I remind the Committee that with this we are discussing the following amendments: No. 7, in clause 2, page 2, line 3, at end insert—
'(bb) number of pedestrians and other vulnerable road users in the vicinity at the time,'.
No. 8, in clause 2, page 2, line 3, at end insert—
'(bb) the prevailing weather conditions,'.
No. 9, in clause 2, page 2, line 3, at end insert—
'(bb) the conditions of visibility,'.
No. 10, in clause 2, page 2, line 4, at end insert—
'(cc) whether the contravention resulted in a collision,'.
No. 11, in clause 2, page 2, line 7, at end insert—
'(dd) any mitigating circumstances put forward by the offender,'.
No. 16, in clause 3, page 2, line 37, at end insert—
'(bb) the time of day it was committed,'.
No. 17, in clause 3, page 2, line 37, at end insert—
'(bb) the number of pedestrians and other vulnerable road users in the vicinity at the time,'.
No. 18, in clause 3, page 2, line 37, at end insert—
'(bb) the prevailing weather conditions,'.
No. 19, in clause 3, page 2, line 37, at end insert—
'(bb) the conditions of visibility,'.
No. 20, in clause 3, page 2, line 38, at end insert—
'(cc) whether the contravention resulted in a collision,'.
No. 21, in clause 3, page 2, line 41, at end insert—
'(dd) any mitigating circumstances put forward by the offender.'.
May I start, Mr. Pike, by saying how delighted I am that you are in the Chair and that you will preside over our proceedings in the firm but fair way you always chair our proceedings? In your absence this morning, Mr. Hughes was extremely good on his first outing and I shall convey that information to him at the earliest opportunity.
You will be surprised to hear, Mr. Pike, that during our debate this morning on clause 1 and grants to local authorities, there was a considerable discussion about speed safety cameras. There was also a discussion about the handbook of rules and guidance on safety cameras. This Government always keep their promises and this Minister always ensures that promises are kept. The document is now available for those who want a copy for some light bedtime reading or who like reading such things. It has been available for some time in the Library, but we have brought some copies Upstairs.
Mr. Pike, I will not be drawn on that, lest we do further damage to the hon. Member for Spelthorne (Mr. Wilshire) and his party.
Just before the Committee adjourned this morning, when I was rudely interrupted, I was saying that clause 2 amends section 53 of the Road Traffic Offenders Act 1988 to enable the Secretary of State by order to prescribe graduated penalties. The amount may vary, depending on the circumstances of the offence, which include, in particular, the nature of the offence, its severity, where it took place and whether the offender had committed other prescribed offences during a prescribed period. However, that is not an exclusive list of circumstances.
The measure provides wide scope to take account of key factors such as whether the offence was near a school. The hon. Member for Christchurch (Mr. Chope) referred to collisions, which are covered by new subsection (2)(2)(b). Meteorological conditions and the presence of a particular number of vulnerable road users are harder to codify; in the latter case, I would be disinclined to try to formulate too complex a structure of penalties that took account of factors such as how many pedestrians were on the pavement or the road at a particular time.
Clause 3 amends section 28 of the Road Traffic Offenders Act 1988 so as to enable the Secretary of State by order to prescribe appropriate levels of penalty points in the case of a fixed penalty. The number of points may vary, depending on the circumstances of the offence. Amendments Nos. 16 to 21, which we will discuss under clause 2 although they apply to clause 3, would have an effect similar to amendments Nos. 6 to 11, which apply to clause 2. They are subject to the same difficulties and the Government cannot accept them.
I had not covered a couple of points, one of which was raised by the right hon. Member for East Yorkshire (Mr. Knight) who, sadly, is not in his place. He asked about amendment No. 21 and any mitigating circumstances. It would be absurd if someone could start arguing about mitigating circumstances at the side of the road and a police officer had to take those circumstances into consideration. The police officer makes a judgment, but he cannot then hold a court at the side of the road. If someone wants to contest a judgment, they can go before the courts to seek redress.
I am grateful to the Minister for that clarification, which gives me a better understanding of the situation, but it does not put my mind at rest about the circumstances that I raised with him. A court might say, ''We accept the mitigation. It is justified and we therefore reduce the fine to zero'', indicating that it had every sympathy; yet the law does not allow it to say, ''We will not apply points.'' The person would then be disqualified, although the court felt that they should not be penalised. Is the Minister prepared to re-examine that point? Even if this is not the right place or the right Bill for that purpose, I think it should still be considered.
I was about to come to that point, as the hon. Gentleman had raised the issue.
