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The Summary Justice Review Committee: REPORT TO MINISTERS
Chapter 9: FIXED PENALTY NOTICES
Existing provision for Fixed Penalty Notices
9.1 The provisions of section 75(3) of the Road Traffic Offenders Act 1988, as inserted by Section 34 of the Road Traffic Act 1991, came into force on 1 July 1992. These provisions authorise police constables (and procurators fiscal) to issue conditional offers of fixed penalties "fixed penalty notices" - ("FPNs") in respect of a range of road traffic offences (detailed in Schedule 3 to the 1988 Act, as amended). Operation of the police conditional offer scheme commenced on 1 January 1993. The Lord Advocate has issued guidelines to Chief Constables in relation to the use of fixed penalty notices. We consider it important that there is consistency across Scotland in the use of FPNs.
9.2 FPNs may be issued by traffic wardens for non-moving traffic offences, such as parking incorrectly and failing to display a valid excise licence. Police officers can also issue FPNs for a substantial number of offences including moving traffic offences, such as speeding, which is an endorsable offence. The amount of the penalty is currently 60 for endorseable offences and 30 for non-endorsable offences. They are payable in full within 28 days. When fixed penalties are not paid for offences which have not been decriminalised (as some parking offences have been) the case is referred to the procurator fiscal with a view to prosecution.
9.3 We are not aware of any concerns that the arrangements described above have proved to be other than satisfactory.
9.4 Following recent consultation by the Home Office, the following offences have been added to the range of offences which may be dealt with by FPN: 38
- no MOT (Road Traffic Act 1988, section 47) Penalty: 60;
- no insurance (Road Traffic Act 1988, section 143) Penalty: 200 plus 6 penalty points;
- failure to supply details necessary to identify an offending driver (Road Traffic Act 1988, section 172) Penalty: 100 plus 3 penalty points;
- failure to display a vehicle excise licence (Vehicle Excise Regulations Act 1988, section 33). Penalty: 60.
Extending the Scope of Fixed Penalty Notices
9.5 We regard FPNs as an appropriate means of dealing with low-level offending. They deal with such infringements in a swift, simple, effective and cost-effective way. They reduce demands on police time, preparing reports and taking offenders to a police station. They reduce the number of reports to procurators fiscal. They reduce the number of prosecutions. They reduce the numbers of people - both accused and witnesses - who have to attend court and ease the burden on the courts of processing such cases. They reduce the numbers of people having a criminal record. They have the advantage that they can be used in circumstances in which no proceedings of any kind might have been taken e.g. because of other pressures on resources. We are conscious of the growing expectation of the public that the "minor" anti-social crime which is most likely to affect them should be tackled effectively despite concentration at political and organisational level on the more serious and sensitive crime. We consider that such "minor" crime cannot be dealt with adequately without a significant injection of resources across the whole criminal justice system unless substantially greater use is made of alternatives to prosecution, such as FPNs.
On-the-Spot Fines in England and Wales
9.6 In England and Wales police FPNs, commonly known as "on the spot fines" in terms of the Criminal Justice and Police Act 2001, sections 1-11, have been piloted. The fines must be paid within 21 days or the offender must request a court hearing within 21 days of the notice being issued. If the recipient of the notice does nothing, the usual practice is to register the penalty as a fine at one and a half times the amount of the original penalty, but exceptionally there may be a prosecution. 39 Payment involves no admission of guilt. Offences which may be dealt with this way include: threatening and abusive behaviour, being drunk and disorderly, misuse of 999 service, wasting police time, cycling on the pavement, dog fouling, and throwing fireworks. There has been a recent announcement that this scheme is to be extended to a wider range of anti-social offences including throwing litter, graffiti and some forms of bad neighbour behaviour, such as making too much noise. As has been noted, some road traffic offences have recently been added to the list for which such fines may be imposed. There can be little doubt that extension of such powers will widen the net of those who infringe the law and who suffer a penalty for doing so. However, there will be many who support that, especially in relation to obviously anti-social offences.
