Clause 3 - Amount of penalty and form of penalty notice

Criminal Justice and Police Bill – in a Public Bill Committee on 13th February 2001.

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Amendment proposed [this day]: No. 79, in page 3, line 20, leave out `give' and insert

`include a statement by a constable with respect to the alleged offence giving'.—[Mr. Heald.]

Question again proposed, That the amendment be made.

Photo of Jimmy Hood Jimmy Hood Chair, European Scrutiny Committee, Chair, European Scrutiny Committee 4:30 pm, 13th February 2001

I remind the Committee that with this we are taking the following amendments: No. 17, in clause 6, page 4, line 18, at end insert

`and the constables' witness statement to be served therewith, including the form and length of such a statement.'.

No. 16, in clause 8, page 5, line 20, at end insert—

`( ) The statement is to be treated as admissible as evidence to the like effect as oral evidence to the like effect by that person for the purposes of section 9 of the Criminal Justice Act 1967 even though the conditions mentioned therein are not satisfied provided that such conditions as may by order be prescribed by the Secretary of State are satisfied.

( ) The power to make an order under subsection ( ) shall be exercisable by statutory instrument and no such order shall be made unless a draft of it has been laid before Parliament and approved by resolution of each House.'.

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

We were debating at some length the statement by the constable and the nature of the notices. I emphasise that the penalty notice will be just that. It will include sufficient information about the offence, which is its purpose. The hon. Member for North-East Hertfordshire (Mr. Heald) was correct to say that the statutory defence is an identity. That would need to be considered, but a full statement should not be needed in every case.

It may help if I set out how the system will work. Under clause 3(3)(c), all fixed penalty notices must

``give such particulars of the circumstances alleged to constitute the offence as are necessary to provide reasonable information about it''.

The purpose is to allow the suspect, in the cold light of day and possibly on advice, to make a sober and rational judgment about whether to pay the penalty or request a trial, which is also set out on the fixed penalty notice. Under clause 8, we have allowed the possibility of the penalty notice, or any additional statement that the issuing officer gives with it, serving as a witness statement for the purpose of any subsequent trial. Thus, the police have been given the flexibility to deal with the needs of a specific case.

The hon. Gentleman will make his customary and not unreasonable remarks about guidance. Guidance may address the types of case in which a fuller additional statement may be advisable. I can cover that more fully if the Committee so requires.

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

I will read the part about guidance again.

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

I hope that the Minister is not going to read out the whole lot.

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

I did not approve of the hon. Gentleman reading out the submission of the Criminal Bar Association but not the 110 submissions made by everyone else.

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

Order. I am sure that that conversation is very interesting. If hon. Members want to intervene to ask the Minister to amplify something, that is fine, but I ask them not to have a conversation across the Floor.

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

I apologise for my part in that conversation, Mr. Hood. It was out of order.

I was saying that the police have been given the flexibility to deal with the needs of a specific case, but guidance may address the types of case in which a fuller additional statement may be advisable.

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

Does that mean that the statement could be included in the fixed penalty notice?

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

Yes, clause 8(2) says that it could be. We allow the penalty notice, or any additional statement that the issuing officer gives with it, to serve as a witness statement for the purpose of any subsequent trial.

The purpose of the amendments is clear. The Bill specifies that a penalty notice must give the particulars that I set out. Those particulars will be filled in by the constable issuing the notice, whether on the street or at a police station. Amendment No. 79 would add another requirement for the particulars to be given in

``a statement by a constable with respect to the alleged offence''.

Amendment No. 17 would allow the Secretary of State to issue guidance to the police about constables' witness statements issued with penalty notices. Amendment No. 16 would allow the constable's statement made in support of the penalty notice to be treated as oral evidence. We agree with the central point of the Opposition amendments: it is right that every penalty notice issued contains information about the alleged offence. The alleged offender must know what he is supposed to have done. We consider that the current wording in the Bill provides adequately for that. Clause 6 already includes a power for the Secretary of State to issue guidance about the exercise of police discretion and the issuing of penalty notices, with a view to encouraging good practice in connection with the operation of the scheme. That is sufficient to cover any guidance that might be required. Amendment No. 17 is therefore not necessary.

We do not intend that, in every case when a penalty notice is issued, it should be accompanied by a constable's witness statement. That will be necessary only when the trial date is arranged in advance under clause 7, which we expect to occur only in support of planned operations. I explained the situation under clause 8 a moment ago. I am trying to explain—I hope coherently—that although we understand the thrust of the amendment, we do not think that it is necessary. What the hon. Gentleman is proposing is covered elsewhere in the Bill.