I am afraid that that has always been the case; the Bill does not change it. The magistrates can choose to operate at another level. I am told that if somebody came before the court with a fixed penalty, the court could, having heard some evidence, in certain circumstances decide to dismiss the case—in other words, effectively find the person not guilty. If that were the case, no penalty would be incurred. I am not a lawyer, but, as I understand it, that course of action is at the court's disposal.
Again, that is helpful, but does the Minister accept that there could be circumstances of the sort I suggested, in which the last thing anybody would consider when this thing tumbled through the letter box was going to see a lawyer about something which, at the time, they would see as a trivial matter? They could easily plead guilty, not knowing that by pleading not guilty there would be an opportunity not to have the points put on their licence. Again, what the Minister said is helpful, but it does not overcome the problem.
The same would apply to anybody who committed any offence in any shape or form. If one felt aggrieved, one would take advice. Then, if it was appropriate, one would go to the court. However, that applies not just to motoring offences or tickets but to virtually every offence.
I hope that that brings the hon. Gentleman some comfort. There would have to be special circumstances. One could not simply say, ''Oh, I didn't see the sign'' or ''I hadn't realised that the speed limit had changed'', when manifestly the limiter signs were in place.
There is one defence that people have used to have a ticket overturned. The hon. Member for Christchurch gave an example whereby a speed limit had been changed on a road. If somebody could demonstrate to the court that the road had not been sufficiently signed within the law, that would be a strong defence in the court. The case could then be dismissed and the ticket thrown out. However, somebody would have to demonstrate that, and I believe that, on occasions, they have. Certainly in the 30mph zone, people have sometimes shown that the legal designation of the limit had not been met and got their tickets overturned. There are probably not many occasions when that is possible. The risk is that unless one's evidence is very good, one may go to the court and find, as many people do, that the fixed penalty tends to be the lowest penalty that can be given and one leaves the court with a higher penalty, but that is the hazard of going to court.
Of course it is possible to start arguing about technicalities, but if someone wants to cite mitigating circumstances I suspect the last thing on their mind will be playing the barrack-room lawyer and trying to trip up the system. A mitigating circumstance is a personal circumstance that overtakes a person. It is all very well to suggest that they could, if they knew it, take advice or argue whether the signs were in the right place, but I doubt whether that is what would be on their minds at the time.
The hon. Gentleman and the hon. Member for Christchurch used the example of someone taking a person to hospital or rushing to a member of the family who was in hospital. It is understandable that if a driver wants to help a loved one or get to them rapidly in such circumstances, his mind may leave consideration of the road for a time. That is understandable; it is human and it could happen to us all. I have taken people to hospital on a few occasions. Once it was someone who was badly injured and losing a lot of blood, and it struck me that if I was going too fast I might occasion a further accident, which would increase the need for the person to get to hospital and decrease my ability to get them there.
It is difficult, in the cold light of day, to weigh up such things in an emergency. In the example given by the hon. Member for Spelthorne, if a person is rushing to visit someone in hospital, or is in an emergency situation or rushing to a catastrophe at home, I believe that the driver would almost certainly plead guilty or be found guilty of the offence, which would give the court no discretion about issuing penalty points. However, the magistrate may then say, ''Given what you have gone through and the fact that you have penalty points, I think you have suffered enough.'' He may decide not to inflict further penalty. That is my understanding of the operation of the law. I hope that that is helpful.
The Minister will recall that when we were debating the Traffic Management Act 2004, we dealt with the rigidities in the fixed penalty system and the representations made by adjudication officers that local authorities—effectively, they are the equivalent of the prosecuting authority in the cases that we are discussing now—should have the chance to review the circumstances and decide whether they wish to proceed.
What the Minister said makes it clear that the prosecuting authority has no discretion. It receives the letter of explanation from the person who has had the fixed penalty notice setting out the mitigating circumstances, but if there had been a police officer at the scene he would probably have exercised his discretion and said, ''I am not going to prosecute in these circumstances.'' We are arguing for a similar sort of discretion for the prosecuting authorities, to prevent a prosecution from proceeding.
The difference is that the people issuing the tickets in the circumstances mentioned by the hon. Gentleman would largely be civilian traffic wardens. We are now talking about police officers, who are trained to a much higher level of competence—I do not mean that the others are not competent, but that the police officers operate under a different system and have a higher level of training. The person still has the safeguard of going to court, but most of the offences that the hon. Gentleman refers to would not attract penalty points. They would be parking offences, which do not attract penalty points on the licence, and there is the procedure whereby one can go back to the local authority and then, if necessary, to the adjudicator. In this case, however, once the police officer has made his judgment, it can be challenged in court.
