Criminal Justice and Police Bill

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Mr. Lock: No. If that person has not been given a warning notice, clause 7 does not apply. If he has been given a warning notice, he does not need to be given a further warning notice. Either he is given one, or he is not.

Sir Nicholas Lyell: I apologise, but that is not quite the question that I asked. I will be grateful when the Parliamentary Secretary does answer my point about subsection (7), but I am raising a different point: whether an individual might have to ask twice to be tried.

Mr. Lock: No, just once. If there is no warning notice, the clause does not apply. If it applies, the person has been given a warning notice saying, ``If you want to contest it, this is how you do so, but you have got to tell us that you want to contest it.''

Sir Nicholas Lyell: But the person has already said so.

Mr. Lock: I think that I understand the right hon. and learned Gentleman's confusion. The warning notice does not indicate that there is going to be a trial. All it does is to explain to the offender that if he elects to challenge the penalty notice, and wants not to pay up but to go for a trial for a criminal offence in the magistrates court, he has to notify the authorities to that effect. It is his choice, not the police officer's. The warning notice does not mean that there will necessarily be a trial. All that it says is that the court will be reserved in case a notice is contested. That is why subsection (7) is there, and why removing it would be inappropriate.

We do not believe that it is in the interests of justice to dispense with subsection (7). It cannot be right for an alleged offender, who has been served with a warning notice and has said that he wishes to contest a trial, to claim that he did not receive either notice. I hope that the hon. Member for North-East Hertfordshire, now that he understands the reason for subsection (7) and appreciates how the procedure works, will withdraw the amendment.

Sir Nicholas Lyell: I may be misunderstanding. May I query the structure once more and then come to subsection (7)? As I read the structure of chapter I, a person is given a penalty notice under clause 2. Then clause 4 comes into action. It states:

``This section applies if a penalty notice is given to a person (``A'') under section 2.''

A then asks to be tried. He has already said that he wants to be tried. He has not yet been given a warning notice.

Mr. Lock: The right hon. and learned Gentleman does not seem to appreciate the effect of subsection (1), which provides that at the time when he gives the fixed penalty notice, the officer may also issue a warning notice. Therefore, a person has a penalty notice and a warning notice in his hand when he considers whether to give the authorities notice that he wants to contest the matter by trial.

Sir Nicholas Lyell: I understand what the Parliamentary Secretary says, but it is not what the clause states. Subsection (1) says:

``If a person is given a penalty notice under section 2, he may be given written notice (``a warning notice'')''.

It does not say that he may be given one at the same time. Although he may receive the warning notice with the penalty notice, it may be given to him later. If he is given both notices at the same time, his request to be tried will, no doubt, apply to both the penalty notice and the warning notice. However, if he is given the warning notice later, which could quite often be the case—unless the Parliamentary Secretary tells us that penalty notices are always going to be tied in with warning notices, which would be surprising—must he respond both to the penalty notice, asking to be tried, and to the warning notice telling him where he is going to be tried, saying that he wishes to be tried? That is the potential muddle that I am asking about now.

To change the subject, subsection (7), which prompted amendment No. 111, states:

``If a person has been given a warning notice, section 14 of the Act of 1980 (proceedings invalid where accused did not know of them) does not apply.''

That worries me because, in a perfect world, someone given a warning notice would know of the proceedings, so the Parliamentary Secretary's answer—that notices cannot be invalid and no one could claim that they were—would stand.

However, in an imperfect world, a constable could genuinely believe that he had given a warning notice, while the citizen genuinely believed that he had not been given it. Sometimes, the citizen would be right. If he was, the proceedings should not be valid.

10.15 am

Mr. Lock: I do not want to get into exegesis of the law, but I think that the matter is relatively simple. The right hon. and learned Gentleman will note that subsection (7) says:

``If a person has been given a warning notice''.

He suggested that if a person says that he has not been given a warning notice, and he is right, proceedings against him would none the less be binding. I respectfully suggest to him—he is a far more eminent lawyer than I—that a person would have a pretty good defence if that problem occurred: he could say that his case did not fall within subsection (7) because he had not been given a warning notice.

