Clause 7 - Notification of court and date of trial

Criminal Justice and Police Bill – in a Public Bill Committee at 9:55 am on 15th February 2001.

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Amendment proposed [13 February]: No. 100, in page 4, line 24, to leave out the word `by' and insert the word `before'.—[Mr. Heald.]

Question again proposed, That the amendment be made.

Photo of Roger Gale Roger Gale Conservative, North Thanet

I remind the Committee that with this we are taking the following amendments: No. 99, in page 4, line 24, leave out

`the offence will be tried' and insert—

`and the time at which, he must appear'.

No. 101, in page 4, line 25, at end insert—

`( ) A warning notice shall be given in the manner prescribed by order made by the Secretary of State, such power to be exercisable by statutory instrument.

( ) Such an instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament'.

No. 111, in page 5, line 3, leave out subsection (7).

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

I was speaking about amendment No. 111 in our previous sitting and, as I was saying then, leaving out subsection (7) would allow someone who was not informed that he had received a fixed penalty to keep the matter open. I will recap briefly and then ask the Parliamentary Secretary's opinion.

Chapter I will greatly assist the police and the administration of justice, by enabling comparatively minor offences to be dealt with swiftly and effectively. However, if the speed of justice is increased, its fairness can be reduced, which would be undesirable in cases in which people were unaware that they had been given a penalty notice, and wanted the matter reopened.

Subsection (7) is unnecessary, and the window that it leaves open is not likely to be used often. If people try to use that window in unmerited cases, the court will not allow it. However, in the sort of case in which it is used, it will give the court an opportunity to do justice where, otherwise, the rights of the citizen might have been ridden over roughshod. I hope that that is not the Government's intention, and I believe that it would be wise to leave this window open.

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

It might help the Committee if I say a little about the clause's purpose. It will allow a police officer who issues a penalty notice to give the alleged offender a warning notice at the same time. A warning notice informs the offender of where and when the case will be tried, if he opts for a court hearing instead of paying the penalty. In normal circumstances, the police officer will have such details to hand. However, for events such as music festivals or demonstrations, during which the police could reasonably expect to issue some fixed penalty notices, they may wish to set the date and venue of the court hearing in advance for people who challenge offences under the provision.

Amendments Nos. 99 and 100 assist in specifying precisely where and when such a trial should take place, if it is requested by an offender. I explained to the hon. Member for North-East Hertfordshire (Mr. Heald) that the Government have reflected on the matter in the light of the amendments, and are, in principle, prepared to accept the spirit of them. We will table amendments that reflect his improvements. On that basis, I hope that he will not press the amendments to a vote.

Amendment No. 101 would provide for additional requirements concerning the warning notice, although it is likely that they would be used extremely rarely. Other provisions in clause 7 state that the notice should be treated as a summons for the purposes of the application of the Magistrates' Courts Act 1980 to any further proceedings relating to the offence. They also state that such a summons is to be treated as having been properly served on the recipient by a justice of the peace on the date on which the notice was given.

I hope that Opposition Members do not have any quarrels with the principle of such provisions, although I understand their concern to ensure that the warning notice is a properly served summons. However, it is difficult to see what other prescription they would wish to make about the manner in which the notice is given. If their concern is that the constable serving the notice should make its meaning clear to the offender, the Government are prepared to ensure that that is covered in the Secretary of State's guidance to the police. However, there is little difference between an offender who is issued with a warning notice and an offender who receives a summons through the post and has nobody on hand to explain its meaning.

I assure the hon. Member for North-East Hertfordshire that the Government are prepared to take such a step, and I hope that he will be prepared to withdraw the amendment.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs) 10:00 am, 15th February 2001

I was pleased with the concession on the previous occasion, and I am sure that this concession is very constructive. Will the Parliamentary Secretary explain the form of the warning notice? Will it be part of the same document as the fixed penalty notice, or will it be a separate piece of paper?

As I said previously, magistrates usually have to consider jurisdiction when deciding whether to issue a summons. Is there any provision about the petty sessional division that would deal with the case, and would it always be petty sessional division for the area in which the fixed penalty warning notice was given?

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

We envisage that there will be separate notices. An offender will be given a fixed penalty notice and told that if he wants to challenge it in a court, the trial is likely to take place at the specified time and venue.

On which court the trial would be held in, I imagine that the same rules that apply to any other offence will also apply. The police officer who observes an offence will give a fixed penalty notice as an alternative to the offence being tried in court. However, should the recipient wish to have the fixed penalty notice set aside and have the matter tried, the same provisions would apply as would apply if the police officer had arrested the individual and charged him with the offence. Therefore, the offence would be tried in the same court as if it were not dealt with by a fixed penalty notice.

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

The Minister said that he imagined that the rules would be the same as in existing criminal court procedure. In due course, will he write to all members of the Committee and give an undertaking that if the provision becomes law, there will not be a factory arrangement in which all such fixed penalties are heard in one court? I mentioned previously the campaign of the Evening Standard against all fixed penalty parking tickets being dealt with in Northampton, which is hugely inconvenient for London residents.

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

I do not need to follow the hon. Gentleman's suggestion because subsection (4)(a) provides for such a summons to be treated

``as properly issued on the information by a justice of the peace for the area for which the magistrates' court notified as the court of trial acts, requiring A to appear before that court to answer to that information''.

It is clear that that would be the court local to the area in which an offence is committed.

