RESPONSE OF THE CRIMINAL BAR ASSOCIATION
TO THE CONSULTATION PAPER "REDUCING PUBLIC DISORDERTHE
ROLE OF FIXED PENALTY NOTICES."
1. It is no part of this response to argue
with the political statement set out in the first sentence of
Paragraph 1 of the Consultation Paper ("the Paper").
2. Caution is always advisable, however,
before enacting penal legislation which may create more problems
than it solves, or which is likely to be unduly complicated
to enforce, or which may bring the law in question into disrepute.
The Dangerous Dogs legislation might be seen as something of a
3. Further, strictly practical issues relating
to enforcement and administration of the suggested scheme are
not for us to comment on, but are no doubt being addressed by
those who will have the relevant duties.
4. There are however, obvious issues which
whilst relating primarily to enforcement and administration, do
carry legal implications. Some examples which occur to us are:
(a) Disorderly drunks are by definition not
in a fit state to be served with a legal document with penal consequences.
Paragraph 2 of the Paper suggests that the type of conduct aimed
at by the suggested scheme is often connected to the problem of
public drunkenness. Whether the drunkenness is public or private,
whether it is associated with other criminal conduct or not, it
does not provide any sensible or fair opportunity for the issue
of a penal Notice. Most parking tickets etc are not issued to
anyone in person. When they are served personally there is occasional
unpleasantness for the issuer. Many speeding offences result in
summonses served by post.
(b) Drunk and/or disorderly persons are unlikely
to be alone or compliant. They are likely to be offending in public,
often crowded places. Notices take some few minutes to write and
this is so, even for a traffic warden who does not have to establish
the identity of an individual in difficult circumstances.
The issuing of a Notice might well aggravate
a situation requiring fast action such as the speedy removal of
offenders from a scene. This consideration is relevant to two
stated aims of the scheme, namely to put an immediate stop to
the conduct and to save police time: see Paragraph 3 of the Paper.
It would be unfortunate if the issuing of a Notice in itself created
a situation in which further offences were committed and/or brought
about further breaches of the peace.
(c ) What are the consequences to be if a
Notice is issued but subsequently ignored? We shall return to
this question later, because it raises many issues, but it is
common knowledge that in some areas at some times only a percentage
of parking tickets have been enforced. No doubt this was as a
result of some form of cost/benefit analysis or general resource
problems. Non-enforcement of parking tickets is one thing. A scheme
carrying with it any possibility of non-enforcement of Notices
for criminal behaviour is quite another.
(d) Even assuming sobriety and compliance,
how exactly are an individual's details to be verified in the
street? It is not difficult to envisage a degree of farce, which
will be compounded if the officer has to verify whether the individual
has had any previous Notices.
(e) The individual would have to be warned
of the consequences of non-provision of details. If the alternative
is an arrest, there may well be issues arising by virtue of the
Human Rights Act 1998. The reference to s25 PACE 1984 in
Paragraph 16 of the Paper raises the distinct and substantive
issue of the power of arrest, to which we will return.
(f) English law has long required some reasons
to be given to a person being arrested. The Road Traffic Offenders
Act 1988 s52(2) provides for this to be done in the case of current
fixed penalty notices. This will be a duty of the issuer of
the Notice. It will have to be done verbally and/or in writing
on the Notice. How can this be done speedily on the street (stated
aim of the scheme) when there is a wide variety of offences suggested
in the Paper?
(g) Similarly the options for the individual
concerning payment or going to Court will have to be explained
verbally and/or in writing on the Notice. This most certainly
has implications under Human Rights Act 1998.
(h) Will PACE 1984 apply from the moment
of police intervention and what powers exactly will be being used
up to the time of the issue of a Notice: arrest or something new?
The power under s25 PACE 1984 is for dealing, inter alia,
with a failure to supply details for non-arrestable offences,
not for the initial stages of intervention and investigation of
arrestable offences. It should be noted that criminal damage is
an arrestable offence, and that there is a "warning"
procedure leading to arrest for offences under s5 Public Order
Act 1986. Here again there are implications under the 1998 Act,
and a requirement for clarity.
