Vehicle Technology and Aviation Bill

Written evidence submitted by the Alliance of British Drivers (ABD) (VTAB 03)

The Alliance of British Drivers (ABD) is strongly opposed to the section of the Vehicle Technology and Aviation Bill (Part 4 Section 23) that covers the use of driver "education" courses.

The ABD is the leading independent organisation which represents the interests of private motorists in the United Kingdom. The Alliance is a "not for profit" voluntary organisation which is financially supported primarily by its individual members. More information on the ABD is available from our web site given above.

Our opposition to the Bill is based on the following:

1. The ABD has been campaigning for some time against the misuse of police waivers and education courses. We have been considering a legal challenge to the abuses that this system has created based on the advice of a QC. The Bill will put into law the current arrangements and make it impossible to challenge. In effect it will legalise payments to the police to avoid prosecution.

For the first time in British history this Bill would introduce into English law the concept that it is legal to pay bribes to the police to avoid prosecution for offences.

2. The ABD has shown how these arrangements have been abused - see the Appendix to this document for just some of the evidence we have gathered.

Such practices have enabled the police to generate cash to fund their operations and that includes equipment and services that have nothing to do with road safety. In addition it has financed the acquisition and use of more speed cameras. In effect the police have been using the funds so obtained to maintain their establishments and the consequence is that there are clear incentives to the police to raise money in this way. This is a distortion of the justice system.

3. Although the ABD has called for proper legal regulation of this system, the proposals in the Bill actually make matters worse. For example it provides that charges can be set higher than the cost of providing the courses plus administration costs (Para 90G(2)).

4. There is also provision that any excess over costs must be used for promoting road safety but there is also a provision that "promoting road safety" includes the prevention, detection or enforcement of offences relating to vehicles. So this fixes into law the ability of the police to finance more cameras and their operation so as to generate more cash, and so this dubious industry will be expanded as a result. This has nothing to do with road safety and everything to do with empire building by the police.

5. Indeed the evidence obtained by the ABD shows that the police are diverting the funds raised in this way to other activities and are misreporting the profits generated. This is a natural consequence of the perverse financial incentives that are being created.

6. Therefore we ask that this part of the Bill should not be brought into law in its entirety. Alternatively that Section 90G(5) of Part 3B of the amended Traffic Offenders Act 1998 be changed to redefine the phrase "promoting road safety" so as to exclude the detection or enforcement of offences; or alternatively that under 90G(2) any excess is simply returned to the Crown for use on national road safety education programmes.

Yours sincerely

Roger Lawson

Campaign Director

March 2017

Appendix - The Issues and the Evidence

Against Misuse of Police Waivers

A.1 The ABD's campaign against the misuse of speed awareness courses (named AMPOW) was created because the actions of the police in offering such "Education Courses" as an alternative to prosecution for speeding and other offences are distorting road safety policy. It is leading to the proliferation of speed cameras and threatened prosecutions because the police now have a direct financial incentive to maximise their activities in this area. This is wrong.

A.2 There has historically been no statutory support for this activity and it is contrary to law. In addition it is a perversion of justice for the police to waive prosecution on the basis of money being paid to them.

A.3 There is also no hard evidence that putting people through a speed-awareness course has any impact on their subsequent accident record, or behaviour in general. So what we now have is an enormous industry dedicated to raising money to pay course operators, the police and other organisations who benefit from these arrangements.

A.4 The Government has claimed that the police only recover their "administration" costs but that is not in fact true. They are actually using their proportion of fees paid by course attendees to finance more cameras and more staff to operate them plus to fund other equipment and activities from the surpluses generated. Some evidence on this is provided below.

A.5 More information on this dubious practice which has nothing to do with improving road safety, is present here: www.speed-awareness.org and on the following pages.

Background and History

A.6 Speed cameras are used to enforce speed limits in the name of road safety. The ABD may have some doubts about the cost effectiveness of such an approach to improving road safety, and the statistics used to support these policies, but our objections to the use of speed-awareness courses is not about the merits or otherwise of speed cameras. It is about the changes that have taken please in recent years about how they are financed.

A.7 Before 2007 the police, embodied in "Speed Camera Partnerships", could claim their costs from any fines paid (typically from fixed penalty notices) as a result speeding offences, i.e. the fines were "hypothecated" and redirected via the DfT to local partnerships. This resulted in large numbers of complaints that the cameras were being operated solely to make money - for example by locating them not at the most dangerous parts of the road network but where it was easiest to catch motorists exceeding the posted speed limit.

