Official Report: Minutes of Evidence

The Chairperson (Mr Ross): I welcome Maura Campbell, deputy director of criminal justice development division; Graham Walker, acting head of the speeding up justice and equality branch; and Paul Black from the speeding up justice branch. They are all from the Department. You can briefly outline the purposes of clauses 17 to 27, and, if members have any questions, we will take them.

Ms Maura Campbell (Department of Justice): Thank you very much, Chairman. This is the first of three sessions this afternoon that look at aspects of the Justice Bill, starting with Part 3, which is on prosecutorial fines. In this Part, we propose to introduce a further alternative to prosecution through the courts as part of our wider agenda on speeding up justice. That would be for minor offences by non-habitual offenders over the age of 18. We have not sought to designate a list of offences in the legislation since we believe that it should be for trained prosecutors to consider whether a prosecutorial fine is appropriate in individual cases, in much the same way as they already do for other types of diversionary disposals. The Director of Public Prosecutions (DPP) will issue guidelines for prosecutors, which will be the subject of public consultation. Fines will be set at a maximum of £200, and the prosecutor can order reparation up to a maximum of £5,000 to the victim in cases of criminal damage. That would be for actual losses as a consequence of the offence. The offender levy would still be applied, as would be the case if the person were fined by the court, with the proceeds going to the victim of crime fund. The alleged offender would have 21 days to consider the offer of a prosecutorial fine and 28 days to pay it. They would always have the option of declining the offer and having their case heard in court instead. Our hope is that, by dealing with a number of low-level offences outside the courtroom in that way, we should be able to free up police and prosecution resources, as well as court time, that could be better directed towards more serious offending.

During your Committee consultation on the Bill, a number of consultees asked questions about how prosecutorial fines would operate in practice. For instance, Women's Aid highlighted concerns about them being used for domestically motivated offences. While, as I mentioned, it will be for the Public Prosecution Service (PPS) to decide how the disposal is used, we would not expect prosecutorial fines to be used in those types of cases. The Northern Ireland Association for the Care and Resettlement of Offenders (NIACRO) asked about the criminal records implications of accepting a prosecutorial fine, and the Department's response confirmed that an individual would not receive a formal criminal record, though it would be recorded on their criminal history so that the justice agencies would be aware of it in the event that the person went on to commit further offences. The only circumstances in which receipt of those fines might be disclosed would be through an enhanced check, if that were relevant to the position for which the person applied. Of course, Access NI is dealing with posts where there is a potential safeguarding issue. Consultees also made a number of general points about the wider fine collection and enforcement regime, and we noted in our response that we are aiming to address those issues through a further Bill that the Department hopes to introduce before the summer.

The Public Prosecution Service welcomed the introduction of prosecutorial fines in principle but suggested that we expand the provisions to include all low-level road traffic cases for which mandatory penalty points would be imposed in court. We have had some discussion about that proposal with the PPS and DOE colleagues, since DOE has policy responsibility for road safety, including road traffic penalties. DOE has agreed to consider the PPS proposal but would like to do so as part of a planned review of road safety. It was also of the view that further public consultation may be necessary. While we have no real objection in principle to what the PPS is proposing, the reality is that it would not, in our view, be possible to accommodate the change that it has asked for during the passage of the Bill.

We are happy to take questions on those points or any others that members may have on this Part of the Bill.

The Chairperson (Mr Ross): You mentioned the concern about the areas in which fines could be used. Will there be a consultation on the guidance that will be given to the PPS? Will the Committee have an opportunity to feed in to that process?

Ms M Campbell: We confirmed with the PPS that the director intends the guidance to go out for full public consultation. I imagine that it will be open to anyone with an interest to respond to that.

Mr Poots: Who can impose the fines?

Ms M Campbell: The intention is that the Public Prosecution Service will impose the fines. At the moment, they would be for the sorts of offences where a fine is ordered in court. The idea is for the prosecutor to be able to make that decision, as opposed to the case having to proceed to court.

Mr Poots: Can a police officer make it?

Ms M Campbell: Not for this type of disposal, no. At the moment, the police can issue fixed penalties, but they are of a lower order and are restricted to penalties, of, I think, £40 or £80, for a fairly tightly prescribed range of offences.

