Clause 2 - Penalty notices

Criminal Justice and Police Bill – in a Public Bill Committee am 10:30 am ar 13 Chwefror 2001.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs) 10:30, 13 Chwefror 2001

I beg to move amendment No. 15, in page 3, line 11, at end insert—

`(6)(a) Any person who, in connection with the giving of a penalty notice by a constable under this section, knowingly or recklessly gives that constable relevant information which is false in any material particular shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(b) In this subsection, ``relevant information'' means the name, address and date of birth of the person to whom the penalty notice is to be given.'.

I welcome you to the Chair, Mr. Hood. At our first sitting, when welcoming Mr. Gale to the Chair, we said that we knew that you, too, would deal with us firmly but in your usual charming and pleasant manner.

The amendment would create an offence of giving false particulars to an officer when a fixed penalty notice is being issued. Given the range of offences in clause 1, there must be a risk that the accused will give false particulars to the officer, such as the wrong address, date of birth and name. That already happens in public disorder incidents. The amendment is designed to deter such behaviour. It is difficult to identify individuals out on the street. The Justices' Clerks Society said that fixed penalties for motoring offences work well because the vehicle number plate and the driver's licence identify the offender. Those advantages would not apply with fixed penalty notices. It would be helpful to have the Minister's view on the likely risk of false details being given and the steps that he thinks should be in place to avoid that happening.

The Association of Chief Police Officers has also expressed worries about notices being issued in the street. It fears that offenders would be unlikely to co-operate with the police in such circumstances. We have only to consider the nature of the penalty offences to realise the risks of drunk, violent offenders being asked to co-operate and give certain details. Even if the police receive details from them, the question arises whether such information is reliable. Unless the offender is quiet and sober, he will have to be taken to the police station—but if he is quiet and sober, he is unlikely to have committed an offence and been served with a fixed penalty notice. How could a police officer rely on the details that a person has given in the street without checking them at the police station?

In reply to the consultation, Sir Edward Crew, chief constable of West Midlands police, said:

``Without doubt the most significant area of concern expressed by colleagues was that the issue of Fixed Penalty Notices, as shown in the consultation paper, would mainly take place on the street. In view of the nature of offences likely to be covered by the . . . system, it seems more appropriate and likely that suspects would be arrested, and the FPN issued in custody as an alternative form of disposal. It would be inappropriate and highly unlikely, for example, that officers should issue tickets to those either drunk, violent, or both. Such offenders may not understand the consequences of a Fixed Penalty Notice and would be unlikely to co-operate with the officer or comply with the payment of the ticket once issued.''

The consultation paper also lacks detail about the custody process.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

The Criminal Bar Association expressed similar anxieties. As we said in the first sitting, the association's response to the Government's proposals emphasised encapsulating the problem that disorderly drunks are, by definition, not in a fit state to be served with a legal document that has penal consequences.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

That is correct. The Parliamentary Secretary almost conceded that serving a fixed penalty notice on someone who was obviously drunk or not in a quiet and sober condition would be impossible.

Photo of Stephen Ladyman Stephen Ladyman Llafur, South Thanet

The Opposition seem determined to push a one-size-fits-all approach for the police. The clause is intended to give the police choices. If the policeman is satisfied about the details given and the ability of the person involved to understand what is happening, he will issue a standard penalty. If not, he will take the person to the police station. Why are the Opposition against giving the police choice?

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

If the Opposition were making the point without support, I would have some sympathy with the hon. Gentleman and it might be considered simply as part of the ebb and flow of party political debate. However, we are probing the Government and our case is that the ACPO, which is probably one of the most expert bodies on policing, says that offenders will be unlikely to co-operate with the officer involved.

The Opposition are not being unreasonable in suggesting that false details are a risk. Indeed, that point has also been made by the Justices' Clerks Society, which says that the matter is different in that context from motoring offences. The Police Federation itself is worried about the issue and wants Government guidance on what offences and incidents should be covered. Sadly, because the Bill is being rushed through the House at short notice and is being presented as a great plank of Government policy, even though little thought has gone into it, we do not have the draft guidance that the Minister himself has said three or four times is essential to understanding the provisions.

It is not entirely fair to suggest that this is a baseless attack. Our amendments are rooted in the expertise of the police service from top to bottom and we hope to receive answers that satisfy us. I do not believe that the hon. Member for South Thanet (Dr. Ladyman) would seriously suggest that a drunken youth committing threatening behaviour or a youth found drunk in the street is unlikely to say that he is called Mickey Mouse and lives at an address made famous by Tony Hancock. People do that already. We need a practical way of tackling that problem and the offence suggested in the amendment is one such way. We all wait with bated breath to hear what the Minister says about issuing notices on the street, given the real risk of false particulars being offered.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I am happy to serve under your chairmanship, Mr. Hood—for the first time, I believe.

I apologise to the hon. Member for North-East Hertfordshire (Mr. Heald) for not having been here for the first few moments, but I anticipated his line of attack and am sympathetic to it, as he would expect. He is attempting to deal with what is the practical issue for most of the offences listed in the Bill. He is confronting the reality of life on the street, which we discussed last week, which is that most people confronted with an officer walking toward them would not hang around to receive a fixed penalty notice—they would scarper and would certainly not give their name. As I said last week, if I were in that situation I would certainly scarper and not give my name. Nobody is asking to be nicked and done; that is just not the real world.

Therefore, although I am sympathetic to the proposal, it compounds an unsatisfactory procedure with another unrealistic offence. We will get more offences on the statute book that are unlikely ever to achieve anything. Trying to find and then prosecute people who have no money and who are unlikely to be compliant strikes me as unsatisfactory. It would be far better to do as was implied both in suggestions from some police organisations and in our debate last week: not to give the police the choices for which the hon. Member for South Thanet was arguing, but to provide for fixed penalty notices to be issued at the police station. Pretty well all the offences are ones where people are likely to be antagonistic and reluctant to co-operate and give their name, but if the police manage to lay their fingers on someone's collar and get him into the police station there is a realistic chance of discovering who he is and giving him a fixed penalty notice.

Photo of Ms Helen Clark Ms Helen Clark Llafur, Peterborough

Does the hon. Gentleman agree with the National Association of Probation Officers that the majority of misdemeanours involve not an officer on the spot apprehending someone committing a crime but other individuals reporting information to the police? We should not continually talk about officers on the street nabbing people committing crime. Does he agree that we need to build into the process provisions to ensure that people are not reported on in their absence and discriminated against? NAPO mentions particular groups—gay men, black people and Irish people—who are already at risk. Should we not build in a provision to ensure that discrimination is not enshrined but removed?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

The hon. Lady makes a good point, which is certainly supported by the professional body to which she refers, and is an argument in favour of having the procedure dealt with at the police station. It would be even more nonsensical for people to be served with a fixed penalty notice on the street on the basis of information, without any direct police observation of the offence. There are many hoax calls; youngsters will often suggest that someone else is creating trouble, and some will willingly allow others to be caught for serious crimes. The police regularly receive false information on who committed an offence.

The proper conclusion is that if we are to have fixed penalties, they should be imposed either where the vehicle, bicycle, litter or dog poo is—where there is something visible, which can be linked to an individual—or they should not be served in the street. The process should at least be carried out in the police station, where there are proper control procedures and there is not the same risk of getting the person or the procedure wrong.

