§ 3.6 p.m.
§ The Parliamentary Under-Secretary of State, Department of the Environment (Lord Bellwin)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(Lord Bellwin.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ABERDARE in the Chair.]
§ Clause 38 [Notification of court and diet of trial in Scotland]:
The Lord Advocate (Lord Mackay of Clashfern) moved Amendment No. 59:
Page 43, line 37, leave out ("by which and the diet at which the offence will be tried") and insert ("at which and the date on which the case will first call").
§ The noble and learned Lord said: This is a drafting amendment which seeks to clarify that the date given in a notification of appearance in court under Clause 38 in Scotland is not the date of any trial for the offence, but the date on which the case will first call in court. This has always been our intention but, as presently drafted, the clause could be interpreted to mean that the trial itself will occur on that day and that any witnesses et cetera are required to attend court then. We would, of course, wish to avoid such misunderstandings if at all possible. The date given in the appearance ticket will be the day on which the alleged offender's plea will be taken, and, if he pleads not guilty, a date for trial will be fixed. It will not be possible for the constable at the roadside to fix a day for a trial, because he will have no idea how many of the drivers to whom he gives fixed penalty notices will choose to go to court, and how many of them will plead not guilty. This amendment therefore clarifies what is meant by the clause, and I commend it to your Lordships. I beg to move.
§ On Question, amendment agreed to.
Lord Mackay of Clashfern moved Amendment No. 60:
Page 44, line 3, leave out ("diet of trial of") and insert ("date of first calling of a case concerning").
§ The noble and learned Lord said: This amendment is consequential upon the amendment which I have just moved. I beg to move.
§ On Question, amendment agreed to.
§ Lord Mackay of Clashfern moved Amendment No. 61:
Page 44, leave out lines 9 to 14 and insert—
("the following provisions of this section shall apply for the purpose of any proceedings in respect of the offence.
(3) The notification of the court and date of first calling shall have effect as if it were a citation to an accused person by virtue of section 315 of the Criminal Procedure (Scotland) Act 1975 notwithstanding that such notification may not be in the form referred to in subsection (2) of that section.
(4) A copy of the fixed penalty notice given under section 26(1) of this Act shall have effect as if it were a complaint under
Part II of the said Act of 1975, and the provisions of that Part of that Act shall accordingly apply—
(5) For the purposes of subsection (4) above—
§ The noble and learned Lord said: This rather fearsome-looking amendment is not, as I hope I will be able to show, as complicated as it looks. Its objective is to make what has been called the "appearance ticket" system introduced in the Bill work more smoothly in Scotland. It does two things. First, it runs together two of the clauses in the Bill. If noble Lords examine the amendment closely, they will see that subsections (3), (4) and (5)(a) simply re-state what is already in the Bill—at the end of Clause 38(2) and in Clause 46(1) and 46(2). I will explain in a moment why the Government seek to do this. Secondly, it makes two adjustments which are designed to dovetail the "appearance ticket" provisions with existing Scottish summary criminal procedure. These changes are a little technical, but they will be of practical importance.
§ It might be helpful if I remind the Committee of the objective of the "appearance ticket", which is contained for Scotland in Clause 38 of the Bill. When the policeman at the roadside gives a driver a fixed penalty notice, he can give him at the same time—and perhaps as part of the notice—notification of when and in what court his case will appear, if he chooses to exercise his right to go to court. This will obviate the need for personal service on the driver at a later date of a citation for a court appearance, saving time and money for all concerned. In an ordinary summary criminal prosecution in Scotland, the accused is always served with a complaint. It is a document setting out exactly what he is charged with, and is served at the same time as the citation to appear in court. Under the appearance ticket system the fixed penalty notice itself is to serve the purpose of the complaint, because it is given to the driver at the same time as the appearance ticket, of course, and it sets out what he is supposed to have done. That is why Clause 46 provides that a fixed penalty notice can have effect as a complaint.
