They are likely to be offending in public, often crowded places. Notices take some few minutes to write and this is so, even for a traffic warden who does not have to establish the identity of an individual in difficult circumstances.

    The issuing of a Notice might well aggravate a situation requiring fast action such as the speedy removal of offenders from a scene. This consideration is relevant to two stated aims of the scheme, namely to put an immediate stop to the conduct and to save police time: see Paragraph 3 of the Paper. It would be unfortunate if the issuing of a Notice in itself created a situation in which further offences were committed and/or brought about further breaches of the peace.

    (c )  What are the consequences to be if a Notice is issued but subsequently ignored? We shall return to this question later, because it raises many issues, but it is common knowledge that in some areas at some times only a percentage of parking tickets have been enforced. No doubt this was as a result of some form of cost/benefit analysis or general resource problems. Non-enforcement of parking tickets is one thing. A scheme carrying with it any possibility of non-enforcement of Notices for criminal behaviour is quite another.

    (d)  Even assuming sobriety and compliance, how exactly are an individual's details to be verified in the street? It is not difficult to envisage a degree of farce, which will be compounded if the officer has to verify whether the individual has had any previous Notices.

    (e)  The individual would have to be warned of the consequences of non-provision of details. If the alternative is an arrest, there may well be issues arising by virtue of the Human Rights Act 1998. The reference to s25 PACE 1984 in Paragraph 16 of the Paper raises the distinct and substantive issue of the power of arrest, to which we will return.

    (f)  English law has long required some reasons to be given to a person being arrested. The Road Traffic Offenders Act 1988 s52(2) provides for this to be done in the case of current fixed penalty notices. This will be a duty of the issuer of the Notice. It will have to be done verbally and/or in writing on the Notice. How can this be done speedily on the street (stated aim of the scheme) when there is a wide variety of offences suggested in the Paper?

    (g)  Similarly the options for the individual concerning payment or going to Court will have to be explained verbally and/or in writing on the Notice. This most certainly has implications under Human Rights Act 1998.

    (h)  Will PACE 1984 apply from the moment of police intervention and what powers exactly will be being used up to the time of the issue of a Notice: arrest or something new? The power under s25 PACE 1984 is for dealing, inter alia, with a failure to supply details for non-arrestable offences, not for the initial stages of intervention and investigation of arrestable offences. It should be noted that criminal damage is an arrestable offence, and that there is a "warning" procedure leading to arrest for offences under s5 Public Order Act 1986. Here again there are implications under the 1998 Act, and a requirement for clarity.

    (i)  Is there to be any opportunity for explanation from the individual? If he is sober enough to be issued with a Notice, he should not be denied the opportunity to advance a defence and/or an explanation and/or representations as to the officer's exercise of discretion, at the time? If so, is that to be under caution? (This raises the issue of possible inferences in any later Court case: s34 CJPOA 1994.) This will apply particularly in non-absolute offences: see the reference to statutory defences in the Consultation Paper (Paragraph 9 of the Paper). There are obvious implications arising out of the Human Rights Act 1998 here too. The further issue then arises as to how anything said is to be recorded.

    (j)  Will one police officer be able to act alone? (cf: speeding offences see s89(2) Road Traffic Regulations Act 1984.) There will be no device or meter to provide any corroborative evidence for any of the suggested offences, unless a breath test device is to be used, although currently one officer may deal with a drunk and disorderly offender on his own.

    (k)  If the "option to prosecute" is still to be open, on what basis is an officer to decide whether to issue a ticket or arrest? Discretion is suggested. The grounds for the exercise of any such discretion would have to be clear, so that arbitrariness or unfairness was avoided: see Human Rights Act 1998. Paragraph 10 of the Paper suggests that the option of cautioning for these offences will also still exist: this will mean three levels over which to exercise discretion, possibly in the street. See also the reference to the reprimand and final warning scheme referred to in Paragraph 12 of the Paper. This might amount to a fourth level in the case of young offenders.

    (l)  Even if, as the Paper suggests, the scheme is only to apply to minor offences of criminal damage (by which we assume is meant those currently triable summarily), there remains the difficulty for a Police Officer on the street, of establishing what the value of the damage is.

    (m)  If the issue of a Notice is an alternative to an arrest, will the decision have to be made by the officer there and then, or may it be postponed until after arrest and return to a police station? This also touches on the substantive issue in relation to s25 PACE 1984 and precisely which powers are being used at each stage. Under the Road Traffic Offenders Act 1988, if the offence involves obligatory endorsement a police officer may only issue a Notice if the licence is produced and he is satisfied the offender would not be liable to disqualification if convicted ("totting"), and the licence is surrendered. There is also the opportunity to produce the licence later. There is thus a procedural fetter on the officer's discretion which is governed by the status of the licence. In our view this affords something of a protection from arbitrariness, and there is no obvious parallel for the type of offences in the suggested scheme. Yet again these are considerations arising out of the Human Rights Act 1998.