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

How does clause 7(2) fit into the procedure? It states:

``Subsection (3) applies if a person (``A'') who has been given a warning notice makes a request to be tried'', but as I understand the procedure, the request to be tried will follow the giving of the penalty notice.

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

I was intending to explain that in response to the issue that has been raised concerning subsection (7).

Let us assume that matters get slightly out of hand at a demonstration, and an offence is committed under the Public Order Act 1986, for which a fixed penalty notice is issued. At the same time, a warning notice is given to the individual, telling him, when the matter will be tried if he wants to contest it. However, it is entirely open to that individual, when sitting in his room later in the evening, away from the heat of the demonstration, to decide that as things had got out of hand, he would prefer to send a cheque to the clerk to the justices rather than face a criminal trial and get a criminal record. In that circumstance there would be no trial, as there would have been no request.

Alternatively, the individual concerned may wish to contest the matter. That is his right. He must serve a request to be tried, under clause 4, to exercise the option to have a trial rather than pay the sum due under the fixed penalty notice. That is why subsection (7) is required. Someone on whom a fixed penalty notice has been served and who has written to the justices seeking a trialcannot then say the he was not served with the notice in the first place. That is why subsection (7) says:

``If a person has been given a warning notice, section 14 of the Act of 1980 (proceedings invalid where accused did not know of them) does not apply.''

The individual must know of the proceedings, because he has made a request to be tried.

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

I understand the hon. Gentleman's answer, but I was surprised by the way in which he began it. He described a situation in, for example, Trafalgar square, where things had got out of hand and individual A had been served with a fixed penalty notice. He said that A had also been given a warning notice, but as I read the structure, it may be the case that A is given only a penalty notice; he does not have to be given a warning notice. It would be rather odd if he were given a warning notice then and there, to tell him which magistrates court to come to and so on. I do not know whether police officers are to carry all these warning notices around with them. If A has not been given a warning notice then and there, he might still ask to be tried in answer to the fixed penalty notice. If he were then to receive a warning notice, would he have to ask again to be tried?

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

No. If that person has not been given a warning notice, clause 7 does not apply. If he has been given a warning notice, he does not need to be given a further warning notice. Either he is given one, or he is not.

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

I apologise, but that is not quite the question that I asked. I will be grateful when the Parliamentary Secretary does answer my point about subsection (7), but I am raising a different point: whether an individual might have to ask twice to be tried.

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

No, just once. If there is no warning notice, the clause does not apply. If it applies, the person has been given a warning notice saying, ``If you want to contest it, this is how you do so, but you have got to tell us that you want to contest it.''

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

I think that I understand the right hon. and learned Gentleman's confusion. The warning notice does not indicate that there is going to be a trial. All it does is to explain to the offender that if he elects to challenge the penalty notice, and wants not to pay up but to go for a trial for a criminal offence in the magistrates court, he has to notify the authorities to that effect. It is his choice, not the police officer's. The warning notice does not mean that there will necessarily be a trial. All that it says is that the court will be reserved in case a notice is contested. That is why subsection (7) is there, and why removing it would be inappropriate.

We do not believe that it is in the interests of justice to dispense with subsection (7). It cannot be right for an alleged offender, who has been served with a warning notice and has said that he wishes to contest a trial, to claim that he did not receive either notice. I hope that the hon. Member for North-East Hertfordshire, now that he understands the reason for subsection (7) and appreciates how the procedure works, will withdraw the amendment.

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

I may be misunderstanding. May I query the structure once more and then come to subsection (7)? As I read the structure of chapter I, a person is given a penalty notice under clause 2. Then clause 4 comes into action. It states:

``This section applies if a penalty notice is given to a person (``A'') under section 2.''

A then asks to be tried. He has already said that he wants to be tried. He has not yet been given a warning notice.

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

The right hon. and learned Gentleman does not seem to appreciate the effect of subsection (1), which provides that at the time when he gives the fixed penalty notice, the officer may also issue a warning notice. Therefore, a person has a penalty notice and a warning notice in his hand when he considers whether to give the authorities notice that he wants to contest the matter by trial.

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

I understand what the Parliamentary Secretary says, but it is not what the clause states. Subsection (1) says:

``If a person is given a penalty notice under section 2, he may be given written notice (``a warning notice'')''.

It does not say that he may be given one at the same time. Although he may receive the warning notice with the penalty notice, it may be given to him later. If he is given both notices at the same time, his request to be tried will, no doubt, apply to both the penalty notice and the warning notice. However, if he is given the warning notice later, which could quite often be the case—unless the Parliamentary Secretary tells us that penalty notices are always going to be tied in with warning notices, which would be surprising—must he respond both to the penalty notice, asking to be tried, and to the warning notice telling him where he is going to be tried, saying that he wishes to be tried? That is the potential muddle that I am asking about now.

To change the subject, subsection (7), which prompted amendment No. 111, states:

``If a person has been given a warning notice, section 14 of the Act of 1980 (proceedings invalid where accused did not know of them) does not apply.''

That worries me because, in a perfect world, someone given a warning notice would know of the proceedings, so the Parliamentary Secretary's answer—that notices cannot be invalid and no one could claim that they were—would stand.

However, in an imperfect world, a constable could genuinely believe that he had given a warning notice, while the citizen genuinely believed that he had not been given it. Sometimes, the citizen would be right. If he was, the proceedings should not be valid.

Photo of Mr David Lock Mr David Lock Parliamentary Secretary, Lord Chancellor's Department 10:15 am, 15th February 2001

I do not want to get into exegesis of the law, but I think that the matter is relatively simple. The right hon. and learned Gentleman will note that subsection (7) says:

``If a person has been given a warning notice''.

