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6.56 pm

Mr. Humfrey Malins (Woking): I begin by declaring an interest, as always, as a recorder of the Crown court, an acting deputy district judge in the magistrates courts, and a solicitor.

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It would be very churlish of me not to wish the Bill well. It is well intentioned. However, it is also rather feeble. We have to consider it against the backcloth of the current situation in the world of crime and the world of law and order. We have decreasing police numbers and a collapse in police morale in many parts of the United Kingdom. Gun crime is at its highest for seven years, with 42 deaths from 4,000 incidents last year involving handguns. That just proves to all of us, if we did not know it, that gun legislation was a mistake.

We have a massive increase in violent crime. In many areas, robbery--much of it street robbery--has increased by more than 20 per cent., especially among under-18s. Additionally, drug-related crime--which is committed to finance a heroin or cocaine addiction--is increasing relentlessly.

I therefore looked forward with some interest to the Government's flagship crime Bill, which is possibly the seventh such Bill that we have had in the past three and a half years. However, I was very disappointed when I read the Bill's opening provisions. Speaking from a practitioner's point of view, I am bound to say that, although the provisions on penalty offences may be well intentioned, they have not been thought through and they will consequently be ineffective.

I should like to focus on clause 1, which is annotated in the Bill as dealing with

However, that is the first inaccuracy, because the penalties are payable not on the spot, but at a later stage.

The clause then describes a motley collection of about one dozen offences, from the very minor--such as being drunk in a highway--to very serious public order offences. Apparently all the offences qualify, at a policeman's discretion, for a so-called penalty ticket. Goodness knows who dreamed up and drafted the Bill's penalty-notice provisions. Whoever it was, I suggest that he or she knows not a great deal about the criminal law and even less about the real world of crime, criminals and the courts in the United Kingdom. I suspect that it was someone who rarely steps out of his or her closeted office in Whitehall.

The truth is that the proposals are cumbersome and fraught with difficulty. A great deal more work needs to be done on them. I share the view of the hon. Member for Southwark, North and Bermondsey (Mr. Hughes)--who really does know what he is talking about on so many of these issues--that prior consultation on the provisions would have been so helpful.

Mr. Charles Clarke: It has been made clear--perhaps it should be made clearer--that there was full consultation on the Bill. The precise list of offences that was drawn up came as a result of representations from precisely the organisations the hon. Gentleman is talking about, and was not drawn up in any ivory tower.

Mr. Malins: I have not mentioned any organisations. I wonder whether the stipendiary bench, the Crown court judges or the solicitors who practice in the criminal courts were consulted.

I wish to set out a few problem areas to which insufficient thought has been given. The penalty notice provisions apply only to somebody over 18, but most of

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the offences under the clause are much more likely to be committed by persons under 18, who are completely exempt from the provisions of the Bill. Why is that? Is it sensible?

Who selected these particular twelve offences, and on what basis? They vary from the not so serious to the very serious. Wasting police time is a serious offence under the Criminal Law Act 1967 and, rightly, carries up to six months in custody. In what circumstances should a policeman merely issue a ticket for such a serious offence? Likewise, under section 5 of the Public Order Act 1967, threatening behaviour is another offence which can be minor or really quite serious.

The Minister ought to focus on the age problem. Take this example. A constable sees two persons trespassing on the railway, which is a penalty ticket offence. One looks over 18, but is not. The other is over 18, but does not look it. What does the constable do? Can he demand proof of age? Is the constable to make up his or her mind? What if a constable gives a ticket to someone whom he believes to be under 18, only to discover that the person is not? Would what the lawyers call an estoppel operate, preventing a charge being brought against that youngster? That is a serious issue, given that someone receiving a penalty ticket and paying it quickly completely escapes a criminal conviction.

Here is another example. A known 17-year-old and a known 19-year-old are jointly sending telephone messages to cause annoyance, which is another penalty offence. How fair is it for the 19-year-old to escape without conviction because he pays a penalty, while the 17-year-old inevitably gets a criminal record for the same activity?

