There are dangers in allowing the police to act as judge and jury – the government should review the use of on-the-spot fines
On-the-spot fine are the exemplar of the government's penchant for instant justice. A startling 55% of all "offences brought to justice" are now dealt with outside the court system though fines, cautions and formal warning, and the Magistrates' Association has received alarming reports that this figure includes very serious offences, such as arson, rape, and GBH.
Take knife crime, an issue currently creating a great deal of public concern, the guidance given to magistrates means an offence will usually attract a custodial sentence, but during the first few months of this year some 1600 offenders have been given a simple caution by police officers.
Unsurprisingly the Magistrates' Association is therefore very concerned about further offences being added to the fixed penalty list, and have pressed that point on justice secretary, Jack Straw, with some success.
Straw recently produced revised operational guidance for the police on the issuing of penalty notices for disorder for retail crime and criminal damage in response to concerns that repeat offenders are escaping court because police hand out a string of on-the-spot fines for easy convictions. In one case highlighted, a thief was given 12 successive fixed penalties for shoplifting.
There is no dispute that fixed penalty notices issued by the police are an effective way of dealing with some minor offences, no one would suggest that all speed camera offences should come to court, and in the case of many other offences a fixed penalty or caution is appropriate.In my own speciality of road traffic, a Department of Transport consultation earlier this year included proposals to allow the police powers to issue on-the-spot fines for the offence of careless driving.
The Magistrate's Association do not believe that the offence of careless driving should be brought within the fixed penalty regime for two main reasons. First, it is not a clear-cut offence. It is a subjective matter of judgment whether a piece of driving was bad enough to amount to careless driving, and we believe that matters that require a judgment to be made are matters that should be brought to court. Second, careless driving covers a wide range of behaviour from minor inattention to behaviour just below dangerous driving, and the penalties available to a court reflect this, ranging from three to nine penalty points or disqualification, and a fine of up to £5000.
By contrast the fixed penalty would only be for three points and £60. There would be a strong temptation for the police to issue a fixed penalty even in a serious case, to avoid what the government itself calls "a heavy burden of paperwork".Surely rather than proposing further fixed penalties, the government's first response should be to establish whether all this paperwork is really necessary?
For the driver concerned there may be a difficult choice, if he believes himself to be innocent, he can either swallow his objection and accept the fixed penalty, or run the risk of going to court where the penalty may be considerably higher.
One has to question whether it is just to impose this sort of pressure. Drivers and others may well be told by police that a fixed penalty does not count as a conviction, which is correct, but it does still go on their criminal record.
The Magistrate's Association believes that justice is best delivered openly, in court, and while out of court disposals are acceptable for minor offences, the balance needs to be very carefully considered.