(i) Is there to be any opportunity for
explanation from the individual? If he is sober enough to
be issued with a Notice, he should not be denied the opportunity
to advance a defence and/or an explanation and/or representations
as to the officer's exercise of discretion, at the time? If
so, is that to be under caution? (This raises the issue of
possible inferences in any later Court case: s34 CJPOA 1994.)
This will apply particularly in non-absolute offences: see the
reference to statutory defences in the Consultation Paper (Paragraph
9 of the Paper). There are obvious implications arising out of
the Human Rights Act 1998 here too. The further issue then arises
as to how anything said is to be recorded.
(j) Will one police officer be able to act
alone? (cf: speeding offences see s89(2) Road Traffic Regulations
Act 1984.) There will be no device or meter to provide any corroborative
evidence for any of the suggested offences, unless a breath
test device is to be used, although currently one officer may
deal with a drunk and disorderly offender on his own.
(k) If the "option to prosecute"
is still to be open, on what basis is an officer to decide whether
to issue a ticket or arrest? Discretion is suggested. The grounds
for the exercise of any such discretion would have to be clear,
so that arbitrariness or unfairness was avoided: see Human Rights
Act 1998. Paragraph 10 of the Paper suggests that the option of
cautioning for these offences will also still exist: this will
mean three levels over which to exercise discretion, possibly
in the street. See also the reference to the reprimand and final
warning scheme referred to in Paragraph 12 of the Paper. This
might amount to a fourth level in the case of young offenders.
(l) Even if, as the Paper suggests, the scheme
is only to apply to minor offences of criminal damage (by which
we assume is meant those currently triable summarily), there remains
the difficulty for a Police Officer on the street, of establishing
what the value of the damage is.
(m) If the issue of a Notice is an alternative
to an arrest, will the decision have to be made by the officer
there and then, or may it be postponed until after arrest and
return to a police station? This also touches on the substantive
issue in relation to s25 PACE 1984 and precisely which powers
are being used at each stage. Under the Road Traffic Offenders
Act 1988, if the offence involves obligatory endorsement a police
officer may only issue a Notice if the licence is produced and
he is satisfied the offender would not be liable to disqualification
if convicted ("totting"), and the licence is surrendered.
There is also the opportunity to produce the licence later. There
is thus a procedural fetter on the officer's discretion which
is governed by the status of the licence. In our view this affords
something of a protection from arbitrariness, and there
is no obvious parallel for the type of offences in the suggested
scheme. Yet again these are considerations arising out of the
Human Rights Act 1998.
(n) The practical issue of recording the
issue of Notices is raised in the Paper. There are also legal
issues here. If the issue/payment of a Notice is
to be recorded in some way, this would have to be under
CRO or at some local police or Magistrates' Court system,
as with local "drunk and disorderly" appearances. Some
traffic offences are endorsed on the driving licence. As we have
pointed out, in the situations under discussion in the Paper,
there is nothing to endorse and nothing to check unless it be
by radio to the CRO. Is the exercise of an officer's discretion
and the availability of the power to issue a Notice rather than
arrest/prosecute to depend upon the ability to do a CRO check
in the street? It is assumed that the Rehabilitation of Offenders
Act 1974 is intended to apply to the issue of such Notices or
some other system for "wiping the slate clean" after
a given period of time. In either case there is ample scope
for further mistake and confusion.
(o) There would have to be Codes of Practice.
(p) If young offenders are to be included
we question whether details required will have to include those
of the offender's parent or guardian. Are the parents/guardian
to be liable to any penalty, individually or in default?
5. The above list of points is not meant
to reflect an unhelpful, purely negative response to a suggested
change in the law to deal with manifestly antisocial behaviour.
However, it does identify a number of very real, legal issues
inherent in the practicalities of such a scheme as that envisaged
in the Paper. We conclude that the likelihood of administrative
chaos is strong. This may be mitigated if Notices are only
issued at Police Stations (for arrestable offences or where someone
has been arrested under s25 PACE 1984), or in the unlikely event
that an individual has committed a non-arrestable offence and
is sober and calm in the street.
6. Other general points must also be made
before we address the specific areas set out in Paragraph 19 of
Fixed Penalty Notices: Road Traffic Act 1988.