Mr Poots: Essentially, I am thinking of offences against medical staff. There is a massive problem out there with ambulance personnel, nurses, security staff and other front-line staff in hospitals. It affects a plethora of individuals. It is generally caused by people who have either taken too much drink, taken drugs or a combination. Their behaviour is totally unacceptable, but the hassle of taking them to court is too much for the individuals to be involved in. As things stand, it does not work. You cannot introduce zero tolerance, because it does not work. Is there a mechanism whereby we could introduce something supportive for those workers? I previously raised that with Minister Ford.

Ms M Campbell: I suppose that, in those circumstances, the prosecutor would look at what threat that individual poses to public safety more widely. If someone, maybe because they were under the influence of alcohol, was behaving out of character, I expect that that sort of fine could be applied.

Mr Paul Black (Department of Justice): Yes, technically, a prosecutorial fine could be levied for an offence of assault in those situations. It would be a matter for the Public Prosecution Service to decide whether the severity, or lack of it, of the incident warrants a prosecutorial fine. It will also provide the provision for making restitution for criminal damage, if that was also an issue.

Mr Poots: As it stands, does the Bill permit that to happen?

Ms M Campbell: The Bill does not prescribe which offences will or will not be within scope, because we felt that it was better to put that in the hands of the Director of Public Prosecutions.

Mr Black: As the Bill stands, yes, a prosecutorial fine could be issued for the kind of situation that you are describing.

Mr Poots: That is fine. I will get a closer look at it.

Mr McCartney: I note that the Public Prosecution Service says that these should be treated the same as a caution. You are saying that they will not be treated the same way.

Ms M Campbell: I suppose the main difference is that a caution attracts a criminal record.

Mr McCartney: But you are saying that it is not attracting a criminal record.

Ms M Campbell: It is not attracting a criminal record on the basis that a prosecutorial fine would not require an admission of guilt. Sunita Mason undertook a review of the criminal records regime, and she recommended that a criminal record should be defined as anything for which there has been a conviction or an admission of guilt. This sort of disposal is probably more comparable to a police-issued fixed penalty, which does not attract a criminal record, so we felt that this probably should not either.

Mr McCartney: If someone is asked when trying to get employment, "Have you been convicted of a crime?", can they say no in this instance?

Ms M Campbell: That is correct.

Mr McCartney: What about if they wanted to get a travel visa?

Ms M Campbell: It should not have any implications.

Mr McCartney: Does that mean that it will not be recorded? I can understand that the enhanced search might be necessary in some instances, but, if somebody is travelling to the United States, the form asks, "Have you ever been convicted of a criminal offence?".

Ms M Campbell: An individual will not be required to disclose that. We differentiate between a person's criminal record, which is the information that could be disclosed in various circumstances, and the criminal history, which is basically information that the justice agencies are required to hold in the public interest in case there is further offending by the individual and the agencies need to be aware of what else that person may have done in the past.

Mr McCartney: Will these be offered in all circumstances?

Mr Black: No, they will not be offered in all circumstances; it will be for the prosecutor to decide whether the case warrants it. If they consider the case to be too severe, it may not be eligible. They will decide on a case-by-case basis.

Mr McCartney: I maybe worded that wrongly. Say two people did the same thing on the same day: will both of them be offered this? Is there any room for a part of the jurisdiction to do it differently from how the prosecutor's office does it?

Mr Black: There should not be a distinction on the basis of the jurisdiction; there could be a distinction on the basis of the individual's criminal history. Although the offences might be identical on the face of it, if one of the individuals had a criminal history, they may well not be considered a suitable candidate. As Maura said, we see this somewhat as an extension of the police-issued fixed penalty. These are geared towards low-level, non-habitual offenders. We want to give individuals who have made a mistake early in life the opportunity not to carry the consequences of a criminal record. It does not result in a criminal record, and it is not considered a conviction.

Mr McCartney: There is a reason for my asking that. It is like adult cautions or fixed penalties. A local community police officer might have more sense of who the person is and what the circumstances are. Is some sort of trawl going to be done on how these are imposed and questions asked about why it was given here and not there?

Mr Black: Certainly. As Maura said, the director will consult publicly on the guidance, which will include the sorts of cases that they anticipate this will be used for. The guidance will also include the sorts of cases that it should not be used for, such as domestic violence. It would not be considered appropriate in those circumstances.

Mr McCartney: I notice that it says somewhere that the guidance is for internal use. Does that mean that the final guidance will not be published?

Mr Black: That will be a matter for the Public Prosecution Service. I am not sure what its policy is on disclosure. There is, obviously, some internal guidance that it would not want to disclose, but I am not sure whether that applies to prosecutorial fines.

Mr McCartney: Can people apply for it, or is it just at the discretion of the PPS?