Photo of Stephen Ladyman Stephen Ladyman Llafur, South Thanet 10:45, 13 Chwefror 2001

I have no doubt that most penalty tickets will be issued at the police station, as the police will decide that that is the only sensible thing to do. There will be circumstances, however, in which the policeman recognises the individual and it is appropriate to administer the fixed penalty ticket on the street there and then—the modern equivalent of a clip round the ear. Why should we not give the police that choice when it is appropriate?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

Because we have not piloted the scheme; most of the offences are not conducive to it; it has the wrong bureaucratic procedure following it; justice should be administered in the courts, not on the street; and it is disadvantageous to people on low incomes and of low intelligence and ability—all the reasons that I have used to argue against the process as a whole. I do not want the police, on an unpiloted, untested and untried scheme, to have that new power. They do not need it, it would not help them, and, by and large, it provides additional opportunities for bureaucracy. It puts the cart before the horse—the whole thing is the wrong way round.

The presumption should be that there would be a trial of the case, if there is a charge, and normal due criminal process. I would be much more favourably disposed to a system that then allowed people to opt for fixed penalty options. If the hon. Gentleman were charged, in the normal way, with being disorderly in the street, he would usually be taken to court. He could then ask for the matter to be dealt with by fixed penalty notice and fine. That would be much quicker and shorter, but it should be at his instigation, not that of the police.

Photo of James Gray James Gray Ceidwadwyr, North Wiltshire

What the hon. Gentleman says about most fixed penalty notices being dished out at the police station is of eminently good sense. It is supported by the police organisations, and is broadly the purpose of the clause. None the less, the amendment is not about fixed penalty notices dished out at the police station, as by and large people will by then be sober and giving the correct information. It is about penalty notices dished out on the spot in the middle of the night. The Prime Minister, memorably, said:

``There should be on-the-spot fines for those people who engage in disorderly conduct . . . summary justice, on the spot, is the essence of the proposal.''—[Official Report, 5 July 2000; Vol. 353, c. 323.]

We consider that a bad principle, but that is what we are discussing. Under the amendment, if an on-the-spot fine were given to a drunkard the night before, and he gave false information to the police, he would be criminally liable.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I understand that, but it compounds the problem. If the hon. Gentleman had had a few too many, and was going home through the middle of Chippenham on a Friday night—which I am sure has not happened once in his whole career—he might not be overly keen, for all the reasons given, and not least because he is the constituency Member, to volunteer his correct name. There are many examples of people, in high office and low, who do not immediately volunteer their correct name. If a person is pissed—let us be crude and straight about this—he is much less likely to volunteer his correct name. He is likely to see it as a bit of a laugh and a joke and try to get out of it in all sorts of ways. If he is 18 and pissed, he would not normally volunteer his correct name. If a person is extremely pissed, he is probably incapable of giving his address.

The reality is that this species of criminal procedure is likely to be targeted on people who probably do not have much money, or who are likely to be disadvantaged. Those are the people who are likely to be charged with a further offence, making them more and more criminal, although the purpose of the fixed penalty notice is that it is not a criminal but a civil penalty procedure. The hon. Gentleman's perfectly reasonable suggestion for perfectly reasonable people behaving in a perfectly reasonable way when they are stone cold sober would make them criminals if they refused to give their name and address, which refusing to accept the fixed penalty notice would not do. I understand his point of view, but it will make a bad position eminently worse, and more people will have criminal records The Government's aim seems to be that lots of people should have criminal records and that everyone's DNA samples should be kept. That is not my aim: I want fewer people with criminal records and as many people as possible to be disposed of in a way that does not involve the criminal justice system.

Photo of James Gray James Gray Ceidwadwyr, North Wiltshire

An example has sprung to mind, although I give it hesitantly. There was a well-known case of a young drunken yob being arrested not so long ago in Leicester Square, who gave his name as Euan Cameron and failed to give his last name. That is a good example of the kind of thing that we have in mind.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

The hon. Gentleman gave the example that I assume we all had in mind. I am sure that Euan Blair is a perfectly decent young bloke, who is growing up in difficult circumstances, as his father is the Prime Minister and his mother is also well known. It must be dire for him—the poor bloke's liberty must be restricted more than anyone else's in the country. I am sorry for him and wish him all the best, and do not blame him in the slightest for not wanting to own up to who he was. As it happens, he is under 18, but I would not blame him for making the same decision if he were over 18, just as I would not blame Prince William if he went out on a stag night while he was at St. Andrews—should the law apply in Scotland—and did not want to own up to who he was. I would not want to do so myself, and most sane, sober people, waking up in the morning, would not think that it was a good idea.

We should not make laws for a ridiculous, authoritarian, unbelieving, unreal world. We should concentrate on useful proposals for real reform of the criminal justice system, and not entertain such ridiculous ideas, which are drawn from the speech made by the Prime Minister when he tried to think up two easy, good ideas before breakfast.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

Listening to the hon. Gentleman, I am reminded of what the Prime Minister said. He said:

``Bizarrely, as the law stands, the police have the power in Britain to levy on-the-spot fines for cycling on the pavement and dog fouling. And yet they have to deal with drunks who get offensive and loutish and often can do nothing about it without a long, expensive process''.

Does the hon. Gentleman think that handing out these notices is at all akin to the process for cyclists on pavements and dog fouling? Is there not an essential difference between the type of offence and the sort of situation in which those notices would be given? Most people who cycle on pavements and do dog fouling—or, at least, their dogs do it—are not necessarily drunk, angry and in a confrontational frame of mind.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I agree entirely. We are approaching the issue in the wrong way. People are often drunk on the step of my constituency office in Bermondsey, because it is in a building owned by the Methodist Church, which runs various good projects that include a weekly Alcoholics Anonymous session. Dealing with a bloke curled up with his cans of lager by giving him a fixed penalty notice would be barmy. One needs to deal with his alcohol problem, not give him a fine.

Those who are regular offenders in the street and drink too much cannot be dealt with by such notices. They would simply build up a dialogue with the law, which is not helpful to anyone and does not deal with the causes of crime and misbehaviour. I agree that we should identify the offences that can be dealt with properly through that process, such as offences connected to vehicles. Cars normally have number plates and are of a specific colour and model, and most people are on the list of the vehicle registration system, so they are easy to track down. That is not the case with the offences that we have been discussing.

The system lends itself to abuse and contains the risk that police would regularly target people if they did not like them. Most police officers are brilliant, but some are not, and I would be cautious about giving the police powers that allow them to pick on the same people all the time, without allowing those people the possibility of a fair hearing.

Photo of Ms Helen Clark Ms Helen Clark Llafur, Peterborough

Does the hon. Gentleman agree that, as with other topics that we discussed last week, we are perhaps in danger of falling prey to tunnel vision by interpreting the use of fixed penalty notices as a drunks charter? Especially with the age group that we are discussing, I have observed instances when I could put hand on heart and say that not a drop of alcohol has been touched, but disorderly and unsuitable behaviour has still occurred. A couple of days ago, I observed an incident of charging and harassment on the London underground that was in danger of causing a stoppage. Does he agree that we should widen our discussion from abuse of alcohol?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

The hon. Lady is right: the offences are not only alcohol related. I wish that the Government had sat down with Conservative and Liberal Democrat spokespeople and others to decide which offences would reasonably fall into this category. I am not against the principle of fixed penalty notices for the right offences, but most of the offences in the Bill are not the right ones. It might be reasonable to have fixed penalty notices for people misbehaving on the underground, but if we apprehend people in enclosed spaces, there could be a risk of their overreacting. I want to have an intelligent debate on such matters, but until the Government are willing to engage in it, carte blanche agreement to a list of offences, most of which raise severe practical problems, is inappropriate.