A.8 It seemed that the Partnership managers also had an incentive to grow their operations and hence employ more staff due to this arrangement. If the organisations actually reduced the number of speeding motorists, which would have met the claimed road safety objective, they actually lost revenue.

A.9 In extremis this meant lower budgets and staff reductions. In other words this was a perverse incentive arrangement because it encouraged the entrapment of motorists rather than reducing traffic speeds and hence the number of penalties.

In 2007 the Government therefore decided that in future all fines would go directly to the Crown (the normal arrangement for all other offences). Instead they would provide specific grants from such revenue for road safety to local authorities. They could then choose to fund camera partnerships (now renamed "Road Safety Partnerships") or spend it on other road safety programmes such as education in schools. This was hailed as the end to making money out of hapless motorists in the media. Indeed this did result in some local authorities ceasing the funding of camera operations and any increase in cameras. Indeed some camera operations were "abandoned", i.e. ceased to be operated (e.g. Oxfordshire and in Swindon). But not for long!

The invention of alternative funding arrangements.

A.10 With grants being reduced, the concept of using police waivers of prosecutions in return for the "offender" paying for an "education course" was introduced. This appears to have been an invention by ACPO (the Association of Chief Police Officers, a private body, subsequently superseded by the National Police Chiefs Council - NPCC). To our knowledge these arrangements have never been previously supported by legislation or regulations and there has been no statutory authority for them. They were effectively introduced by police chiefs to side-step Government funding policy. Hence no doubt the provisions were added to the new Bill when the Government became aware of a possible legal challenge.

Why It Is Illegal, and Should Remain So

A.11 The financing of the police by the use of prosecution waivers has never historically been supported by legislation or regulations and there has been no statutory authority for them. They were effectively introduced by police chiefs to side-step Government funding policy. And it is surely contrary to public policy for financial incentives to be given to the police in this manner. The police are using their statutory power to prosecute or issue a Fixed Penalty Notice as a means to secure extra-statutory revenue (i.e. revenue not authorised by legislation). Note that the statutory scheme that enables the deployment of speed cameras does not authorise the recovery of police costs. Neither of course does it authorise the charges made by the course operators.

A.12 In addition using the threat of prosecution to secure payment is an abuse of police power.

A.13 The ABD was considering a legal challenge to these practices and we have already taken legal advice from a QC on this matter who supported our position.

A Perversion of Justice?

A.14 Is diversion of Speed Awareness Course Fees an example of Perverting the Course of Justice? In essence, in return for payments that at least part-fund the operations of speed camera partnerships, alleged offenders are diverted from the justice system.



A.15 We do not dispute that the police have the right to waive prosecution in some cases when an offence comes to their attention. This is common practice where the offence is trivial or there are extenuating circumstances. Speed awareness courses are only offered to those who are only exceeding the limit by a small amount and are not repeat offenders. However It is normally the case that if a police officer agrees to drop an offence upon payment of some money to a third party (particularly one connected to them), then it is a criminal offence however trivial the offence. A definition of "perversion of the course of justice" from the Police National Legal Database is:

"This common law offence is committed where a person or persons:-
(a) acts or embarks upon a course of conduct
(b) which has a tendency to, and is intended to pervert,
(c) the course of public justice."

Listed below are a couple of the ways where conduct is capable of amounting to an offence (there are several others):

(a) Concealing offences;

(b) Failing to prosecute;"

A.16 In the cases of which we are complaining, some police officers are surely potentially conspiring with the organisations that run the training courses to divert drivers from the judicial system in return for payments that fund the employment of themselves, other police officers or other support staff. Hence they appear to have a direct financial interest in this matter.

Improper Exercise of Police Powers

A.17 That the exploitation by the police of their powers to waive prosecution is a corrupt practice is made even plainer by the Guidance published by the Government on the application of the Criminal Justice and Courts Act 2015 - namely in Circular 2015/01. That contains the following paragraphs:

"Section 26: Corrupt or other improper exercise of police powers and privileges.

78. Section 26 of the Act makes it an offence for a police constable to exercise the powers and privileges of a constable improperly where the constable knows or ought to know that the exercise is improper. The exercise of a constable’s powers and privileges is defined as being improper where it is for the purpose of achieving a benefit for the officer or another person or a detriment to another person, and a reasonable person would not expect the power or privilege to be exercised for the purpose of achieving that benefit or detriment.

The offence also covers the situation where a constable fails to exercise a power or privilege of a constable or threatens to exercise (or not exercise) such a power or privilege and the purpose of the failure or threat is to achieve such a benefit or detriment and a reasonable person would not expect a constable to so fail or threaten for such a purpose. Exercising or not exercising the powers or privileges of a constable includes performing or not performing the duties of a constable.