9.7 It is proposed to extend the scheme in England and Wales to include trespassing on a railway, throwing objects such as stones at trains or placing objects on a railway where there is no risk of injury to any other person, making a false report to the police, being drunk on a highway or other public place or in licensed premises, more minor breaches of the peace, buying or attempting to buy alcohol for consumption in a bar by a person under 18, wilful destruction of the highway by other than a vehicle and various contraventions of British Transport Police byelaws.
Extending the Scope of Fixed Penalty Notices in Scotland
9.8 We consider that it is likely that the numbers and types of offence in which FPNs can be issued will continue to increase. For example, the Antisocial Behaviour (Scotland) Bill, presently before the Scottish Parliament, contains proposals for FPNs to deal with several aspects of such behaviour, extending their application beyond road traffic offences. The extension of FPNs would require further police training which might include guidance as to what requires to be established to prove a charge: e.g. what "unnecessary obstruction" by a motor vehicle means.
9.9 We consider that the advantages of increasing the scope of FPNs outweigh the disadvantages. We have set out above some of the general issues surrounding increasing the non-reporting options available to the police and the extent of their use. In addition, we recognise that where an FPN is issued the offender will not be prosecuted unless he or she so chooses. He or she will thereby avoid a conviction.
9.10 There is anecdotal evidence that some of those who receive FPNs prefer to pay rather than risk prosecution, even though they consider that such a prosecution would not succeed. We have no evidence as to how often this may happen, although we doubt if it happens often. Clearly we do not want people who believe themselves to be innocent to accept a sanction, however, equally we recognise that this is a potential problem where any part of the criminal justice system appears to offer different outcomes for accepting penalties or pleading guilty compared to being found guilty after a trial. However, taking into account the potential overall benefits to the delivery of justice our firm view is that the balance is in favour of, in effect, offering a discount on the penalty a court would impose in return for acceptance of the FPN.
9.11 We were told that where an FPN is issued and not paid, the police can have difficulty submitting a sufficiently well prepared report at a later date. This is because they will not have as much detail available to them as they would if they had intended to report the case from the outset. We consider that, if this is a real difficulty, it can be overcome partly by training but mainly by making the FPN itself explicit not only as to the time and place of the offence and the statutory provision contravened but also as to the conduct which constituted the contravention for which the FPN was issued. The Stewart Committee proposed such an approach in regard to road traffic FPNs.
9.12 The Committee had been considering the issue of whether FPNs should be extended to a wider range of anti-social and nuisance offences, but considers that the provisions in the Anti-Social Behaviour Bill largely overtake its separate consideration. Were those provisions not proposed as part of the initiative to tackle anti-social behaviour however, the Committee would still be in favour of introducing a range of FPNs for nuisance offences, in the interests of providing the most suitable punishment for the offence whilst ensuring that the system has sufficient capacity to deal effectively with more serious cases through prosecution.
9.13 However, the Committee believes that there is scope for extending FPNs beyond offences relating to personal anti-social behaviour to other statutory offences, particularly those of a regulatory nature - e.g. a range of the offences contained in the Civic Government (Scotland) Act 1982 (which covers local licensing issues and other matters relating to local amenity such as the obstruction of footpaths). The Committee recognised that a number of regulatory offences apply to other parts of the United Kingdom. Nonetheless we are aware of the recent extensions of FPNs in England and Wales to a number of non-road traffic offences. We consider that similar though not necessarily the same extensions should be considered for Scotland. FPNs do not need to be used in every case when an offence which may be dealt with by an FPN is committed but the ability to deal with such infringements by FPNs in suitable instances will contribute to the increased flexibility the summary criminal justice system in Scotland urgently requires. More extensive use of FPNs as an alternative to other reporting options would require some change of culture both by the police and procurators fiscal but the advantages appear to outweigh the disadvantages. They are a simple and effective way of dealing with minor infringements without requiring resources other than those of the police.