I hope that this is intended as a probing amendment, but it proposes a road of no return. People would be issued with a fixed penalty notice, and if they then gave a wrong name or resisted receiving it, both of which would be entirely understandable, that would be a criminal offence. That would be going in completely the wrong direction, and the sooner we can reduce fixed penalty notices to what can be properly dealt with and reasonably managed after some piloting, the better.

Photo of Sir Nicholas Lyell Sir Nicholas Lyell Ceidwadwyr, North East Bedfordshire

I regard this as a probing amendment. I think that it highlights the dilemmas that surround the great extension of the use of fixed penalty notices. Obviously, to give people a fixed penalty notice, one needs their name and address, and especially in the cases of drunkenness and consumption of alcohol in a public place, there is a real risk that the police officer will be given false particulars. Plainly, without some check on that, officers will be left increasingly frustrated, and will use the power only in cases where they already know the name and address of an individual.

There is a real dilemma about whether we should add a further offence of giving a false name and address. I note that under section 5(2) of the Criminal Law Act 1967, it is an offence to waste police time or give false report. Does the Minister regard giving a false name and address in answer to a question to enable a constable to issue a fixed penalty notice as giving false report, or does that have to be at the initiative of the individual concerned, rather than in response to a request for information? If the provision has the wider meaning, an officer may be able to use it if a false name and address is given.

The irony of such action is that it would enable another fixed penalty notice to be issued at the same time. Let us suppose that we want to enable the police station to become a mini police court and avoid the whole aspect of court procedure. If we were wedded to such an idea, that would not be wholly stupid. If, at the time when a person was issued with a fixed penalty notice, he put up his hands and it was discovered that he gave a false name and address, it will cost him a further £40, instead of the matter being taken in front of the magistrates court.

It has been rightly pointed out that the Prime Minister started a large number of hares by his suggestions that culminated in the Bill. At present, it lacks something if it gives the officer no opportunity to respond to a person who gives a false name and address and to issue proceedings again for such action. Consequently, I am inclined to support the amendment. It is certainly helpful and rightly teases out the proper issues, but I shall listen carefully to the Minister before I decide what action to take.

Photo of Crispin Blunt Crispin Blunt Ceidwadwyr, Reigate 11:00, 13 Chwefror 2001

Like my right hon. and learned Friend, I am inclined to support the amendment. I listened with care to the arguments of the hon. Member for Southwark, North and Bermondsey (Mr. Hughes). He went through the agonies of someone who regarded the fixed penalty notice regime in proper policing as a red herring. We debated the offences for which fixed penalty notices will be issued when we discussed clause 1. We now have to wrestle with making the system work. It will not work without there being serious consequences for those whose automatic reaction when faced with a fixed penalty notice is to run away or give a false name and address and who are, in effect, negating the system by taking the actions to which the hon. Gentleman referred.

For the system to work, which is a departure for the police in how they deal with minor misdemeanours, it will have to be backed up by serious penalties for those people who are subject to it and then obstruct it. The amendment would do that. My only worry is that it refers to

``a fine not exceeding level 3 on the standard scale.''

Let us consider the experience in Holland, which has acquired an enormous reputation as a liberal country. The Association of Chief Police Officers said that when people do not pay the fines for street trading in Amsterdam,

``Non payment of FPNs in Amsterdam is punishable by an automatic 3 day custodial sentence and whilst this may seem draconian, it is essential that a FPN system is supported by rigorous enforcement to ensure that FPNs continue to be an effective deterrent.''

We shall come to what happens in cases of non-payment when we debate clause 4. Failing to give one's correct name and address is the same as seeking to escape the system by providing the police with false information. There should be an explicit penalty for obstructing the process; that should be clear and associated with the legislation that we are passing on fixed penalty notices.

My right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell) made a point about the link between giving false information to the police under other legislation. He is a lawyer but I am not, and I do not understand the detail of that point. I hope that the Minister will make it clear whether the legislation whereby people are deemed to commit an offence by failing to provide the police with proper information could be linked directly to these provisions. If there is no such link, or if there is any element of doubt about it, the penalty proposed by my hon. Friend the Member for North-East Hertfordshire should be in the Bill.

A level 3 fine might not be sufficient, however, because those who put their hands up to an offence punishable by a fixed penalty notice may thereby avoid the full panoply of a trial and criminal record. They should be subject to serious sanction if they muck about with the police. If people were not discouraged by the level 3 fine, they might waste police time by giving false information.

I hope that the Minister will accept the amendment or, if not, come back with a reworked version on Report.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

I, too, welcome you to the Chair, Mr. Hood. Like the hon. Member for Southwark, North and Bermondsey, I have not had the pleasure of serving on a Committee under your chairmanship before, but you were a distinguished leader of a parliamentary delegation to Gibraltar that I was on, so I know about your inspirational leadership.

I want to expound on the concerns expressed by the Criminal Bar Association. I declare my interest, as a member of the Bar. The association is worried about the implications of the matter, as are police officers at the sharp end.

[Mr Crispin Blunt in the Chair.]

I welcome you to the Chair, Mr. Blunt.

I want briefly to quote from an interview given by Fred Broughton, the chairman of the Police Federation, during consultation on the proposals that led to these provisions. I should mention that Fred Broughton consults widely and represents all serving police officers at the sharp end. Of people who have been issued with fixed penalty notices when drunk, he said that

``the following day, they may dispute their behaviour and allege the police acted wrongly. They may try and plead not guilty or propose to plead not guilty, leaving the officer involved reliant on notes and statements from witnesses. The fixed penalty ticket may be an addition to the set of papers that have already been issued . . . we need to test the practicalities of what has been suggested''.

Fred Broughton then commented on the Government's whole range of proposals as contained in the original consultation document:

``Fixed penalty notices, etc, are not going to work when we are given a bogus name and address. People who are under the influence of drink and drugs sometimes don't start to speak sensibly until hours after they have been arrested. So issuing them may not be ideal until we have a good system of identification in place.''

The Police Federation—the officers at the sharp end—does not think that the measures will work, and the Criminal Bar Association has severe reservations. I have referred already to the association's concern about disorderly drunks, who are

``by definition not in a fit state to be served with a legal document with penal consequences.''

The association continues:

``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— in other words, when the owner of the car happens to return as the traffic warden or police officer is issuing the ticket—

``there is occasional unpleasantness for the issuer.''

We are all familiar with reports in the press of serious altercations between owners of vehicles and traffic wardens or police officers—it has been called ``parking rage''. Serious violence has been inflicted on traffic wardens, which has led to criminal prosecutions. As my hon. Friend the Member for North-East Hertfordshire says, fixed penalty tickets work for most motorists, because most are law abiding and accept them. However, even under the current system serious offences of violence can occur to those who issue the tickets.

The Criminal Bar Association continues:

``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.''

My hon. Friend the Member for North-East Hertfordshire made the point that the police and traffic wardens can check the identity of the offender through the registration number or on the police national computer. Under the Government's proposals, an officer would have to check the identity on the spot. The Criminal Bar Association says:

``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''.

That is contained in the Government's consultation document. The association says:

``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.''

That brings us back to the relevant points raised by the hon. Member for Southwark, North and Bermondsey. I would observe that it might be better if his constituency office were in a different place, given all the problems that he has described. Public drunkenness always contains the possibility of further offences, and one would not want the issuing of a notice to aggravate the position further.

