Derbyshire Constabulary GUIDANCE FOR THE ISSUE OF FIXED PENALTY NOTICES FOR DISORDER
NOT PROTECTIVELY MARKED Derbyshire Constabulary GUIDANCE FOR THE ISSUE OF FIXED PENALTY NOTICES FOR DISORDER This guidance is suitable for Public Disclosure Owner of Doc: Head of Department, Criminal Justice Date Approved: July 2005 Review Date: June 2015 1 NOT PROTECTIVELY MARKED NOT PROTECTIVELY MARKED INDEX Heading Page No 1. Guidance Identification Page 3 2. Legislative Compliance .............................................................................................. 4 3. Introduction ................................................................................................................ 4 4. Quick Guide ................................................................................................................ 4 5. List of offences in the PND scheme & the Central Process Unit (CPU) ................. 5 6. Overview of the Scheme ............................................................................................ 7 7. The Pre-conditions for Issuing a Penalty Notice ...................................................... 9 8. Evidence required before Issuing a PND .................................................................. 9 9. The Suitability of Issuing a PND ................................................................................ 9 10. Theft and Criminal Damage ..................................................................................... 11 11. Licensing Act 2003 ................................................................................................... 12 12. Suitability of Offender to receive a PND ................................................................. 12 13. Other Offences ......................................................................................................... 13 14. Issue of PNDs to Young Persons aged 16 and 17 years........................................ 14 15. Jointly Committed Offences .................................................................................... 15 16. Identification ............................................................................................................. 15 17. Completing a PND .................................................................................................... 15 18. Compliance with the National Crime Recording Standards (NCRS) ..................... 16 19. Disclosure ................................................................................................................. 17 20. Custody Officers....................................................................................................... 18 21. The Number of PNDs an Individual can receive ..................................................... 18 22. Police Bail ................................................................................................................. 18 23. De-arrest Procedure ................................................................................................. 18 24. Fast-Track Custody Procedure................................................................................ 19 25. Cell Managment ........................................................................................................ 19 26. Prisoner Handover ................................................................................................... 19 27. PNC Recording of PND's.......................................................................................... 20 28. C.I.S. .......................................................................................................................... 20 29. Performance ............................................................................................................. 20 30. Mobile Police Stations.............................................................................................. 20 31. Professional Standards............................................................................................ 21 2 NOT PROTECTIVELY MARKED NOT PROTECTIVELY MARKED 1. Guidance Identification Page Guidance title: Registry Reference number: Guidance for the Issue of Fixed Penalty Notices for Disorder 05/020 Guidance implementation date: July 2005 Guidance review date: June 2015 Department / Division responsible: Criminal Justice Guidance owner: Head of Department Last reviewed by: Les Marriott Date last reviewed: Impacts on other policies / guidance / documents (list): None Security Classification: NOT PROTECTIVELY MARKED Disclosable under FOI Act: YES Policy to be published on Intranet YES Policy to be published on Force Website YES Policy disclosable to public via FOI request YES 3 NOT PROTECTIVELY MARKED June 2014 NOT PROTECTIVELY MARKED 2. Legislative Compliance This document has been drafted to comply with the principles of the Human Rights Act. Proportionality has been identified as the key to Human Rights compliance, this means striking a fair balance between the rights of the individual and those of the rest of the community. There must be a reasonable relationship between the aim to be achieved and the means used. Equality and Diversity issues have also been considered to ensure compliance with the Equality Act 2010 and meet our legal obligation in relation to the equality duty. In addition, Data Protection, Freedom of Information and Health and Safety Issues have been considered. Adherence to this policy or procedure will therefore ensure compliance with all relevant legislation and internal policies. 