Tuesday, 24 August 2010

Fixed penalty notices .... bad character evidence ....

Penalty notices have become a commonplace method of dealing with a considerable amount of less serious "offending".  One Act permitting a constable to issue such notices is the Criminal Justice and Police Act 2001 which was enacted to deal with a number of "disorder offences" by way of notices rather than by prosecution in the magistrates' courts.  Notices issued under this Act are often referred to as "Penalty Notices for Disorder" (PND) though the Act itself merely refers to them as penalty notices.  When a notice is issued and is accepted by the person then it discharges any liability to be convicted.

Does acceptance of such a notice amount to "bad character" which might be admissible in some future criminal case?  In the recent case of R v Hamer 2010, the Court of Appeal decided that a notice issued under the 2001 Act was "not a conviction, admission of guilt, proof that a crime had been committed, or a stain on the defendant’s character ...."   It followed that it could not be regarded as evidence which impugned the character of the defendant or admitted into evidence as such.

This is an interesting state of affairs since the court also said that - "It might be that in some cases the Crown might wish to adduce evidence regarding matters in respect of which the notice had been issued."  This does not have an entirely satisfactory look to it.  Would it not be preferable that the acceptance of a fixed penalty notice prevented any future mention of the matter or the conduct which caused the notice to be issued?  After all, it is an official of the State (i.e. a constable) who is authorised to issue the FPN in the first place rather than prosecute the matter before the courts.

Note: Cautions are not in the same category.  They cannot be administered unless there is an admission to the alleged offence.  Whilst a caution is not a conviction it may have sometimes have long-term adverse effects for the person.

1 comment:

  1. Cautions are in some respects worse, as they never become "spent" for the purposes of the Rehabilitation of Offenders.

    Cautions are often also accepted by ignorant (young, inexperienced, foreign, for example) accused, with neither the advice of a solicitor, nor the unbiased view of the Magistrate.

    So it is that a 40ish woman with a caution for shoplifting as a teenager (on a dare) finds that it appears on her disclosure, requested by her employer. Had she gone to court, and plead guilty, it would be a spent offence.

    So it was that a young eastern European woman, accused of theft by a vindictive supervisor, accepted a caution after taking worn-out towels which were to be thrown away to use as rags, in the reasonable belief that her employer would not mind (which is a defense so the caution should not have been offered), and was reduced to tears when her disclosure came through.

    Those are just two cases I know of personally.

    For that reason alone, I would never suggest anyone accept a caution, ever, for any offence.

    It is better to go to court and plead guilty, and take whatever punishment is given.

    And your first words after "you are under arrest" should be "I want a lawyer, now, and before I say anything".