The association asks:

``What are the consequences to be if a Notice is issued but subsequently ignored? . . . 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 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 . . . 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 . . . 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.''

We believe that the Government have woefully underestimated the cost of implementation of the Human Rights Act 1998. We may return to the substantive issue of the power of arrest in a later debate.

Photo of Mr David Lock Mr David Lock Parliamentary Secretary, Lord Chancellor's Department

The hon. Gentleman has frequently alleged that the Government the Government underestimated the cost of the implementation of the Human Rights Act. To allow us to understand whether that is political rhetoric or something of substance, will he tell us his estimate of the likely true cost, if it is not the same as the Government's? Does he have evidence of the cost being in excess of the Government's estimate? As he knows, the evidence to date is that the additional work in the courts is substantially lower than we estimated.

[Mr. Jimmy Hood in the Chair]

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath 11:15, 13 Chwefror 2001

I know that you will stop me if I stray too far beyond the terms of the amendment, Mr. Hood. However, I must try to give one answer with which the Minister will be familiar. I and my hon. Friends have said repeatedly during Question Time in the Chamber that the Government certainly did not incorporate in their predictions the huge apparent cost of the modification of a huge number of magistrates courts. Home Office officials are suggesting to local magistrates court committees that, because of the implementation of the Human Rights Act 1998, there will have to be a huge programme of works. It is suggested that there is something degrading about an offender in custody's being seen by members of the public. That has been highlighted in the national press, and has been raised on several occasions by my hon. Friend the Member for North Shropshire (Mr. Paterson). That is one example, of which I could give hundreds, but, Mr. Hood, you would not want me to take up the Committee's time in doing so.

This is a problem that the Government have created. The Prime Minister's obsession with so-called eye-catching initiatives has ended up as a half-baked scheme that is not so much eye-catching as eyewash.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

Forty-six minutes into this morning's debate, I, too, welcome you, Mr. Hood, as Chairman of the Committee. You have already had a brief summary of the way in which our business is being conducted. I want to respond to several points.

The opposition in principle to the proposals has been set out most clearly by the hon. Member for Southwark, North and Bermondsey. I want to respond to his point about consultation. If I may draw the Committee's attention to the matter, we published a consultation document in September 2000. Paragraphs 9 and 10 of that consultation document answered the question of what offences involving disorder should be covered by the fixed penalty system, and listed them in detail. Paragraph 19 of that consultation document says:

``The Government would welcome comments on the following questions''.

It lists them again and gives the name and address of an official at the Home Office to whom details can be sent.

I have a list of organisations that responded. There were 111—which those of us from Norfolk refer to as a Nelson—including the main professional organisations to which reference has been made, a range of trade organisations, a range of police organisations, a range of legal organisations and a range of councils and probation services. It is a comprehensive list, but the Liberal Democrats do not feature in it. Why? I do not know. An open and public consultation took place, and the hon. Member for Southwark, North and Bermondsey could have responded if he had thought it appropriate. He decided not to do so. The hon. Gentleman made it clear in the clause 1 stand part debate that he was against such penalties in principle. I was grateful that, in his intervention, the hon. Member for North Wiltshire (Mr. Gray) confirmed that he was also totally opposed in principle to such penalties. The official Opposition and Liberal Democrats voted against clause 1 stand part. The Opposition Whip, in his intervention, confirmed that the Opposition are in principle opposed to the use of the fixed penalty notice.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

As the Minister knows only too well, the Opposition have made it clear throughout that they are in favour of the principle. During the stand part debate, I made it clear that, in the event that the proposals with which we disagreed were voted down, we would table a new clause on Report to reinstate fixed penalty notices, but with the necessary safeguards.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I heard the hon. Gentleman, but Hansard will bear out that the Opposition Whip made it clear that he was opposed in principle to fixed penalty notices.

Photo of James Gray James Gray Ceidwadwyr, North Wiltshire

As I was not present, I did not hear the reference to me. If I indeed erred—we shall find out tomorrow when we read the record—I did not intend to suggest that I oppose the principle of fixed penalty notices. I am certainly not qualified to speak for Her Majesty's loyal Opposition. I speak merely as a Back Bencher. I wholeheartedly favour fixed penalty notices; it is the means by which they are applied that we are trying to correct in Committee. I hope that I did not mislead the Minister.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I am genuinely grateful to the hon. Gentleman for clarifying his position on the matter. I was referring to the speech of the hon. Member for Southwark, North and Bermondsey and the intervention that the hon. Member for North Wiltshire made on that speech. I may have misunderstood that intervention, and I am grateful for that clarification. The fact that the official Opposition voted against clause 1 will remain on record.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I do not understand why the Minister misunderstands, or misrepresents, the matter. Fixed penalty notices are the proper response to some activities, as I said last week. However, as I said then, most of those listed are not among them.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

In the debate on clause 1, the hon. Gentleman correctly went through the offences, explaining that the proposal was either too heavy or not heavy enough in each category and explaining his party's position. Although I did not agree with his party's position, I thought that he explained it clearly. He also suggested some offences to which he would be prepared for fixed penalty notices to apply. However, he made it clear that the reason behind his voting on clause 1 stand part was that he did not agree with the offences specified in clause 1. My observation on his observation on consultation is that a consultation was held, to which the Liberal Democrats did not respond.

Photo of Sir Nicholas Lyell Sir Nicholas Lyell Ceidwadwyr, North East Bedfordshire

I am sure that the Minister understands, but we should have on record whether he agrees that people's view on the principle of the Bill is expressed on Second Reading. How one or more Members or an Opposition party vote on a clause in the stand part debate does not necessarily relate to whether they oppose the clause in principle. They may well vote against the clause standing part because they believe that it ineffectively achieves what it is intended to do or has other undesirable aspects.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I understand that point, and I am sure that when the Conservative party's position is explained to John Humphrys on the ``Today'' programme, the subtleties of that will come through. I was struck by the fact that in the clause 1 stand part debate the Liberal Democrat spokesman clearly explained his position and the reasons for it, and subsequently decided to vote against the clause, and the official Opposition decided, in what I thought was a spirit of me-tooism, to join the Liberal Democrats in that Lobby in that debate for no clear reason in principle. The hon. Member for North-East Hertfordshire made his usual fluent and effective defence of what was effectively an indefensible position.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

The Minister will recall that, following ACPO's suggestion, we did not want criminal damage to be included in that clause. The Minister failed to meet our demands on that. He subsequently made the concession that fixed penalty notices would not be issued in cases of criminal damage that involved a direct victim. Does he agree that what we did worked?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

The position that I stated was the position that we had taken throughout—but enough of such party politics.

Photo of Crispin Blunt Crispin Blunt Ceidwadwyr, Reigate

On a point of order, Mr. Hood. I am glad that the Minister has finally said that we had had enough of such party politics. You will be aware of directions from Mr. Speaker in the Chamber about the propensity of Ministers to talk about the official Opposition's policies. We have had a rather lengthy discourse from the Minister about the Conservative party's position on clause 1 and what we meant by voting against it, and my hon. Friend the Member for North Wiltshire had to explain the Conservative party's position. Would it be possible, bearing in mind Mr. Speaker's guidance, for guidance to be given about whether Ministers should confine themselves to their own responsibilities rather than discussing those of Her Majesty's Opposition?

