That the Grand Committee do report to the House that it has considered the Legislative Reform (Revocation of Prescribed Form of Penalty Notice for Disorderly Behaviour) Order 2009

Relevant document: 18th Report, Session 2008–09, from the Regulatory Reform Committee

My Lords, this order was laid before Parliament on 21 October and seeks to remove the requirement for the penalty notice for disorder—or PND, as it is widely known—form to be prescribed by law.

Penalty notice disposal provides the police with a quick and effective way of punishing minor nuisance offending by minimising the paperwork and processing required from the police. It has been in existence for some time. Cases do not have to be taken to court, which also relieves the burden on the courts.

Currently, all penalty tickets are in book form and issued manually. However, a number of police forces, including the British Transport Police, have developed electronic hand-held devices for front-line officers and would like to issue PNDs electronically. It has become clear that the current PND form is unsuitable to be reproduced using the latest technology and that the changes the forces wish to make to it may currently be unlawful. This is because the format of the ticket is required to be prescribed under Section 3 of the Criminal Justice and Police Act 2001. In view of this, the Association of Chief Police Officers requested that changes be made to the current legislation to de-prescribe the form. The Government agreed, a consultation paper was issued and the majority of the respondents were in favour of making this change.

The purpose of the order is to give police forces the freedom to design their own forms, should they so wish, and to remove the obstacle to the electronic hand-held issue of tickets presented by an inflexible format. Electronic completion of the forms would also improve accuracy of recording and may lead to better enforcement. However, I want to make it clear that de-prescription of the form will not affect the legal rights of recipients as the order will not change the statutory provisions of the scheme, such as the right to have a case heard in court. Furthermore, tickets will still contain the remaining six requirements under Section 3 of the Act such as details of the offence, the amount of the penalty and the rights of the recipient. We will also continue to publish detailed operational guidance for police forces, which will contain a model ticket.

The aim of removing unnecessary prescription is to reduce bureaucracy and costs to forces and is in accordance with the recommendations of the Independent Review of Policing by Sir Ronnie Flanagan and the policing White Paper. The Government are convinced that de-prescription will result in efficiency savings and operational benefits, in particular to those forces wishing to automate ticket issue. I invite the Committee to support this statutory instrument. I beg to move.

My Lords, I thank the Minister for not only the detailed explanation but his demonstration in producing one of the necessary books.

As he explained in his introduction, these penalty notices for disorder—I shall refer to them, as did the Minister, as PNDs—are a way of dealing with minor criminal offences without the need for prosecution and court proceedings. As he pointed out, fixed penalty notices have existed for many years. They were introduced for litter and noise offences in the 1990s and were applied to other offences by the Criminal Justice and Police Act 2001. That Act sets out some 21 offences for which PNDs can be issued.

The Minister was at pains to stress that these notices are used as a way to streamline the disposal of minor offences but that, of course, the option is still there for a person issued with a notice to elect for court proceedings if they so wish. As regards this order, the noble Lord has explained that, because PNDs are issued by means of a paper notice, the exact form of which is prescribed in regulations under Section 3 of the Criminal Justice and Police Act, officers must carry with them books containing four different types of ticket—one each for upper and lower-tier offences for adults, and one each for upper and lower-tier offences for juveniles. I think that all noble Lords will agree that that arrangement is overcomplicated and unsatisfactory.

As the Minister tells us that most police forces have now developed electronic hand-held devices in the form of personal digital assistants—or PDAs, as we may call them—for use by officers, it seems sensible to de-prescribe the form in which the notices must be issued. Where the Government are prepared to reduce regulation, cut red tape and apply some common sense, we are only too glad to support those efforts. Sadly, we do not see nearly enough of that. However, I have a few questions for the Minister about the more general application of the disorder notice scheme.