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

The first offence under clause 1(1) relates to section 12 of the Licensing Act 1872. It concerns

``Being drunk in a highway, other public place or licensed premises.''

Sitting suspended for a Division in the House.

On resuming—

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs) 4:50 pm, 13th February 2001

Before the Division, I was asking the Minister about the offence under section 12 of the Licensing Act 1872. Would it be enough for the officer to write on the fixed penalty notice,

``found in the street, drunk and incapable''?

Are there similar formulas that are short, pithy and to the point, which could be used in respect of the other offences?

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

The short answer is yes. All fixed penalty notices must have adequate particulars of the offence, and such particulars could well be in the form described by the hon. Gentleman. I am sure that the police will develop, as they do in other areas of work, precisely the type of pithy words that will meet his point.

In addition to the adequate particulars of the offence being on the fixed penalty notice, the police can choose to give an additional fuller statement. It might be typed up in the police station. That will not usually be necessary and is not a requirement under clause 8. Either the fixed penalty notice or an additional statement may serve as a formal witness statement for the purpose of the trial. The constable must certify that he filled in the fixed penalty notice or that he gave details in a witness statement. I have dealt with the points that have been raised and I hope that, on consideration, the hon. Gentleman will withdraw the amendment.

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

I am concerned about what has been said. We want fixed penalty notices to be served when the offences are not particularly serious and involve only minimum extra paperwork for the police. A case that must be served with a full statement and the fixed penalty notice will add to the paperwork. I am not saying that that must happen in every case. I agree with the Minister that there would be a class of cases for which that would not apply. However, if it does apply I do not understand the advantage in serving a fixed penalty notice. That would be extra work for the police. Why cannot we use a pithy expression such as the one used by the Police Superintendents Association, such as

``found in the street, drunk and incapable'' or a similar formula.

Let us consider the second offence under clause 1, for example, which is

``Throwing fireworks in a thoroughfare''.

A constable could write, ``Threw a firework in St. Peter's street'', for example. However, if the matter were to become more complicated and a statement were not contained in the fixed penalty notice, I do not understand the advantage of the fixed penalty notice. It would simply add to the work of the police.

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

Obviously, I have not made myself clear. Will the hon. Gentleman accept that it is up to the individual police officer to choose whether he wants to write anything in addition to the pithy statement on the fixed penalty notice form? That is a matter for that police officer's professional judgment in any given set of circumstances. There is no requirement for him to do so; on the contrary, it would be exceptional of the police officer to do so. Such matters will be clarified further in the guidelines.

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

I understand that there will be discretion, but we have been told throughout the proceedings that there will be guidance. If that states that the police officer may write a lengthy statement and deal with the matter in the same way as he would deal with an ordinary offence, I do not understand why that would be sensible. As the Police Federation said:

``This, possibly, is a fast-track system...But the following day, they may dispute the behaviour and allege the police acted wrongly. They may try and plead not guilty or propose to plead not guilty...So the fixed penalty ticket may be an addition to the set of papers that have already been issued. That is the issue for us. It will be a good system if it reduces bureaucracy''.

However, let us consider what would happen if a substantial proportion of cases required all the usual paperwork as well as a fixed penalty notice. If the officer had to solemnly fill in the fixed penalty notice and then make a further statement, I do not see the advantage of the system. Unless the Minister can convince me on that, I will press amendment No. 79 to a vote, but I shall withdraw the other two amendments in the group.

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

I have no particular desire to avoid the hon. Gentleman's pressing the amendment to a Division but I shall tell him, just for the purposes of clarity, that a paperwork issue can arise only when the individual who has been given a fixed penalty notice decides that they would prefer to take the matter to trial, as they have been informed that they may; in other words, they would be in exactly the position that they are in now, except that a fixed penalty notice would have been written.

We expect such cases to be in the overwhelming minority, obviously, because we expect that a fixed penalty notice will be served only in those circumstances where, by agreement, it is taking place along with the other exchanges. That will save all the paperwork that would otherwise have been done.

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

My point is that the cases that are the ones that are likely to be tried are of the type in which a person would want to fill in an extra statement. It is difficult to see why, in those circumstances, one would ever go for the fixed penalty notice option, unless the Minister is telling us that his guidance will suggest that one should. If it is a complicated issue, involving issues of identity, and the officer feels that he really needs a full statement, it is likely to be the sort of case that ends up in a trial.