3. Introduction This guidance aims to encourage the pragmatic use of Penalty Notices for Disorder by Police Officers and Police Community Support Officers (PCSO’s). The Penalty Notice Scheme offers the benefits of significant time savings while at the same time achieving a positive intervention with offenders that will assist in promoting public confidence that Derbyshire Constabulary are taking action against anti-social behaviour and low level criminality. The guidance incorporates a ‘Quick Guide’ section which outlines how the scheme may be used. More detailed guidance is provided in relation to specific areas, which is reflected in the index. Fixed Penalty Notices for Disorder: Offer an effective alternative to arrest as a method for dealing with low-level, anti social and nuisance offending, Deliver swift, simple and effective justice that carries a deterrent effect. Significantly reduce the amount of time that officers spend completing paperwork and attending court, while simultaneously reducing the burden on the courts, Increase the amount of time officers spend on the street which will contribute towards the frontline policing measure, Allow officers more time to deal with serious crime. 4 NOT PROTECTIVELY MARKED NOT PROTECTIVELY MARKED 4. Quick Guide The issue of a Penalty Notice is a matter of officer or PCSO discretion, however, officers and PCSO’s are encouraged to utilise PND disposal where possible. This will save significant time whilst demonstrating a positive intervention to both the offender and wider community. A Penalty Notice can be issued on the street for minor theft (below £100 where property is recovered) and for minor damage (below £300) with the agreement of the victim. There is no requirement to obtain fingerprints or DNA in these cases. For the offences of s.5 of the Public Order Act 1986 and being Drunk and Disorderly, the issue of a Penalty Notice will be the default position adopted by the force, unless there are aggravating factors or the offender is eligible to attend the Alcohol awareness Scheme. Officers are encouraged to use the Penalty Notice Scheme in a pragmatic way. Where a person has been arrested for an offence for which a Penalty Notice is a suitable disposal and is en-route to the police station, the officer may de-arrest the person and issue a PND if the necessity to detain them ceases, for example, where they provide their details or calm down. In a similar way, offenders who have been arrested for an offence for which a Penalty Notice is a suitable means of disposal and who have arrived at the police station, may be de-arrested and issued a PND in exceptional circumstances where there would be a significant delay in presenting the detainee to the Custody Officer which would clearly delay their release. There are no limitations on the number of Penalty Notices that can be issued to adult offenders, however, officers and PCSO’s need to consider the circumstances of the incident, any knowledge that they have of the offender and consider checking both PNC and CIS to assist in their decision making. Following the issue of a Penalty Notice for a PNC recordable offence issued in custody, it is essential that the relevant copy is delivered to the local Criminal Data Section during weekdays and the local Custody Suite at weekends to ensure that the 24 hour time limit for the input of the record onto PNC is met. The issue of a Penalty Notice for an offence of theft, criminal damage or s.5 Public Order will require a crime report to be completed in compliance with the NCRS. In all cases where a PND is issued a CIS entry will be made prior to ending the tour of duty. This will enable other members of staff to access nominal records to ascertain whether an offender has received PND’s in the past. 5 NOT PROTECTIVELY MARKED NOT PROTECTIVELY MARKED 5. The list of offences in the PND scheme and the Central Process Unit (CCCJS) reference, are shown below; (For more information click here for links to the Police National Legal Database.) Penalty Notice for disorder offences – Upper tier. (£90) (Offences marked with an * are PNC recordable.) PU86149 Use words/conduct likely to cause harassment, alarm or distress (Section 5, Public Order Act 1986)* CD71039 Destroying or damaging property (under £300) (Section 1 (1) Criminal Damage Act 1971)* TH68010 Theft (retail under £100) (Section 1 Theft Act 1968)* MD71530 Possess a controlled drug of Class B. Cannabis/cannabis resin. (Section 5 (2) and Schedule 4 Misuse of Drugs Act 1971)* CL67008 Causing wasteful use of police time. Giving false report. (Section 5 Criminal Law Act1967)* CA03007 Send false message/persistently use public electronic communications network in order to cause annoyance, inconvenience or needless anxiety. (Section 127(2)(a) and (3) Communications Act 2003)* FS04009 Knowingly give a false alarm to a person acting on behalf of a fire and rescue authority. (Section 49 Fire and Rescue Act 2004)* EP75005 Fire/Throw firework(s) (Section 80, Explosives Act 1875) CJ67002 Drunk and Disorderly in a public place. (Section 91, Criminal Justice Act 1967)* LG03067 Supply of alcohol by or on behalf of a club to a person aged under 18 (Section 146 (3) Licensing Act 2003)* LG03064 Sale of alcohol anywhere to a person under 18.