He suggested that if a person says that he has not been given a warning notice, and he is right, proceedings against him would none the less be binding. I respectfully suggest to him—he is a far more eminent lawyer than I—that a person would have a pretty good defence if that problem occurred: he could say that his case did not fall within subsection (7) because he had not been given a warning notice.

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

On the basis of that argument, why does section 14 in the 1980 Act need to exist?

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

I would like to join in the discussion. My right hon. and learned Friend made an important point about subsection (7). Where there is a dispute between the person giving the notice and the person receiving it, I imagine that that could be resolved in court. However, we are still short of a definition of ``given''. Perhaps the Parliamentary Secretary can help us. If it means ``handed to'', which appears to be the flavour of his responses, one can imagine that a person unable to read and write—perhaps a fairground worker at one of the events where large numbers congregate, as the Parliamentary Secretary described—could be handed a warning notice. Would it be fair to apply section 14 of the 1980 Act if the meaning of the warning had not been understood? Should an individual not be able to attend court and say that he was handed something but had no idea what it meant?

Some of the amendments have been tabled because situations may arise in which the meaning of the warning needs to be explained to the person concerned. Even if it is explained, there should still be a provision that allows for a person to argue that he did not understand what was said to him—he might be a foreigner, for example. The Parliamentary Secretary may laugh and think that such situations would not generally happen, but as a lawyer, he knows the litany of unusual cases that fill the legal textbooks and law reports. Committees such as this never dreamed that they would happen.

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

I know that hon. Members are desperate to string out our proceedings, but there are important provisions in the Bill that need to be debated.

Photo of James Gray James Gray Conservative, North Wiltshire

On a point of order, Mr. Gale. The Parliamentary Secretary's remark that the Opposition are determined to string out the proceedings is most peculiar. It is incorrect; we are giving sensible consideration to important matters. Surely, if he were correct, it would be up to you to make the point, not him.

Photo of Roger Gale Roger Gale Conservative, North Thanet

The hon. Gentleman is correct. It is up to the Chair to decide whether the Committee is in order. As far as I am aware, everything that has been said this morning is in order.

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

I am grateful to the Opposition for the opportunity to intervene. Subsection (7) describes what will happen if a defendant does not turn up at court. If he turns up at court and says that he is challenging the fixed penalty notice and does not want to pay the fine, that is the procedure that would be followed. If he does not request a trial because he does not understand the fixed penalty notice or the warning notice, there is no trial and the fixed penalty notice takes effect.

I appreciate the point that the hon. Member for North-East Hertfordshire is making, but this is not the occasion on which to raise it.

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

The Parliamentary Secretary is right to the extent that he has promised to consider what should be said when the warning notice is given. I welcome that, and it meets part of my point. Of course, it is true that if people do nothing, they have a one and a half times fine slapped on them, and they are taken to court. We will come later to the provisions that will allow them to seek a trial. However, I feel that he could further elucidate what ``given'' means. If it simply means ``handed to'', it would be nice if he would say so.

Everyone in the Government says, ``Oh, let's get on with it. Our Bill is perfect. Anyone who criticises any aspect of it is filibustering.'' Ministers should reflect on the words of the Home Secretary when he was in opposition. He said:

``careful scrutiny is one of the best guarantors of good legislation''.—[Official Report, 20 November 1995; Vol. 267, c. 339.]

My experience in the House, although not very lengthy, is that if Front Benchers agree and Committees whiz through in record time—as happened, for example, with the child support arrangements—we do not usually get the best law. The Parliamentary Secretary has to concede that he has already given way on half a dozen occasions or promised that he will reflect on matters. That is because we are doing our job properly.

Photo of Stephen Ladyman Stephen Ladyman Labour, South Thanet

That exchange has confused me. Perhaps the Parliamentary Secretary would relieve me of my confusion the next time he intervenes. If someone celebrating when Sven and the boys win the next World cup is given a penalty notice for getting over-enthusiastic, it seems foolish to give him the warning notice at the same time. If he loses one, he will lose the other. I assumed that the warning notice would come in the post a day or two later, so that he would know that he had received a penalty notice. Is that correct?

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

I am grateful to the hon. Gentleman, because that is exactly the point made by my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell). I confess that I had not spotted that. He was right to table amendment No. 111. As the hon. Gentleman said, subsection (1) reads as though exactly that would happen. That seems sensible.

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

We expect the warning notice to be given with the fixed penalty notice, in the usual course of events. We expect that the two notices would usually be given at the same time. In that context, ``given'' means precisely that. The notice is physically served or otherwise clearly brought to the attention of the defendant, in the same way that anything else is served. However, it would not be right to remove the possibility entirely—although I accept that it would be unusual to exercise it—for a warning notice to be given at some other time. It would not have to be acknowledged. It will say only where a trial will take place if the defendant wants to contest the penalty and wants the right to a trial. Of course, it depends on whether the defendant wishes to make that request.

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

Given that the penalty notice specifies the way in which a trial is to be requested, will the serving of the warning notice restart the clock 21 days from that point? If it is served later, it would have to explain that the time for requesting trial is still 21 days, and it would not work if it confused people.

