Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, this is a probing suggestion that the clause should not stand part of the Bill. It relates to penalty notices for disorderly behaviour. The notices were introduced under the Criminal Justice and Police Act 2001. They allow a police officer who has reason to believe that somebody has committed a particular kind of offence—described and listed in the Act as a penalty offence—to issue them with a notice that gives them the option, within 21 days, of either paying a fixed penalty or electing to be tried for the offence. If they do neither, they become liable to a higher penalty. The notices are designed to deal with offences of disorder. The Act includes references to drunk and disorderly behaviour, possession of cannabis, petty retail theft—I am not sure how that is defined—and causing criminal damage. Noble Lords might think that this is somewhat reminiscent of one of Tony Blair's less successful inspirations, by which offenders might be marched to the nearest cashpoint and compelled to force it to disgorge a certain amount of money at the behest of a police officer. That is not quite the way in which the system works. The current analogy of what Tony Blair suggested might be bankers who treat their banks' assets as something like a cashpoint and come away with considerable sums of money without any penalty being imposed—but that is by the way. Clause 121 and Schedule 20, with which it is linked, contain some interesting changes to the original scheme. They confer power on chief officers of police to set up a scheme in their area which would allow police officers to issue penalty notices not just, on this occasion, with a fine, but with an education option under which the offender—or the person suspected of having committed an offence because an offence does not have to be proved—would have the chance of avoiding the fixed penalty or court proceedings by undergoing an educational course for which he then pays the appropriate fee. This is somewhat reminiscent of the debate we had around the proposed scheme in London in relation to alcohol, but it is discrete. It is an analogous proposal. It is an interesting idea that such a course might be a suitable alternative to a financial penalty or court proceedings. Perhaps the noble Baroness will be able to say tonight or subsequently quite how far this concept has gone and whether indeed there are such educational courses available, whether this has been trialled anywhere, and so on. It would be helpful to have an understanding of where we are on this. I have a slight reservation that this is left to chief officers of police, so we can presumably have the same situation, the same set of circumstances, in two adjoining force areas and an entirely different way of dealing with matters. I do not know whether the Minister will indicate whether she is content that this matter should be left entirely to the discretion of chief officers or whether it might be government policy eventually, perhaps having trialled the thing, to see whether it might be rolled out in a more systematic way. Certainly, it is a welcome innovation to look at more constructive ways of steering people away from, in this case, disorderly and relatively minor criminal behaviour without the more drastic consequences of punishment through the courts. Nevertheless, there are some issues that arise with this proposal. First, I should welcome the fact that the notice cannot be given to a person under the age of 18, so we are dealing with adults only. However, there are some reservations about other aspects of the proposals. The first is the requirement that the police officer issuing a notice to an individual other than at a police station must be in uniform. In other words, a police officer out of uniform will still have that power to give a notice. I think that that is not good practice. It is something that I invite the Government to explain. It might be regarded as a matter of convenience, but if we are talking about disorder, if somebody who says he is a police officer and is not in uniform hands out a notice, one can envisage circumstances developing in a way that is not intended. In other words, there might be resistance to an approach of that kind from somebody not in uniform. Obviously, there might be some other evidence of the officer’s status, but I do not see that that suggestion is likely to assist in dealing with the matter. The other requirement, and I am less concerned about this, is that police officers currently have to be authorised constables when they are delivering notices in a police station. That would no longer be the case. Perhaps that is less obvious because people are then in police custody and the situation would be clearer. However, there are some other reservations about these matters. When this was debated in the House of Commons, an amendment was moved by Helen Goodman MP for the Opposition maintaining the obligation of a police officer issuing a penalty notice for disorder to be in uniform and for the actual act of delivering that notice to take place within a police station. That was not accepted, but I would be interested in hearing the rationale for turning down that suggestion. Helen Goodman also raised the issue of out-of-court disposals. It is interesting that the Explanatory Note to Chapter 7 of the Bill is headed ““Out of court disposals””. Liberty has expressed worries about proposals aimed at increasing the use of out-of-court disposals, including these notices, which it believes can be contrary to fundamental principles of justice. It says: "““On-the-spot police punishment without the involvement of the judiciary””" is a matter for concern, and: "““Bypassing normal judicial and fair trial safeguards can leave individuals open to bias and irrationality in sentencing decisions””." These are effectively sentencing decisions. This concern is reinforced by the views of the criminal sub-committee of the Council of Her Majesty’s Circuit Judges, which might be thought to have a somewhat different standpoint from Liberty but nevertheless shares some of those concerns. Its report said: "““We have expressed our concerns about the ever increasing use of out of court disposals for what is, in reality, criminal activity for some years. We remain very concerned … Out of court disposals have, increasingly, been used as a response to truly criminal activity and the general public may have no idea how the situation has developed and the range of matters that may now be dealt with by extra judicial processes … Until recent years, in our view appropriately, the use of fixed financial penalties has been in relation to offences that might be termed ‘regulatory’””." It then looked at the issue of disorder, and went on to say: "““The use of fixed penalties as a response to truly criminal offending is to create the impression that truly criminal offending is not to be treated as significant. We are concerned that this is likely to encourage the belief that crime may not result in retribution and introduce the perception that some criminal activity does not merit proper process or consequences whilst other matters which might be deemed regulatory breach rather than truly criminal activity, result in equivalent or more serious consequences. In the long term, such a policy carries substantial risk. If less serious, but nonetheless criminal activity is to result in similar sanctions to regulatory breach, it is likely to come to be regarded as no more serious. So at the risk of stating the obvious if, for example, theft in a shop””—" and I remind your Lordships that ““petty retail theft”” is one of the grounds for administering the notice— "““attracts the same consequence as unlawful parking, it may come to be regarded as equivalent in seriousness. This must have an impact upon the numbers who may be tempted to engage in truly criminal activity””." It is not the same standpoint as Liberty’s but it nevertheless touches on a real issue. Many of us would probably accept the distinction that a fixed penalty for some offences, such as drunk and disorderly, is perfectly appropriate, but when we come to theft and criminal damage, which of course can vary widely in degrees of seriousness, we are perhaps in somewhat more difficult territory. Whether you take the Liberty perspective of there being the need for a proper judicial process for this—rather than people admitting to something because this process offers a quick resolution, whether or not they regard themselves as guilty of it—or whether you look at it from the point of view of the circuit judges as sending the wrong signal about the seriousness of the crime, there is a real issue. Of course, I will not be pressing this matter to a vote. It is designed to probe. But I wonder whether the Government would envisage reviewing this situation after a period to see what is actually happening on the ground, particularly with regard to the fact that there may be this variation in what chief officers of police may choose to do. We are in new territory and in many ways the thrust of the Government’s proposals is sensible, but there are concomitant risks that it would be interesting to hear the Minister’s views about.