Photo of Jimmy Hood Jimmy Hood Chair, European Scrutiny Committee, Chair, European Scrutiny Committee

The hon. Gentleman will know that I always take Mr. Speaker's guidance, and had the Minister been out of order, I would have told him so.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

Thus far, I have been speaking for eight minutes, and the previous 46 minutes were taken up almost entirely by Opposition Members. Indeed, a significant part of my eight minutes has been taken up by interventions, and I am now trying to deal with the various points made in the debate, which some may consider to have run widely.

The issue of discrimination raised by the hon. Member for Southwark, North and Bermondsey is obviously important in all conduct of police business. We do not believe that it is exacerbated by the availability of fixed penalty notices. The right to trial remains completely without qualification; the fixed penalty notice is not a coercive power. The hon. Gentleman's suggestion—I think I am paraphrasing him correctly—that someone will be repeatedly picked on if the police do not like him is unsubstantiated; there is no evidence that the existence of the fixed penalty notice exacerbates those powers in any respect.

On criminal records, I remind the hon. Gentleman that the payment of the fixed penalty notice leads to no criminal record. If the hon. Gentleman wants to reduce the number of criminal records, he should be supporting our fixed penalty notice legislation. Indeed, one reason for the fixed penalty notice from its inception was to make the whole justice process more rapid and effective, in a way that means fewer criminal records, although never taking away the right of individuals to go to court if they so wish.

Photo of Sir Nicholas Lyell Sir Nicholas Lyell Ceidwadwyr, North East Bedfordshire

For clarification, is the fact that someone has paid a fixed penalty notice recorded in any way; and if so, is it open for that fact to be referred to in future court proceedings for other offences?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

We debated that at length during our previous sitting. The fact is that we do not have a comprehensive national system of recording fixed penalty notices, but we expect individual forces to hold records of what has happened. However, that is not a criminal record, and so does not stand on the record in the way that the right hon. and learned Gentleman suggests.

Let us get back to the amendment. We have spent a lot of time hearing interventions from Conservative Committee members in what was nevertheless a serious debate. Identity problems are nothing new—that is self-evident—and the police have a great deal of experience with dealing them. The amendment concerns the remedies available should false identification be provided, as was stated by the hon. Member for Reigate (Mr. Blunt), who made a speech that was to the point. The Government's position is that correct identification details are essential to the efficient operation of the new system, as they are in every aspect of police rights across the system.

Obviously, not every offender engaged in disorderly or anti-social behaviour will volunteer correct information when first asked, whether because of particular circumstances such as those adduced or because they take the advice of the hon. Member for Southwark, North and Bermondsey that when approached by a police officer, the best thing to do is to leg it. For that reason, we have a range of safeguards to deal with the problem, and our considered view is that the safeguards that I shall now cite make the creation of the new offence unnecessary. However, I take seriously the points that the hon. Member for Reigate made so clearly. I hope that he will consider carefully what I am about to say about the specific safeguards.

The Bill includes a power for the Secretary of State to issue guidance to the police about the issue of notices and the exercise of discretion under the new scheme. I should clarify—this may offer an assurance to the hon. Member for North-East Hertfordshire—that we intend to issue guidance making it absolutely clear that penalty notices should not be issued while identification is in doubt, for exactly the reasons stated and as is general practice, and that powers are available under the Police and Criminal Evidence Act 1984 to arrest offenders and take them to a police station for identification to be established. I believe that that meets the point made by the Association of Chief Police Officers, and I can give a further assurance that ACPO will be fully involved in the drawing up of such guidance.

We believe that the deliberate telling of a lie to a police officer in these circumstances could constitute an offence of wilfully obstructing a constable in the execution of his duty under section 89(2) of the Police Act 1996. I say to the right hon. and learned Member for North-East Bedfordshire that that offence is a more accurate description of the sanction than wasting police time, although it does offer an alternative route. Giving false information to the police is a serious matter and it is not unique to the fixed penalty notice.

If a penalty notice were completed with false particulars about the offender, they will relate probably to a person unconnected with the offence. If so, the first that that person is likely to know about the matter is when he receives a notice informing him that a fine has been registered against him. We have included special provision under clause 12 to deal with such a situation. A default court considering such a case will have the power to adjourn to allow the claim that the named person did not commit the offence to be investigated. It will then have to accept the claim, unless the contrary can be shown, and has the power to set aside the fine in the interests of justice. If it does not direct that no further action is to be taken, it must direct that further consideration is given to the case, as appropriate. That might include steps being taken against the offender who committed the penalty offence.

If a juvenile offender falsely claims to be more than 18 years old and, as a consequence, is issued with a penalty notice, the notice will be void and, provided that the offender is informed of that—and why—and any payment is returned, it will be possible to deal with the juvenile for the offence in any way that would have been available had the notice not been issued.

The four safeguards in the Bill are the guidance that will be issued; the fact that powers under the Police Act 1996 can be used; the procedure under clause 12 to deal with false particulars; and the provisions to deal with the possibility that a youth offender claims falsely to be over 18. They provide sufficient ways in which to handle the provision of false particulars. A further offence will not be necessary.

Photo of Crispin Blunt Crispin Blunt Ceidwadwyr, Reigate 11:30, 13 Chwefror 2001

The problem with the Minister's explanation arose when he said that such powers could relate to section 89(2) of the Police Act 1996. It would have been better if he had used the word ``would''. When a police officer is trying to obtain details for the issue of a fixed penalty notice, such action should be linked explicitly to section 89(2) of the Act, so it would be clear to the courts that the offender

``wilfully obstructs a constable in the execution of his duty''.

He said ``could'', not ``would'', but that risk should not be taken.

I am worried about the Secretary of State's guidance, to which the Minister referred. We have not seen the details of that guidance and it will be difficult for us to debate clause 6 without them. He said that the guidance will include the provision that no fixed penalty notice shall be given when identification is in doubt. Well, if that is to be the standard practice, fixed penalties will never be issued.

Let us suppose that someone is wandering around with a wallet that he nicked from someone and is able to produce a driver's licence or some other identification that was not his. Unless the same standards of proof are demanded as would be obtained from photo-identity cards to establish correct identification, in almost all circumstances fixed penalty notices will not be handed out. It is unlikely that people in those circumstances will be carrying such identification, so the system will not work. There will have to be an element of doubt. The police will have to make a judgment.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I undertook last Tuesday to do my best to ensure that the Committee has the draft guidance before it rises. That is my intention and I take this opportunity to reiterate it.

On the point about ``could'' or ``would'', the reason that I said ``could'' is that I am not a judge, and I hope never will be, and it is not for me to pre-empt the decision of a court on whether the Police Act 1996 has been breached. The power in the Act, which refers to someone who

``wilfully obstructs a constable in the execution of his duty'' is rightly widely drawn, to give the courts proper discretion to deal with particular circumstances. The Government consider that failure to co-operate with a police officer in relation to fixed penalty notices would be something that a court could consider in that context, but it is not for me as a Minister to prejudge the court's decision.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

Am I right in thinking that all the ways of dealing with non-compliance, whether as proposed in the amendment or in the ways that the Minister described, would produce a criminal offence and a criminal record? If so, have the Government made any assessment of how many additional criminal offences are likely to flow in any year from the operation of the fixed penalty notice system?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

We have not made such an assessment because, unlike the hon. Gentleman, I believe that the incidents that we are discussing will not happen a great deal. It is impossible to predict exactly what will happen. On the question of criminal offences, if one

``wilfully obstructs a constable in the execution of his duty'', that is a criminal offence. I am not sure whether the other measures are criminal offences, but I shall return to that later, if I may, rather than giving an off-the-cuff answer.