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate

I have carefully followed the discussion, and although subsection (1) appears to be simple, it fails a reality check. It is extraordinary to expect a policeman who serves someone with a fixed penalty notice while dealing with disorder on the street to know both the magistrates court where that person will be tried and the date of the trial. He is not an expert listing officer, so it fails the reality test to expect him to be in possession of such information. How does the Parliamentary Secretary expect the procedure to work? That highlights the relevance of the concerns of my right hon. and learned Friend the Member for North-East Bedfordshire.

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

Although that point could be right, it is possible for the police to liaise with the magistrates' clerks—who are now called chief executives—to arrange a date.

I am concerned about jurisdiction. If a major outside event such as a huge festival was taking place at some distance from a large town, the petty sessional division, where the magistrates court for that area is situated, might be unable to cope with the volume of cases and it might be necessary to hear them in a town with a large magistrates court—that happens fairly frequently. In such circumstances, the magistrate would normally decide whether it was convenient or necessary for the better administration of justice to serve summonses for a magistrates court outside the area where the incidents occurred, but I understand from the Parliamentary Secretary's comments that, in this instance, the police would decide the matter. I am trying to tease out of him how that would operate, given the magistrates courts rules.

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

On this occasion, the hon. Gentleman has made a reasonable point about how such arrangements would be set up in advance, given that they will be rarely used, and only for events at which the police anticipate that they might want to issue fixed penalty notices. In such instances, he is correct that the courts and the police would have to liaise in advance to agree the fixed dates to be printed on the warning notices. I apologise to the Committee if I did not make that point clearly, but I hope that it is implicit in the drafting.

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

I want to clarify where we now stand. The Minister's comments about amendments Nos. 99 and 100 have satisfied us.

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

Is my hon. Friend not astonished to hear that it will be normal practice for the warning notice to be served with the penalty notice, given that the warning notice has to state not only the court where the matter will be heard but the date? The point may better be dealt with in a short clause stand part debate.

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

It is an odd procedure, given that there will not necessarily be any prospect of a court hearing. It is hard to envisage that the magistrates court administration would find it easy to operate in practice. It is also worrying for the police, because if, at a large event, many people are served with fixed penalty notices and warning notices at the same time and they all request trial, how many of them will turn up on the day of the hearing? After half a police force has been on duty for a special event, they might all have to turn up solemnly at court at a particular time on a particular date, when there is no hope of all the trials being dealt with on that day. The administrative side is worrying, as is the principle of setting a date and a time for a hearing when there is not yet the immediate prospect of a case. I also have doubts about the idea that it would not be served at the same time, but perhaps two days later. That could be quite confusing to the person who is being served the fixed penalty notice.

The Minister needs to get a grip and provide a detailed explanation of how this would work. We know that the Bill was introduced to save the Prime Minister's blushes, but the Committee is entitled to have the detail that will enable us to understand the mechanics of how it would work.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office 10:30 am, 15th February 2001

The hon. Gentleman asserted that the Bill had been introduced to save the Prime Minister's blushes. Will the Opposition vote to do that, or will they vote against all the powers on fixed penalty notices?

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

As may have become obvious to the Minister during the past two days, we believe that the principle of having fixed penalty notices to deal with the simple case of being drunk in the street or whatever is a good idea, provided that it is not overly bureaucratic, that it works and that the court system can cope with it. We want to be sure that the details have been worked out. Frankly, so far, it has been a bit of a mess. We have not seen the guidance that he keeps relying on. We have been told again today that the guidance will cover the matter, but where is it? When we asked about the level of fixed penalties, he could not even tell us what it will be. This has not been thought through.

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

Perhaps I can help the hon. Gentleman on the guidance. I have made a number of assertions about this. We will be able to give the Committee copies of our draft guidance immediately after the recess. I hope that that moves some way towards what he was asking for. If clauses 1 to 13 are not substantially amended beyond where we are now, which was a concession made by my hon. Friend the Parliamentary Secretary, will the Opposition vote against them?

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

The Minister knows that we support the principle. I have made that clear.

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

We are talking about the practicalities.

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

We are halfway through on the practicalities. We are in Committee. We have opportunities to suggest improvements between now and clause 13. We have already made a lot of improvements. We will have further opportunities on Report. [Interruption.] The Minister will have to be patient. If you introduce ill-thought-out legislation, and the detail is not in place, you have to be prepared to answer many questions.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Order. I must remind the hon. Gentleman that I am not introducing anything at all.

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

I did not mean you in that sense, Mr. Gale. I was being rhetorical and I apologise. [Interruption.] The Minister is metaphorical: I am rhetorical.

I was reassured by what the Parliamentary Secretary said about amendments Nos. 99 and 100. He made some progress on amendment No. 101 and I was happy enough. At least I hope that I will be when I see the guidance. I have just outlined my concerns. My right hon. and learned Friend the Member for North-East Bedfordshire has come across a good point and there should be an amendment on Report to say ``at the same time''. The Minister is wrong to think in terms of serving warning notices two days later. I look forward to hearing my right hon. and learned Friend's final view on amendment No. 111.

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

Briefly, I am not satisfied with the answers that I have been given on amendment No. 111 or on the practice of serving warning notices at the same time as penalty notices.

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

Would it help the right hon. and learned Gentleman if I were to explain the effect of section 14 of the Magistrates' Courts Act 1980? It allows people to swear a statutory declaration to the effect that they never received a summons. I do not understand how people who have had a warning notice served on them specifying when the trial will be, should they request it, can at the same time swear a statutory declaration saying that they never received notice of the trial date. That is the issue.