How many penalty notices can be acquired before a person is brought to court? Is there any provision in terms of building up a record of notices? We have no idea under the Bill what the financial penalty will be. We are told that there is to be a certain maximum, but no guidance is given. Can the Minister help? Does the police officer issuing the penalty have any discretion as to the amount? That is a most important question.

Dr. Ladyman: My reading of the Bill suggests that the constable has the option of taking the individual back to the police station before issuing the penalty notice, so such matters could be determined there. Also, the constable has the option of not giving the penalty notice, but proceeding with a court action in the usual way.

Mr. Malins: The hon. Gentleman is right; perhaps the constable has too much discretion. If he has discretion as to the amount of the penalty that he can give on the spot--despite his other possibilities--there will be a problem as to how he accurately assesses the offender's means. Is it wise for him to be allowed, in effect, to take powers of judicial discretion? Or is the penalty absolutely fixed for every single offender?

We must remember that public order offences cover a wide spectrum of behaviour and in court would command widely differing fines, depending on the facts. If the penalty were fixed, it could be much too high or much too low for particular offenders. Offenders of different means would be severely affected. Courts always take into

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account the defendant's means before fixing a fine and they give poor defendants time to pay. If a poor offender were given a penalty notice without being given time to pay, that might be grossly unfair. A poor offender who could not pay within 21 days would have to go to court and get a conviction, merely because of his poverty.

As the hon. Member for Southwark, North and Bermondsey said, collection of the penalties will be difficult in the courts around London. It is worth remembering that most of the offences that come before me in the London courts are committed by those who are on benefits, out of work and without a bean in their pocket. It should not be imagined that we have courts filled with queues of defendants wearing smart suits. Our courts are full of people who are on the breadline. How are they treated by the Bill? Do they get the same fixed penalty? Who makes the decision?

Where does a fixed penalty stand in relation to a caution? Is it to be recordable? Will magistrates be told in later court proceedings about previous fixed penalties? Would not a formal caution have a greater deterrent effect than a fixed penalty, especially if the offender denied the offence but did not bother to ask for a trial? He would then get a fine registered against him, which he would ignore because he does not believe it to be fair.

Furthermore, there will be pressure on people to pay the penalty to avoid having a trial and the risk of conviction and a criminal record. It is manifestly wrong to put pressure on people in this way. A penalty does not amount to a criminal record; the Bill makes it clear that the person concerned shall escape conviction. However, poorer people are disadvantaged by their inability to pay up whatever is demanded within the time demanded.

If the Minister cannot deal with my questions, I would ask him to ask his officials to draft some answers and let me have a full response. People are entitled to answers to these genuine questions. How can a person who fails to request a trial within the time limit avoid the penalty plus 50 per cent? He may have been ill or have had an accident; there are all kinds of possibilities. This could be yet another fine mess for the courts to sort out.

I am worried about the burdens on the police. Clause 3 talks about the notice that had to be served. Can anyone imagine a policeman in the street issuing to some potential offender a notice stating the offences, giving the particulars of the circumstances, specifying the suspended enforcement period, stating the amount of the penalty, stating the justice's chief executive to whom it should be paid--I need not go on. I say to anyone who believes that that will happen on the streets of London, or any other city, with any effect: get real.

The provisions on licensed premises seek to impose a reverse burden of proof on the defendant. That seems to be open to challenge by the European Court of Human Rights, as indeed may be the concept of travel restrictions on drug traffickers who have completed their sentences.

Many things that the Government have tried have been well intentioned. Antisocial behaviour orders were well intentioned, but they have failed. Drug treatment and testing orders were well intentioned but--particularly in the Gloucester experiment--they have failed too. I fear that many of the provisions in the Bill are well intentioned, but will have no real impact on the amount of street crime in this country.

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