This order has been presented by the Government as a way to simplify how penalty notices are issued. However, I would like an assurance from the noble Lord that these measures, which facilitate the use of electronic equipment, will not lead to an unnecessary increase in the database state. The Lord Chancellor, the right honourable Jack Straw, announced last month that the Office for Criminal Justice Reform will be reviewing the use of fixed penalty notices by the police. Which specific areas of the penalty notices for disorder scheme do the Government expect to be reformed, and is this one of the areas that they have looked at? Can the Minister please also inform us about the consultation that took place, and when it was conducted?

My colleagues in opposition have raised repeated concerns that the Government’s persistent use of fixed penalty notices is letting certain criminals off with what amounts to a glorified parking ticket. We believe, absolutely, that it is vital that people are innocent until proven guilty, and I seek assurances that the streamlining of the regulation is designed to assist police efficiency and that this order is not being used to up the number of notices issued. If the Government are thought to be using penalty notices to raise revenue rather than to check crime, they will only be undermining their own rather weak record in that area.

My Lords, this gives us an opportunity to look at what a penalty notice should contain. One of the major problems arising under fixed penalty notices, which we have always opposed in my party, is that they allow what amounts to an offence brought to justice to be recorded against an individual. There are specifically notifiable offences for which penalty notices can be issued: under Section 5 of the Public Order Act, under Section 1 of the Criminal Damage Act, for theft under the Theft Act and for the possession of cannabis, in particular.

An acceptance of a penalty notice is recorded and notifiable; presumably, it remains on some form of list or computer record. If that is so, I should like to know for how long. Can these penalty notices be used as part of an individual’s record against him in future proceedings, both for the purposes of proving guilt under the provisions which permit that or in the fixing of a penalty? I think that that is the case; I wait for reassurance on that. If it is the case, then the penalty notice itself should make it absolutely clear to an individual that by accepting such a notice and paying what amounts to a minimal figure of £80 or £50—which must be very attractive to an individual who would otherwise lose a day’s work to go to court and contest something—he may cause considerable prejudice to himself, not just in the event of any future proceedings but in applications for jobs, if such a record is recorded and can be produced.

It is a serious matter. The current statutory provisions to which the Minister referred require a penalty notice to state the offence, give particulars, specify the suspended enforcement period during which the penalty notice can be paid, state to the justice’s chief executive where the penalty may be paid, and inform the person of their right to ask to be tried for the alleged offence. As regards penalties, all that is required under Section 3 of the Criminal Justice and Police Act 2001 is for the notice to,

“state the amount of the penalty”.

That legislation extended the use of penalty notices way beyond what was initially intended when they were introduced for littering and other minor matters.

A person may be issued with a penalty notice, as I have said, for something that may count against him in the future—either as regards jobs or possible further proceedings. If I am right in that, will the Minister consider whether the consequences of accepting a penalty notice after this addition should be on the face of a form—in whichever form a police force decides to issue it. That is my main concern.

My secondary concern is that if you send police officers out on the street with an electronic device to give out notices, such as the devices carried by traffic wardens, there is an enormous temptation to use them in circumstances when police action would not normally be taken. The notices can be issued like confetti—not just to the perpetrator of a particular offence, who, for example, is causing a disturbance, but to the people standing around nearby. They may be dragged unwittingly into a system which is highly prejudicial to them.

It is extremely important that the Government review the way in which these penalty notices are being used, report to Parliament on how many are being issued and on whether there has been an increase as a result of the passing of this statutory instrument, report that they have looked at the forms that individual police forces use around the country and state that they are satisfied that the forms comply with the Act as it stands and that, as I argued in my main point, they give fair notice to people of the consequences of accepting a penalty notice, as opposed to contesting it—with all the trouble that that involves. These are the assurances that I am looking forward to hearing from the Minister.

I am grateful to the noble Lord and the noble Baroness for their contributions, particularly to the noble Baroness for her support for this measure.

