Guidance on instructing Counsel: common legislative solutions

Fixed Penalty Notices

Description of the legislative solution

This solution authorises the giving of a fixed penalty notice (" FPN"), which is a notice giving the recipient the opportunity of discharging any liability to conviction for an offence by paying a fixed sum of money within a particular period.

The power to issue fixed penalty notices tends to be conferred in respect of lower level offending. The issuing of a notice is an alternative to prosecuting the offender.

A classic example is the giving of a fixed penalty notice for a minor traffic offence.

The power may be conferred when the offence in question is created, or at a later time.

NB: Notices which impose a civil liability on the recipient, not alleged to have committed an offence, are sometimes called fixed penalty notices – these are not the same thing (see below).

Related legislative solutions

Civil penalties

Another policy option is to create a scheme for civil penalties. The appropriateness of this solution depends on the kind of conduct that is being regulated and its seriousness.

A civil penalty regime enables a regulator to impose financial penalties on certain persons, in certain circumstances. Civil penalties must be paid (subject to any rights of appeal etc). There is usually no question of there being any criminal liability.

For examples of powers to impose civil penalties, see the Broadcasting Act 1990, s. 18 (simple penalty provision), Traffic Management Act 2004 Part 6 (civil enforcement of traffic contraventions), and the Immigration Act 2014, Part 3 Chapter 1 (residential tenancies: power conferred on Secretary of State).

On occasion notices imposing civil penalties have been called fixed penalty notices - see for example s.40 Pensions Act 2008, ss.15 and 16 of the Mobile Homes (Wales) Act 2013 and ss. 46A-46D Environmental Protection Act 1990.

Scotland – fiscal fines

In Scotland, the power of a procurator fiscal to issue a fine may suffice (ie may mean that a power to give a fixed penalty notice is not needed) - an advantage is that a system for the collection of the penalty money is in place. Whether issuing a fixed penalty notice or a fiscal fine, the usual standards for prosecution would apply.

Elements of the solution

1. In respect of what offences should FPNs be capable of being given?

2. What test should be applied for the giving of an FPN?

A commonly used formulation is that the giver of the notice has "reason to believe" that a person has committed an offence.

Alternatives include "reasonable grounds for believing" that the person has committed an offence, and it appearing that there are "grounds for instituting...proceedings for an offence".

3. Who may give an FPN?

This will usually be those responsible for enforcing the legislation. So, for ordinary criminal offences it might be a "constable", while for regulatory offences it might be an authorised officer of the body – department, local authority etc – responsible for enforcing the regulatory scheme.

If referring to an "authorised officer", what is to be the method of authorisation?

4. What provision is to be made about the form and contents of FPNs?

The form and contents of FPNs could be set out in primary legislation, there could be a power to make subordinate legislation about these matters, or a mixture of both.

As regards contents, the provisions commonly provide that the notice must state the offence and give particulars of the circumstances alleged to constitute the offence, and must contain most or all of the following information:

• the amount of the penalty,
• the period for payment of the penalty,
• the consequences of not paying the penalty,
• the person to whom and the address at which payment must be made,
• the method of payment.

5. How should the amount of the fixed penalty be determined?

5.1 How should the amount of the penalty be determined?

• Is an amount to be specified?
• Or is there to be a formula for calculating the amount of the fixed penalty?
• Or is legislation to set the maximum amount (and the minimum amount?), leaving the giver of the notice a discretion as to the amount of the penalty?
• If there is to be discretion as to the amount of the penalty, should there be a power to issue guidance as to the exercise of the discretion, with the giver of the notice being required to have regard to the guidance?

5.2 If an amount (whether the amount of the penalty, or the maximum or minimum amount) is to be specified, should it be specified in primary legislation (if so should there be a power to substitute a new amount) or, alternatively, should it be specified in subordinate legislation?

6. Duration of the period for paying the penalty ("the notice period")

6.1 Should there be a fixed notice period, or is there to be a minimum period (with the FPN to specify the actual period)?

6.2 Should the duration (or minimum duration) of the notice period be set out in primary or subordinate legislation?

7. Discount for early payment

7.1 Should there be a discount for early payment of the fixed penalty?

7.2 If so, the questions above about the amount of the payment and duration of the period arise here too, ie how is the reduced amount, and the period for which the reduced amount is payable, to be determined?

8. What should be the effect of giving an FPN?

8.1 The usual effect of giving an FPN is that a person may not be prosecuted for the offence in the period for making the payment, and may not be prosecuted at all if payment is made within that period (subject to the notice being withdrawn, as to which see below). Is this what is wanted, or is something different wanted?

8.2 In some cases, an FPN has the further effect of imposing a penalty on the recipient if the person fails to pay the fixed penalty within the period for payment and also fails to indicate that the person wishes to be tried for the offence (eg Road Traffic Offenders Act 1988 s.55) - see section 11, below.

8.3 Some examples of the solution provide that the recipient of the FPN may be prosecuted within the period for payment. They also provide that in such cases the notice is treated as withdrawn. Is this wanted and, if so, what happens if the person has already paid the fixed penalty? Is there any need for this provision (as a similar result could be achieved by withdrawing the FPN and then prosecuting)?

9. What provision should be made about payment of the fixed penalty?

9.1 To whom should any payment of a fixed penalty be made?

9.2 Should anything be said about the way in which payments should be made (eg requiring or permitting payments to be made in particular ways)?

9.3 Should anything be said about when payments made in a particular way are to be treated as paid? (For example, it is common to provide that payments made by post are treated as paid when they would be delivered in the normal course of post.)