I urge the hon. Member for North-East Hertfordshire to withdraw the amendment.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

We have had a good debate, and the Minister has tried to reassure us, but we remain concerned on several grounds. First, yes, there will be guidance; yes, the Minister has told us what will be in it; and yes, he tells us that we will have it before the Committee rises. What sort of help is that? We need the guidance before we discuss the clauses to which it is relevant. It is not good enough to say that we will have it on the last day. Why cannot we have it now?

Secondly, although I accept the Minister's assurance that he will do his best to cover the point in the guidance, until we have seen the detail, that is no replacement for the law, which is what the clauses deal with.

Photo of Sir Nicholas Lyell Sir Nicholas Lyell Ceidwadwyr, North East Bedfordshire

The Minister reaffirmed today that we are not sitting next week. Would it not be reasonable to ask him to provide the guidance before the start of our sitting the week after that?

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

That is a very sensible suggestion. I do not know whether the Minister will intervene at some point to tell us his exact timetable. If we received the guidance on the morning of 8 March, that would be a pointless exercise—useful on Report, but not in Committee.

The Minister may well be right to say that the offence under section 89(2) of the Police Act 1996 would cover some relevant situations, but I was not convinced that even he was convinced that it would necessarily cover them all. I know that in other recent Bills the Government have thought it necessary to create offences of that sort—there was one in the Vehicles (Crime) Bill. It would be helpful in deterring those who may use false particulars to have a specific offence related to the circumstances that is well known, and which would highlight the position.

I was grateful for the other two assurances that the Minister gave but, on balance, it is right to press the amendment to a Division, although I will take great account of what my hon. Friend the Member for Reigate said about whether the penalty was sufficient. I rather like the idea of the Amsterdam proposal of a three-day period of imprisonment, and we can discuss that before Report stage.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 11.

Rhif adran 5 Adults Abused in Childhood — Clause 2 - Penalty notices

Ie: 5 MPs

Na: 11 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

We dealt earlier with most of the issues that arise under clause 2, but there was the lingering problem of what is the effect of paying the penalty as regards the discharge of liability to be convicted under subsection (4). Can the Minister confirm that that administrative disposal means not that an offence has not been committed, but that there is no finding of guilt when the fixed penalty is paid? He suggested that it will be possible for a record to be kept, especially if a fixed penalty notice is not paid; he also said that for a short period records may be kept of fixed penalty notices that have been dealt with. If records are available that show, for example, that an offender has failed to pay fixed penalty notices for six offences, and if that defendant then comes before a court for a seventh, can magistrates be told that there are previous unpaid fixed penalty notices, or even a notice that has been paid? In other words, will there be a record—which may not be complete—of non-payment of fixed penalty notices?

I understand that the Minister would not want to introduce the accelerator system suggested in the consultation document, because of the difficulties highlighted by ACPO, but if there is information available about the background of the accused that suggests that he is a serial offender, should not that be something for the court to take into account? Would that form part of the antecedents of the accused in the question of sentencing?

What does ``an authorised constable'' include? Would it include a special? Would it include a member of the British Transport police? Would it include a member of the Royal Parks police or the Royal Military police? Who qualifies as ``authorised''? Some of the penalty offences relate to the fire service. Is it thought that the police would have to be involved in the issue of penalty notices in such instances, or is it thought that in some way the fire service would have its own ability to do so?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

We have not yet discussed whether the Government, by adding offences to the list for which one may receive a fixed penalty notice, are creating something that is not a criminal offence in the traditional sense of the word. I ask that because clause 1(1) states:

``For the purposes of this Chapter `penalty offence' means an offence committed under any of the provisions mentioned in the first column of the following Table''.

If one ``commits'', say, a ``penalty offence'' one is able to discharge it—in the words of the clause—by paying the fixed penalty notice. As the Minister confirmed, that does not go on one's record. Are we therefore making a set of activities no longer criminal offences provided that one pays the fixed penalty notice? Does the only criminal offence become not paying the fixed penalty notice? If that is the offence, it begs interesting questions of jurisprudence and the criminal justice system. Are we therefore extending the range of criminal offences that one is charged with, but providing a way of getting out of them? That is an unusual new system.

Photo of Sir Nicholas Lyell Sir Nicholas Lyell Ceidwadwyr, North East Bedfordshire 11:45, 13 Chwefror 2001

At the risk of doing the Minister's job—the hon. Gentleman is raising an important point, to which I hope the Minister is alert—clause 2(4) suggests that by paying a penalty one discharges the liability to be convicted, so there is no offence as long as one pays. However, I suspect that the hon. Gentleman, like me, is not yet satisfied.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

The right hon. and learned Gentleman raises an important issue. A fixed penalty notice is given for an activity that is unlawful. If it is rendered unlawful by statute, one would presume that committing it is an offence. Clearly, if one does something that discharges one's liability for conviction, one is being dealt with for an offence—it remains an offence. If I may use a parallel, if one does not fill in one's tax return by 31 January—this year the period was extended to two days later—a penalty arises. I cannot remember, if I ever knew, whether it is a criminal penalty or whether one incurs a charge as one would for keeping a library book too long. It is important, in the criminal law, for people to know whether they are in breach—whether they have done something that is a criminal offence, even though they do not get a criminal record. If it is not an offence, what is it? That is the big question.

The smaller question, and the reason why I shall not support the clause, is whether the Government gave serious consideration to the idea that penalty notices should be issued only in police stations. I would prefer that system for the notices under discussion. That could not be done for car parking offences, unlawful street trading and matters that we have argued can reasonably be dealt with on the street, because the offending item is apparent.

The Minister made a valid point about consultation, which I accept. I want to place it on the record that, in general terms, Liberal Democrats—and I, think, the Conservative party—do not respond formally to Government consultation, as we see it as our job to await the response of the public. We have our chance to respond when White Papers, Green Papers and Bills are produced. Otherwise, it looks as if we are forming a view before we have heard the view of the wider public.

Photo of Sir Nicholas Lyell Sir Nicholas Lyell Ceidwadwyr, North East Bedfordshire

I want to take the opportunity to tease out from the Minister whether, if one accepts a notice and pays a penalty, one has any form of criminal record that may be kept by the police or national or local authorities and drawn to the attention of the court as evidence of previous guilt or to influence the court in relation to a penalty for an offence for which the person involved may be charged, tried and sentenced in future.

Subsection (4) expressly states that a ``penalty notice''

``means a notice offering the opportunity, by paying a penalty''— in other words, people must pay up, not just accept the notice—

``in accordance with this Chapter, to discharge any liability to be convicted of the offence to which the notice relates.''

In principle I am prepared to support that, and that is what I understood that I was supporting on Second Reading. However, I am not prepared to support the idea that if people pay their £40, or whatever the penalty is, they have some kind of unofficial criminal record. I regard that as utterly wrong. The Parliamentary Secretary has had to slip out; no doubt he has discussed what he said with the Minister. On the afternoon of Tuesday 6 February, the Parliamentary Secretary said that

``it may be possible for police officers to keep local administrative records of fixed penalty notices''—[Official Report, Standing Committee F, 6 February 2001; c. 67.]

I regard that as undesirable, and I hope that the Minister will make it perfectly clear that if people pay the penalty notice, the slate is clean and no record—criminal, official or otherwise—is kept.