(a) The definition of a fixed penalty notice
under this Act is:
" . . . a notice offering the opportunity
of the discharge of any liability to conviction of the offence
to which the notice relates by payment of a fixed penalty
. . . " (s52)
(b) It is not clear from the Paper whether
it is intended that payment of the Notice under the suggested
scheme will equate to a plea of guilty to an offence, or whether
it will equate to the effect of a caution, or something different
(c ) It is also unclear (and this may be
a politically sensitive issue as well as a legal one) whether
the idea is to "criminalise" or "decriminalise"
the conduct in question. The traffic offences listed in Schedule
3 1988 Act are non-criminal in any event. If the conduct listed
in the Paper results in a Notice being paid rather than a Court
hearing, will it amount to a conviction? If the issue of a Notice
is not to result in a conviction, then the effect is to decriminalise
some behaviour which is presently criminal. The reverse is also
true in relation to some of the offences mentioned.
(d) The stated aim in the Paper is
to treat some cases which are resulting in cautions, or small
fines, more seriously: see Paragraph 18. This confuses
penalty with conviction.
(e) The Customs practice of "compounding"
precisely demonstrates the issue. The person who compounds avoids
a prosecution (as with the traffic fixed penalty notice) and any
risk of a conviction and/or criminal record.
(f) Compounding is not a good analogy anyway,
since this relates to the payment of duty which is in any event
due, plus an element of penalty. It is more of an administrative
procedure, which suits both sides and avoids the costs and consequences
for both sides of a court hearing. If the suggested scheme is
to be operated on that basis it should be made clear, and it should
not attempt political justification on unproven grounds of "deterrent".
(g) We say unproven since, if the legal minefield
could be safely traversed, no doubt a "pilot" scheme
would be arranged such as that relating to vehicle emissions:
Road Traffic (Vehicle Emissions) (Fixed Penalty) Regulations
1997. We are not aware of any existing evidence to suggest
that the police will be likely to issue more Notices than the
total of arrests they currently make for the offences in question,
taken together with summonses issued.
(a) If the legal consequences of payment
of a Notice are to be exactly the same as for a court hearing,
(ie a conviction) logic suggests that the only effect will be
to induce some people to pay by post rather than have the inconvenience
of a court hearing. Convenience is certainly a strong argument
in favour of such a scheme. Costs and time will also be saved
if people can plead guilty by post. On this approach tickets could
be issued to sober and calm people on the street or sobered people
back at the police station. This is not, however, anything to
do with "deterrence".
(b) If on the other hand the legal consequences
of a Notice are to be less than a conviction, then the deterrent
effect is even harder to identify. As we have seen, that is the
legal consequence of the road traffic fixed penalty scheme and
compounding. People are not deterred from speeding or parking
illegally because of the risk of a fixed penalty notice as opposed
to a prosecution. If they are deterred at all, it is because they
have to pay either way. The fixed penalty notices provide a convenient
way of paying up and avoiding a conviction. Some people collect
large numbers of parking tickets as part of their business expenses.
The deterrent to Customs duty evaders is the risk of penalty and
of prosecution. The availability of compounding is the exact opposite
of a deterrent and is seen by some persistent evaders as the risk
they are prepared to take.
(c ) The offences listed in the Paper straddle
what some might regard as the criminal threshold. The demarcation
lines between conviction and penalty, and between criminal and
non-criminal conduct need to be clear as a matter of principle,
on the above as well as other grounds with which we deal below.
(d) The Paper is silent on the question as
to whether the levels of penalty are intended to be lower than
the average court fine for the offence. If not, there is no inducement
to pay other than convenience. A fixed penalty scheme, unlike
a court, is not amenable to individual mitigation. An equal or
higher level of penalty than court fines will certainly not deter,
but it is also hard to see why a lower level would either. If
the level is lower, that would have to be acknowledged formally
in some way: see s48 CJPOA 1994.
(e) Compliance rates for parking tickets
(see Paragraph 6 of the Paper) might well be misleading since
illegal parking is non-criminal behaviour with no stigma or effect
If the police officer on the street has to exercise
a discretion whether to issue a Notice or arrest/prosecute, we
would argue that this is wrong in principle for offences requiring
mens rea, such as criminal damage. We cannot see the relevance
to the lack of need for evidence from a "victim" (see
Paragraph 9 of the Paper), whatever that means. That lack is a
purely practical, evidential issue, and in many cases of criminal
damage there will be a "victim". The requirement to
prove mens rea is more problematical. The offences currently subject
to fixed penalty notices are "absolute" or "strict
liability" offences. To extend the scheme to offences which
do require proof of a mental element, would be a significant departure.