§ However, Clause 46 is drafted in such a way as to include all fixed penalty notices given to the driver 347 under Clause 26(1) and it is not confined to cases where an appearance ticket has been given. That is not quite right. The fixed penalty notice need only be a complaint when an appearance ticket has been given under Clause 38. That is why we wish to run together Clause 38 and Clause 46. If the amendment is made, a fixed penalty notice will have effect as a complaint only where an appearance ticket has been given, if no appearance ticket has been given, a complaint and a citation to court will be served on the motorist in the normal way if he chooses to exercise his right to go to court.
§ The amendment also makes two adjustments to Scottish summary criminal procedure to suit the appearance ticket system. They are both designed to make things simpler, both for the police and the motorist, and consequently cheaper. The purpose of these two other changes is to make the complaint for the purposes of a court proceeding following on a fixed penalty notice have as its substitute the fixed penalty notice. The purpose of a complaint, and of a fixed penalty notice which is to have effect as one, is to tell the person accused of the offence which he is alleged to have committed. It is usually expressed, in the ordinary case, in rather technical legal language and can consequently be quite difficult for a lay person quickly to understand. It is certainly not something one could expect a police constable to write out on a rainy day at the side of the road when filling in a fixed penalty notice. What subsection (5)(b) therefore seeks to do is to provide that the charge and the fixed penalty notice need not be in the standard form of complaint and that it need be no more complicated or specific than it needs to be to be a proper fixed penalty notice—that is to say, it must give reasonable information about the offence. It should as a consequence be clearer for the motorist who receives it.
§ The second adjustment is a question of form rather than substance. At the moment, when a complaint contains a charge of breaching any statute, the accused person must get a notice setting out the penalties to which he would be liable if he were convicted. That notice must be in a specified form. It will be simpler, and easier, when designing the fixed penalty notice, to explain to the driver the maximum penalties to which he would be liable by putting them on the fixed penalty notice itself rather than by giving him a notice of penalties in the traditional form suitable for other cases. What subsection (c), therefore, seeks to do is to provide that notice of the maximum penalties must be given to the alleged offender, but they need not be in the traditional form prescribed under the Criminal Procedure (Scotland) Act. I hope therefore that your Lordships will feel that these amendments, although somewhat technical in character, do make improvements of a practical kind. I beg to move.
§ Lord Underhill
There are one or two points which my noble friend Lord Mishcon wishes to raise on the legal aspect, but may I ask the noble and learned Lord the Lord Advocate whether we can be assured that although there are differences in Scottish law the treatment for fixed penalty offences does not vary in Scotland compared with the rest of England and Wales. If it does, naturally we should like to see what can be done about it.
348 Could the noble and learned Lord deal with the point which arose on Amendment No. 42, which the noble Earl, Lord Avon, said that he might be able to deal with this afternoon: That if a driver in Scotland does not have his licence he will not be able to present that licence at any police station in Scotland. The point I made on the earlier occasion was that I frequently go to Scotland for my holidays. If I do not have my licence with me, it means that I have to journey back across the border to present my licence at a police station in England and then go back to continue my holiday. Why is there this difference? Why, in that respect, can citizens of Great Britain not be treated likewise? If that is the position, is it possible for the Government to bring forward an amendment?
§ Lord Mackay of Clashfern
I should like to take this opportunity, in answering the noble Lord, Lord Underhill, to go somewhat wide of the present amendment in order to try to explain the position in relation to fixed penalties under the Bill for Scotland. I am sorry that I was unable to be here on the last occasion when the question arose. I think that my noble friend Lady Macleod of Borve was kind enough to hope that the Lord Advocate would come out of the mist and be able to dispel the fog that seemed to be surrounding the provisions.
As your Lordships know, there are different systems of criminal procedure north and south of the Scottish border. The extended fixed penalty system in the Bill must, like the existing fixed penalty system, fit in with existing criminal procedure because if the motorist disputes his guilt of the allegation it is the criminal court which will have to resolve the matter. Fixed penalty offences remain criminal and can be dealt with, in the absence of admission of guilt, in the criminal courts.