I accept that is what happens if a police officer is present who makes a judgment on the situation, but I am describing what happens if the penalty is triggered by a machine—a safety camera—which cannot understand the circumstances involved. Surely, if the penalty is triggered by a machine, it should be possible to introduce a human element into the process so that discretion can be exercised and a prosecution not proceeded with.
If the hon. Gentleman has not already done so, I suggest that he visits his local safety camera partnership to see how it operates when it receives the film. Having seen that myself, I know that the person who looks at the film is highly trained. They must determine whether the equipment shows that someone was speeding and must look into other circumstances, such as the proximity of other vehicles. When there is close proximity of two vehicles, there may be confusion as to which vehicle triggered the light and I understand that there can be issues of the beam bouncing from one vehicle to another. The person who looks at the film uses discretion to ensure that cases are clear-cut when the penalty notices are sent out. When I visited the safety camera partnership, a large number of cases—about 20 per cent. at a guess—were thrown out because the operator decided that they were not satisfied that the matter could not be challenged if the recipient of the penalty notice took the matter to court and the film was shown to the magistrates.
On the other side in the Department, someone told us that he had been unfairly dealt with and we suggested that he send for the film. The guy sent the film to me and said it was disgraceful that he had been prosecuted, but it seemed to me that he had been travelling faster than indicated on his ticket. He claimed that a car nearby had set off the camera, but there was manifestly no other car in the photograph. The photographic evidence is available to the person who is accused of offending and could show that there was doubt, but it often puts the case beyond doubt. If someone feels that there is doubt, they can go to court and if the court feels that the evidence in front of it is not good enough, the magistrates or the judge can call the proceedings to an end.
Will my hon. Friend clarify one matter? My father was once the recipient of a fixed penalty notice after he was caught on camera speeding when taking my son to hospital with a fractured skull. Is it not the case that even in such circumstances, there is always discretion as to whether to continue a prosecution?
I think that was the point I was making. If someone is caught on camera and receives a fixed penalty fine, they would have to challenge it in court and hope to plead mitigation. On the one hand, they may want to try to prove that they were not driving above the speed limit and if they could demonstrate that in court, the case would be dismissed. If they pleaded guilty and said that they were speeding but that mitigating circumstances led them to do so, the court could reduce the financial penalty, but, as I understand it, there is no leeway within the law for it to reduce the penalty points on the licence.
I fully understand the Minister's argument about a case that gets to court. I am asking whether there is an intermediary stage whereby someone might persuade the prosecuting authorities to withdraw a fixed penalty notice, or whether, once it has been issued, it is inexorable that it goes to court or leads to acceptance of a fixed penalty.
If that exists, it is not known to me and I do not believe that there is any other intermediary stage. I know that some people have written to safety camera partnerships. If a partnership felt that a mistake had been made by one of its operators, it may have some discretion. If my hon. Friend wants more information, we can probe the matter in a little more depth, but I am not sure that it is wholly relevant to the clause.
The Minister is very generous in giving way. If there is no leeway at the moment, should there not be some? The Minister said that there is no leeway under the law, but we have the opportunity in this Committee to change the law so that there is leeway and so that discretion can be introduced in circumstances such as those described by the hon. Member for Wellingborough (Mr. Stinchcombe).
What I am trying to say is that there is a fairly high degree of discretion. The operator in the police station or in a place attached to a police station who looks at the film uses a fairly high degree of discretion. I cannot comment on every operator but, from what I saw, I would say that operators erred very much on the side of doubt. I dare say that one or two people who had speeded excessively got away with it because there was a tiny element of doubt and the operator was not prepared to accept that the driver might go to court and be found not guilty. There is some discretion already within the system.
I am aware that I took the Committee on this scenic byway instead of staying with the main principle of the clause. The Minister will have realised that I feel strongly about the matter. I readily accept that I am not a lawyer, but I am hearing things that lead me to believe that an informed and researched debate on the subject—I am not criticising the Minister in any way—might help to clear the air one way or the other. Perhaps I could table an amendment on Report to seek to build in some discretion. The Minister and the rest of us would by then have had a chance to do some research and perhaps we could usefully pursue the matter at that point.
If the hon. Member for Spelthorne wants to go down a scenic byway, it is totally in his gift to do so on Report; or the matter could be the topic of a half-day Opposition day or even an Adjournment debate. I would be delighted to respond to a debate and to unravel the matter in as much detail as the hon. Gentleman felt appropriate. I am perfectly happy to mull over the matter.