    (n)  The practical issue of recording the issue of Notices is raised in the Paper. There are also legal issues here. If the issue/payment of a Notice is to be recorded in some way, this would have to be under CRO or at some local police or Magistrates' Court system, as with local "drunk and disorderly" appearances. Some traffic offences are endorsed on the driving licence. As we have pointed out, in the situations under discussion in the Paper, there is nothing to endorse and nothing to check unless it be by radio to the CRO. Is the exercise of an officer's discretion and the availability of the power to issue a Notice rather than arrest/prosecute to depend upon the ability to do a CRO check in the street? It is assumed that the Rehabilitation of Offenders Act 1974 is intended to apply to the issue of such Notices or some other system for "wiping the slate clean" after a given period of time. In either case there is ample scope for further mistake and confusion.

    (o)  There would have to be Codes of Practice.

    (p)  If young offenders are to be included we question whether details required will have to include those of the offender's parent or guardian. Are the parents/guardian to be liable to any penalty, individually or in default?

  5.  The above list of points is not meant to reflect an unhelpful, purely negative response to a suggested change in the law to deal with manifestly antisocial behaviour. However, it does identify a number of very real, legal issues inherent in the practicalities of such a scheme as that envisaged in the Paper. We conclude that the likelihood of administrative chaos is strong. This may be mitigated if Notices are only issued at Police Stations (for arrestable offences or where someone has been arrested under s25 PACE 1984), or in the unlikely event that an individual has committed a non-arrestable offence and is sober and calm in the street.

  6.  Other general points must also be made before we address the specific areas set out in Paragraph 19 of the Paper.

7.  GENERAL

Fixed Penalty Notices: Road Traffic Act 1988.

    (a)  The definition of a fixed penalty notice under this Act is:

    " . . . a notice offering the opportunity of the discharge of any liability to conviction of the offence to which the notice relates by payment of a fixed penalty . . . " (s52)

    (b)  It is not clear from the Paper whether it is intended that payment of the Notice under the suggested scheme will equate to a plea of guilty to an offence, or whether it will equate to the effect of a caution, or something different altogether.

    (c )  It is also unclear (and this may be a politically sensitive issue as well as a legal one) whether the idea is to "criminalise" or "decriminalise" the conduct in question. The traffic offences listed in Schedule 3 1988 Act are non-criminal in any event. If the conduct listed in the Paper results in a Notice being paid rather than a Court hearing, will it amount to a conviction? If the issue of a Notice is not to result in a conviction, then the effect is to decriminalise some behaviour which is presently criminal. The reverse is also true in relation to some of the offences mentioned.

    (d)  The stated aim in the Paper is to treat some cases which are resulting in cautions, or small fines, more seriously: see Paragraph 18. This confuses penalty with conviction.

    (e)  The Customs practice of "compounding" precisely demonstrates the issue. The person who compounds avoids a prosecution (as with the traffic fixed penalty notice) and any risk of a conviction and/or criminal record.

    (f)  Compounding is not a good analogy anyway, since this relates to the payment of 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. If the suggested scheme is to be operated on that basis it should be made clear, and it should not attempt political justification on unproven grounds of "deterrent".

    (g)  We say unproven since, if the legal minefield could be safely traversed, no doubt a "pilot" scheme would be arranged such as that relating to vehicle emissions: Road Traffic (Vehicle Emissions) (Fixed Penalty) Regulations 1997. We are not aware of any existing evidence to suggest that the police will be likely to issue more Notices than the total of arrests they currently make for the offences in question, taken together with summonses issued.

8.  DETERRENCE

    (a)  If the legal consequences of payment of a Notice are to be exactly the same as for a court hearing, (ie a conviction) logic suggests that the only effect will be to induce some people to pay by post rather than have the inconvenience of a court hearing. Convenience is certainly a strong argument in favour of such a scheme. Costs and time will also be saved if people can plead guilty by post. On this approach tickets could be issued to sober and calm people on the street or sobered people back at the police station. This is not, however, anything to do with "deterrence".

    (b)  If on the other hand the legal consequences of a Notice are to be less than a conviction, then the deterrent effect is even harder to identify. As we have seen, that is the legal consequence of the road traffic fixed penalty scheme and compounding. People are not deterred from speeding or parking illegally because of the risk of a fixed penalty notice as opposed to a prosecution. If they are deterred at all, it is because they have to pay either way. The fixed penalty notices provide a convenient way of paying up and avoiding a conviction. Some people collect large numbers of parking tickets as part of their business expenses. The deterrent to Customs duty evaders is the risk of penalty and of prosecution. The availability of compounding is the exact opposite of a deterrent and is seen by some persistent evaders as the risk they are prepared to take.

    (c )  The offences listed in the Paper straddle what some might regard as the criminal threshold. The demarcation lines between conviction and penalty, and between criminal and non-criminal conduct need to be clear as a matter of principle, on the above as well as other grounds with which we deal below.