Photo of Crispin Blunt Crispin Blunt Ceidwadwyr, Reigate

I rise in support of my right hon. and learned Friend. It was in response to an intervention from me that the Parliamentary Secretary made that statement, which I find rather opaque—as, indeed, is subsection (4). The provision makes clear the issue of criminal liability, but it may be unclear in the minds of people who have accepted a penalty what sort of record will be kept on them. People have some idea that when they accept a caution they are making an admission of an offence that, in some cases, may be taken into consideration by the courts. That is certainly true for sexual offences, for example, although I do not know in detail to which offences that applies. People are aware that when they accept a caution, they are admitting formally in respect of the criminal system that they have committed an offence and, to some extent and for some purposes, have a record.

In the case of a fixed penalty notice, people are not accepting that they have committed an offence. It is designed, in effect, to short-circuit the system so that, rather than put the state to the inconvenience of a trial and the expense of exposing people to such a trial, people can discharge that obligation by paying a fine the amount of which we shall discuss when we debate the next clause.

Like my right hon. and learned Friend the Member for North-East Bedfordshire, I believe that the Government must, in either the response to the clause or guidance, be explicit that records on people who have admitted an offence and receive a caution are a different matter, and that people who have not admitted the offence but have accepted a fixed penalty notice in preference to standing trial should not have an unofficial police record lurking about for future reference. We go to enormous lengths under data protection legislation to ensure that such records are kept extremely tight for all other aspects of people's lives, and criminal records are an extremely serious aspect of people's lives. Paying the fine on time should completely discharge people's obligation and any form of record keeping, as should be explicit in the guidance that the Minister will offer or in some other form that I hope he will propose when he replies to the debate.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

My right hon. and learned Friend the Member for North-East Bedfordshire, the hon. Member for Southwark, North and Bermondsey and my hon. Friend the Member for Reigate raised certain issues. They highlighted some of the strong worries expressed in the Criminal Bar Association's submissions in response to the Government's original consultation paper about how the new proposals would link into the fixed penalty notices for road traffic offences under the established law. They are right to say that there is confusion. The Government have not yet cleared it up, and I have little confidence that the Minister can give us a satisfactory answer.

Members of the criminal Bar will have to wrestle with such matters. Clearly, the Government's proposals will not work if there is confusion in the minds of judges, magistrates and the court clerks who advise them. The distinguished authors of the Criminal Bar Association's paper said that it was unclear whether the idea was to criminalise or decriminalise such conduct—the point made by the hon. Member for Southwark, North and Bermondsey.

Under schedule 3 of the Road Traffic Offenders Act 1988, the traffic offences listed to which fixed penalty notices already apply are non-criminal. However, if the conduct that the Government are dealing with under the Bill results in a notice being paid, not a court hearing, the Criminal Bar Association asks whether it will amount to a conviction. If not, the effect will be to decriminalise some behaviour that is currently criminal. The reverse will also be true in relation to other offences. The stated aim in the Government's original consultation paper that led to the Bill is to treat more seriously some cases that previously resulted, and continue to result, in cautions or small fines. That is set out in paragraph 18 of the Government's consultation paper. As Mr. Philip Katz QC, the senior author of the Criminal Bar Association's paper, rightly says, that ``confuses penalty with conviction.''

Members of the Committee will know that it has been sacrosanct in the English law down the ages not to confuse the offence and the conviction with the penalty exacted by the courts for that offence. The authors of the CBA's submission refer to the fact that the Customs and Excise practice of so-called compounding precisely demonstrates the issue at stake. The person who compounds avoids prosecution. That is what happens now under the fixed penalty notice provisions of the Road Traffic Offenders Act 1988. It avoids the risk of any conviction for a criminal record, but, as the authors of the paper say:

``Compounding is not a good analogy'' with what the Government propose because that relates to the payment of Customs and Excise 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.''

The CBA paper states that, if the Government's proposal is to be operated on the basis of something that is equivalent to compounding, it should be made clear. It says that the Government should not attempt

``political justification on unproven grounds of `deterrent'''.

It says that, if the legal minefield that the Government want to create could be safety traversed, they would be wiser to introduce a pilot scheme such as they have done already in relation to vehicle emissions under the Road Traffic (Vehicle Emissions) (Fixed Penalty) Regulations 1997. Opposition Members are worried that the proposal was rushed. It was conceived in haste by the Prime Minister when he wanted to say something that could make a speech to theologians in Tubigen, Germany, of interest to the British press. It is a half-baked idea that was dreamed up on the back of an envelope.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I had not realised that other colleagues would take the bait to the extent that they have, and expound so much on my short point. However, it is an important issue and I am glad that they have done so.

There will soon be a review of the criminal justice system by Lord Justice Auld and, in the spring, the conclusions will be released of the sentencing review. Does the hon. Gentleman agree that this debate should take place in that context, along with debates on issues such as non-payment of council tax? We might then discuss how people are dealt with for offences that have not traditionally been crimes but breaches of some obligation, and debate which offences should be in the latter category and which remain in the criminal offence category, for which a person would get a criminal record.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath 12:00, 13 Chwefror 2001

I am grateful to the hon. Gentleman for his intervention, because I entirely agree with him. We have repeatedly said that the Government are rushing into this legislation. One might ask them, ``Where's the beef? Where's the rush?''—but we know that they want to rush things through before a projected general election. The legislation does not take into account the issues that will arise from the Auld review and a consideration of how the Narey reforms are working in practice. As a result, it is rushed and half-baked. The Government must give better answers on those matters than those that they have given us so far. The point is reinforced by the fact that senior members of the Bar, such as Mr. Philip Katz QC, who will have to put the measures into practice in the courts, are expressing serious concerns.

The authors of the Criminal Bar Association paper say, on the related issue of deterrence:

``If the legal consequences of payment of a Notice are to be exactly the same as for a court hearing, (i.e. 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.''

That is what tends to happen with parking tickets.

``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''— which is a point that we appreciate. The paper goes on:

``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'.''

That is the point about which the Government are confused. The paper continues:

``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 consequences 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''— one remembers, for example, various scandals involving African embassies—

``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...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 grounds set out by the authors of that paper, and on other grounds.

I will not go through the whole paper, but it is important to understand the substantive point that the difference between criminal and non-criminal conduct needs to be clear as a matter of principle. That is our concern.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

My hon. Friend the Member for Taunton (Jackie Ballard) cannot be here now, but will be present later. She told me that, in a women's magazine that she read recently, someone included car fines and parking fines as part of her monthly expenses—as part of her normal budget. It may be difficult to believe, but some people write those costs into their normal expenses. They do not think of the fines as a punishment for anything criminal; they are simply part of the ordinary disbursements of life.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

I am grateful to the hon. Gentleman, and I am sure that he is right. I did not see the article that the hon. Member for Taunton saw, but I have seen similar budgeting done. Indeed, a column is running in The Daily Telegraph at present that is based on the fictitious account of the life of a woman in the City of London, and I believe that that contains similar arrangements, so I am sure that it is based on truth. The hon. Member for Southwark, North and Bermondsey reinforces my argument. We retain serious concerns; we will listen to what the Minister has to say, but the proposal has been rushed and contains serious problems. The Government would certainly have been wiser to await detailed responses to the Auld review—which they themselves set in train—before making this proposal, in which they appear not to have properly thought through issues of legal principle.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I want to put it on the record that so far Government Members have spoken for 15 minutes of the hour and 35 minutes for which we have been sitting. After the hon. Member for Surrey Heath (Mr. Hawkins) read out most of the Criminal Bar Association's submission verbatim—perhaps being faithful to his former profession by simply reading the brief in front of him—I was tempted to detain the Committee by reading out the 111 submissions received from a variety of organisations, so that we could have on record the view not only of the Criminal Bar Association, crucial though that is, but of the Association of Chief Police Officers, the Association of Chief Officers of Probation, the Crown Prosecution Service, the Howard League for Penal Reform, the Inner London Magistrates Courts Service, Justice and others of the 111 organisations. [Interruption.]

