APPENDIX 8
Memorandum from Northgate Information
Solutions
SUMMARY
— Northgate welcomes the Environmental
Audit Committee investigation into environmental crime and sentencing.
— Northgate believes that the Committee
should examine the extended use of penalty notices for tackling
minor environmental crime, and that government should carry out
a comprehensive review of the applicability of penalty notices
to environmental crime.
— Northgate highlights some examples
of international practice in relation to environmental crime and
occupational safety.
— Northgate believes that any systemic
extension of penalty notices must take place as part of a clear
education and enforcement programme, with clear standards for
the quality of enforcement.
NORTHGATE AND
COMMUNITY JUSTICE
1. Northgate welcomes the Environmental
Audit Committee's enquiry into environmental crime. As a leading
provider of technology services and enforcement systems to the
police, local authorities and emergency services, our particular
interest focuses on citizen based service and community justice.
2. For Northgate, community justice encompasses
both help and punishment. A safe and secure community promotes
social cohesion, economic progress and environmental improvement
as the guarantors of sustainable success.
3. If communities are to enjoy a sense of
well-being, individual citizens need to be able to access their
rights and shape public services according to their needs; healthy
communities must educate and inform individuals and organisations
about their rights and their responsibilities; and where crimes
and misdemeanours are committed the civil and criminal justice
systems must enforce the law in a proportionate and equitable
fashion.
4. We all of us have a responsibility to
protect future generations from environmental harm. Yet all too
often "minor" environmental offences go unheeded and
unprosecuted. Every time this happens we undermine the serious
issue of environmental stewardship and jeopardise the future safety
of our nation and its children's children.
PENALTY NOTICES
AND ENVIRONMENTAL
CRIME
5. Northgate believes that the committee
should consider the extended use of penalty notices as:
— a proportionate means of tackling
minor environmental crime carried out by individuals and corporates—which
currently goes unchallenged;
— a tool to support public education
programmes which stress the importance of citizens understanding
and abiding by their environmental responsibilities; and
— a means by which pressure on the
courts could be reduced.
6. Northgate proposes that any extension
of the use of penalty notices to tackle environmental crime should
be carried out in a comprehensive and consistent fashion to guarantee
parity between individuals and organisations; to protect citizens
from arbitrary action by public authorities and to enable flexible
environmental sentencing to ensure that individual offenders are
punished appropriately. We outline some issues relating to best
practice below.
PENALTY NOTICES—THE
CURRENT POSITION
IN ENGLISH
LAW
7. Fixed penalty notices or penalty charges
are used increasingly in a wide range of minor criminal and civil
matters in English law. Penalty notices can be grouped into four
main areas: public disorder offences; minor "environmental"
offences such as litter and dog fouling; traffic and parking offences;
and those linked with public administration.
8. The Anti-social Behaviour Act has extended
the range of environmental offences that can be dealt with through
penalty notices. It gives local authorities the power to issue
penalty notices for graffiti and fly-posting, other than when
the offence is motivated by racial or religious hostility. The
power to issue penalty notices for noise nuisance at night will
be granted automatically to all local authorities, and the bill
removes the onerous duty to supply the full 11 pm to 7 am service.
WHY USE
THEM?
9. Community well-being is founded on trust
between local citizens and public authorities. Where there is
perceived inactivity by public authorities to act on citizens'
day to day concerns, local citizens are less likely to trust their
ability to deliver fair and efficient public services.
10. Used appropriately, penalty notices
can be an effective way of dealing with high-volume low-level
crime, environmental and social nuisance and other forms of minor
civil infringements of the law which are currently either processed
through the courts or where no action is currently undertaken.
They give authorities with limited resources an additional means
of dealing efficiently with minor offences.
11. A proactive approach to promoting environmental
responsibilities backed up by a system of penalty notice administration
could help to enhance public trust and improve service delivery.
Penalty notices can have a "ripple" effect. Once imposed
for particular offences or targeted in particular areas, word
of mouth can quickly leads to others improving their performance
to avoid paying of similar fines. By integrating them into the
educative process, they may assist in changing attitudes, at least,
in the short term.