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

I think that the Parliamentary Secretary answered his own question in an earlier reply to me, when he said that if there was argument about whether one had been given the warning notice, that could be tried in court, but if one had indeed been given the warning notice, of course one could not say that the proceedings were invalid. It was a circular answer. He is shaking his head, so perhaps I misunderstand him.

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

I entirely agree that if one has had the warning notice, and so falls within subsection (7), one cannot say that one has not received the summons. If one has not received the warning notice, the clause does not apply.

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

This is the point about section 14 of the 1980 Act. It makes the proceedings invalid where the accused did not know of them. It will not happen terribly often. Of course, occasionally people make false points and waste the time of the courts, but they can be condemned in costs. All I am asking for is the window of opportunity not to be technically closed, in a situation where the citizen genuinely did not know of the proceedings, probably because a police officer honestly thought that he had given the warning notice and the citizen honestly thought that he had not received it. Indeed, the court could discover, if it tried the matter, that the citizen had not received it. I am doing nothing but keeping a sensible little opportunity for justice open, and all I would ask the Parliamentary Secretary to do is to reflect on it and table an amendment on Report if he thinks it necessary.

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

I do not intend to press any of the amendments to a vote.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

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

I want to point out something that has come out in the course of our debate and really does need either explanation or further thinking through by the Government. May I say, without rancour, that I strongly object to any suggestion that this careful scrutiny is intended to string out our proceedings. It is not. These penalty notices are very sensible in many ways, but unless they are done fairly they are a significant infringement on the liberty of the subject, and it is important to get them right. There will probably be tranches of the Bill in which we will have fewer points to raise—I hope that that will be the case—but these are important matters.

I found what the Parliamentary Secretary said pretty astonishing, and I would like a proper explanation. If I have understood him correctly, he said that penalty notices and warning notices will normally be given together. I totally see that that might happen if one goes back to the police station, because the officer in charge will be au fait with where the next opportunity for trial is likely to be, and the system will work perfectly well. We are legislating for circumstances in which police officers will go out equipped with a pocketbook that enables them to issue a penalty notice then and there. The notion that those pocketbooks can be prepared in a way that indicates the date and place of trial seems to be much less practical. If the system is to work in those circumstances, it makes sense that the penalty notice should be issued, the citizen should respond by saying that he wishes to be tried, and the warning notice should then be issued, sensibly constituting the equivalent of a summons under the magistrates court.

So far, fair and good, but the way in which the clause is structured suggests that someone who has been given a warning notice—albeit he has already been given a penalty notice and said that he wants to be tried—must make another request to be tried, or at least that, if the warning notice is to be treated as a properly served summons, he must make that request, because subsection (3), which enables the warning notice to be treated as a properly served summons, applies only where a person who has been given a warning notice makes the request. It does not say, ``has made a request to be tried.'' Some thought needs to be given to that, both for good drafting purposes and for the protection of the citizen.

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

I have one point to raise about the generality of the process of going from a fixed penalty notice to a magistrates court. I shall use the example that I heard reported on the radio last week, because that is all the information that I have. It relates to the issue of the proximity of the magistrates court to the place where the fixed penalty notice arises. I heard on the radio that a court commended someone in north Wales, because he had walked from somewhere in Snowdonia to Dolgellau magistrates court—a distance of about 50 miles. He managed to hitch a lift for some of the way and walked the rest. He was due to be at court at 10 am, but arrived at 4 pm, just before it closed. The magistrates were so impressed that the man had made such an effort to get there that they disposed of the case much more generously than they might otherwise have done. He then walked home again, arriving at about midnight.

That is an example of one case, but there is an issue about the need to ensure that a magistrates court in rural Britain that deals with fixed penalty notices is somewhere accessible. People may choose to go for trial, or the process may take them into trial mode, which we discussed at some length the other day. I should like the Parliamentary Secretary to reassure me that the normal rule about the nearest magistrates court applies. That is not a problem in urban areas, but is much more significant in rural areas, particularly with the gradual closure of courts in many rural towns and large villages, and the centralisation of the magistrates courts system. Do the Government have a policy on the maximum distance that anyone should be from a magistrates court?

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

I, too, recall very well the case mentioned by the hon. Gentleman, and I entirely agree with him. He may not be aware that both the hon. Member for Ceredigion (Mr. Thomas), a Plaid Cymru Member, and I raised it with the Parliamentary Secretary during Lord Chancellor's Department questions. The significant fact is that the court in Lampeter had just been closed, which led to the need for that ludicrous journey.

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

That is helpful. I was not present at Lord Chancellor's questions when the case was raised. When I heard about it on the radio, it reminded me of the story of Mary Jones and her Bible, which featured in a book that I was given at Sunday school. Again, in north Wales, a similar long journey was made to ensure that people received the first version of the Bible in Welsh.

Will the Parliamentary Secretary guarantee that a case will go to the nearest court and that it will be both within a maximum distance and accessible by public and other forms of transport. Some people will inevitably have low disposable incomes. They may not have free bus passes, and even if they do, there may be no public transport in the area. We must have a realistic system, under which the entitlement to claim the right to trial is something of which people can avail themselves, rather than something impractical.

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

Does the hon. Gentleman agree with the point that I have been making? Normally, it is the magistrates who have the discretion to say that a summons can be served outside their petty sessional division. It looks as though, under clause 7(4), that is going to end if a warning notice is served, because such a summons is to be treated

``as properly issued on the information by a justice of the peace for the area for which the magistrates' court notified as the court of trial acts, requiring A to appear before that court to answer to that information''.