For the purposes of the Bill, the most important difference between the Scottish and the English criminal jurisdictions is that Scotland has a public prosecutor independent of the police. In cases of this kind, the procurator fiscal, who is the local officer responsible to the Lord Advocate, has the responsibility for initiating prosecutions for offences reported to him by the police. In England, on the other hand, the police are responsible generally for initiating prosecutions in cases of this kind. It is natural, therefore, when we consider extending the fixed penalty system, that in Scotland the option of the fixed penalty should be made available also to the procurator fiscal as well as to the police. It is a sensible and logical extension of the fiscal's existing discretion not to prosecute or to proceed, as the case demands.
This question of fixed penalties as an alternative to prosecutions was considered by a committee set up by the Secretary of State and the Lord Advocate in a previous administration under the chairmanship of Lord Stewart, a judge of the Court of Session. The Stewart Committee, having considered this aspect of the matter, recommended in accordance with what I have just said. I should like to take this opportunity to thank them for the work they have done. They are fairly unique, in that we are attempting to legislate on their recommendations while they are still sitting 349 to consider whether there are other areas in which alternatives to prosecution can be available.
It is sensible also that the discretion available to the fiscal in offering fixed penalties should be wider than that available to the police. He considers the matter on paper and at his office rather than at the roadside, and he is already expected and trained to exercise a wide discretion in making prosecution decisions. Also, he has security of tenure in his position which is intended to guarantee his independence.
Clause 40 and Schedule 2 to the Bill are therefore intended to give the procurator fiscal the power to offer fixed penalties both for offences in Schedule 1—those are the ones that the police can offer—and the wider range of offences in Schedule 2. This follows the recommendations of the Stewart Committee. The fiscal will have the power to offer fixed penalties for fixed penalty offences in cases where the police have not already done so. It follows therefore that he will be able to issue fixed penalty notices in cases where the police have been unable to do so because the driver has not been carrying his driving licence and the offence concerned is endorsable. Your Lordships know that if an offence is not endorsable the police can offer a fixed penalty, whether or not the driver has his licence.
Those noble Lords who have read the debates in Committee in another place on the Bill will know that there was concern that the driver who happened not to be carrying his licence would be deprived of the opportunity of a fixed penalty. Because of the provisions of Clause 40 of the Bill there was no such concern for Scotland. Where the driver in Scotland was not carrying his driving licence and offended in Scotland, the procurator fiscal was able to offer him the fixed penalty notice without the necessity of him going near any police station. He was able to send the offer to the motorist in the way for which the Bill provides.
Clause 27 of the Bill attempted to meet this concern for England and Wales by allowing a driver, in these circumstances, to get a fixed penalty within five days at a police station. Your Lordships will understand from what I am saying that that provision is not needed for Scotland because the procurator fiscal was able to do what Clause 27 now enables the police to do in England at a police station within five days of the offence. Therefore, it is not necessary that Clause 27 should apply in Scotland.
In the amendment moved by my noble friend Lord Avon on, the last occasion on which your Lordships were in Committee, the Government sought to exclude Scotland entirely from the operation of the arrangements under Clause 27 by making it impossible for a motorist stopped by the police in England or Wales for an endorsable offence to nominate a police station in Scotland at which to receive a fixed penalty notice. The object of that change was to ease the administrative burden on the Scottish policy. If the amendment were not made, every Scottish police station would have to be equipped, trained and manned to issue fixed penalty notices in these circumstances, even though they themselves did not have to issue them in similar circumstances. The cost of doing this, as the police saw it, would in the Government's 350 view be disproportionate because only a small number of drivers would need to use this facility. I say a "small number" because the only motorists likely to be affected will be Scottish motorists driving in England or Wales who are stopped by the police for an endorsable fixed penalty offence. Also, they must not wish to dispute their guilt and they must be willing to accept an endorsement—otherwise they will have to go to court, anyway.