LEARNING FROM
INTERNATIONAL EXPERIENCE
12. As penalty notices do not lead to a
criminal record, they are a useful tool for dealing with persistent
low-level environmental nuisance. In other countries such as New
Zealand, Canada and Australia, they have been widely used as a
tool to strengthen law enforcement, for example in health and
safety law and under Australian environmental legislation where
breaches of the law are minor; where the facts are apparently
indisputable; where there is one-off breach and where a penalty
notice could act as a deterrent. In Australia a report carried
out by the Law Reform Commission in 1992 found that the stigma
of court appearances and the misery caused by having a criminal
conviction seemed out of proportion to the original offence, particularly
for migrant communities. Table A below highlights the use of expiation
notices (similar to penalty notices) for environmental offences
in South Australia. It demonstrates their widescale use and the
fact that a victim levy is imposed on every environmental offence.
Table A
EXPIATION LEGISLATION IN SOUTH AUSTRALIA
Legislation
|
Offences | Penalty
amounts
| Victim of
crime levy |
| Environment protection act | Numerous covering contravention of policy, failure to maintain records, contravention of ozone, air quality, burning regulations, machine noise regulations, waste management regulations
| $100-$300 | Yes |
| Fisheries Act | Numerous including: failure to carry licence, selling exotic fish, engaging in a fishing activity of a prescribed class, failure to keep records, lodge statistical returns
| $50-$300 | Yes |
| Forestry Act | Numerous including: lighting fires, depositing rubbish, failure to comply with instructions of a forest warden, using abusive behaviour against warden
| $105-$200 | Yes |
| Harbours and navigation regulations | Numerous including: swimming or skiing in restricted area, parking, speeding, failure to carry safety equipment, failure to report accident
| $55-$400 | Yes |
| National parks and wildlife act | Numerous including: exporting plants and animals without permission, hunting without permit, failure to pay national parks fees, disorderly behaviour in a reserve, failure to abide by wildlife regulations, kangaroo tag regulations
| $30-$315 | Yes |
| Waterworks Act | Remain on land without being authorized, failure to comply with authorized conditions
| $315 | Yes |
| |
| |
13. Consideration should be given to extending fixed
penalty notices to health and safety, as in Australia and other
countries. Currently the Health & Safety Executive and environmental
health officers with health and safety duties have no powers to
issue penalty notices for low-level offences, yet arguably these
could be a powerful tool in preventing escalation, for example
if they were issued at the time of a warning to show clear enforcement
intent, or after a warning when an infringement has occurred.
14. In New Zealand, health and safety at work legislation
provides for a system of "infringement notices". An
infringement is any failure to comply with the requirements of
the Health and Safety in Employment Act. An inspector may issue
an infringement notice if they have reasonable grounds to conclude
that a person has failed to comply with the provisions of the
Act and the person has had prior warning of the offence. Notices
are issued where the inspector considers that prosecution is not
warranted. Fines of between $100 and $3,000 may be imposed for
any breach of the Act, except for a failure to maintain a hazard
identification system where the fine range is higher—between
$800 and $4,000. Companies can decide whether to accept and pay
the infringement notice or to go through the courts. An infringement
notice does not result in a criminal record, but infringement
notices may be taken into account in future prosecutions.
15. Similarly, in Australia infringement notices are
a recognized part of the enforcement mechanism in most states.
In Queensland, the State Penalties Enforcement Act 1999 provides
for infringement notices for a wide range of offences, covering
nominated laws, local laws and by-laws. These include health and
safety offences. In New South Wales, certain offences have attracted
penalty notices for over twenty years. Originally basing its health
and safety system on the UK nineteenth century system, the Australian
system has focused on regional systems of enforcement including
both reactive and proactive inspections based on targeted programmes.
16. Canada adopted the Contraventions Act in 1992. This
Act created simplified procedures for dealing with selected federal
offences, as an alternative to the summary conviction procedure
set out in the Criminal Code. Under the Act, offences can be designated
as "contraventions" by regulations.
17. One of the original goals of the Act was to distinguish
between more serious criminal offences and other less serious
federal offences. The Act was amended in 1996 to allow the use
of existing provincial and territorial ticketing schemes to process
the less serious federal offences. In addition, the Act allows
the federal government to enter into agreements with provinces
and territories under which they will administer and enforce the
Act.
18. Offences that have been designated as contraventions
are in relation to the following acts: the Canada Marine Act;
the Canada National Parks Act; the Canada Shipping Act; the Canada
Wildlife Act; the Canadian Environmental Protection Act, 1999;
the Department of Transport Act; the Government Property Traffic
Act; the Migratory Birds Convention Act, 1994; the National Capital
Act; the Wild Animal and Plant Protection and Regulation of International
and Interprovincial Trade Act; the National Defence Act; the Non-Smokers'
Health Act; the Radiocommunication Act; the Railway Safety Act;
the Motor Vehicle Transport Act, 1987; the Navigable Waters Protection
Act; and the Tobacco Act.