This has been a useful and interesting debate in unravelling some of the issues that we have covered, but the amendments would not be helpful; in fact, I think they would be a hindrance to the proper operation of the law. Reluctantly, I ask the Committee to reject them.
Mr. Pike, I, too, welcome you to the Chair. It is a great pleasure to serve again under your chairmanship.
The Minister has addressed some of our concerns, but this interesting debate has highlighted a lacuna in the law, which hon. Members on both sides of the Committee would like addressed. It is the issue of someone who has personal mitigating circumstances which resulted in their speeding and being detected by a speed camera. Such personal mitigating circumstances would not be known by the operative who looked at the film—the operative would not know, for example, that there was a sick child in the back of the car who was being taken to hospital.
When we were discussing a similar issue in relation to the Traffic Management Act 2004 and the rigidity associated with, for example, moving traffic offences in box junctions and bus lanes, the then Minister was very accommodating in saying that a code of practice should operate to enable people who felt that a camera did not tell the whole story and who wanted to make written representations to the authorities to do so, thus giving the authorities the opportunity to say that in the circumstances they would not prosecute. Unfortunately, under the fixed penalty regime under clause 2, there is no equivalent discretion available to the authorities to enable them on receipt of representations from a motorist to decide that they will not prosecute. All that can happen is that the matter goes to court if the recipient of the fixed penalty notice looks at what I described earlier as a rather misleading form which says that if there are mitigating circumstances, the recipient should go to court. However, by the time they get to court, it becomes apparent that the court does not have any discretion to give the equivalent of an absolute or conditional discharge, which would be available in all other criminal proceedings.
The hon. Gentleman describes a lacuna, but he is extending it beyond where it would go in law. If I remember my law correctly—admittedly, I last practised eight years ago—there is a court procedure allowing people to show special reason why their licence should not be endorsed, or why they should not be disqualified when they would otherwise lose their licence—for example, in totting. That is one procedure, but I would not want the hon. Gentleman to extend the lacuna beyond that.
It is many years since I looked at ''Wilkinson's Road Traffic Offences'', the bible on such matters. It is true that special reasons can be dealt with in some circumstances, but that does not cover the situation described by the hon. Member for Wellingborough or by my hon. Friend the Member for Spelthorne. I should have thought that, with the legal expertise of hon. Members and of those who are following our proceedings, it might be possible to address the problem.
It may not be as strong a case as that of someone taking their child to hospital in an emergency, but I heard of a case the other day in which a temporary traffic sign indicating that the speed limit had been reduced from the standard 50 mph in an urban area to 30 mph because of road words had been knocked down.
The gentleman concerned said that although it was at night and the works were not in progress, the temporary speed limit sign had been knocked over. He wrote to the police saying that the sign had been knocked over and sending a photograph of it that he had taken the following morning when he went back to check. Notwithstanding that, he was told that there was no discretion because he had no defence. It was an absolute offence. He was driving at a speed in excess of the prevailing 30 mph limit. The fact that the sign was knocked down was no defence.
That is another example of what I would describe as special circumstances, although I accept that they may not be special reasons; but common sense dictates that the authorities should have exercised discretion. The authorities failed to use discretion in that case. The gentleman is now faced with two options—paying up, under protest, or taking his case to court in the knowledge that he has no defence but only mitigation, and the prospect that if he goes to court the fine may be larger than if he had settled for a fixed penalty. That is one issue that has been highlighted in our debate.
I am grateful to the Minister for explaining in a little more detail how the criteria set out in clause 2 will be applied. I am still not clear how the clause will work in practice; perhaps we can briefly touch on that aspect during the clause stand part debate. It is far from clear how people are to find out what the graduated fixed penalties will be, and what time scale is set for their introduction.
I have given notice to the Minister of those questions that will arise on clause stand part. In the meantime, I invite everyone who reads the report of our debate, and those who have participated in it, to put on their thinking caps to see whether a way can be found—we could bring it forward later in the proceedings—to mitigate the full penalties in the special circumstances that we have outlined. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Before I come to that, I want to outline what the clause will do. Clause 2 amends the Road Traffic Offenders Act 1988 so that amounts of fixed penalties prescribed by order under section 53 can be graduated. The graduations would depend on the nature of the infringement and its severity, whether other prescribed offences have been committed during a prescribed period and where the offence took place.
