| Anti-social Behaviour Bill
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Mr. Paice: I want to follow the hon. Gentleman's sensible points with specific questions on two linked matters. Who exactly will be given the penalty notice? Does the authorised officer of the local authority have to spot somebody fly posting or spraying graffiti and make them culpable by giving them the fixed penalty? What happens in the situation that my hon. Friend the Member for Uxbridge talked about, which we all know to be commonplace, where the person doing the fly posting is acting as an agent for somebody else? Will the owner of the warehouse, or whoever is doing the sale, be liable and be hit by a fixed penalty? If so, £50 is nowhere near enough. That is the key issue for the Minister to address. Column Number: 384 Linked to that is the issue of removal. I know that you will rule me out of order, Mr. Cran, if I start to talk about the new clauses tabled by the hon. Member for Mitcham and Morden (Siobhain McDonagh), which we will discuss later. However, they refer to the issue of removal. If, as I suspect-the Minister nodded earlier to suggest that I am right-the penalty notice must apply to somebody who is spotted doing the deed, surely clause 48 should include a power for the local authority officer to say, ''Remove that graffiti.'' That is not covered by a fixed penalty notice, so I would be grateful if the Minister explained why and said whether it could be covered. Shona McIsaac: I want to ask one brief question. I appreciate what the clause is designed to achieve in respect of graffiti and fly posting, but-and this relates to what the hon. Member for Uxbridge was saying-I regularly receive complaints from my constituents about the proclivity of certain firms in the area to stick leaflets under car windscreens in car parks. I have had numerous complaints about that, sometimes because of the nature of the services and products advertised on those flyers. Will the clause catch that sort of behaviour? Matthew Green: This has been an interesting debate. During its course, I have spotted another problem. A council officer may give a fixed penalty notice to the person spraying the graffiti; in that sense it is rather like a traffic warden issuing a parking ticket. However, a traffic warden can at least write down a registration number in his book. Unlike a policeman, the council officer will not have the authority to stop that person if they try to run off or demand their name and address. How can an officer give people fixed penalty notices, and pursue them if they do not pay, if he does not know who they are? If a policeman were doing that, there would be no problem, but I can foresee problems for authorised council officers. I hope that the Minister can reassure me that I may have missed something.
4.45 pmMr. Ainsworth: I have at least discovered the root of some of my problems during the debate. My hon. Friend the Member for Gedling is taking soundings on the Back Benches. The Whip was not here when he admitted it, but he is here now as my hon. Friend is deciding whether he supports the Government's position. I thought that I should make my hon. Friend the Member for Nottingham, East (Mr. Heppell) aware of that, so that he could take the appropriate action at the appropriate time. Clause 48 gives authorised local authority officials the ability to issue fixed penalty notices for graffiti and fly posting. The intention is that those notices will be used only in minor instances of those offences, which might not otherwise have been considered worth the time and expense of prosecution. We do not think that fixed penalty notices are appropriate for offences involving wholesale criminal damage, obscenity, or where racially motivated fly posting is part of the offence. In those cases, people should be prosecuted. The local authority should take the time and trouble to prosecute people, to provide the appropriate level of deterrent. However, as many hon. Members will know Column Number: 385 from their constituencies, this is a growing problem. Methods are becoming more blatant and there is a need to provide an easy-to-use deterrent for those low-level instances of people who go round scrawling graffiti or fly posting. That is a great nuisance and we believe that the deterrent will be usable for such minor situations.Offenders will have 14 days in which to pay the penalty, after which time a prosecution for the offence can be initiated. No proceedings will be brought where the payment of the fixed penalty has been made within 14 days. Clause 48 also prescribes how payment of the penalty is to be made. The penalty for such offences is currently set at £50, and it is aimed at the person who is fixing the fly poster or scrawling the graffiti. It is possible to prosecute the individuals who profit from the activity-the people who are behind it and are employing other people to do their work for them. That is not easy; otherwise a lot more of it would be done. Such people do not make clear