19. It is arguable that government should conduct a comprehensive
and consistent review of existing criminal offences with a view
to examining the applicability of penalty notice systems to their
enforcement.
HOW TO
USE THEM
20. If we are to prevent minor environmental offences
in the UK, there has to be a clearly defined education programme
which outlines citizens' responsibilities. Penalty notices should
be seen as part of the education continuum. If people know what
they do is wrong, but continue to do it, enforcement mechanisms
should be introduced.
21. In England, the use of penalty notice systems to
enforce minor offences against body corporates is slowly developing
in relation to the administrative law, but it is arguable that
much more could be done in this area. Using penalty notices to
target minor offences in the fields of environmental crime and
health and safety could, if used as an overall programme of education
and enforcement, act as a deterrent to more serious crime breaking.
22. Whilst penalty notices may provide an efficient and
cost-effective means of dealing with minor offences, the penalty
notice system is only as fair as it is operated. Enforcement systems
must be responsive, transparent, accountable, equitable and audited.
Enforcement staff must use proportionate methods in issuing penalty
notices, so that they issue advice or an informal caution where
appropriate. This means that particular attention should be paid
to the training and resources of staff who will operate the system—from
front line staff who issue the tickets to enforcement mangers.
Staff should be adequately equipped to understand how human rights
and diversity issues impact on service delivery and be able to
deal with the public in a courteous, fair, equitable, respectful
and consistent fashion.
PREPARING THE
PUBLIC AND
PREVENTING UNNECESSARY
BURDENS ON
THE COURTS
23. In the UK the use of penalty notices, for example
to tackle minor disorder, has attracted some controversy. It is
therefore essential that any introduction of penalty notices in
new areas of law should be clearly communicated to the public.
The public should be prepared for new changes in law so that they
understand the implications of continuing their actions. In the
Australian state of Queensland a moratorium of two months preceded
the introduction of penalty notices for new offences relating
to environmental nuisance, giving the public a chance to understand
the new system and make any modifications to their behaviour.
ABILITY TO
PAY
24. Unlike court fines, penalty notices are not related
to the ability to pay. This means that problems can occur if individuals
are allowed to accrue large amounts of unpaid fine. Enforcement
systems should monitor their use to avoid cases of multiple issuing
to individuals or families.
25. Where penalty notices are not paid, this may lead
to the application of fine enforcement measures through the courts.
If local authorities are given further powers to issue penalty
notices in respect of environmental nuisance, it is advisable
that central government consider providing them with additional
powers to prevent individuals who clearly are not in a position
to pay from appearing before the courts. In addition, local authorities
should consider providing time to pay arrangements, particularly
where ability to pay is under question, as this will help to increase
compliance. Care must be taken to ensure that individuals are
not allowed to build up huge debts which act as an incentive to
re-offending.
26. We believe that there are strong arguments for minimising
the use of the courts to pursue unpaid penalty notice payments
and of developing mechanisms for clearly distinguishing between
those who can't and those who won't pay.
27. There are two precedents which are worth considering.
Firstly, under the Dog Fouling (Scotland) Act 2003 local authorities
and the police are able to issue fixed penalties to people who
fail to clear up after a dog. Scottish local authorities retain
all money received in respect of payment of fixed penalties. Where
a fixed penalty is not paid a local authority can recover the
amount through civil diligence without applying to the courts.
This, in effect, provides civil remedies for tackling criminal
penalties. It allows Scottish authorities to pursue action for
debt recovery without incurring the additional cost of going to
court.
28. In addition, Schedule 5 of the Courts Act 2003 states
that an offender with a criminal fine may apply for the payment
terms to be varied, or volunteer for an attachment of earnings
order or deduction from benefit. Schedule 6 allows an offender
to discharge their fine by unpaid work. Consideration could be
given to setting up a similar system for unpaid penalty notices,
ensuring that those who genuinely can't pay are distinguished
between those who can but won't.
CONCLUSION
29. As the Committee undertakes this important investigation
into environmental crime we urge it to consider how best to tackle
minor offences. Where minor environmental crime goes unchecked
it constitutes a serious issue; yet resources need to be targeted
at tackling serious environmental crime. The introduction of penalty
notice enforcement systems based on clear principles and guidance
could provide a cost effective method of tackling minor environmental
offences committed by individuals and corporate bodies. Any systemic
extension of penalty notices must take place as part of a clear
education and enforcement programme, with clear standards for
the quality of enforcement. We would be delighted to share our
views further with the Committee.
January 2004
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