We therefore conclude that the number of people likely to be affected by this particular restriction in the amendment moved by my noble friend is not such as to justify placing on the Scottish police the administrative burden of performing this particular job. I am sure your Lordships will appreciate that it is extremely important that we do what we can to minimise the administrative burden that is put upon the police. It is very important that their resources should be available for proper police work and that we should do what we can to minimise the administrative burden upon them. It is in that spirit that the provision was made for Scotland; that it was the procurator fiscal whose office was equipped to deal with this kind of matter and who should issue the offer of a fixed penalty in cases where that had not been done at the roadside.
So far as the noble Lord, Lord Underhill, is concerned, I am extremely glad to hear that he exercises his usual great discretion in his choice of a place to which to go on holiday. I can assure him that if perchance he was to become involved in any kind of road traffic difficulty in Scotland, he would find the arrangements made to accommodate him with the offer of a fixed penalty very smooth indeed. Certainly he would not need to come back to England for the purpose of the 28-day period which is allowed after the fiscal offers the notice, unless his holiday was particularly extensive or he was unable to get his licence from home. I have given, perhaps, a longer explanation than your Lordships would expect in relation to this particular amendment but it may enable your Lordships to appreciate the general background to this matter from a Scottish point of view.
§ 3.25 p.m.
Will the noble and learned Lord the Lord Advocate widen his explanation just a little, to explain what happens to the motorist normally resident in Scotland who has left his licence behind in Scotland and who is then convicted in England of a fixed penalty endorsable offence, who is not going to be back in Scotland for a month to rootle out his licence and show it?
§ Lord Mackay of Clashfern
I may have misheard the noble Lady, Lady Saltoun. Was she speaking about a motorist normally resident in Scotland who is convicted in England?
§ Lord Mackay of Clashfern
So far as that is concerned, if anyone is brought to court for an endorsable offence—and that is the situation to which we are referring—there is an obligation to give the licence to the court so that the court may have the licence endorsed. 351 It is necessary at some stage before the court disposes of the matter that the licence is recovered and sent to the court—not necessarily, of course, by the person going home to get it but by making arrangements to have it brought to the court. That, of course, is a standard consequence in such cases.
In respect of the case of a person who is resident in Scotland who transgresses the law in England and who has left his licence at home, the situation there will be that either he gets a fixed penalty by bringing the licence to an English police station or he pleads guilty by letter. If the case goes to court, he would need to do more than write a letter. So the actual disadvantage from the point of view of the individual who wishes to plead guilty—it is only on that assumption that this question arises—is very small in comparison with the administrative difficulty that would be involved for the police if the arrangements were totally different.
Lord Paget of Northampton
Perhaps the noble and learned Lord would help me because I am not a Scottish lawyer. Do I understand that the situation would be this: If I forgot my licence and I committed an offence, I will be given five days in which to produce the licence at my own police station. My police station then notifies the prosecuting authority that T have duly produced my licence. When the matter goes to court, if it goes to court, I have to take my licence along with me. In the case of a fixed penalty, presumably the licence just has to be sent to the prosecuting authority. Why should that not equally happen to a Scotsman who commits an offence? When he goes back home, it is very inconvenient for him to come back to England to produce his licence at the police station. Why can he not produce it at a Scottish police station? All the Scottish police station has to do is to send the licence to the prosecuting authority with the notice that has been produced to them. What is the difficulty about that?
§ Lord Mackay of Clashfern
I have not made the position sufficiently clear and it is entirely my fault. If a motorist is asked by a policeman to produce his licence and fails to do so, there is an obligation to produce it within five days at a police station. There is nothing being done in this Bill in any way to affect that or make it impossible to perform that obligation in Scotland. In the case which the noble Lord, Lord Paget of Northampton, has figured—where the motorist happened to be resident in Scotland at the time when this had occurred, and was asked in England to produce his licence—he could produce it when he got home and that would be perfectly satisfactory. There is no problem.