(Section 146(1) and (7) Licensing Act 2003)* LG03081 Buys or attempts to buy alcohol on behalf of a person under 18. ( Section 149(3)(a) and (7)(b) Licensing Act 2003)* LG03083 Buys or attempts to buy alcohol for consumption on relevant premises by person under 18. (Section 149(4)(a) and (7)(b) Licensing Act 2003)* LG03088 Delivery of alcohol to person under 18 or allowing such delivery.(Section 151(1)(a) and (7) Licensing Act 2003)* FW04003 Breach of fireworks curfew (11pm – 7am) (Fireworks Regulations 2004 under Section 11 of the Fireworks Act 2003)* FW04002 Possession of a category 4 firework (Fireworks Regulations 2004 under Section 11 of the Fireworks act 2003)* 6 NOT PROTECTIVELY MARKED NOT PROTECTIVELY MARKED LG03036 Sells or attempts to sell alcohol to a person who is drunk. (Section 141 Licensing Act 2003)* Penalty Notice for disorder offences – Lower tier (£60) BT49005 Trespass on a railway (Section 55, British Transport Commission Act 1949) BT49006 Throwing Stones/Matter/Thing at a train (Section 56, British Transport Commission Act 1949) LG72008 Drunk in Highway (Section 12 Licensing Act 1872) CJ01002 Consume alcohol in a designated public place, contrary to requirement by constable not to do so (Section 12, Criminal Justice and Police Act 2001) EP90046 Depositing and leaving litter (Sec 87(1) and (5) of the Environmental Protection Act 1990) LG03086 Allowing consumption of alcohol by a person under 18 in a bar on relevant premises (Section 150 (2) Licensing Act 2003) MD71599 Possess a controlled drug of Class B. Khat (Section 5 (2) and Schedule 4 Misuse of Drugs Act 1971)* The Criminal Justice and Police Act 2001 permits that: A constable (including a special constable) who has reason to believe that a person aged 18 years of age or over has committed a Penalty Notice offence may give that person a Penalty Notice for that offence, The notice may be issued ‘on the spot’ to a person, aged 18 years or over, by an officer at a police station or elsewhere, if subsequent enquires reveal a PND offence has been committed. PCSO’s are empowered under the Police Reform Act 2002 to issue PNDs. The issue of a PND extends the offer to the recipient of the opportunity, by paying the penalty, to discharge their liability to conviction for the offence in respect of which the notice is issued. Once the notice has been issued the recipient may elect to either pay the penalty or request a court hearing. They must do one or the other within 21 days of the date of issue; and Failure to do either may result in the registration of a fine of one and a half times the penalty amount as a fine against the recipient, or exceptionally, in proceedings against them for the penalty offence. 7 NOT PROTECTIVELY MARKED NOT PROTECTIVELY MARKED 6. Overview of the Scheme The introduction of the option for an officer to issue a PND for a Penalty Notice offence does not in any way preclude the use of any existing methods of disposal. All the current forms of disposal will remain available and the option to issue a PND or deal with a case in any other way will be at the officer’s discretion. Reporting for process remains an option for nonarrestable offences. Powers of arrest remain unchanged and should be exercised where appropriate. The majority of PND’s will be issued at the time an offence is committed, however, a Penalty Notice can be issued anywhere within a reasonable time after an offence has come to light i.e. the home address of an offender. This includes persons released on bail. No one has a right to demand a Penalty Notice and no one should be forced to accept one. The notice must be issued to, and received by, the offender. Once an officer has issued a notice, the decision to issue has been made and no alternative should then be considered. Once issued, in accordance with the law, a notice may not be withdrawn or any action taken until the 21day suspended enforcement period (SEP) has expired. Once a Penalty Notice has been issued the suspect must either pay the amount shown on the notice, request a hearing or if eligible attend an Alcohol Awareness Course. To be eligible the Penalty Notice must be issued for an Alcohol related offence committed under S5 of the Public Order Act 1986 or for an offence of Drunk and Disorderly committed under Section 91 of the CJ Act 1967. This must be done within the (statutory) 21 days SEP detailed on the reverse of the notice (In practice, for administrative purposes, more time will in fact be allowed for this.) Payment of the penalty by the recipient discharges their liability to conviction of the offence for which the notice is issued. Payment involves no admission of guilt and removes the possibility of the creation of a record of criminal conviction. If the recipient requests a court hearing the case is processed in the normal way, which may result in a hearing. If the recipient neither pays nor elects a hearing, the penalty will be registered as a fine at oneand-a half times the value of the original penalty. This will then be enforced as a normal fine by the courts. Recording of the recipients post code on the PND enables the fine to be registered at their local Magistrates Court. In cases where the 21 day SEP elapses without action on the part of the recipient it will be permissible, in exceptional circumstances, for a prosecution to be brought against the recipient of the notice for the original offence. This may be where, for example, further evidence has emerged as to the seriousness of the original