We should remember that the clause does not create new offences. The hon. Member for Christchurch asked how people would know about the offences, but the offences remain unchanged. People can find out about them by reading the Highway Code, or even by breaking the law and being fined. We make it clear in the discussion document that before we go any further—this applies also to clause 3—there will be consultation. Following that, an order will have to be laid before the House, with another period before implementation. People will find out about the law in the usual way, and, when appropriate, revisions will doubtless receive attention in the newspapers and motoring magazines. However, it is obviously up to the motorist to be aware of the penalties that can be attracted by the various infringements of the law.
Perhaps I can ask the Minister to give examples. As a result of having a wide range of penalties, when someone triggers a speed camera, they will receive a fixed penalty notice that is not for the minimum in the available range but is rather higher. The view is taken that it is a serious offence and/or that the offender appears to have committed a previous offence.
How will the offender know whether that higher range fixed penalty is the appropriate penalty? Will he have the opportunity to make representations about it? Will case law apply? Could he be referred to any practice guidance? Or, bearing in mind that each prosecuting authority is distinct, will he be operating completely in the dark? It would help if the Minister could explain how it will work, perhaps by way of example.
As somebody who has not received too many such notices—in fact, I have not had one—[Interruption.] It is dangerous to say these things, and we can all transgress.
I have seen a notice, and I know that information is given with it showing the penalties. The notice also refers to the relevant Act. If someone felt that the information was not right, they could go to the library or seek legal advice to find out whether it was correct. They would have to trust what was on the notice, seek redress in the courts or take further consultation on the matter.
Before thresholds are changed for the financial penalty or for the number of points on the licence, another process has to be gone through. As I will say when we come to clause 3, the provision merely gives the ability to vary the fines for those offences. It does not set out what the fines will be or how many points would apply to an offence.
As those orders come forward, I am worried that we will end up with inconsistencies across the country in the interpretation of what is serious and so on. Will the Minister explain how we can achieve consistency? As we have heard, the postcode lottery affects many other issues, and I would hate different interpretations to apply in different regions or counties. Will the Minister explain how to overcome that?
As my hon. Friend will see when we deal with the amendments to clause 3, our discussion document on speeding set a framework in which there could be no discretion—a person would be charged depending on the various elements. That was discussed and, if this becomes law, there will be further consultation. That is an example of a case in which, once a matter has been through consultation and discussed in Committees of the House, there is unlikely to be discretion. However, in other cases, police officers enforcing the law will, as they do now, take the circumstances into account and make a judgment.
When a police officer at the side of the road pulls somebody up, he makes a judgment as to the severity of the offence—for instance, driving at 40 mph in a 30 mph zone might on some occasions not appear to be dangerous, whereas on other occasions, in a busy high street, with children crossing the road, it can be utterly outrageous. One could argue that at 3 o'clock in the morning, that there is still a danger—partly because more crashes happen at night than during the day—but that it is less dangerous. It is for police officers to make that judgment, just as they do now on almost all offences.
May I help the hon. Gentleman? No it does not; clause 3 applies to all the offences and clause 2, which we are dealing with now, refers to the financial penalty. Clause 3 refers to the penalty points.
I am sorry; I stand corrected. This deals with the financial penalty and we have heard that, for example, somebody could be speeding at 2 or 3 o'clock in the morning, when there is hardly anybody about, compared with somebody driving at the same excessive speed but in more dangerous circumstances. The graduated penalties set out not only the penalty points, which will be dealt with in clause 3, but the fines. If the clause means anything, it surely means that somebody who, say, drives at 94 mph in conditions in which there is a lot of traffic will face a higher financial penalty than somebody who drives at 94 mph in the middle of the night. If that is not so, does that mean that the Minister does not take into account any of the criteria set out in (a) to (d) in relation to the speed at which a vehicle is travelling?
Perhaps there is a slight confusion here. It might be my fault for not having explained the position with sufficient clarity. The criteria that we have in clause 2(2)(a) to (d) would be those used to fix the penalties for certain offences. The same would be the case in clause 3 for fixing the penalty points. Almost certainly, those will have to come back before the House for consideration in relation to secondary legislation, in which the criteria would be used to formulate the fine levels for certain offences.
I am sure that the hon. Gentleman would accept that if one tried to introduce, as he does in his amendment, different times of day and night for the enforcement of, say, camera-operated speed limits, that would create almighty confusion. It would be almost unenforceable. The criteria would not apply to such offences. They would apply to the formulation of the penalty but not, once it was fixed, to the penalty itself. Once the criteria are fixed, the discretion goes out of the window.