But this Bill is dealing with the question of getting a fixed penalty, which involves no prosecution. The idea is to have a fixed penalty instead of being prosecuted. In that situation, if one does not have one's driving licence with one, and if it is an endorsable offence, the policeman cannot tell at the roadside whether a fixed penalty is appropriate, or what the fixed penalty should be, until the licence is produced. For all he knows, there may be sufficient endorsements on the licence already to affect greatly what is available in respect of this offence.
352 It is that matter that this Bill is dealing with and the arrangements for England and Wales in respect of this matter are that the police can give—if you have your licence with you—in respect of an endorsable offence, a fixed penalty notice at the roadside. If you do not have your driving licence with you, in England and Wales you can go to a police station within five days and the police at that station, assuming the circumstances are appropriate, will be able to give you a fixed penalty notice in accordance with the English system. But if you are a person who wished to nominate a Scottish police station for that purpose, there would be difficulty that the Scottish police are not equipped to deal with that aspect of English procedure.
The only consequence would be this. Instead of having a fixed penalty in that situation, assuming you were entitled to it, the only difference between your situation in Scotland and your situation in England and Wales is that in Scotland you would write to the court pleading guilty and sending your licence with the letter. The court would then deal with the matter without the restriction necessarily of a fixed penalty: and the penalty the court imposes might be more or less than the fixed penalty. For example, if you were able as I am sure the noble Lord, Lord Paget, would be well able to do, to write a very good explanation of why you committed the offence, the court might well consider some figure much lower than a fixed penalty to be appropriate; so it is by no means clear that you would be worse off by writing a letter to the court than having a fixed penalty.
§ Lord Mishcon
I have been asked by my noble friend Lord Underhill to thank the noble and learned Lord the Lord Advocate for his patient and very clear explanation, which we will obviously be studying with great care. It has elucidated a lot of problems that we had and it seems that many of them, if not all, have been ironed out. It seems to me that we are using this discussion rather usefully to cover the whole procedure of the fixed penalty notice, whether in the midst of the fogs that beset the highlands or lowlands of Scotland or whether south of the Border. Therefore, I do not ask for the forgiveness of the Committee if I try to finish off some of the problems regarding the form of the fixed penalty notice, as well as some of the problems we discussed last time in the absence of the noble and learned Lord. That means we can deal with these questions now, so that we need not waste time later.
One of the problems I tried to put to the Committee last time, it now appears fairly unnecessarily, was the case of what I called the "discretionary endorsement". I then said that an injustice might be perpetrated if indeed the fixed penalty notice were given in a case where a motorist would thereupon have the rather unpleasant task of having to go to the police officer and say to him: "I have considered what you have just said and I think I had better take the fixed penalty notice, because in the court itself I might receive an endorsement". That is what I call the discretionary endorsement.
May I say quite frankly that that difficulty has now been ironed out, because I have been told categorically that there are no offences in respect of which a fixed 353 penalty notice can be given where anything but a non-endorsable offence is involved—in other words, it cannot be enforced at all—or the obligatory endorsable offence. If that be so, the particular injustice I was frightened of will not arise under this Bill.
However, one other point arises out of the same problem that I should like to dispose of, if the noble and learned Lord could deal with it for me. It is this. There are certain cases under the Road Traffic Act where there is a mandatory endorsement—what we call the obligatory endorsement—but where, so far as I understand it, the driver can, though perhaps in rare cases, plead special reasons, in which event the court will not endorse, if it accepts the plea. Therefore, this seems to make us concentrate injustice upon what the driver will be informed by the police officer or by very clear wording on the form in the event of his being found to have committed an obligatory endorsable offence, but in circumstances where there might be special reasons which he could advance to a court in order to prevent the endorsement taking place.