offence, or the recipient’s full criminal history is known. The legislation allows for this and a warning of this possibility is printed on the notice, although it is not expected to be a common occurrence. Once a Penalty Notice has been issued the recipient may decide to phone or write in pleading mitigation. The Penalty Notice advises the recipient that all enquiries other than those concerning payment must be referred to the Central Ticket Office. All matters concerning payments should be referred to: The Regional Fixed Penalty Office P.O.Box 10066 8 NOT PROTECTIVELY MARKED NOT PROTECTIVELY MARKED Loughborough Leicestershire LE11 9HB In the event that the recipient of a fine registration notice contests the PND, the issuing officer may be called upon to appear at court or to undertake investigations to verify the identity of the complainant. 7. The Pre-conditions for Issuing a Penalty Notice Officers may issue a Penalty Notice only where; they have reason to believe a person has committed a penalty offence and they have sufficient evidence to support a successful prosecution, the offence is not too serious and is of a nature suitable for being dealt with by a Penalty Notice, the suspect is suitable, compliant and able to understand what is going on, a second or subsequent offence, which is known, does not overlap with the Penalty Notice offence, the offence(s) involve(s) no one below the age of 18. sufficient evidence as to the suspect’s age, identity and place of residence exists. A PND may be issued for wasting police time or for the offences under the Licensing Act 2003 without DPP consent. Where the offender requires a hearing, a summons will be required to be raised in the normal way and the CPS will give delegated DPP consent. 8. Evidence required before Issuing a PND Officers may issue a Penalty Notice only where they have reason to believe a person has committed a penalty offence and they have sufficient evidence to support a successful prosecution. The evidence should be capable of satisfying CPS charging standards, and fit for use as evidence in court. An officer may consider it appropriate to issue a Penalty Notice to a suspect even if they have not directly witnessed the offending behaviour but have reliable witness testimony instead. Interviews and questioning must be consistent with the practice and procedures established by PACE 1984, code C. 9 NOT PROTECTIVELY MARKED NOT PROTECTIVELY MARKED 9. The Suitability of Issuing a PND An officer may issue a Penalty Notice only where the offence is not too serious and is of a nature suitable for being dealt with by a Penalty Notice. When considering a case, officers should consider the nature and seriousness of the offence. Officers should not issue a Penalty Notice where the nature of the offence is too serious and/or it involves any aggravating circumstances. When reaching a decision on the appropriateness or otherwise of PND disposal, officers may find it helpful to take account of any mitigating and aggravating factors as per the current ACPO Gravity Factors used in adult custody disposal decisions. A Penalty Notice may be an appropriate response where at present an informal or a formal caution might be used. A Penalty Notice may also be appropriate for some cases that would normally result in a charge. The disposition of the offender will be relevant as will the disposition of any victim. A Penalty Notice will not be appropriate where there has been any injury to any person or any realistic threat or risk of injury to any person. Officers may seek the views of any potential victim before making a decision on the most appropriate course of action. Penalty Notices will not be used where there has been a substantial financial/material loss to the private property of an individual. Where a Penalty Notice is being considered for issue in relation to an offence under s.5 Public Order Act 1986, officers should consider the relevance of the statutory defence. Where necessary or appropriate, officers should make full use of the specific powers of conditional arrest provided by s.5 Public Order Act for offences under that section. A Penalty Notice will not be an appropriate response where a penalty offence is committed in association with another Penalty Notice offence or an offence that can be said to overlap with the penalty offence. A Penalty Notice will not be appropriate for a penalty offence where there are grounds for believing that the terms of the Protection from Harassment Act 1997 might apply. This is where the offence constitutes part of a course of conduct which amounts to harassment and which the offender knows, or ought to know, amounts to harassment. A court may consider a restraining order, and the victim’s right to make a civil claim following a conviction will not be removed. Throwing fireworks in such a way as to cause annoyance and nuisance, e.g. by causing excessive noise outside a person’s home, may be appropriately dealt with by issue of a Penalty Notice. However, PND disposal is not appropriate where this constitutes part of a pattern of intimidation. A Penalty Notice will not be appropriate for any offence related to domestic violence. As a general rule a Penalty Notice will not be appropriate for any football related offences where if a charge is brought a court may wish to consider the imposition of a Football Banning Order. Under certain circumstances, persons arrested for a football