Penalties Imposed by Government Departments
9.14 A number of government departments have the power to impose penalties. For example the Inland Revenue and Customs and Excise can and do impose (sometimes very large) penalties for failure to comply with laws within their own field. The Department for Transport can issue penalty notices for some infringements, for example using red diesel in private cars. While we note that most of such penalties will be imposed under statutory regimes reserved to Westminster under the Scotland Act, we take the view that such departments should be encouraged to use these powers to the full where appropriate. We were told that, in some cases, the departments with such powers prefer to report breaches of the law in their field to the procurator fiscal, and in effect use the court as a form of debt collection service. We heard, for example, about instances where courts were asked to take criminal sanctions against individuals for a month's back duty on car tax or for not having a TV licence. We are not suggesting that such infringements should be allowed to pass unchecked. However, it seems to us that in many instances the government department or agency concerned should take action itself, allowing the courts to concentrate on more serious breaches of the criminal law.
Opting Into or Out Of the Scheme
9.15 We consider for the future that, in principle, it should be necessary for the person to whom an FPN is issued to take positive action, if he or she wishes to contest the issue in court. In other words, to "opt out" of the fixed penalty scheme, he or she should be required to complete and return a form indicating that the notice is to be contested. If the offender chooses to do nothing, the FPN will become a registered fine on the lapse of a fixed period. Further, we recommend that all unpaid FPNs which are registered as fines should be registered at the sums shown on the FPN with a 50% increase. Fixed penalty notices would require to be redrafted so as to set out the rights and obligations applying to them in clear terms. We discuss this approach (and issues relating to service of penalties, including FPNs) in more detail in the section on fiscal fines, from paragraph 11.21.
Prosecution Following Rejection of the FPN
9.16 If the credibility of the scheme is to be maintained, we recommend that where an offender challenges the FPN, prosecution should be inevitable unless there are evidential reasons or public interest considerations which justify taking no further proceedings in the case. We recognise that this recommendation may have significant resource implications for the agencies involved in those cases in which there is a challenge but the overall numbers of FPNs which result in a prosecution should be markedly lower.
Informing the Court and Others of the Offer of a FPN
9.17 Conscious of the possibility that some offenders will fail to accept the offer on the basis simply that a court may impose a lower amount on conviction, even where guilt is not contested, we recommend that, where an accused is convicted having declined the offer of a FPN, the court should be advised of the amount of the offer made and declined and that the court may take this into account when imposing sentence.
9.18 At present, when the offer of a fiscal fine is accepted, the Crown is generally prepared to disclose the disposal of the case to any person having a legitimate interest in knowing its outcome, for example, the victim. The Committee believes that similar information should be made available to interested parties when a case is disposed of through the offer of a FPN.
9.19 We recognise that there is a risk that a more persistent offender will receive successive offers of alternatives to prosecution, when perhaps he or she should have been prosecuted. We consider though that this will be capable of being addressed by recording the use of such alternatives nationally. We do not believe that it is wrong in principle for there to be more than one offer of an alternative to prosecution in relation to a particular offender provided that these may be brought to the attention of the court in the course of a prosecution for a further offence. If any restriction was to be imposed that only one alternative could be offered within a prescribed period this could lead to minor offending being prosecuted in court inappropriately.
We recommend that consideration be given to increasing the scope of FPNs to a number of non-road traffic offences. The scope for extending the use of FPNs to other statutory offences, particularly those of a regulatory nature, should be explored.
We recommend that, in a subsequent prosecution for a similar offence, the Crown should be able to refer to previous FPNs that have been imposed in relation to similar offences committed by the accused in the past.
We recommend that when a case is disposed of through the offer of a FPN the disposal of the case should be disclosed to any person having a legitimate interest in knowing its outcome on request - for example, the victim.
We recommend that it should be necessary for the person to whom an FPN is issued to take positive action, if he or she wishes to contest the issue in court. If that person chooses to do nothing, the FPN will become a registered fine on the lapse of a fixed period.
Further, we recommend that all unpaid FPNs which are registered as fines should be registered at the sums shown on the FPN with a 50% increase.
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