Fixed penalty notice

Fixed penalty notices (FPNs) were introduced in Britain in the 1950s to deal with minor parking offences. Originally used by police and traffic wardens, their use has extended to other public officials and authorities, as has the range of offences for which they can be used.

In recent years, this has taken the form of using them to give police and public authorities in England, Scotland and Wales a realistic weapon against anti-social behaviour. They are designed to reduce paperwork on police and council officers by allowing low-level anti-social behaviour to be dealt with on the spot. Newer types of notice exist for disorder, environmental crime, truancy and noise. A fixed penalty notice is not a fine or criminal conviction and the recipient can opt for the matter to be dealt with in court instead of paying. However, if the recipient neither pays the penalty nor opts for a court hearing in the time specified.[1] It may then be enforced by the normal methods used to enforce unpaid fines, including imprisonment in some circumstances.

Civil penalties such as Penalty charge notices, PCNs, are a similar legal construct used for issuing on-the-spot fines. Unlike FPNs, civil penalties have an assumption of "guilty until proven innocent" with a burden being placed on the individual to appeal the fine. Civil penalties can be issued for property violations[2], tax code violations [3] or illegal employment [4]. The appeal processes tend to operate through tribunals.

In Hong Kong, fixed penalty notices are issued for minor offences such as smoking,[5] littering,[6] parking[7] and allowing engines to idle.[8]

Examples

Penalty notices for parking and motoring offences

Fixed penalty notices were originally introduced for parking and motoring offences by part III of the Transport Act 1982[9] (replaced by the Road Traffic Act 1988[10]); in many areas this style of enforcement has been taken over from police by local authorities. Some other motoring offences (other than parking) can also be dealt with by the issue of FPNs by police, officers of the Vehicle and Operator Services Agency or local authority personnel. A penalty notice issued by local authority parking attendants is a civil penalty backed with powers to obtain payment by civil action and is defined as a Penalty charge notice (PCN), distinguishing it from other FPNs which are often backed with a power of criminal prosecution if the penalty is not paid; in the latter case the "fixed penalty" is sometimes designated as a "mitigated penalty" to indicate the avoidance of being prosecuted which it provides.

If a PCN is paid within 14 days of the 28-day period, the charge is decreased by 50%.[11] Appealing against or contesting a PCN requires going through a formal process: if lost, the 50% period pay could be extended. To appeal a PCN normally an informal appeal is made to the body that issued you the ticket, if not an appeal may be made to adjudicating bodies created according to the Traffic Management Act 2004[12], and finally this bodies decisions can be challenged by judicial review.

If you decline the offer of immunity from prosecution by declining an FPN, you may have to attend court if a government body chooses to prosecute you for the incident covered by the FPN.

Penalty Charge Notices (PCN) should not be confused with 'Parking Charge Notices,[13] the latter, being issued by private landowners seeking to impose a charge[14] for parking on private land.

Penalty notices for disorder

Issued under Section 1–11 of the Criminal Justice and Police Act 2001[15] for public disorder offences and divided into "lower-tier" and "higher-tier" offences each with its own penalty amount, a penalty notice for disorder (PND) can only be issued to people aged 18 or over. There are 26 offences for which a notice can be issued, such as being drunk and disorderly in a public place, selling alcohol to a minor (under 18), threatening behaviour or language and "behaviour likely to cause harassment, alarm or distress to others". Penalty notices can also be issued for minor shop thefts and minor criminal damage and in January 2009 the offence of possession of cannabis was added to the scheme. Recipients have 21 days to pay the notice or request a court hearing. If a penalty notice is not paid after 21 days then the outstanding amount is increased by 50% and if it is still unpaid the fine is lodged at the local magistrates' court just as if the matter was an unpaid court fine. This is where PNDs and FPNs vary if they are not paid: the former results in an unpaid fine being lodged and the latter results in the recipient being summoned to court to answer for the original offence.

When paying penalty notices for disorder, no admission of guilt is required. Paying the PND involves neither an official finding nor an acceptance of guilt and discharges all liability to conviction for the offence. PNDs for recordable offences are however recorded on the Police National Computer and may be disclosed on an Enhanced Criminal Records Disclosure issued by the Disclosure and Barring Service, if it is concluded that the behaviour leading to the PND was relevant to the matter at hand, for example, the applicant’s suitability to work with children. However, the mere fact that a PND has been issued would not make it relevant.

PNDs are generally issued to first-time offenders with no previous record. PNDs do not constitute a criminal record; they are non-conviction information and treated as intelligence.

Juvenile PND trials

In some areas there was a pilot scheme that allowed penalty notices to be issued to 10- to 15-year-olds – the parent or guardian was liable for the penalty and the tariff would be reduced, £40 for the higher-tier offences and £30 for the lower-tier offences.

The police forces that piloted Juvenile PNDs were:

  • British Transport Police (Birmingham Division)
  • Essex
  • Lancashire
  • Merseyside
  • Metropolitan Police (Kingston Division)
  • Nottinghamshire
  • West Midlands

Penalty notice for environmental crime

Fixed penalty notices are available as a means for dealing with various environmental crimes. The first was introduced in 1990 for leaving litter, and since then numerous others have followed, particularly as a result of the Anti-social Behaviour Act 2003, and the Clean Neighbourhoods and Environment Act 2005.