related offence may be suitable for other means of disposal, including a Fixed Penalty Notice for Disorder, but only after full consultation with Football Intelligence Officers or Operation Cabby Officers, before a charging decision is made. 10 NOT PROTECTIVELY MARKED NOT PROTECTIVELY MARKED Each of the three offences under section 127(2) of the Communications Act 2003, section 5(2) of the Criminal Law Act 1967 (wasting police time or giving false report), and section 49 of the Fire and Rescue Services Act 2004 have been included to capture misuse of the 999 service. Serious examples of misuse of 999, such as making hoax bomb threats, are not considered suitable for dealing with by means of a Penalty Notice. A PND may be issued for wasting police time without DPP consent. Where the offender requests a hearing, a summons will be raised in the normal way and the CPS will give delegated DPP consent. Where officers elect to bring a charge for an offence for which a Penalty Notice is available, they will need to state on the confidential information form of the prosecution file (form MG6) why they chose not to issue a PND. This may include details based on local knowledge, aggravating factors, or knowledge of previous notices issued to an individual. Officers should note that this is for information purposes only. The decision on what disposal is appropriate should be based on an assessment of each offence, the suspect and the circumstances of the offence. The use of police bail should never be ruled out where further enquiries are needed to inform proper case disposal decisions. 10. Theft and Criminal Damage PND disposal may only be used for thefts (retail/commercial only) for offences under £100. PND’s for theft should only be considered for offences of ‘theft from a shop’ as defined in the National Crime Recording Standards. Only one PND should ever be issued to an individual for retail theft. A PND should not be issued for either retail theft or criminal damage where it is known that an offender is a substance misuser. Thefts involving property over the value of £100 will be dealt with by existing disposal, i.e. prosecution. Criminal damage involving values over £300 will be expected to be dealt with by existing disposal, i.e. prosecution unless it involves public property. PND disposal over this value would be exceptional (except for public property) and require explanation as well as the agreement of the victim/retailer. Penalty Notice disposal for theft and criminal damage will be appropriate for low level, usually first time, offending but not appropriate for those who repeatedly offend where prosecution will be considered more suitable. However, the length of time that has passed since any previous offence should be taken into account. It is expected that in most cases of theft suitable for PND disposal the property will have been recovered and the value of the property will be relevant in assessing seriousness. PND disposal for these offences may not be appropriate for those who are known to be substance abusers. Such people may be more appropriately dealt with by a court, which can direct them to suitable substance treatment. 11 NOT PROTECTIVELY MARKED NOT PROTECTIVELY MARKED Consideration of the relative seriousness of the offence and its effect on the victim should be taken into account and the effect of the incident on any staff involved. Officers should seek and record the views of all victims before making a decision on the most appropriate course of action. The victim should be consulted about the potential issue of a PND for the offence and their views taken into account when reaching a decision. PND disposal will not be appropriate where the victim is not in agreement. In all cases where there is an identified victim, officers should be mindful that a PND disposal removes the possibility of the criminal court awarding a compensation order in favour of the victim. However the victim would retain the right to seek redress through civil litigation and PND disposal will save the victim from having to attend court to give evidence. The victim should be made aware of this. Participating Retailer Scheme BCU Commanders are encouraged to consider establishing a ‘Participating Retailer Scheme’ within their Division. The Scheme would identify those retailers who are amenable to the police dealing with the majority of shoplifters from their store by way of a Penalty Notice. Such a scheme may also seek to provide the police with a room or private area within a retailers premises or shopping area where fingerprints and DNA can be obtained by consent from the offender. 11. Licensing Act 2003 PND disposal will not be appropriate for licensees. Licensees should be prosecuted in order to ensure that offences are recorded to support any future action to revoke a licence. PND disposal may be appropriate for bar staff when taking action against premises found or known to be serving alcohol to under age drinkers. However, due account needs to be taken of the need to record such offences against the individual concerned. 