Penalty notices were introduced as part of the Government’s strategy to tackle low-level anti-social and nuisance behaviour. We believe that they enable the police to deliver swift and effective justice for lower-level criminality, freeing up the courts to concentrate on more serious offences. The aim is to provide the police with a swift financial punishment to deal with misbehaviour and a practical deterrent to future reoffending. PNDs free up the courts to concentrate on more serious offences and ease the position of the police. Issuing a penalty notice takes an officer approximately 30 minutes, compared with two and a half hours to prepare an evidential case file. The police officer is then freed to return to patrolling the street and does not have to attend court.

We think that PNDs have been successful, but the noble Lord, Lord Thomas of Gresford, is right to point out that there are possible dangers in such a system. As the Committee knows, and as the noble Baroness mentioned, my right honourable friend the Secretary of State has set up a review. Indeed, there is a Written Ministerial Statement with yesterday's date on it that sets out the Government’s concerns. We are looking at the use of tickets to seek to avoid inappropriate use, because there have been recent suggestions that they have been used inappropriately for offences that are too serious for a ticket and should, in the interests of both the community and the defendant, end up in court.

The noble Baroness asked me some questions. How long did the consultation last? It ran for six weeks from 22 August to 3 October 2007. Will the electronic devices not lead to even more on-the-spot fines being issued? There is no reason to think that the device itself will lead to an increase in the number of PNDs issued. As I said, issuing tickets electronically will save the police considerable time and reduce the amount of paper that an officer is required to carry.

In response to the noble Baroness and the noble Lord, for a PND to be issued, an officer still needs to be satisfied that an offence has been committed that is suitable for the disposal option, following operational guidance. The noble Lord was concerned that if a policeman went around with a machine that was so easy to use, it might be used inappropriately and too often. One hopes that in the normal course, police officers would not do that. An offence must be committed before they can use that method, and the defendant always has the right to choose trial.

As for reporting, which was the first line of questioning from the noble Lord, PNDs will continue to be recorded as at present. One reason for that is to ensure that no offender receives a string of tickets. They are for recordable offences, and exist on the police national computer. They can be included in an enhanced form and can remain on the computer indefinitely, but I remind the Committee that they do not represent a conviction in the same way as would a court appearance followed by a finding of guilt.

Should a court be able to take note of previous PNDs when sentencing? The Independent Sentencing Guidelines Council’s new magistrates’ courts sentencing guidelines, which came into force in August last year, state:

“The fact that an offender has previously been issued with a penalty notice does not increase the seriousness of the current offence and must not be regarded as an aggravating factor”.

So the court may not sentence more severely just because the offender has been issued with one or more PNDs, but that may properly, so the guidelines state,

“influence the court’s assessment of the offender’s suitability for a particular sentence, so long as it remains within the limits established by the seriousness of the current offence”.

It can be used in criminal proceedings as evidence of bad character and can be cited in civil proceedings too.

In those circumstances, would it not be highly desirable that those consequences should appear on the form? After all, the purpose of the form is not for the police officer to collect the money there and then but for the individual to take that form away, and he then has 21 days in which to pay it or to take the option of appearing in court. Should that not therefore be on the form so that he can study it and decide which option to take—to pay the fine or to contest it?

The noble Lord makes a fair point. Of course, the individual has the 21 days in which he or she can, if they so choose, take legal advice. They may choose not to do so. The review is just beginning. I invite the noble Lord to put into the review—indeed, I may do so on his behalf—the notion that a model ticket in future should contain such a reference.

I would be grateful if the noble Lord could take that on board and give an assurance that he will make a submission to the review that it should be considered as a highly desirable practice.

I am afraid that I cannot guarantee that will be done. I can guarantee that I will pass back the idea so that it is discussed by the review. I am grateful to the noble Lord for the suggestion.

I am not quite sure what the Minister said about the database. Does the order mean that if you get a ticket, in whatever form, it goes onto a separate database, or does it go onto a general police database?

As I understand it, it goes on to the police national computer and may also go onto a local police database.