That suggests that the magistrate does not make that decision. It is all treated as having already happened, provided that the warning notice refers to the magistrates court mentioned in the warning notice.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs) 10:45 am, 15th February 2001

That is certainly my reading of subsection (4). The last issue, prompted by that, is the case where a series of fixed penalty notices might be given to a group of people involved in a common disorder, even though some of them may not come from the area. It would be logical for the trial to take place in the court for the area where the disorder occurred.

If there were an offence, for example, of trespass on the railway line, and the person trespassing was on holiday, it might be in everybody's interest, and save the state a huge amount of money, if the court disposing of the matter, which is by definition regarded as a lesser matter because it is in the system, was not at the other end of the country, requiring the person to get from, say, Croydon to, say, Aberystwyth, but in Croydon. There is an issue, which I am grateful to the hon. Gentleman for raising it, as to whether it is logical and sensible for the hearing to be held in a court near to where the person lives, rather than in a court at the opposite end of the country which the person is unlikely to attend.

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate

The more I listen to the debate, the more concerned I get about the practicality of the warning notices, how they are to be issued, and the questions raised by the hon. Member for Southwark, North and Bermondsey regarding the practicality of individuals attending sessions near their home. I am also concerned about the principle, if one can call it that, which seems to underlie the warning notice.

The fixed penalty notice seems to say to the recipient, ``Go on, make my day. We're ready for you. We've got all the procedures lined up. If you dare to be so impertinent as to elect for trial, this is where you are going to come. We've got all the lawyers and magistrates ready to bang you up and send you down with a serious fine if you dare to exercise your right to trial.''

I find that distasteful. Someone who is served with a fixed penalty notice has 21 days to consider whether to take the option of paying the fine, thereby discharging his obligation to the policeman who gave it to him, and avoiding the prospect of getting a criminal record.

If the person elects for trial, that is a serious consideration because, if he is found guilty, he will have a criminal conviction. As we have seen throughout the debate on the clause, the warning notice procedure is heavy handed, with all the administrative complications of trying to make it equivalent to a summons—for example, in the way in which it is handed out—and all the administrative difficulties that come with it.

Should policemen wander around with warning notices on them and be briefed on which sessions will be available? If a policeman hands out a fixed penalty notice, 21 days will be the minimum period, because a person has the right to make an election. Will the policeman indicate the magistrates sessions at which these people are going to come up in front of the beak, or will people have to go back to the police station to get their notices there?

What would happen at events such as the Reading festival, Glastonbury or some large demonstration on Trafalgar square, where violence is anticipated and the police have set up procedures whereby they are going to take people away in large numbers and try to deal with them? The police could find that if there were semi-organised protesters, as there were in the protest against the City, people would accept fixed penalty notices. They would then be told where they were going for trial and be dozens, if not hundreds, of people who had been served fixed penalty notices, all electing for trial, would all turn up on the same day, and there would be total chaos because the system simply would not have the capacity to cope.

The provision is an unnecessary complication. People will receive a fixed penalty notice and then have 21 days to decide whether to risk a criminal conviction or to discharge the liability. The idea of ``Go ahead, make my day'', which seems to underlie the principle of a warning notice and challenges people to go to trial, is distasteful.

Warning notices have the potential to be administratively chaotic and add nothing to fixed penalty notices. If people elect for trial, they should get a proper summons in the ordinary way. It would be a serious election for them to make, and they should be treated with respect as citizens who are trying to defend a principle by risking a conviction or facing a bigger fine. I will vote against the clause.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Hall Green

I am embarrassed to admit that the more I listened to the debate, the more I felt that the right hon. and learned Member for North-East Bedfordshire had a point. Perhaps inadvertently, the hon. Member for Reigate (Mr. Blunt) has one as well. I am not a lawyer, so I have greater difficulty understanding such matters. However, if the summons and notice were served together, the individual would not get any subsequent notice of a trial date. Such notice would be given only at the time that the penalty and warning notices were served.

The hon. Member for Reigate talked about such notices being used in cases of public order problems. I tried to envisage what would have happened during the 1980s miners' strike if such powers had been available. A number of miners were caught up in what were alleged to be public order offences, and were subsequently successful in appealing those cases. In such states of confusion, where the police are being forced to deal with large numbers of people, there is clear disorder and it is reasonable to say that people are frightened, the notices might not be issued properly. That could happen as a result of pure error rather than any deliberate act.

It would also be possible for someone deliberately to fail to issue proper notices. If we were being cynical or pursuing conspiracy theories, clause 4(5)(a) and (b) could appear to mean that people could be told that they were being prosecuted and paying one and a half times the penalty without necessarily knowing that they had received the penalty or warning notice in the first place. I do not think that that is the intention. The idea is to speed up the process with penalty notices and to use the warning notices to prevent the duplication of paperwork when someone requests a trial.

Listening to the debate and re-reading the documents, I notice that the explanatory notes and the clause do not entirely tally. My hon. Friend the Parliamentary Secretary might like to reconsider the wording of the clause, so that the law carries out the intention with which most hon. Members agree, and to prevent any misapplication of the legislation that might result from the current wording.

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

I shall deal first with the points raised by the hon. Member for Southwark, North and Bermondsey. In some parts of the country, there is indeed considerable physical distance between people's homes and their local magistrates court. There is devolved justice in the UK, so it is for the magistrates courts committees to decide how best to use their resources to provide local justice. I know that the Liberal Democrats are very keen on the delegation of power, and on locally taken decisions being respected by the centre, rather than the centre always thinking that it knows best. Decisions about the precise location of magistrates courts are entirely a matter for the committees, because power was devolved to them by an Act of Parliament passed by the official Opposition when they were in power.