12. Suitability of Offender to receive a PND An officer may issue a Penalty Notice only where the suspect is suitable, compliant and able to understand what is going on. A Penalty Notice may not be issued to a person below 18 years of age. If a suspect lies about their age the penalty notice will be withdrawn and any monies paid returned. (In such circumstances officers may proceed in any way that was available prior to issue.). NB a PND may not be issued to a person below 18 years of age for the Possession of Cannabis/Cannabis Resin. A Penalty Notice will not be appropriate where the suspect is uncooperative. Where a suspect is non-compliant, consideration should be given to an alternative disposal. Penalty Notices must be issued to and received by the suspect. A Penalty Notice will not be appropriate where the suspect is unable to understand what is being offered to them, for example, those with a mental disorder, or where the suspect is drunk or under the influence of drugs. 12 NOT PROTECTIVELY MARKED NOT PROTECTIVELY MARKED A Penalty Notice may not be appropriate where there is any doubt about the suspect’s ability to communicate with the officer issuing the notice. This may be, for example, where the suspect is deaf or there is a language barrier, however the use of a translator should be considered in these circumstances. A Penalty Notice will not be an appropriate response where no satisfactory address exists for enforcement purposes. This will be the case for suspects who are non-resident foreign nationals (i.e. not British or Northern Irish). This may also apply where the officer has reason to believe that the suspect is homeless or sleeping rough. Enquiries should be made where doubt exists. A Penalty Notice will not be appropriate for issue where the suspect is already known to be subject to: a custodial sentence, including Home Detention Curfew, a community penalty other than a fine, including Anti-Social Behaviour Orders (which may constitute a breach). Enquiries should be made of the offender and PNC and if any the preceding apply, the officer should pursue an alternative means of disposal and bring the case to the attention of the relevant authorities. A Penalty Notice will not be appropriate for issue on the street where the officer has reason to believe that the suspect is impaired by the influence of drugs or alcohol. Where such circumstances exist officers should consider the appropriateness of exercising existing powers of arrest e.g. under s.25 PACE 1984. If a suspect is impaired by the influence of drugs or alcohol, and the officer is satisfied as to his/her identity and place of residence, it may be appropriate to consider issuing a PND at a later time, i.e. the next day. The officer should be satisfied that the suspect’s offending behaviour has ceased, or to take steps to ensure that this is the case. Consideration should be given as to whether a suspect might have a substance addiction problem. In such circumstances a Penalty Notice may not be an appropriate response and another form of disposal should be considered and where possible, a referral made to an appropriate local scheme. For example, a drug treatment scheme. 13. Other Offences An officer may issue a Penalty Notice only where a second or subsequent offence, which is known, does not overlap with the PND offence. A Penalty Notice will not be an appropriate response where a penalty offence is known to have been committed in association with a second or subsequent offence, including a penalty offence, where that offence can clearly be said to be ‘associated with’ the first penalty offence. Both offences should be charged together. For example, where an officer suspects a person of being drunk and disorderly and of throwing fireworks in the street, or committing an act of criminal damage resulting from their drunkenness. It may be appropriate to issue a Penalty Notice in association with any other offence, including where a warning, formal caution, or summons is issued, police bail set or a charge brought or refused for the second or subsequent offence. This is provided that the subsequent or non-penalty offence can clearly be said not to ‘overlap with’ or be ‘associated 13 NOT PROTECTIVELY MARKED NOT PROTECTIVELY MARKED with’ the first penalty offence. This may occur where a person is suspected of being drunk and disorderly or committing an offence under s.5 of the POA and they are found, upon arrest, to be in possession of a small quantity of cannabis or stolen credit cards for which, respectively, a caution and charge are deemed appropriate. Officers might consider it appropriate to issue a Penalty Notice in addition to dealing with a suspect for a second or subsequent offence in another way. However, discretion should be exercised to ensure that a Penalty Notice is not issued in addition to dealing with a very serious offence. Where a Penalty Notice is issued for a penalty offence and it subsequently comes to light after the incident that a more serious or non-penalty offence was committed on the same occasion, officers may bring a charge for the subsequent offence. Payment of a penalty discharges the recipient’s liability to conviction only for the offence for which the Penalty Notice was issued. Ultimately, it will be for the CPS to determine, based on the facts of the case, whether a prosecution may be brought, in respect of the subsequent offence, and for the courts to decide whether or not to allow such a prosecution. 