The majority of these are issued by local authority officers, but police and Environment Agency officers have been authorised to issue some. The penalty ranges from £20 for unnecessary idling of a stationary vehicle engine to £500 for failing to comply with a noise warning notice in licensed premises.

By far the majority of fixed penalty notices issued for environmental crimes are for leaving litter, failing to remove dog faeces, and fly posting. The Government has determined that fly tipping is too serious to warrant a fixed penalty, and that cases should be referred to a magistrates' court.

Minor criminal damage such as graffiti may also be dealt with by issuing a fixed penalty notice.[16]

Penalty notice for truancy

Section 23 of the Anti-social Behaviour Act 2003 allows local authorities, head teachers (or their deputies) and the police to issue a £50 or £100 fixed penalty notice to a parent or parents who fail to ensure that their child regularly attends school.

The Education and Inspections Act 2006 came into force on 4 September 2007. Under this, parents of children excluded from school are required to keep them under supervision for the first five days of their exclusion. If the child is found in a public place without their parent during this time, the parent can be issued a £50 penalty notice, which rises to £100 if not paid in 28 days.

Penalty notice for night noise

Section 2 of the Noise Act 1996[17] allows local authorities to investigate complaints from residents about excessive noise coming from a residential dwelling during the night, defined as between the hours of 11pm and 7am.

Challenges to the enforceability of PCNs

The Bill of Rights 1689 creates legislation stating "all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void". [18] Since PCNs create fines before conviction, there have been attempts to challenge PCN legislation using the Bill of Rights 1689.

Robin de Crittenden sought a judicial review on these grounds in 2006. [19] His request for judicial review was declined by Mr Justice Collins on the grounds that PCNs are "not a fine or forfeiture within the meaning of the Bill of Rights" because what the Bill of Rights prevents is "a fine or a forfeiture in respect of which there is no right of appeal, whether ultimately to a court or through a system which is set up which is equivalent to a court." While maintaining that PCNs are compatible with the Bill of Rights, Collins commented that the clarity of legislation should be used as a factor when determining if new legislation is compatible with preexisting legislation: "If it passes an Act which clearly states something which could arguably be said to be contrary to a previous Act, then if it is clear and if there is no argument that can be raised against its clear meaning, it will prevail."

Case law created at a later date touches on the ability to impliedly repeal parts of the Bill of Rights. In Thoburn v Sunderland City Council, Lord Justice Laws, ruled that constitutional statutes could not be impliedly repealed ("Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature's actual – not imputed, constructive or presumed – intention was to effect the repeal or abrogation?") stating that "the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts [...], the HRA, the Scotland Act 1998 and the Government of Wales Act 1998" are examples of constitutional statues.

The implications of the ruling of Thoburn v Sunderland City Council to the enforcement of civil penalties were, to some degree, tested in the First-tier Tribunal case Pendle v HMRC [20], though since First-tier Tribunal rulings are non-binding [21] this decision would only be taken as advisory in any other court.

See also

References
  1. "Archived copy". Archived from the original on 21 February 2014. Retrieved 28 December 2011.CS1 maint: archived copy as title (link)
  2. "Civil Penalties under the Housing and Planing Act".
  3. "Vat Civil Penalties".
  4. "Penalties for Employing Illegal Workers".
  5. "Fixed Penalty (Smoking Offences) Ordinance". Hong Kong Legal Information Institute.
  6. "Fixed Penalty (Public Cleanliness and Obstruction) Ordinance". Hong Kong Legal Information Institute.
  7. "Fixed Penalty (Traffic Contraventions) Ordinance". Hong Kong Legal Information Institute.
  8. "Motor Vehicle Idling (Fixed Penalty) Ordinance". Hong Kong Legal Information Institute.
  9. Participation, Expert. "Transport ACT 1982". www.legislation.gov.uk.
  10. Participation, Expert. "Road Traffic Act 1988". www.legislation.gov.uk.
  11. "Parking fines and penalty charge notices". gov.uk. Retrieved 12 May 2020.
  12. "Traffic Management Act 2004".
  13. "Notices". rac.co.uk. Retrieved 9 November 2019.
  14. "Parking Enforcement Signs | Parking Problems | Parking Solution | No Parking | Fine | PCN". www.parkingenforcement.online.
  15. "Criminal Justice and Police Act 2001 (c. 16)". Opsi.gov.uk. 11 May 2001. Retrieved 24 June 2010.
  16. "Crime prevention". Retrieved 5 January 2016.
  17. "Noise Act 1996 (c. 37)". Opsi.gov.uk. 18 July 1996. Retrieved 24 June 2010.
  18. "Bill of Rights 1689".
  19. [DE CRITTENDEN v NATIONAL. PARKING ADJUDICATION SERVICE] Court/2006/{{{num}}}.html [2006] High Court {{{num}}} (Queen's Bench)
  20. "Pendle v HMRC (First-tier Tribunal)".
  21. "HMRC: Inheritance Tax Manual".
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