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

No. I will give way in a moment, but first I want to answer the point.

There is a serious point that defendants who have been caught—I appreciate that the hon. Member for Southwark, North and Bermondsey would never be caught, because he insists that he would run away—

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

On a point of order, Mr. Gale. Is it in order for a Minister to refer to the policy of the official Opposition and then decline to accept an intervention from an Opposition Front Bencher?

The Chairman: The hon. Gentleman has been in the House long enough to know that Ministers are entirely responsible for their conduct and words in the debate. If he wishes to catch my eye once the Parliamentary Secretary has sat down, he may be able to do so.

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

I was not raising a question about the official Opposition's policy, but pointing out that magistrates courts committees have jurisdiction over where their own courts are located, and that they exercise that under an Act passed under the previous Government.

The hon. Member for Southwark, North and Bermondsey made a good point. Where long distances are involved, people caught for relatively minor public order offences, such as drunkenness, are in a better position if fixed penalty notices are served on them, because they then have the option of avoiding a long trip to the magistrates court. They can dispose of the matter by simply paying a fine rather than turning up in court and pleading guilty. They will still have the opportunity of contesting the matter in the magistrates court, as at present, if they so wish. The clause creates no new offences but provides a mechanism for dealing with existing offences that have been committed. It assists people in rural areas whose local court is a considerable distance away, because it gives them the option of having the matter disposed of without going to court.

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

That rebuttal is superficially persuasive but in fact mischievous. Someone who lives next to Camberwell magistrates court, and who can get there easily, has an advantage that someone who lives 60 miles from the magistrates court at Lampeter—or at Dolgellau, as it now is—does not have. I think that even the Parliamentary Secretary might be persuaded that that is unfair justice.

Photo of Mr David Lock Mr David Lock Parliamentary Secretary, Lord Chancellor's Department 11:00 am, 15th February 2001

It is perfectly true that those of us who live in rural areas and are far from public and private major services have to travel further for a whole range of things. There are enormous benefits to living in the countryside, but some downsides as well. One downside is that longer trips might be necessary to access all public and private major services. I accept that. The point that the hon. Gentleman makes is part of a much wider debate, and I hope that the rural White Paper that was published last year results in significant improvements in that situation.

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

The Parliamentary Secretary must not be allowed to get away with his specious suggestion that the Government are carrying on the previous Government's policy of allowing magistrates courts committees to make unfettered decisions about courts. The Government have imposed huge bureaucratic pressure and all the costs of the Human Rights Act 1998 on magistrates courts committees, so the closure of those courts throughout the country is directly the Government's fault.

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

I am attempting to deal with the consequences of fixed penalty notices and in particular to respond to the debate on clause 7. The hon. Gentleman has made that point on a number of occasions. The Committee will not be assisted by endless arguments on it.

I understand the valid concern of the right hon. and learned Member for North-East Bedfordshire that if subsection (7) is not removed, someone who asserts that they did not receive the warning notice will be unable to raise that as a defence in respect of the proceedings that have taken place, presumably in his absence. I assure him that as a matter of construction—my officials will assist me if this is incorrect—if a defendant says that he did not get the warning notice, even with subsection (7) in the Bill, the court has full discretion to make a finding of fact on that assertion. The court will decide either that he received the warning notice, in which case he was properly served in exactly the same way as if a summons had been served and he had not responded to it, or that he did not receive the warning notice. In that case, clause 7 will not come into play because, as he was not served with a warning notice, the procedure will not have been activated. He would be in exactly the same position as any other person who had not received a summons for a hearing and would therefore be able to swear a statutory declaration under section 14 of the Magistrates' Courts Act 1980.

Assuming that procedure, the fine is likely to be the way in which the matter first comes to the defendant's attention. If he was served with a warning notice but made a genuine mistake because he did not know that it was a warning notice, even though he has now been properly served, the court could set aside the fine. That would address the right hon. and learned Gentleman's concern. Under clause 12(5), the court has total jurisdiction to set aside a fine in the interests of justice. There is that wider discretion.

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

The Parliamentary Secretary 's argument seems to be that it would be as good to leave out subsection (7) as to leave it in. I urge that it be left out. What exactly does section 14 of the 1980 Act say?

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

Section 14 of the Magistrates' Courts Act 1980 says:

``Where a summons has been issued under section 1 above and a magistrates' court has begun to try the information to which the summons relates, then, if—

(a) the accused, at any time during or after the trial, makes a statutory declaration that he did not know of the summons or the proceedings until a date specified in the declaration, being a date after the court has begun to try the information; and

(b) within 21 days of that date the declaration is served on the clerks to the justices,

without prejudice to the validity of the information, the summons and all subsequent proceedings shall be void.''

Further subsections develop that.

The effect is that an individual who finds out after the event that a trial has taken place in his absence about which he was not served with a summons and was therefore ignorant and so could not contest it, can invoke a procedure whereby the proceedings that took place without his knowledge are declared void. The court can then take whatever course is appropriate.

A warning notice given under clause 7(7) is the same as a summons saying when a trial that has been requested will take place. If the person is not given a warning notice, the procedure under clause 7 does not apply. However, clause 7(7) is necessary so that, in a case where a warning notice has been issued stating where the proceedings are to be tried, if election for trial is made, the court need not serve a further notice on the defendant saying for a second time where the matter is to be tried.