Mr Black: It is at the discretion of the PPS.

Mr McCartney: Does that mean that your lawyer cannot make a case, saying, "Here is someone who has committed a very minor offence. Would you consider in this instance?"?

Mr Black: No. They cannot be demanded, and they cannot they be imposed. It is a voluntary disposal.

Mr McCartney: Will there be different levels of fines?

Mr Black: There is potential to offer a fine of up to £200. That is the maximum. We expect that the PPS will probably introduce a system of banding, perhaps starting at £25. It is not, however, compelled to do so by the legislation. The maximum is pegged to the maximum level 1 fine, which is currently £200. If that shifts, the prosecutorial fine will shift to reflect that.

Mr McCartney: I know that legislation will be coming before us, but the payment of fines has been a big issue in the past.

Mr Black: Certainly.

Mr McCartney: Someone could say that £400 will do the two days, but there are also people who genuinely cannot afford it. How do we get the balance there?

Mr Black: It certainly is an issue, and it was raised during the consultation. In the light of that, we considered developing some kind of system and legislation along with the prosecutorial fine to deal with those situations. However, as the Fines and Enforcement Bill was coming up, it would have felt like duplication to develop that sort of system solely for the prosecutorial fine. Hopefully, when the Fines and Enforcement Bill passes into law, people will have plenty of opportunity to negotiate staged payments and so on with the Court Service. Those problems are associated with fines generally and not just with the prosecutorial fine, which is why we decided not to legislate for a specific payment process.

Mr McCartney: NIACRO suggests, and the Department seems to rule out, a specific design for the payment of this type of fine. You are saying that the normal procedure should not —

Ms M Campbell: Given that this will apply to an estimated 3,000 cases per annum, it would probably be disproportionate to design a separate system. Legislation is coming down the track that will hopefully reform the entire fine collection and enforcement regime, so it seems more sensible to wait for that.

The Chairperson (Mr Ross): I want to ask you about the discretion of the PPS. Is there a limit on how many times a single individual could be dealt with in this way?

Mr Black: There is not a limit in the legislation, but it is very much intended for first-time, non-habitual offenders. We anticipate that the guidance would provide that a prosecutorial fine may be given only once in certain circumstances. We would certainly not expect this disposal to be used repeatedly. Clearly, if someone is initially offered and accepts a prosecutorial fine, they have been given the opportunity to avoid a criminal record. If they then offend subsequently, the PPS would, I think, take the view that they have already been given that opportunity.

There are no hard-and-fast rules on that. It is like the police-issued fixed penalty, which we generally anticipate will be used only once or twice, although that can vary depending on the situation and on whether the police officer or prosecutor thinks that the circumstances of the case warrant it. We did not want to be too restrictive, but we certainly do not anticipate that they would be used repeatedly.

Ms M Campbell: It may depend on whether further offences are of a similar nature to the original offence or completely different. They should be at quite a low level. If you got a prosecutorial fine next week for not having a fishing licence, and in a couple of months' time you were in front of a prosecutor because of defective windshield wipers, with the two things being completely unrelated, it might be possible to get a further prosecutorial fine.

Mr Black: It might be helpful to say that the guidance for the police-issued fixed penalty, which is what we see the prosecutorial fine reflecting, provides that an individual should not be given a police-issued fixed penalty more than once in a two-year period. The guidance also provides that it can be given only once for shoplifting; no one can ever get a second fixed penalty for shoplifting. As Maura says, where it is a different type of offending and a significant period has elapsed, the police have that option. We expect prosecutors to exercise that kind of judgement, which will be confined by the guidance that the director provides.

Mr McGlone: This is an operational matter. You mentioned Access NI and enhanced checks. Are any of these proposals going to add to the workload there?

Ms M Campbell: I would not have thought so. If anything, fewer individuals should be getting a criminal record, because, in the absence of this disposal, these cases would be going to court and people would get a criminal record as a result of their fine. This should actually reduce the number of individuals who get something on their record. I do not see it adding to Access NI's workload.

Mr McGlone: There is an obvious reason for me asking that. It is very, very slow at the moment — it is slow almost to the point of grinding to a halt — particularly for an enhanced check. A person who has a job cannot walk into that job because of that process. Clearly, the more that can be done to facilitate it and make it more efficient, the better.

Are you dealing with the update service now?

Ms M Campbell: We will deal with that when we have other colleagues at the table.

Mr McGlone: That is grand. It is obviously linked.