    (d)  The Paper is silent on the question as to whether the levels of penalty are intended to be lower than the average court fine for the offence. If not, there is no inducement to pay other than convenience. A fixed penalty scheme, unlike a court, is not amenable to individual mitigation. An equal or higher level of penalty than court fines will certainly not deter, but it is also hard to see why a lower level would either. If the level is lower, that would have to be acknowledged formally in some way: see s48 CJPOA 1994.

    (e)  Compliance rates for parking tickets (see Paragraph 6 of the Paper) might well be misleading since illegal parking is non-criminal behaviour with no stigma or effect on employment.

9.  DISCRETION

  If the police officer on the street has to exercise a discretion whether to issue a Notice or arrest/prosecute, we would argue that this is wrong in principle for offences requiring mens rea, such as criminal damage. We cannot see the relevance to the lack of need for evidence from a "victim" (see Paragraph 9 of the Paper), whatever that means. That lack is a purely practical, evidential issue, and in many cases of criminal damage there will be a "victim". The requirement to prove mens rea is more problematical. The offences currently subject to fixed penalty notices are "absolute" or "strict liability" offences. To extend the scheme to offences which do require proof of a mental element, would be a significant departure. Offences involving a mental element are the more likely to be viewed as truly criminal and are the more likely to involve the end of a person's "good character". Offences involving mens rea would be more likely to require, as a matter of fairness, some "corroboration"; an opportunity for some explanation from the offender carrying with it PACE rights including caution; and a clear outline of the accusation being made (subject to reasonable practicability).

  10.  As we have pointed out, if it is not reasonably practicable to give an outline to, or take an explanation from the offender because of his or her behaviour, it will not be practicable to issue a Notice in the street at all. Criminal damage as it happens, not only requires proof of a mental element, but is also arrestable.

  11.  In our view arrestable offences ought to be dealt with in the normal way which involves an element of independent assessment (for instance by a Custody Officer at the Police Station.) of whether there is enough evidence to charge. At that stage it might well be feasible to provide for the issue of a Notice which provides an administrative way of avoiding a court hearing and pleading guilty by post. The consequences of such a procedure would have to be spelt out verbally as well as on the Notice, in other words that a conviction would be recorded. Non-arrestable offences should be dealt with in the same way where the offender has been arrested under s25 PACE 1984. For the small number of cases where sober, calm and co-operative offenders are being dealt with for non-arrestable offences there may be a case for the issue of a Notice on the street, although we doubt any deterrent effect at all in this situation, and anticipate practical problems for the issuer. In those cases it might be more sensible for the police to issue a verbal notice of intended prosecution, with provision for a fixed penalty notice being issued later. This would be rather like a summons, and would provide the mechanism for pleading guilty by post.

12.  NON-COMPLIANCE

  There must be significant resource implications arising out of the need for a system to deal with non-compliance. We are not qualified to deal with those. But from a legal point of view:

    (a)  Non-payment after issue of a Notice: see Paragraph 17 of the Paper. The issue needs to be addressed as to whether prison will be an ultimate option. The scheme for enforcement of traffic fixed penalty notices does not normally lead to prison sentences: see section 71 RTOA 1988; sections 75-96 Magistrates Courts Act 1980. A decision will have to be made as to whether enforcement is to be through the civil or criminal courts.

    (b)  False details given. This has to be a distinct possibility and some thought has to be given as to the consequences.

    (c)  Non provision of details. Will offender be arrested for the non-provision (a variant on obstruction or failing to provide) or the offence itself, or both? Some of the offences currently the subject of fixed penalty notices usually result in summonses rather than arrests. Some are dealt with by Local Authority officers. Is it proposed to arrest awkward owners of incontinent dogs?

13.  PARAGRAPH 19 OF THE PAPER:

    (a)  We do not consider that any offence involving a mental element should be the subject of a fixed penalty system.

    (b)  We have no comment on the level of penalties. We have identified a need to make a clear policy decision as to:

      (i)  The legal effects of the issue of a Notice;

      (ii)  The legal consequences of payment of a Notice;

      (iii)  Whether the level of penalty upon payment of a Notice is to be less than the average Court fine imposed.

    (c)  If young offenders are to be included, we question whether the details to be sought from the offender should include those of his parent or guardian, and whether there is to be any liability of those persons independently of the offender.

    (d)  If there is to be a "totting" system or "escalator" (see Paragraphs 14-16 of the Paper) this will have to be administered locally by Police or the Magistrates Court, or via the CRO. Putting to one side the obvious administrative and resource issues here, we believe this is a strong factor against the idea of issuing any Notices in the street.

    (e)  Ancillary powers are the subject of much of this Response. We do not repeat the points here. We suggest that the legal issues which we have identified make the issue of Notices in the street an untenable idea for most of the offences in question. The issue of a Notice at a Police Station, at the stage of charge or notice of intended prosecution, as an administrative alternative to a Court hearing, is unobjectionable.

  14.  Despite the predictable crass reporting in the media, we take it that there is no question of "on the spot" payment. For reasons too obvious to list this would be totally objectionable.

Philip Katz QC

Selva Ramasamy

November 2000


 
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