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

As we made clear in the debate yesterday, the guidance will say that in areas where the identity of the individual is uncertain, for example, the guidance will be not to issue the fixed penalty notice but to use the ordinary approach.

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

I am still not convinced. It seems to me that the fixed penalty notice should be for the simple cases where a person can write out the notice quickly, with a short statement of what the offence is, and if a person starts saying that it should be some more complicated procedure for a body of cases, that is not right. I shall therefore press amendment No.79 and withdraw the other two amendments.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 12.

Division number 6 Adults Abused in Childhood — Clause 3 - Amount of penalty and form of penalty notice

Aye: 6 MPs

No: 12 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

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

I beg to move amendment No. 80, in page 3, line 33, leave out subsection (6) and insert—

`(6) No regulations or order shall be made under this section unless a draft of the same has been laid before and approved by a resolution of each House of Parliament'.

The amendment is straightforward. It requires the regulations setting the levels of fixed penalties to be debated and dealt with under the affirmative resolution procedure. As we have heard this morning, important issues have arisen about the level of the fixed penalties, the seriousness of the offences, the likely effectiveness of the notices, ability to pay and enforceability. All these issues are involved in the question of at what level the fixed penalty notices should be set, and we think that it would be right for the House to have the opportunity to debate that question, given the sort of debates that we have had today.

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate

I shall rise briefly to support my hon. Friend because the Minister was kind enough to make it clear that he had accepted Opposition amendment No. 9, which would subject orders to the affirmative resolution procedure.

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

I did so in a moment of weakness.

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate 5:00 pm, 13th February 2001

Let us hope that the Minister will have another moment of weakness. It is important that the principle should carry across that if one is to change not only the nature of the offences but the amount of the fine, the matter should go in a positive rather than a negative form before the House of Commons.

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

I am happy to support the amendment. We regularly debate in Committees whether we should have affirmative or negative resolutions. There are two reasons for having an affirmative resolution. First, we are dealing with an area of justice that cannot be scrutinised by the courts if it never gets further than the first stage. Parliament therefore needs to ensure that it grants permission positively for that to happen, rather than just letting it happen.

Secondly, Ministers will rarely return to the House to change the tariff, given the nature of the debate that we have had. We have never before had a proposal for such wide-ranging offences. Even if later there were to be a change from affirmative to negative procedure because it became accepted within a certain category of offences, that is not the case at the moment. It is an innovative proposal and it deserves to be considered by the House. I have a question that may or may not help my argument. Does a change in the fines tariff require an affirmative or a negative resolution?

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

There seems to be one additional point that strengthens our case here. As has been repeatedly pointed out, we have no guidance at present, despite the fact that at the end of the preceding debate, the Minister told my hon. Friend the Member for North-East Hertfordshire categorically that the guidance will say this and the guidance will say that. If the Minister can be so sure about what the guidance will say, why cannot we have that guidance? If the Government insist on using only negative resolution procedures, which, as the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) pointed out, are the subject of regular debates in Committee, it would be much easier for them to maintain that position if we had already seen the guidance. As we have not seen the guidance it is surely necessary, with a novel procedure, for matters to be subject only to affirmative resolution procedure so that each time the House has a fresh opportunity to consider them.

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

The Secretary of State seeks the power to set particular penalties in an entirely new situation. The House should play a full part in that. The Secretary of State should know that he will have to come to the House to explain the reasons for particular penalties in these important, and to some extent revolutionary, new areas. They are revolutionary because they deal with areas that are generally accepted as criminal, although they will not give rise to criminality if the fines are paid in the same way as many of the standard fixed penalty fines, such as for parking. Although such fines can be antisocial, they are simply regarded as one of the regulatory items of day-to-day life. Therefore the House should maintain a proper control over the level and the Secretary of State should be aware of it. It is not a precedent. It is not a great burden on the Secretary of State to concede this. I hope that the Minister can tell us today that he will think again and come back on Report with the Bill amended in Government form.

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

As the hon. Member for Southwark, North and Bermondsey said, we frequently have this debate. I will attempt to describe it in the language of my youth, when we talked about rentamobs and rentaquotes, and say that we are having a rentanaffirmative resolution debate. In fact we must use judgment. That is the purpose of the debate. There is parliamentary control, whatever the circumstances. It is a question of the nature of the parliamentary control.