10. Withdrawal of fixed penalty notices

10.1 Should it be possible to withdraw an FPN? This might be wanted for cases where the recipient of the FPN should be prosecuted, as well as for cases where the recipient has not committed the offence.

10.2 If it should be possible to withdraw an FPN, are there any limits on the withdrawal of a notice and what are the consequences of a notice being withdrawn? (For example: May the recipient of the FPN be prosecuted, or does the bar on prosecution continue despite the withdrawal? Does any payment that has been made need to be repaid? NB a provision as to repayment may do double duty, as it indicates that an FPN may be withdrawn despite payment of the fixed penalty.)

10.3 If, unusually, it is to be possible to prosecute the recipient of an FPN in the notice period (without having withdrawn the FPN, and without the recipient having given a notice of the kind mentioned immediately below), it would make sense to provide that the FPN is treated as withdrawn by the commencement of a prosecution.

11. Notice of intention not to pay the fixed penalty, representations, appeals etc

11.1 Should provision be made about the giving of a notice, by the recipient of the FPN, indicating that he or she does not intend to pay the fixed penalty (or asks to be tried for the offence to which the FPN relates)?

11.2 What is the effect of such a notice? Is it simply that proceedings in respect of the offence may be brought even if the notice period has not ended? If so, is there any purpose in providing for the giving of such notices (given that it is possible to withdraw the FPN or wait until the end of the notice period in any event)?

11.3 Is there any consequence of not giving such a notice? As mentioned at paragraph 8.2 above, in some cases failure to give such a notice will result in a penalty being imposed. If this is what is wanted, indicate what penalty is to be imposed and how it is to be enforced.

11.4 Some examples provide for the possibility of representations to be made in respect of the FPN or, occasionally, for appeals against the giving of the FPN. If any of this might be wanted, consider carefully what the purpose of the additional machinery is. It is always open to a recipient of an FPN to state that he or she is not guilty, and to invite the matter to be tested by prosecuting in the normal way. Another thing to bear in mind is any time limits for summary prosecutions – representations and appeals will take time.

12 Evidential matters

The usual practice is to provide for a signed certificate stating that payment has, or has not, been received to be evidence (or in Scotland sufficient evidence) of the facts stated. If this is wanted, state who must sign the certificate.

13 Duty to give name and address?

13.1 Should a person be required to give his or her name and address, for the purposes of being given an FPN?

13.2 If so, should failure to provide the information be an offence (and, if so, what are the ingredients of the offence, the maximum penalty and the mode of trial)?

14 Guidance on giving of FPNs

14.1 Should there be a power or duty to give guidance as regards the giving of FPNs?

14.2 If so, should anything be said about the giving of the guidance (eg persons who must be consulted first)? Should there be a duty to publish the guidance?

14.3 Alternatives include a requirement to publish an enforcement policy. Such a policy would set out the circumstances in which a fixed penalty notice is likely to be given, and those in which prosecution is likely to be the preferred response to the offending.

15 Report on FPNs that have been given?

Should there be a duty to produce a report, at intervals, giving details of FPNs that have been given? If this is wanted, provide details of who must make the report, whether the report must be published or given to another person, and the periods in respect of which a report must be made.

16 Use of fixed penalty receipts

16.1 What is wanted as regards the use of fixed penalty receipts?

16.2 Can the person to whom payments in respect of FPNs are made keep the monies, or must that person pay the monies to Ministers (or an NI department) or into the relevant Consolidated Fund?

16.3 If the monies may be retained, can they be used as the person considers appropriate, or only for particular purposes or functions?

16.4 If there are to be restrictions on the use of the monies, what else is wanted in connection with this (eg do accounts need to be kept, and published or provided to another person, to ensure that the restrictions are complied with)?

17 Notices and payments sent electronically

Should the FPN scheme provide for notices and/or payments to be sent electronically? (this issue may arise in a number of places above)

Examples of the legislative solution

Road Traffic Offenders Act 1988, Part 3 (these provisions also provide for the endorsement of driving licences, so they are quite complicated compared with other provisions)

Social Security Administration Act 1992, s. 115A ( FPNs by Secretary of State etc – recovery of overpayments)

Anti-social Behaviour Act 2003, ss. 43-47 (local authority FPNs)

Wireless Telegraphy Act 2006, Schedule 4 ( FPNs by OFCOM or procurator fiscal)

Aquaculture and Fisheries (Scotland) Act 2007, Part 4 ( FPNs by persons appointed by Scottish Ministers)

Climate Change (Scotland) Act 2009, s. 88A and Schedule 1A (enforcement authority FPNs; representations about FPNs)

Planning Act (Northern Ireland) 2011, ss 153-155 (council FPNs)

Local Government Byelaws (Wales) Act 2012 (council FPNs)

Food Hygiene Rating (Wales) Act 2013, ss. 21 and 22 and the Schedule (council FPNs)

Food (Scotland) Act 2015, Part 3 (enforcement authority FPNs)

Fisheries Bill 2015/16 (Northern Ireland), clauses 14 and 15 (power to make provision about FPNs to be given by department; quite wide powers, including power to enable a person to make a payment and then be prosecuted – to cater for, say, the owner of a ship wishing to contest liability after a FPN had been paid)

Food Hygiene Rating Act (Northern Ireland) 2016, s.11 and the Schedule ( FPNs by council)

Smoking Prohibition (Children in Motor Vehicles) (Scotland) Act 2016, Schedule ( FPN, provision for hearing to make representations about whether FPN should be withdrawn, provision for enforcement of unpaid FPN). NB this started out as a Member's Bill

Regulation and Inspection of Social Care (Wales) Act 2016 section 52

Public Health (Wales) Act 2017 sections 27 and 29 and Schedule 1 (link to Bill)