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The noble Lord said: My Lords, with Amendment No. 28 I speak to Amendments Nos. 29, 30, 31 and 34 and also Amendments Nos. 33 and 35, which are in a different group but which I believe would be better taken in a single group.
Under Schedule 3 to the Bill various provisions are included for giving notice to the defendant about a decision. These relate to the various provisions for giving notice of things such as the increase of fines. The defendant is given 10 working days from the date of decision in which to appeal.
As I pointed out on Report, 10 days from the date of the decision may mean no more than seven days from the date when the defendant sees the notice, even if the defendant is living at home. The reason is that one has to take into account the fact that the decisioneven if it is sent by first class postmay not be delivered the next working day, particularly if it is posted at the end of office hours. Also, the defendant mayand in many cases doesleave home for work before the post is delivered.
Amendments Nos. 28 to 31 cover this particular aspect and Amendment No. 34 is supplemental to them because it says that regulations can include presumptions about the date of service. Such presumptions are usually found in regulations providing for notices. The defendant should have the full two-week periodrepresented by 10 working days from receipt of the noticein order to appeal against an order.
Secondly, there is no power on the face of the Bill to extend the 10-day period in which the appeal may be made. Without such a power, the period cannot be extended however justifiable the excuse for failure to act on the notice and whatever hardship may be caused. For example, a defendant may lose the right to challenge a substantial increase in the fine following default when the 10-day period expires.
The Government say that if pilot schemes show there is a problem, the Government can use the powers to modify the Bill following those pilots. I accept that is a possibility. However, the absence of the power for a magistrates' court to extend the time beyond the short period of 10 days, is such an obvious potential cause of hardship that the Bill should be amended now. We should not have to wait and see whether the Government decide to take appropriate steps. I believe this is a potential cause of real and serious hardship. I beg to move.
Baroness Scotland of Asthal: My Lords, I appreciate the concerns that the noble Lord, Lord Goodhart, has raised. I will try to make a full response because I think the concerns that the noble Lord has mentioned may be reflected outside this House. Therefore, it would be important for those who read the debate to understand the basis on which the Government seek to assuage those fears and concerns.
Amendments Nos. 28, 29, 30 and 31 stipulate that the 10 working days allowed for the sender to lodge an appeal against the fines officer's decision should begin on the date of delivery of that notice to the offender.
Amendments Nos. 33 and 35 would effectively remove any time limit for appeals against the fines officer's decision. Amendment No. 34 requires regulations to state when a notice can be deemed to be delivered.
As I said on Report, I understand the concerns of the noble Lord and noble Baroness over the issue of time allowed for appeals. I have considered very carefully the points made on Report. However, I again resist these amendments.
First, I will address Amendment No. 34 and the definition of "deemed to be delivered". If we rely on the ordinary postal service, there will be no proof of delivery. Recorded delivery and registered delivery are costly and time-consuming procedures. They give no guarantees that defendants will be in the house to accept their post or even that defendants will accept the delivery when presented with a court letter. If I may respectfully say so, it would be dangerous to provide offenders with the excuse that they have not received a notice if that is because they did not sign for it or did not admit their identity to the postal employee making the delivery. There is no legal compulsion on them to do so. The only practical way the date of delivery could be deemed in regulations is by allowing a reasonable number of days for postal service. To deem that a notice is delivered within, say, two days is essentially the same as having those two days plus 10 working days to lodge an appeal. That is basically allowing 12 days for appeal.
As I said in previous debates, the period will be piloted alongside other measures in the fines collection scheme. If the time limit of 10 working days is regarded to be too short a time, then this time limit can be extended before national roll-out.
I turn to Amendments Nos. 28, 29, 30 and 31. The matter of when the 10-day time limit should start was the other issue that the noble Lord raised. It would be unwise to accept the offender's word as to the date of delivery, and it is highly unlikely that offenders will let the court know when the letter has been delivered. However, the date that the letter is posted will be known and can be used as a valid start point for setting deadlines.
I should make it clear that the letters and notices to inform the offender about the right to appeal will not state "within 10 working days", as that would undoubtedly lead to confusion. The letters will clearly state a date by which any intended appeal against the decision specified in the same letter must be lodged. Guidance will also be given to fines officers about post-dating the notices. For example, a notice that is typed on Friday afternoon and will not be collected in the post until Monday can have Monday's date. Therefore, there will be a 10-day time limit from Monday, thereby ensuring that time is not wasted, with notices sitting in out-trays or post-rooms. The fines officer will also use discretion to post-date letters and notices due to local circumstances such as local postal strikes.
We must keep in focus the fact that appeals lodged will be against the enforcement action taken to collect the financial penalty, not against the sentencethe fine itself. An offender, even if successful in an appeal against a fines officer's decision, will still be liable to pay the fine. I should also point out that the fines collection and the sanctions available upon default will be made clear to the offender from the outset. None of the notices of increase or further sanctions will come as a surprise.
Two of the three opportunities that the fines officer has to make discretionary decisions are at the point at which the offender applies for a variation. It is intended that meetings to discuss such variations will be in person. That means that the offender will be given a decision there and then. If the fines officer refuses to vary the payment terms, the offender can lodge an appeal on the spot, if he so wishes. The number of appeals against a refusal to vary is, in any case, likely to be small. The court would have set the initial payment rate. If the offender could not prove the circumstances that warranted a variation to the fines officer, it is unlikely that, on the basis of the same evidence, the court that set the original rate will vary either. The third opportunity for the offender to appeal is on the decision that the fines officer can make in respect of further
I must address the example that the noble Lord, Lord Goodhart, gave on Report of offenders who are away on holiday when the further steps notice arrives. Perhaps the noble Lord was thinking more of those who had gone away to visit relatives or for some other purpose, as offenders who can afford to go on holiday should not have any problem in paying the fine. Offenders would have gone away, for any reason, in the knowledge that they had a fine to pay and knowing the consequences of non-payment. If those offenders were willing to pay, contact could have been made with the fines officer prior to going away, and arrangements could be made to overpay in advance to cover the weeks away. Direct payments to the court could be set up or other arrangements made for the time that they will be away. Offenders who go away and receive a further steps notice out of appeal time will have been defaulters before they went away and will have been warned on more than one occasion of the process of further sanctions.
To be at the point of a further steps notice, people will have a financial penalty to pay as a result of a criminal offence and will have avoided payment. That is the stage that they would have got to. The fines officer's decision ought to come as no surprise to the offender. Any appeal would only delay the inevitable payment of the fine, and any sanction or decision by the fines officer can be avoided by the paying of the money owed to the court. An offender who had the use of a vehicle would be likely to use it to go away, and it is not envisaged that those asked to clamp vehicles following service of the appropriate notices would pursue such matters across the country. The offender would, in fact, find the matter waiting to be resolved on his return.
No hardship will be imposed. As long as the payments according to the payments schedule are made, the increase will be disapplied. We have covered the issue of having two clear working days, about which the noble Lord expressed concern.
I hope that I have been able to demonstrate that we have thought carefully about the procedure. The procedure covers the position well and will not create any injustice to the person who has had a fine imposed and wishes to pay but has difficulty with the payment. For those who do not wish to pay or wish to avoid payment in its entirety, it will be an impediment. So be it.
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