Mr Frew: I understand the logic of a discretion and everything else. I will explore the line of communication between the Director of Public Prosecutions and the local bobby or police officer, who maybe knows the person or their family. Will the DPP ask for a reference? Would that make the system too bogged down? How will that work? Will it just be a case of running down a list and saying, "Is it a first-time offender? Is it a minor offence? Let us get them sorted with a fine and push it out." Or will there be a logic or thought process behind it, so that there is an injection of common sense and local knowledge?

Ms M Campbell: As is already the case, when the police give a file over to the PPS they include any information that they think is relevant. In the circumstances you are talking about, where they have some knowledge of the individual and whether the act was in character or a one-off, I expect that they would pass that information on to the PPS.

Mr Black: That may form part of the case file. There is no provision for some kind of referral process whereby a prosecutor would go back and seek the police officer's opinion. There may be a difficulty with that as well, in that, if the officer does not have that local knowledge, the individual is at a slight disadvantage, because they are not going to get a positive character reference. So, no, there is no formal process for that.

Mr Frew: Is there a danger that a repeat offender of the same type of crime could end up getting a second and third fine that is larger? To me, that would not be appropriate or serve the purpose of the scheme, because, obviously, financial penalties have not deterred them or made a difference.

Scaling it up would not prevent further crimes.

Mr Black: If a prosecutor were to consider giving a second or certainly subsequent prosecutorial fine to an individual, they would be constrained by the director's guidance. Technically, the legislation would not prevent that, but these will be subject to public consultation and will be closely monitored in the PPS. The guidance will provide that a prosecutorial fine is not a suitable disposal for repeat offenders.

Mr Frew: Let us flip the logic over. A shoplifter may get caught stealing lipstick, a carton of milk, a garment or whatever and gets fined £25 or £30. They may then go out and steal something else to sell to pay the fine. Where would we go from there? You can see a vicious circle.

Mr Black: If it were the sort of shoplifting situation that you describe, such as the theft of a lipstick, I would almost certainly expect that it would be dealt with by a police-issued fixed penalty. Shoplifting is one of the offences that that covers. The guidance was very clear in those circumstances. A police-issued fixed penalty can never be given twice for shoplifting. Once someone has received a penalty for shoplifting, they cannot be given a second penalty. The guidance for the prosecutors will provide the same sort of thing. We focus on the fact that these are for non-habitual, low-level first-time offenders. A habitual offender certainly would not be considered a candidate for repeat prosecutorial fines.

Mr Frew: Whilst I certainly agree and see the logic in this, how can you assure me that that will not become the case for habitual offenders? Is there no safeguard in the Bill that would prevent that happening? It becomes an easy process for the DPP.

Mr Black: We did not provide for it in the legislation in the way that we did for the police-issued fixed penalty, because, clearly, a prosecutor has the discretion. They would be looking at each case on an individual basis, and a similar offence can have very different circumstances, so we did not want it to constrain that. However, I come back to the fact that the guidance, which will be publicly consulted on, will form part of the code for prosecutors. That also requires consultation with the Attorney General. This is not a casual document that people can disregard. It will lay out quite clearly the circumstances in which it is suitable and the circumstances in which it is not. We would expect prosecutors to comply with that.

Mr Frew: How will it be recorded? I realise that you will not have a criminal record. You will receive a fine, which is fair enough. How is it recorded and notified? When Women's Aid gave evidence, it was concerned about the domestic crime side of things and wanted to make sure that the police and the authorities were fully aware of who was living where and what they had been responsible for in the past. Whilst they are not crimes as such, because there will be no criminal record, how will they be recorded and safely used by the police and other authorities?

Mr Black: First of all, we would not expect that the crime of domestic violence would be a suitable candidate for a prosecutorial fine in the first place. However, if that happened, it would be recorded on our Causeway system. It is not recorded as a conviction and does not form part of the formal criminal record, but the system retains a record of it having been issued. If it were the circumstances of domestic violence in the case of an enhanced check, I think that that would be disclosable, because it might be relevant to the asserted position that someone is applying for.

Ms M Campbell: The police and the Public Prosecution Service have access to the information that is held on Causeway.

Mr Frew: Will social services also have access to that information? How will it tap into that information?

Ms M Campbell: Social services would not have direct access to that information, but if it had a concern about an individual, I expect that it would go to the police for any relevant information.