I am tempted to respond to that popular demand from Government Committee members to read them all out, but it is important to put it on the record that the Criminal Bar Association is only one of those giving evidence, and many different people and organisations are interested in the Bill. I hope that the Committee will not regard the Criminal Bar Association as having the only view of significance, despite the fact that the hon. Member for Surrey Heath declared his interest, and then proceeded simply to read out the brief.

Some points of substance were made in the debate, and I want to respond to them. The hon. Member for Southwark, North and Bermondsey asked about consultation. We really tried to consult. I take his point about political parties not conventionally responding to that invitation, but when I was in the official Opposition, it was common for us not necessarily to respond formally to a consultation document but to make our position clear by speeches, letters or other devices. It is no criticism of him that that was not done in this case; I am simply responding to his point that somehow we had not consulted, because it does not stack up.

The hon. Gentleman asked about piloting. We have not included the formal power to pilot the proposal because we consider it technically impossible. Formal pilots require fixed geographical areas, which are not suitable for powers available generally in the streets. However, it may be of interest if I put on the record the fact that we intend, with the co-operation of the police, to do what we can to test the application of the scheme in particular areas before it is widely used.

The hon. Gentleman asked whether we considered making the powers available only at police stations? The answer is yes, we did, but for the reasons explained in earlier interventions by my hon. Friends the Members for South Thanet and for Peterborough (Mrs. Brinton), we think that it is important to give the police the choice in certain circumstances—using their discretion in accordance with guidance—to use the fixed penalty notice power on the streets.

The hon. Member for North-East Hertfordshire asked who would be an authorised constable. The fundamental position is that police forces are covered under the Police Acts and the generality of police legislation. All regular forces are covered, as well as special constables, who are dealt with under section 29 of the Police Act 1996. Fire officers are not included, as they are not so covered by that Act. We propose that police officers, not fire officers, should have the powers.

On the special services, the Bill relates to all geographically based forces covered by police legislation. In addition, the British Transport police asked for specific coverage because of the offence of trespassing on the railways. Other forces—for example, the Ministry of Defence police and the Royal Parks police—did not ask to be covered by the measure, so they are not. The Bill applies generally to police forces and to the British Transport police because of the nature of the offences set out in clause 1.

The right hon. and learned Member for North-East Bedfordshire, who intervened in the speech of the hon. Member for Southwark, North and Bermondsey, was correct to say that if an individual pays the fixed penalty notice he avoids conviction for the reasons set out in clause 2(4) and keeps a clean slate. I am happy to assure him that it will not be evidence of previous guilt in a future trial, and there will be no unofficial criminal record.

I was asked whether there is any local recording. We should ensure that offenders do not receive repeated penalty notices; even without written records, constables would be aware which local offenders had numerous penalty notices, although they would have discretion in every case. I assure the Committee that information about earlier notices will be used for no other purpose than to check the word of an individual who had received previous fixed penalty notices. It will not be used in other court hearings, it will not be on the record in any sense and it will not be an unofficial record.

The meaning of clause 2(4), as the right hon. and learned Gentleman said, is absolutely explicit. I reinforce the point that there is no finding of guilt if the payment is made; that, too, is absolutely clear in the Bill. The record is local and administrative.

An unpaid fixed penalty notice becomes registered as an unpaid fine, and in that circumstance could be relevant in future proceedings, because unpaid fines are on the record. If the individual pays a fixed penalty notice, as set out in the Bill, there is no admission of guilt and no official or unofficial criminal record.

I have tried to deal with the various points made in the debate.

Photo of Sir Nicholas Lyell Sir Nicholas Lyell Ceidwadwyr, North East Bedfordshire

The Minister has answered my points fairly and clearly and I apologise for intervening to ask him to clarify the position on giving a fixed penalty notice. I understand it to mean that it must, at least, be clearly tendered to the individual; however, it is possible that that individual will not accept it, in which case he should then be arrested, if that is what is wanted. I seek clarification of the term ``giving'', which will have consequences down the line if it is not accepted and understood?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

As the right hon. and learned Gentleman knows, we are the giving Government, so I am happy to give him the clarification that he wants. Fundamentally, he is right: the fixed penalty notice must be accepted. It is an agreement by the individual on whom it is served to pay the penalty and thus not to be subject to other legal action. Clauses 3 and 4 set out the meaning of accepting the notice and the nature of the notice, making it clear that the right to go to court remains. He is right in his assumption that if an individual does not accept the notice, the police officer will have to take other action. The point of the fixed penalty notice is that it is an agreement between the giver of the notice and the receiver that payment would be made rather than an alternative legal course being taken.

Photo of Sir Nicholas Lyell Sir Nicholas Lyell Ceidwadwyr, North East Bedfordshire

I am happy with what the Minister says. It is entirely sensible that if the person does not accept the notice, the police officer must take other action. However, I must declare an interest, and I suspect that others may have similar interests. There is currently a system of parking tickets under which the warden writes them down but never affixes the ticket to the motor car, and the motorist drives off. I question whether that is legal. Does it comply with the parking regulations? Will the Minister make it clear that that practice will not be allowed to enter into this Bill?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I can give that assurance. I cannot speak in relation to the parking legislation that the right hon. and learned Gentleman describes, but he was right in what he said about giving and, by implication, receiving. The fixed penalty notice needs to be received if it is given.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs) 12:15, 13 Chwefror 2001

Can we draw from that the logical conclusion that there cannot be any deemed giving of notice? There can be deemed serving of notice in other contexts in the criminal law.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I can give that assurance for exactly the logical reason that was referred to in the exchange between the right hon. and learned Member for North-East Bedfordshire and me. There cannot be a deeming of giving a notice unless it is received.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

When one is given the notice, does that constitute being charged with the offence or an action that is equivalent to being charged? I ask that because of the wording in the clause. By paying one discharges liability to be convicted, but there must be something that accuses one of the offence for one to be able to discharge liability and accept that one has committed the offence.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

We need to be absolutely clear about this. The individual is not charged simply by being served the notice. He is charged if he does not accept the notice because he says that he is not guilty of the offence. The police officer must then decide whether to arrest or charge him for the offence in the normal way. The payment of the fixed penalty offence is a means of discharging liability. However, serving a fixed penalty notice is not equivalent to charging the person.

I have tried to deal as fully as possible with the points made in this debate. I commend the clause to the Committee.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

It was interesting that the Minister said that, although the Government had not intended to pilot formally, they intend to test the scheme in certain parts of the country. That is helpful, and a sensible way of proceeding. I would be grateful to find out later, informally or formally, what plans exist to do that.

The Minister's answers confirm more strongly than ever that the sooner we have the guidance, the better. For example, if the guidance were to make it clear when there should be charging or the serving of fixed penalty notices on the street rather than in the station, that would clarify many matters that are currently the subject of debate.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

The Minister's answers have been helpful. It would be churlish, having heard them, to press the motion to a Division. The Minister may describe the Government as the giving Government, but we all know what they are giving—the taxpayer's money.

Question put and agreed to.

Clause 2 ordered to stand part of the Bill.