Sir Nicholas Lyell: On the basis of that argument, why does section 14 in the 1980 Act need to exist?

Mr. Heald: I would like to join in the discussion. My right hon. and learned Friend made an important point about subsection (7). Where there is a dispute between the person giving the notice and the person receiving it, I imagine that that could be resolved in court. However, we are still short of a definition of ``given''. Perhaps the Parliamentary Secretary can help us. If it means ``handed to'', which appears to be the flavour of his responses, one can imagine that a person unable to read and write—perhaps a fairground worker at one of the events where large numbers congregate, as the Parliamentary Secretary described—could be handed a warning notice. Would it be fair to apply section 14 of the 1980 Act if the meaning of the warning had not been understood? Should an individual not be able to attend court and say that he was handed something but had no idea what it meant?

Some of the amendments have been tabled because situations may arise in which the meaning of the warning needs to be explained to the person concerned. Even if it is explained, there should still be a provision that allows for a person to argue that he did not understand what was said to him—he might be a foreigner, for example. The Parliamentary Secretary may laugh and think that such situations would not generally happen, but as a lawyer, he knows the litany of unusual cases that fill the legal textbooks and law reports. Committees such as this never dreamed that they would happen.

Mr. Lock: I know that hon. Members are desperate to string out our proceedings, but there are important provisions in the Bill that need to be debated.

Mr. James Gray (North Wiltshire): On a point of order, Mr. Gale. The Parliamentary Secretary's remark that the Opposition are determined to string out the proceedings is most peculiar. It is incorrect; we are giving sensible consideration to important matters. Surely, if he were correct, it would be up to you to make the point, not him.

The Chairman: The hon. Gentleman is correct. It is up to the Chair to decide whether the Committee is in order. As far as I am aware, everything that has been said this morning is in order.

Mr. Lock: I am grateful to the Opposition for the opportunity to intervene. Subsection (7) describes what will happen if a defendant does not turn up at court. If he turns up at court and says that he is challenging the fixed penalty notice and does not want to pay the fine, that is the procedure that would be followed. If he does not request a trial because he does not understand the fixed penalty notice or the warning notice, there is no trial and the fixed penalty notice takes effect.

I appreciate the point that the hon. Member for North-East Hertfordshire is making, but this is not the occasion on which to raise it.

Mr. Heald: The Parliamentary Secretary is right to the extent that he has promised to consider what should be said when the warning notice is given. I welcome that, and it meets part of my point. Of course, it is true that if people do nothing, they have a one and a half times fine slapped on them, and they are taken to court. We will come later to the provisions that will allow them to seek a trial. However, I feel that he could further elucidate what ``given'' means. If it simply means ``handed to'', it would be nice if he would say so.

Everyone in the Government says, ``Oh, let's get on with it. Our Bill is perfect. Anyone who criticises any aspect of it is filibustering.'' Ministers should reflect on the words of the Home Secretary when he was in opposition. He said:

``careful scrutiny is one of the best guarantors of good legislation''.—[Official Report, 20 November 1995; Vol. 267, c. 339.]

My experience in the House, although not very lengthy, is that if Front Benchers agree and Committees whiz through in record time—as happened, for example, with the child support arrangements—we do not usually get the best law. The Parliamentary Secretary has to concede that he has already given way on half a dozen occasions or promised that he will reflect on matters. That is because we are doing our job properly.

Dr. Stephen Ladyman (South Thanet): That exchange has confused me. Perhaps the Parliamentary Secretary would relieve me of my confusion the next time he intervenes. If someone celebrating when Sven and the boys win the next World cup is given a penalty notice for getting over-enthusiastic, it seems foolish to give him the warning notice at the same time. If he loses one, he will lose the other. I assumed that the warning notice would come in the post a day or two later, so that he would know that he had received a penalty notice. Is that correct?

 

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Prepared 15 February 2001