80. The offence is triable only on indictment and carries a maximum penalty of 14 years’ imprisonment, an unlimited fine or both. The offence supplements rather than replaces the existing common law offence of misconduct in public office."

A.18 So you can see that it is quite clear that the offer by police to waive an offence as an inducement to pay money to a third party (namely a provider of a speed awareness course) would normally be an offence. That is particularly the case where the police benefit in terms of the employment of themselves and other staff, or the provision of equipment, financed by kick-backs from the fees paid by motorists who accept the offer of such course.

The provisions of the Vehicle Technology and Aviation Bill potentially will muddy the legal position and undermine the long established legal principles in this area.

Profits and Where They Go

A.19 Since 2010 there has been a sustained and dramatic increase in the use of Speed Awareness Courses (SACs) - source NDORS (the National Driver Offender Retraining Scheme): www.ndors.org.uk/trends-stats . That is from about 450,000 to about 1.2million generating an income in excess of £42m per annum none of which would have been available directly to the police in the event of FPNs being issued.

A.20 The police receive a flat fee of £35 out of the fee charged to "offenders" by course operators which typically range from £80 upwards and can be as much as £200. Whilst some of the £35 fee is attributable to the expenses directly associated with the issuance of an invitation to attend such a course and administration thereafter, it is undoubtedly the case that a significant surplus is generated.

In addition some police forces seem to be receiving an additional "levy" from the education course providers.

A.21 From April 2016, NDORS, the scheme has been governed by UK ROED Ltd, a private not-for-profit company, which is operating the scheme "on behalf of the UK Police Forces". UK ROED receives £5 from each course fee paid from the course operators to fund their activities. UK ROED Ltd is owned by a charity named Road Safety Trust. None of these organisations are controlled by the Government.

A.22 All of them can generate very substantial profits above the costs incurred in providing the courses. For example, Hertfordshire County Council generated a surplus of £947,000 in 2015/2016 by delivering 1,891 courses attended by 41,641 drivers giving income of £3.7 million (source: Local Transport Today). The police and local authorities may well spend some of the surplus from running courses on road safety measures (there is currently no legal obligation to do so) but private sector operators can simply lose the profits in high salaries and directors fees.

A.23 One disturbing aspect is that although the police do not set speed limits or determine the location of cameras, they do advise on those matters. But local authorities do directly control speed limits so they may well have a financial incentive to lower limits and introduce more cameras so as to increase the demand for "education" courses and hence the profits they receive (some local authorities run the courses).

The Evidence

A.24 Some of the evidence we have so far obtained on the current practice of funding of police activities linked to speed camera operations is as follows:

a- The House of Commons Transport Committee published a report entitled "Road Traffic Law Enforcement - Second Report of Session 2015-16" in March 2016 which contains a section on "How Offences Are Dealt With".

It contains some useful information although the committee seems to have been misinformed to some extent in that they suggest some of the fees paid are "held by the police to cover the cost of referring the offender to the course". This is inaccurate as we have made clear elsewhere and the evidence is below.

b - The former Bedfordshire Police and Crime Commissioner, Olly Martins was reported in the Daily Telegraph on the 4th November 2015 as planning to switch on speed cameras permanently on the M1 and set them at 70 mph under a "zero tolerance" approach. This was expected to generate "up to a million pounds for his cash strapped force" and is an example of what the police might do in future.

A.25 Mr Martins also spoke to the Commons Home Affairs Committee on "Reform of Police Funding" on the 3rd November 2015.

At that meeting he said, after complaining about shortages in Police funding, that: "I am now looking at things like turning on the HADECS cameras on the M1 and driving revenue from that, looking at sponsorship opportunities: does someone want to sponsor panda cars, our police officers' uniforms, so any...." at which point he was interrupted. But it is clear that he thought financing the police in general from course fees was acceptable.

There is a lot more evidence on the way money is being extracted from drivers and diverted by the police to activities not directly related to road safety on the ABD's AMPOW campaign web site. It is not included here for brevity.

Road Safety Disbenefits

A.26 If the offer of awareness courses actually improved road safety then it might be justifiable subsequent to legislation being passed to authorise these exceptional practices. But in reality there is no evidence that they have any benefit.

A.27 The only reason this is happening is because of the financial arrangements which incentivises the police to detect more speeding offences. The police have no interest in supporting other road safety measures and might actively support reductions in speed limits when they are unjustified on any technical or rational grounds. These arrangements have very little to do with improving road safety and detract from other road safety priorities.

 

Prepared 15th March 2017