declarations about who they are; otherwise they would be prosecuted. They often put middlemen or legal problems in the way of prosecuting them as the people who stand to gain from the fly posting. This will not solve the whole problem-I do not pretend that it will. It will, however, be a useful intervention to provide a deterrent on those minor occasions where the local authority would otherwise say, ''It is not worth the court time or the aggravation. We are not going to prosecute in these cases''. That is why there is a propensity for the activity to grow and become a sizeable problem in many of our communities. My hon. Friends were concerned about the age limits. Their concerns arose because they have logical minds; they thought that the fixed penalty notices applied in the same way as the others that we discussed earlier in the Bill. We would therefore have been talking about 18, but extending the age to 16 with an order-making power. That is not the case, because that power originates in different legislation. The fixed penalty notices would apply to people over the age of 10-the age of criminal conviction for minors-but under-14s could not be convicted unless they knew that what they were doing was wrong. Potentially, therefore, the fixed penalty notice could apply to someone under the age of 14, but that would be difficult; it would be easier to apply to over-14s, which could catch many of the perpetrators of the crimes that my hon. Friends have mentioned. That is a different regime from that of the earlier fixed penalty notices, when we were looking to reduce the age. I have talked about racist fly posting and graffiti, but we do not propose that fixed penalty notices should be used in those circumstances. The hon. Member for Surrey Heath was concerned that we were giving the local authority the power to decide, but the appropriate person is the Secretary of State. In Wales, the appropriate person will be appointed by the National Assembly for Wales. Fly posting on lamp posts is covered by clause 49(1)(c)-[Interruption.] Instead of writing it clearly in the first place, someone is shouting out that it is 49(1)(e). Column Number: 386 On the question of who gets the fixed penalty notices, the requirement will be either that the person should be caught in the act, or that someone can prove who was involved. That is a problem, but the provision will cover many circumstances. I know that blatant fly posting goes on in parts of Coventry-I am sure that it goes on in others parts of the country-and that people go along the ring road fixing posters to lamp posts from the back of a van. In such circumstances a registration number will be available, and that could provide a real deterrent. Matthew Green: If a 16 or 17-year-old is caught writing on a wall, and if he gives a false name and address to the council officer, he cannot be dealt with, so a notice will have been handed out that will never be recovered. I wonder how on earth we can deal with that. Mr. Ainsworth: Sometimes the perpetrators or the vehicle registration numbers will be known, and then the fixed penalty notice would be a useful tool. We need to consider whether to make the individual clear up the mess or remove the notices. However, without further thought on the question of restorative justice and the other issues that I know people are interested in developing, to impose a requirement on the local authority that issued a fixed penalty notice to ensure that the person cleared up their mess would be a logistical problem that could stand in the way of issuing a fixed penalty notice in the first place. The authority would need the appropriate equipment and the logistics to stay and see that the job was done. The issuing of the fixed penalty itself is at least a deterrent. It is some recompense for the trouble that has been caused, but we do not want to impose a logistical burden on those who might use the power. None the less, we should consider the question of whether we should oblige people to mend and put right what they have done. I am sure that we shall return to that subject, as well as many others. Mr. Randall: With regard to fixed penalty notices, what happens if those aged 14 or under do not pay? What is the next step? We would hope that the parents-or a parent-would pay up, but is there any compulsion for them to do so, and if not, what happens? Mr. Ainsworth: There is a legal obligation for the parents to pay the fine imposed on prosecution, so there is a deterrent, even for 14-year-olds. Matthew Green: The Minister was touching on the idea of asking people to clean up their graffiti. One problem is that for some forms of graffiti, that would involve quite powerful chemicals, and there would be a health and safety issue. Some spray paints, unfortunately, take an enormous amount of activity to clean up, and only people who know what they are doing with those chemicals should use them. Unfortunately, that is one of the problems blocking the idea.
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