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

That means that one can contest the service by making a statutory declaration, which takes some time and trouble and is a normal safeguard for citizens. What is the point of ruling that out?

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

It is ruled out because, by definition, a person who has been served with a warning notice under clause 7 cannot simultaneously say that he was served with a warning notice and is therefore covered by the clause, but that he wants to swear a statutory declaration saying that he was not served a warning notice. The provision removes the possibility of a person's occupying two such contradictory positions.

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

The Parliamentary Secretary is right to say that the circumstance in which the problem could arise is that in which a person receives a letter out of the blue saying that he has incurred a fine, and says that he knows nothing about it. Thanks to the Magistrates' Courts Act 1980, magistrates courts operate a sensible system that allows people to make a statutory declaration. It can be tested in court, but at least it provides an opportunity to contest the service. It would be wise to leave that option in the Bill. That would not hurt the Government. I ask the Parliamentary Secretary to think again.

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

We shall have to disagree on that. An individual who claimed to know nothing about a notice could take advantage of section 14 of the 1980 Act. Nothing can stop him doing so unless he is a person against whom a warning notice has been served. Of course, the individual will say that he knows nothing about it, was not served with a summons, did not receive a warning notice and therefore wants the matter set aside. That is perfectly proper.

The object is to stop someone saying, ``I know nothing about the circumstances of this event. I accept that I was served with a warning notice, but I knew nothing about the trial.'' Those two positions are entirely inconsistent and the Government do not understand how anyone can simultaneously say that he was served with a warning notice telling him to turn up at Bedfordshire magistrates court on a certain date if he wished to contest proceedings, yet that he knows nothing about them; hence clause 7(7).

I have listened carefully and I understand the right hon. and learned Gentleman's argument. However, I do not think that the clause has the effect that he suggests because an individual will still be able to say that he was not served, and take advantage of section 14. That would apply only if the person had been served with a warning notice, or believed himself to have been.

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate

I thought that the Parliamentary Secretary said that the reason why we do not need to worry about the matter is that clause 12(5) says:

``The court may set aside a fine in the interests of justice.''.

I understand that that cannot apply because the clause concerns only people who have elected for trial and who are therefore not defaulting on a fixed penalty notice. It applies only to the fine for non-payment of a penalty, so the clause does not apply in other circumstances.

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

I think that the hon. Gentleman is concerned that if someone was served a warning notice and a fixed penalty notice and elected for trial but did not turn up for trial, the case could be heard in his absence. If a fine is imposed in absentia, clause 12 will not apply. It applies only for a fine registered under clause 11, when someone has not responded to a fixed penalty notice. I want to answer the question about what would happen if someone not only did not request a trial, but did not know anything about the proceedings that were under way. In such a case, a fixed penalty would not have been paid so a fine would be registered; the first time the person would know about it would be when the fine was enforced.

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

In support of the argument by the hon. Member for Reigate, I ask the Parliamentary Secretary to consider whether it would be easier to have a common process—namely, a summons—and whether that could be an alternative to the procedure under discussion. Could we have one common system for the period after the court process has been triggered? We may still vote against the clause, but perhaps the hon. Gentleman will consider that, and the Government might return to the issue later.

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

Hon. Members have raised many issues on the assumption that the procedure will be used frequently, but we do not anticipate that it will be. We expect it to be used on the occasions when the police and the courts anticipate an event that could lead to the offences in clause 1. For such situations, the police and courts may set a court date in advance to ensure that any problems at the event are dealt with promptly and in an organised way on a date when all the defendants involved can be brought before the court. If there are many defendants, the arrangements for the trial of the issues must be determined. It is right that there should be one occasion on which the issues of who is genuinely contesting the case, how the cases are to be tried and how the administrative procedure leading up to trial will proceed, are determined.

If the police anticipate that they will want to use those powers, they should be able to set a court date in advance, in co-operation with the justices, to anticipate the disposal of fixed penalty notice cases. The procedure will cut out the bureaucracy that would otherwise be involved, and ensure that all the defendants whose cases have common features are co-ordinated to meet on one date, regardless of when their requests for trial arrive. That is an administrative convenience for the authorities, and will enable justice to be done swiftly and properly.

If hon. Members disapprove of that suggestion—I understand why they might—they can vote against the clause. However, the Government believe that the police should have the option, in such unusual circumstances, to be able to anticipate the course of events so that they can police matters properly, and so that there is a clear procedure for serving a fixed penalty notice. The notice is not a challenge or a dare to individuals; it makes it clear, in a measured way, to people who have been served with a fixed penalty notice, that they have the right to contest the notice, and, if they wish to do so, it states, in advance, where their trials will be heard.

The procedure is straightforward. It will enable defendants and the police to know where they stand, and I hope that it will commend itself to the Committee, but if any Committee members do not like it, they can vote against it.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs) 11:15 am, 15th February 2001

The procedure is hopelessly over-complicated. If notices are served at the same time, defendants who have not asked for a trial will turn up at court on what they think is their court date, and the problems outlined by the hon. Member for Birmingham, Hall Green (Mr. McCabe) will arise.

I am sorry, but separate procedures for notifying people of their court dates are needed.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 10, Noes 7.

Division number 10 Adults Abused in Childhood — Clause 7 - Notification of court and date of trial

Aye: 10 MPs

No: 7 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Clause 7 ordered to stand part of the Bill.