Under the procedure we have at the moment, it all appears to be very simple, but possibly carrying this ingredient of injustice. The licence is seen; the offence is an obligatory endorsable one; the fixed penalty notice is issued and the licence is duly endorsed without any question, since it is only the court that can consider this matter of special reasons being considered at all or, if I may use the word, of their being "considerable" at all. What notice is the driver going to be given? Will he be told that he could, if he wanted to, go to the court? One must bear in mind that the driver will not necessarily be an expert on the Road Traffic Act and may not know of this right. What will he be told about the right that he has in regard to the fixed penalty notice, that if he wanted to go to court he might stand the chance of pleading special reasons and not have an endorsement in his case? If we can clear out of the way that last hit of possible injustice, the Committee will be saved a great deal of time on further discussion about this matter. At the moment, it appears to be a very important point.
§ Lord Mackay of Clashfern
I should first like to underline what the noble Lord, Lord Mishcon, said: if one accepts the fixed penalty notice in this type of case he has been describing, then the licence will be endorsed. So a driver who commits an endorsable offence, and wishes to argue that there are special reasons in his particular case for non-endorsement, will require not to accept the fixed penalty notice, and go to court. Of course, once a person gets a fixed penalty notice, he has time to consider his position and take advice about it. So far as Scotland is concerned, the amendment which I am dealing with just now provides that the maximum penalties for the offence, apart from the fixed penalty, will be specified in the case to which the amendment relates. So if the motorist reads, he will see the provision about disqualification, unless there are special reasons.
So far as England and Wales are concerned, I do not think there is any statutory provision at the moment which imposes any particular form on the notice which would carry a requirement to have this particular intimation on it. I think this is perhaps a matter 354 that we would like to consider. The option is either to put the whole case law on the notice or to put some cautionary words advising the person who gets the notice before he decides what to do with it to take professional advice.
§ Lord Mishcon
I am most grateful to the noble and learned Lord and I am especially grateful to him for recognising the difficulty and the possible injustice that might be involved. I am delighted to accept the suggestion that this might be considered by the Government between now and Report stage. I would ask only that those who are particularly interested in my point should receive in good time a copy of any letter which is being issued in regard to this matter so that we can consider whether it would be helpful or otherwise to put down an amendment at Report stage.
§ Lord Lucas of Chilworth
May I ask my noble and learned friend the Lord Advocate this question. Is not the assurance that he has just given us a repetition of that assurance which my noble friend Lord Avon gave us when we were discussing Amendment No. 20, that of the police constable having to provide the motorist with a notice of his intention to award a fixed penalty before he proceeded further in the matter? My noble friend at that time said, "At one time we were inclined to accept this kind of amendment, but there are certain legal difficulties", and the department wanted to have another look at it.
Unless something is firmly established in the Bill, either along the lines of Amendment No. 20 or perhaps in the more generalised terms which the noble Lord, Lord Mishcon, is suggesting, we will find that the fixed penalty will be accepted and upon that will be written the rights of the individual, which include that of refusing it within a certain number of days and going to court. If the former does not obtain, the latter most certainly will. So a good deal of the purpose behind the fixed penalty system, that of relieving the courts of responsibilities in this matter, will be lost. So it is not just a question of my noble and learned friend looking at this matter; it is really a question of him, and indeed my noble friend Lord Avon, finding a way to introduce into the Bill this cautionary procedure before the fixed penalty is offered, or it could just fall apart at a later stage.
§ Lord Mackay of Clashfern
I would think that the point which was raised on Amendment No. 20, and in respect of which my noble friend Lord Avon gave an undertaking in that discussion, is a slightly different point from the one with which I have just been dealing. So far as I understand the point my noble friend has put to me, the fact that one has an option after one gets the fixed penalty notice is not damaging to the system, because what we are expecting is that the vast majority of people who get a fixed penalty notice will after due consideration make use of it. It is that which eliminates the substantial burden on the courts which we are trying to eliminate. So long as the person has an understanding of what his rights are after he gets the 355 fixed penalty notice and, in the period when he is considering whether or not to accept it, that would appear to be sufficient.
§ On Question, amendment agreed to.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.