14. Issue of PNDs to Young Persons aged 16 and 17 years PND’s can no longer be issued to persons under 18 years of age. 15. Jointly Committed Offences An officer may issue a penalty notice only where the offence(s) involve(s) no one below the age of 18 years. Where a juvenile, or young person aged under 18, and an individual aged 18 years or over are jointly responsible for a penalty offence, a Penalty Notice will not be appropriate for the offender aged over 18 and existing forms of disposal should be considered. This should avoid any allegations of unfairness resulting from the older offender being able to discharge their liability to conviction. Where a Penalty Notice is issued to a juvenile or young person aged under 18 in error, the Central Ticket Office must be instructed to cancel the notice and refund any monies paid. Officers may then deal with the suspect in any other way they might have previously. In these circumstances the 21-day SEP does not apply. 16. Identification An officer may issue a Penalty Notice only where sufficient evidence as to age, identity and place of residence exists. Accurate identification of suspects and their place of residence are crucial to the effectiveness of the scheme. Failure to identify a suspect and their address prior to issue could invalidate the enforcement process and compromise the scheme’s integrity and bring it into disrepute. Age, identity and address checks must be rigorous. 14 NOT PROTECTIVELY MARKED NOT PROTECTIVELY MARKED PNDs are not available to those aged under 18 years. Other forms of disposal should be considered. Where doubt exists, rigorous checks must be made to establish age. Part 1 of the Penalty Notice requires the issuing officer to record the suspect’s forenames, surname, address and post-code. Each of these elements is required in all cases. Where possible, documentary evidence as to age, identity and place of residence should be sought in preference to non-physical sources e.g. electoral register or PNC checks. Where doubt as to identity exists officers should exercise the powers under s.25 PACE 1984. 17. Completing a PND The PND ticket consists of: Part 1 Recipient copy. Part 2 Payment slip. Part 2a Instructions for recipient. Part 3 Hearing request slip. Part 4 Criminal Data Section copy – (Pink) Part 5 Central Process Unit copy – (Blue) Part 6a Details of recipient. Part 6b Statement of witness. Part 1 of the Penalty Notice provides for the recipient to sign acknowledging receipt of the Penalty Notice. Officers should ask for a signature, although there is no legal obligation on the recipient of the notice to provide one. Part 4 of the Penalty Notice provides for the issuing officer to record the ‘additional details of recipient’, including their gender, perceived ethnic origin, and their occupation. This must be completed in all cases. Part 6a of the Penalty Notice provides for the recording of the recipient’s details, including their height, complexion, and physical description. This may include reference to any jewellery, insignias, tattoos or other identifying features. This must be completed in all cases. In accordance with the instructions on the Penalty Notice, any reply to caution or statement offered by the suspect should be transcribed either in part 6a under the ‘reply to caution’ section, or the s.9 witness statement in part 6b. In accordance with the instructions on the Penalty Notice ticket, any third party witness particulars should be recorded in part 6a in the ‘additional notes’ section. Where officers record other witness details in their notebook they should record the relevant notebook number on the Penalty Notice. Part 6b of the Penalty Notice ticket provides for a s.9 ‘Witness Statement’ to be completed by the issuing officer and should be done in all cases. If necessary, the officer may continue on a MG11a and firmly affix this to the Penalty Notice. Part 6b also provides for the details of a (third party) colleague to be entered who may corroborate the issuing officer’s witness statement. This should be utilised where possible. 15 NOT PROTECTIVELY MARKED NOT PROTECTIVELY MARKED The top copy of the notice is given to the offender. The copy marked ‘Criminal Data Section’ should be forwarded together with Form 218 where applicable. The ‘CTO’ copy should be forwarded to the Central Ticket Office at HQ together with Part 6 containing the description and statement. These should be sealed and protectively marked ‘Restricted – PND’. 18. Compliance with the National Crime Recording Standards (NCRS) Where a Penalty Notice is issued for one of the following offences, a crime will be recorded on the CIS in compliance with the NCRS. Causing Harassment Alarm or Distress (Section 5, Public Order Act). Destroying or damaging property (under £300) (Section 1 (1) Criminal Damage Act 1971). Theft (retail under £100) (Section 1 Theft Act 1968). The issue of a Penalty Notice will be the preferred disposal for offences committed under s.5 of the Public Order Act 1986 and for offences of Drunk and Disorderly under S91(1) of the Criminal Justice Act 1967, unless the arresting officer or Custody Officer consider that there are aggravating factors. In all cases, however, the NCRS must be complied with. Alcohol related offences committed under S5 of the Public Order Act 1966 and offences of Drunk and Disorderly committed under S91 (i) of the CJ Act 1967 can also be referred to the Alcohol Awareness Scheme. Although under the NCRS you can detect a crime by a lesser offence for example, ABH can be detected with a public order offence. This does not apply when issuing PNDs. The operational guidance on PNDs in all cases takes precedence over the Home Office rules and as such crimes recorded under NCRS rules cannot be detected by the lesser offence rule. Therefore ABH, affray or section 4 public order cannot be detected by a section 5 public order or a drunk and disorder PND. In all these cases a suitable detection other than a Penalty Notice must be pursued. In cases where the issue of a PND is recommended by the custody officer or C.P.S. then their decision must be challenged as any use of a fixed penalty in these circumstances will not detect the crime. This also applies to other PND’s where the operational procedures do not apply. 