Offences involving a mental element are the more likely to be
viewed as truly criminal and are the more likely to involve the
end of a person's "good character". Offences involving
mens rea would be more likely to require, as a matter of fairness,
some "corroboration"; an opportunity for some explanation
from the offender carrying with it PACE rights including caution;
and a clear outline of the accusation being made (subject to reasonable
10. As we have pointed out, if it is not
reasonably practicable to give an outline to, or take an explanation
from the offender because of his or her behaviour, it will not
be practicable to issue a Notice in the street at all. Criminal
damage as it happens, not only requires proof of a mental element,
but is also arrestable.
11. In our view arrestable offences
ought to be dealt with in the normal way which involves an element
of independent assessment (for instance by a Custody Officer at
the Police Station.) of whether there is enough evidence to charge.
At that stage it might well be feasible to provide for the issue
of a Notice which provides an administrative way of avoiding a
court hearing and pleading guilty by post. The consequences of
such a procedure would have to be spelt out verbally as well as
on the Notice, in other words that a conviction would be recorded.
Non-arrestable offences should be dealt with in the same way where
the offender has been arrested under s25 PACE 1984. For the small
number of cases where sober, calm and co-operative offenders are
being dealt with for non-arrestable offences there may be a case
for the issue of a Notice on the street, although we doubt any
deterrent effect at all in this situation, and anticipate practical
problems for the issuer. In those cases it might be more sensible
for the police to issue a verbal notice of intended prosecution,
with provision for a fixed penalty notice being issued later.
This would be rather like a summons, and would provide the mechanism
for pleading guilty by post.
There must be significant resource implications
arising out of the need for a system to deal with non-compliance.
We are not qualified to deal with those. But from a legal point
(a) Non-payment after issue of a Notice:
see Paragraph 17 of the Paper. The issue needs to be addressed
as to whether prison will be an ultimate option. The scheme for
enforcement of traffic fixed penalty notices does not normally
lead to prison sentences: see section 71 RTOA 1988; sections 75-96
Magistrates Courts Act 1980. A decision will have to be made as
to whether enforcement is to be through the civil or criminal
(b) False details given. This has to be a
distinct possibility and some thought has to be given as to the
(c) Non provision of details. Will offender
be arrested for the non-provision (a variant on obstruction or
failing to provide) or the offence itself, or both? Some of the
offences currently the subject of fixed penalty notices usually
result in summonses rather than arrests. Some are dealt with by
Local Authority officers. Is it proposed to arrest awkward owners
of incontinent dogs?
19 OF THE
(a) We do not consider that any offence involving
a mental element should be the subject of a fixed penalty system.
(b) We have no comment on the level of penalties.
We have identified a need to make a clear policy decision as to:
(i) The legal effects of the issue of
(ii) The legal consequences of payment
of a Notice;
(iii) Whether the level of penalty upon
payment of a Notice is to be less than the average Court fine
(c) If young offenders are to be included,
we question whether the details to be sought from the offender
should include those of his parent or guardian, and whether there
is to be any liability of those persons independently of the offender.
(d) If there is to be a "totting"
system or "escalator" (see Paragraphs 14-16 of the Paper)
this will have to be administered locally by Police or the Magistrates
Court, or via the CRO. Putting to one side the obvious administrative
and resource issues here, we believe this is a strong factor against
the idea of issuing any Notices in the street.
(e) Ancillary powers are the subject of much
of this Response. We do not repeat the points here. We suggest
that the legal issues which we have identified make the issue
of Notices in the street an untenable idea for most of the offences
in question. The issue of a Notice at a Police Station, at the
stage of charge or notice of intended prosecution, as an administrative
alternative to a Court hearing, is unobjectionable.
14. Despite the predictable crass reporting
in the media, we take it that there is no question of "on
the spot" payment. For reasons too obvious to list this would
be totally objectionable.
Philip Katz QC