More penalties, less justice
by Rebecca Roberts (Summer 2005)
There has been longstanding support for attempts made to divert individuals, particularly young people, from the courts and criminal justice system. These attempts have often been based on the understanding that the criminal justice system criminalises and often harms those drawn into it and for some people Penalty Notices for Disorder (PNDs) are a recent example of this. PNDs do provide an opportunity for dealing with individuals outside the courts, but evidence suggests that they provide greater opportunity for directing more people into the criminal justice system. This article discusses the diversionary aspects of PNDs and argues that an intervention initially presented as a way of diverting individuals from the negative aspects of the criminal justice system is now emerging as punitive and net-widening.
Tony Blair first broached the idea of on-the-spot fines back in June 2000, suggesting that police should march those responsible for acts of minor disorder to cashpoints. 'A thug might think twice about kicking your gate, throwing traffic cones around your street, hurling abuse into the night sky if he thought he might get picked up by the police, taken to a cash point and asked to pay an on-the-spot fine of, for example £100'. At the time the suggestion was rejected by the police and ridiculed by the media, yet the idea of summary justice for minor offenders lived on. The 'Penalty Notice for Disorder' (PND) was brought into law by the Criminal Justice and Police Act 2001, piloted for adults and then rolled out nationally in April 2004 to anyone aged sixteen and above.
Government strategy documents published in the last twelve months, along with Labour's pre-election mini-manifesto "Tackling crime: forward not back" (March, 2005), indicate that the use of PNDs are set to grow and form an integral part of the government's policing of minor disorder. PNDs are also illustrative of a broader trend within current law and order policy to deliver punishment outside the usual court processes in a bid to deliver simple and speedy punishment and bring more offences to justice.
How do PNDs work?
A PND is an on-the-spot fine for disorderly behaviour and can be issued by police, some community support officers (CSO) and a limited number of 'accredited persons' such as neighbourhood wardens and security staff. Plans have also been announced to extend the power to issue PNDs to parish councils. The official aims and purpose of the scheme include 'reducing the amount of time spent on paperwork and attending court, while simultaneously reducing the burden on the courts' and delivering 'swift, simple, effective justice, that carries a deterrent effect' (Home Office 2002).
PNDs can be issued to anyone aged sixteen and above and is expected to be rolled out to 10-15 year olds later this year. They are designed to be handed out on the street with minimal paperwork although they should be issued at a police station if the individual is under the influence of alcohol or drugs. The issue of all PNDs are recorded on the Police National Computer (PNC) along with basic personal details of the individual involved. About half of the offences for which PNDs can be issued are recordable offences and in these cases, DNA and fingerprints are taken and linked to the PNC record.
Payment of the fine formally implies no admission of guilt and this is frequently cited as an advantage of the scheme. If the individual concerned pays within 21 days, he or she cannot be tried for the offence and will not acquire a formal criminal record. If the recipient refuses to accept the PND or wishes to contest it, then he or she will have to go to court for the case to be tried on the original offence, risking a criminal conviction if the PND is upheld. If the fine is unpaid within 21 days, the amount increases by 50 percent and is registered at the magistrates' court as a fine.
The number of offences for which PNDs can be issued has grown rapidly since they were first introduced. Fines are set within two tiers, at £50 or £80 (£30 and £40 for children aged ten to fifteen). They initially covered ten minor offences such as alcohol related disorder and 'behaviour likely to cause harassment, alarm or distress'. The latter offence can cover almost any type of behaviour - from teenagers hanging around on street corners, to intentional and targeted intimidation. In September 2004, the scheme was expanded to include minor theft and criminal damage. The list is frequently being added to and now covers more than twenty offences.
Some facts and figures
There is very little information publicly available on the use or impact of PNDs. The Home Office has published two short six-page documents from the initial pilots (Spicer and Kilsby 2004; Halligan-Davis and Spicer 2004) and a press release with details of the first six months of the national roll-out (Home Office 2004a). Figures for 2004 are due to be released in May/June 2005, and recent estimates claim that 57,607 PNDs were issued in 2004 (Hansard February 8, 2005, Column 1418). Researchers concluded that 'on the whole the PND project has been a success' (Halligan-Davis and Spicer 2004). Areas of success were said to be in police time and payment rates. no evidence was offered on the impact of PNDs in deterring or reducing disorder.
A diversion from criminal justice?
Penalty Notices for Disorder have been championed by the Government and police as an excellent way of tackling low-level disorder by diverting cases from the courts, administering speedy justice and freeing up the police from paperwork. Superficially, PNDs could be considered a progressive and positive development. Individuals accused of an offence are processed quickly. Payment of the fine is said to imply no admission of guilt and no formal criminal record is acquired. The Home Office (2005) has said that "this disposal ... provides a way for punishing offenders without drawing them into the criminal justice system" and this claim has been made in a number of official documents relating to PNDs.
PNDs do have the potential to be very effective in punishing more people and diverting cases from the courts. Yet the claim that individuals will be diverted from criminal justice all together needs further exploration. Where is it that these cases being diverted from and directed to, and what are the implications for justice and community safety?
