4.21 The question of the human rights compatibility
of the civil penalties provisions in the Bill, which was not dealt
with in the reports of the previous committee on the Bill, has
also been raised in evidence from NO2ID.
4.22 The Bill provides that a civil penalty of up
to £2500 may be imposed against a person subject to compulsory
registration who fails to register his or her details on the National
or fails to take required steps to verify information about him
or herself entered on the Register by for example, allowing photographs
or fingerprints to be taken either on entry onto the Register.
Failure to provide verifying information where this is required
subsequent to registration can result in a civil penalty of up
to £1500. Repeated
failures to register when required to do so will result in repeated
civil penalties of up to £2500.
4.23 Civil penalties of up to £1000 may also
be imposed on persons subject to compulsory registration who do
not acquire a valid ID card within a specified period
or, on application for an ID card, fail to provide verifying information
to ensure a complete, up to date and accurate entry on the Register.
4.24 Any individual to whom an ID card has been issued
(under either a voluntary or a compulsory scheme) may be liable
to civil penalties of up to £1000 for failure to notify the
Secretary of State of any error in his or her record on the Register
any relevant change of circumstances (such as a change of name
or address) within a prescribed period, or failure to provide
verifying information in relation to any such error or change.
Civil penalties of up to £1000 may also be imposed on anyone
who fails to notify the Secretary of State that their ID card
has been lost, stolen, damaged, tampered with or destroyed
or anyone who is in possession of an ID card without lawful authority
or has failed to meet a request of the Secretary of State to surrender
4.25 Civil penalties are imposed by the Secretary
of State. A person
given notice that a civil penalty is to be imposed may object
to the penalty on grounds that he or she is not liable to it;
that in the circumstances the penalty is unreasonable; or that
the amount of the penalty is too high.
The Secretary of State in response may cancel, reduce, increase
or confirm the penalty.
An appeal to the county court by way of rehearing may be made
from any penalty order on grounds of liability, unreasonableness
or the amount of the penalty.
4.26 The classification of these penalties as civil
penalties in the Bill does not determine their classification
as civil or criminal under Article 6 ECHR, which protects the
right to a fair hearing both in the determination of civil rights
and obligations, and in the determination of a criminal charge,
but provides for additional due process guarantees where a criminal
charge is determined, including the presumption of innocence under
Article 6.2 and criminal procedural rights under Article 6.3.
The term "criminal charge" in Article 6 has an autonomous
proceedings are to be considered civil or criminal under Article
6 will depend on three primary factors: the classification of
the proceedings in domestic law; the nature of the offence; and
the severity of the penalty that may be imposed.
The second and third elements of the test carry more weight than
4.27 The nature of the offence is more likely to
be criminal where the rule giving rise to the offence is of a
generally binding character, rather than applicable only to a
defined group; where
the aim of the law is punitive or deterrent;
where conviction is dependent on a finding of culpability;
and where proceedings are instituted by a public body with general
powers of enforcement.
4.28 The civil penalties imposed under the Bill are
likely to be considered to have a punitive and deterrent in seeking
to enforce compliance with the ID cards scheme. Although they
do not depend on findings of culpability, they are imposed by
the Secretary of State. The range of their application would for
the most part depend on the extent of application of a compulsory
registration scheme, but universal application of these penalties
would be a possibility under the Bill. The levels of the penalties
are high, particularly since they are likely to apply to members
of the general public to whom sums of £1000 or £2500
may be substantial. Although these are maximum figures, the Article
6 jurisprudence makes clear that it is the level of severity of
the potential penalty that may be imposed, rather than the penalty
actually imposed in a particular case, which is determinative
of whether there is a criminal charge.
A substantial penalty, with a punitive and deterrent purpose,
may be sufficient to render the penalty criminal, and attract
the criminal procedural protection of Article 6.
4.29 In our view, given the levels of potential
penalties and their punitive and deterrent purpose, there is a
risk that the civil penalties under the Bill would be seen as
criminal in nature and therefore as attracting the protection
of Article 6.2 and Article 6.3. There is nothing on the
face of the Bill which would prevent the procedures for implementing
civil penalties from complying with the criminal standards of
due process established by Article 6. Whilst we do not
consider the Bill's civil penalties regime is likely to be contrary
to the Convention rights, in our view its compliance with Article
6 would best be assured if the procedures for imposition of penalties
under the Bill aim to comply with Article 6 criminal due process