I would argue that there is a qualitative distinction between an affirmative resolution on whether a particular offence is brought within the remit of the Bill—which is what we agreed on clause 1 when we agreed with the Opposition's amendment—and an affirmative resolution when we are talking about setting the level of penalty and the regulations providing the form of the penalty. They are qualitatively different, and if there is to be any qualitative judgment that does not simply say that every decision must be subject to the affirmative resolution procedure, I cannot think of a better illustration than the qualitative distinction between the question of applying this sanction to a new offence and the question of the level of the penalty and the regulations providing the form of the penalty.

My argument is strengthened significantly by observing that the discretion of the Secretary of State in relation to these areas is already highly constrained by the fact that the

``Secretary of State may not specify an amount which is more than half the amount of the maximum fine for which a person is liable on conviction of the offence'' and by the various processes that have been set out throughout the Bill.

I urge the hon. Member for North-East Hertfordshire to withdraw his amendment. Unfortunately, I am not in a position to answer the question asked by the hon. Member for Southwark, North and Bermondsey at this minute, but I will write to him about the question of the negative resolution procedure's applying to fines more generally.

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

Given that the Minister would not concede that it should be a quarter of the maximum, and that he will not tell us what level of fines he has in mind, it is not unreasonable for us, as parliamentarians who are supposed to be scrutinising what the hon. Gentleman is up to, to say that we want to be able to debate this when the order comes up because so far he has not told us what he is up to. I do not mean to be disrespectful to the Minister, but he must understand that if he does not provide the Opposition with information, he must expect to have to debate these issues at a later time.

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

Regarding those two specific points, with respect to the hon. Gentleman, I do not think that he can have been listening. On the question of a quarter or a half, I said that I would think about it. I did not simply dismiss the proposal out of hand. I said that I could see a case for it and that I would think about it, and I will.

On the question of the average level, I said that the responses to our consultation document from a wide variety of organisations were that the fines should be of the order of £50 to £100, and I said that the Government's thinking was not significantly divergent from that. In particular, I said that the hon. Gentleman's suggestion—which I know that he was probing with, not suggesting—that we might have a fixed penalty fine of £2,500 for a particular offence was completely outside the bounds of any proposition that we might have.

I cannot accept the hon. Gentleman's proposition that I have given no guidance either on the question of the half or quarter or on our approach to the overall level of fines. Obviously, he will decide how to press this point, but I urge him to think again, unless he simply wants to develop a reputation that is traditional to Oppositions—it is not particular to Conservatives—of simply saying that there should be an affirmative resolution on everything that comes along. If there is a question of intelligence and judgment to apply to it, I put it to the Committee that there is a difference between the question whether to bring an offence within the remit of the Bill, where the affirmative resolution does have weight, and the questions of the precise penalty and the precise form of the penalty notice, which I would argue are of a subsidiary level of significance.

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate

I hope that the Minister appreciates that the issue that will give cause for controversy outside this place is the amount of the tariff that the police can impose if these fixed penalty notices become widespread, as the Minister hopes. That will be a matter of controversy. If the Minister's Government or any future Government are then, to a degree, perceived to be smuggling through changes in the tariff, particularly if the maximum remains unchanged at one half—rather than moving down to one quarter, as it may if a Government amendment to that effect is tabled on Report—that will be a legitimate area of controversy and we, as parliamentarians, will not be seen to have done our duty in this respect by implementing an affirmative measure. It is a controversial area, and I hope that the Minister will reconsider the amendment.

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

First, as far as Parliament is concerned, on the negative resolution procedure it is open to the Opposition to pray against a particular order and to have a debate about it. We had such a debate just the other day. I cannot remember whether it was in this Committee or another one, but there was a 20-minute debate about an issue of substance that went through that process. If there is as much controversy as the hon. Gentleman is suggesting, I am sure that the Opposition of the day would feel able to follow that course.

However, the controversy surrounding the level of the fine and whether it should be £50, £100, £150 or £200 is utterly trivial compared with the controversy about the introduction of the fixed penalty notice system for such offences and new offences that might arise. That is why the affirmative resolution is appropriate in one case but not the other.

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

No, I will not give way. I have done so several times.

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

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

If the Minister had promised us that, if we prayed against the order in question, he would ensure that we had a debate on it, I might have been tempted to agree to his blandishments. However, as everyone knows, if we pray against such an order, the chances of our securing a debate, given that the decision is entirely in the hands of the Government, will be small. Such a controversial issue should be debated. As the Minister has not given us the draft order, as I had hoped, which would have enabled us to deal with the matter differently, I shall press the amendment to a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 13.

Division number 7 Adults Abused in Childhood — Clause 3 - Amount of penalty and form of penalty notice

Aye: 6 MPs

No: 13 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Clause 3 ordered to stand part of the Bill.