The most obvious diversion is that of cases from the courts. Police are under pressure to meet targets to bring 125,000 more offences to justice by 2007/8 and PNDs provide a quick and easy way of meeting this target without placing additional demands and costs on the court system. Evidence from the pilots showed a reduction in the number of cautions and prosecutions following the introduction of PNDs (Halligan-Davis and Spicer 2004).
Behaviour likely to cause harassment, alarm or distress is recorded as an offence of 'violence against the person' and registered by the police as an offence brought to justice. This provides scope for forces under pressure to meet targets, to focus on minor offending to improve performance levels for detections and disposals. Hough et al (2005) refer to the probable influence of PNDs on violence statistics
'recorded offences of this sort increased by a third, and almost all of this was attributable to S5 harassment offences. In other words, the analysis provides strong circumstantial evidence that PNDs are now inflating the count of violence against the person offences'.
Hough et al also highlight the likelihood of police making increased use of PNDs due to targets of offences brought to justice.
Up until the addition of theft to the list of offences in September 2004, PND offences were 'summary offences' which if dealt with outside of the PND process, would usually be heard in the magistrates' court. The inclusion of a triable-either-way offence (theft) may be indicative of a move to divert cases not only from the magistrates' courts, but the Crown Courts as well. This shift from using PNDs for minor offences to more serious offences may increase as the list of offences for which PNDs grows. In this context it is worth considering the reduced opportunities available for a fair trial and the lack of formal justice processes and protections traditionally offered to those accused of an offence.
An interesting feature of PNDs during the pilot phase was their widespread imposition in cases that otherwise would not have lead to a criminal justice response, indicating a net-widening effect. In most cases PNDs were issued for either 'disorderly behaviour while drunk' or, the rather ambiguous, 'behaviour likely to cause harassment, alarm or distress' and it was estimated that 'between a half and three quarters of PNDs issued for these two offences were 'new business' (Halligan-Davis and Spicer 2004).
PNDs divert individuals from the court process to a procedure where rules of evidence are less stringent and fewer protections exist for the innocent or vulnerable. Guilt does not have to be formally established nor admitted and the result is an increased likelihood of punishment. But, if payment of a PND implies no admission of guilt, for what is it the individual is being punished? An 'offender' is punished for an 'offence' he or she does not have to admit to doing and for which he or she has not formally been convicted.
The details of those issued with PNDs are recorded on the PNC, and although this is not a formal criminal record, the reason for retaining this data is to identify repeat 'offenders'. The implication here is that the police will view the recipient as guilty of the offence which conflicts with the claim that payment of a PND is no admission of guilt. Under provisions of the Criminal Justice Act 2003, issue of PND can be used to provide evidence of 'bad character'. There is a much greater incentive to pay the fine rather than risking a formal criminal conviction by challenging the PND in court. Yet, individuals paying the fine on the understanding that it would be end of the matter, could find it used against them in the future.
Bringing more offences to justice is conducive to net-widening practices, and in the case of PNDs, the net is likely to be cast to the drunk, young, vulnerable or innocent. Zero tolerance approaches within target driven environments are unlikely to encourage problem solving approaches. In the case of PNDs, success is measured in terms of an offence brought to justice and reductions in paperwork, rather than whether harmful behaviour is reduced and resolution provided to those involved. No information has been forthcoming as to what impact PNDs have on levels of disorder and community safety - but perhaps they were never really expected to.
Penalty Notices for Disorder are representative of a broader development within criminal justice to deal with individuals outside of the courts. The process of bringing an offence to justice has been simplified to allow for this and the end result is likely to be an increasing number of people being directed into criminal justice interventions further down the line. PNDs provide an additional entry point and route into the criminal justice system. The police now find themselves with much greater powers, encouraged to administer punishments for a broad spectrum of behaviours based on objective judgements of their current definition of 'disorder'.
The overall outcome is a strong criminal justice response, where more people are drawn into the system with their details collected and retained for future use. Whilst reducing bureaucracy and pressure on the courts sounds appealing, the result may simply be less justice for all.
An edited version of this article was published in Safer Society, No.25 Summer 2005, by Nacro
Halligan-Davis, G. and Spicer, K. (2004) 'Piloting on the spot penalties for disorder: final results from a one- year pilot' Home Office Findings 257. London: Home Office
Home Office (2002) 'Criminal Justice and Police Act 2001 (s.1-11) Penalty Notices for Disorder Police Operational Guidance' Home Office
Home Office (2004a) 'Spot fines extended in crack down on petty crime' Home Office Press Release 340/2004, 31st October 2004
Home Office (2004b) 'Under 16s to face on the spot fines in crack down on anti-social behaviour' Home Office Press Release 398/2004, 24th December 2004
Home Office (2005) 'Explanatory Memorandum to the Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2005 No.581'
Hough, M., Mirrlees-Black, C., Dale, M., (2005) 'Trends in violent crime since 1999/00' Institute for Criminal Policy Research, King's College London
Spicer, K. and Kilsby, P. (2004) 'Penalty notices for disorder: early results from the pilot' Home Office Findings 232. London: Home Office