Mr A Maginness: I do not think that you should call it a fine. That is my point to you. I think that it is very confusing. It is not really a fine. I think that a fine is something that a court imposes. I think that this is akin to, as you talked about, a fixed penalty. Why can you not use a term like that? I really do think that it is a confusing concept for the public and for us as legislators to come to terms with. It is for me, anyway. It does not strike me as a fine in the conventional sense.

Ms M Campbell: Paul can correct me if I am wrong on this, but the terminology has been used probably because it essentially achieves the same outcome that you would have had if the fine had been awarded by the court. It is just that it has been done through a different process. The decision has been made by a prosecutor without the case having to go before a judge.

Mr A Maginness: If you go to court, you are fined and you have something on your record. This is not on your criminal record as such.

Ms M Campbell: It is not, and I suppose that that is to reflect the fact that the circumstances in which this would be used would be for the lower-level offences.

Mr A Maginness: With respect, that it is why I find it confusing. It is not really a fine in the criminal justice sense. My advice is this: ditch it.

Mr Black: Historically, it had always been called a fine. This goes right back to the criminal justice review of 2000, where it was referred to as a prosecutorial fine, and, again, the access to justice review of 2011 referred to it as a prosecutorial fine. Scotland operates a very similar system, which it refers to as a fiscal fine. Yes, I take your point about it being distinct from a court's disposal.

Mr A Maginness: I think that it is a confusing term to use, and I think that you should review the use of that term. I do not know whether you can use the term "fixed penalty" or "penalty". Obviously, it is not a fixed penalty, in the sense that it would be variable, but you could call it a prosecutorial penalty or a monetary penalty instead of a fine.

The other thing is that, in answer to Mr McCartney's question, you said that a person cannot demand that this be imposed. Can they request it?

Mr Black: They will not know that they will be offered a prosecutorial fine until the offer is made. As far as the individual is concerned, they are going through the normal process, and the police will deal with them and will forward the case for a prosecutorial fine. So, I am not sure that there is necessarily an opportunity for someone to request one.

Mr Graham Walker (Department of Justice): I would have thought not, Mr Maginness, in that it would be at the prosecutor's discretion that that is the most appropriate disposal in that case. I think that it would be with the prosecutor solely. That is my reading of it.

Mr A Maginness: That makes sense. Effectively, you would be, I suppose, constraining the discretion that a prosecutor could use.

Mr Walker: Particularly, as the guidance will form part of the code for prosecutors, I do not think that it would mandate the PPS to issue a prosecutorial fine. I think that it would be in the exercise of individual discretion in an individual case that would decide that that was the most appropriate disposal.

Mr McCartney: Would that not assist the process? If a prosecutor is sitting down to assess a case and the person, in effect, requests that, it is like an early guilty plea. In Paul's scenario where a person is caught with lipstick, they might say, "I have done wrong. What is the best way for me to deal with this speedily?". It could assist the process. We have often been told that people who stay a long time in the system have a higher chance of staying in the system and reoffending, whereas if this was done not on the same basis as a fixed penalty but by allowing an 18-year-old, a 19-year-old or a person of whatever age who was arrested to say, "I did this", that would be in the report going to the prosecutor. In the Bill, there is no provision where someone can admit the offence. That is worth considering.

Mr Black: Even if that were the case, the prosecutor would still have to consider the case in detail.

Mr McCartney: Absolutely.

Mr Black: I am not sure that there would necessarily be any time saving for the prosecutor on that front.

Mr Lynch: I have a quick question. If the person does not pay the fine, will it be placed on their criminal record?

Mr Black: Yes, because it will become a court-ordered fine and would be uplifted by 50%. With the upcoming Fines and Enforcement Bill, I am not sure whether that will still be the case.

Ms M Campbell: I think that it will be. If someone is awarded a prosecutorial fine and defaults on that for whatever reason, it would go through the same process as a court-ordered fine. It would be brought back for a default hearing.

Mr Lynch: Would there be a time frame on that like 30 days or —

Mr Black: Yes. They have 21 days to consider the offer of a fine and 28 days to make payment. Our view is that we are giving the individual the opportunity to avoid a criminal record. If they default, they would be choosing not to take that offer.

Mr Lynch: Will that be clearly demonstrated to the person?

Mr Black: Yes. The prosecutorial fine form will contain all the information that we have legislated for, but it is not prescriptive. It will contain as much information as needed and will be displayed as clearly as we can so that the person knows how to deal with it.

Mr Lynch: That will make a big difference to the person's future.

Mr Black: Yes. Absolutely.

The Chairperson (Mr Ross): Thank you.