19. Disclosure In general, police are under a duty to protect the confidentiality of sensitive personal information. This includes information about convictions. It is therefore reasonable to assume that the same principle would apply to a PND. However, police do have statutory powers to disclose information to a third party, where it would be in the interest of the prevention or detection of crime. PNDs and ASBOs 16 NOT PROTECTIVELY MARKED NOT PROTECTIVELY MARKED Acceptance of a PND, and subsequent payment of the penalty, discharges all liability for that offence. However, this does not preclude the information being used in the civil context of seeking an ASBO. The fact that a PND has been issued can be disclosed in an ASBO hearing as this goes towards establishing a pattern of behaviour. PNDs and a criminal record check. An Enhanced Disclosure issued by the Criminal Records Bureau would include: all convictions, cautions, reprimands and final warnings recorded centrally by the police on the Police National Computer (PNC); (in appropriate cases) whether the subject is shown on lists kept by the DfES of people unsuitable to work with children; and any other relevant information provided by the police. A PND could be referred to, if the details of the behaviour leading to the PND were relevant to the matter at hand (e.g. the applicant’s suitability to work with children). However, the mere fact that a PND had been issued would not make it relevant. Whenever possible officers should draw to the attention of the recipient the following; ‘penalty notices issued for recordable offences, such as retail theft, cannabis possession and drunk and disorderly, are registered on the Police National Computer and may be disclosed as part of an enhanced criminal records check, if deemed relevant’. 20. Custody Officers The current practice of early CPS charge advice still applies where appropriate and it is not necessary to report a person for an offence in order that the offender is summoned for the offence at a later date if they fail to pay the fine. Custody Officers are to be consulted when the issue of a PND is being considered as a method of disposal. The Custody Officer will record on the custody record that the offender was released following the issue of a Penalty Notice and record the serial number of the notice. There does not need to be an admission of guilt by the alleged offender, although if disputed, a PND would not be appropriate. 21. The Number of PND’s an Individual can receive Custody Officers have the facility to access the PND database, which is maintained by CTO, on a ‘view’ only basis from the custody suite. This will show whether a PND has been issued within the Derbyshire Force area only and any record of a previously issued PND being fine registered (not paid) will normally disqualify an offender from receiving a further one. Only one PND should ever be issued to an individual for retail theft or possession of cannabis/cannabis resin. There are no other restrictions on the number of PNDs that any individual aged 18 years and over can receive. AMEND/DELETE, with the exception of those aged 16 – 17 years. 17 NOT PROTECTIVELY MARKED NOT PROTECTIVELY MARKED 22. Police Bail Nothing prevents a PND from being issued following an offender being released on police bail for enquiries. However, consideration should be given to the amount of time already spent on the investigation and the proportionality of the use of the PND scheme as a means of disposal. 23. De-arrest Procedure Where a person has been arrested for committing an offence for which the issue of a Penalty Notice is suitable, that person may be de-arrested and issued a PND en-route to the police station in appropriate circumstances. For example where details of identity are provided and confirmed or the person has become sufficiently calm to be issued with a PND. Where the arresting officer makes such a decision to de-arrest, the officer must make a pocket book entry and provide brief details of the person arrested to the Custody Officer so that the arrest is recorded and a custody number issued in accordance with Force Policy. Officers should note that in these situations statutory powers to take fingerprints, DNA and photographs are not enforceable. 24. Fast-Track Custody Procedure In exceptional circumstances where a person has been arrested for an offence for which the issue of a PND is deemed suitable, that person may be de-arrested and issued a Penalty Notice on arrival at the Police Station. These circumstances are where there would be a significant delay in placing the person before the Custody Officer, which would clearly lead to a delay in releasing the person from detention. Where the arresting officer makes such a decision to de-arrest, the officer must make a pocket book entry and provide details of the person arrested to the Custody Officer so that the arrest is recorded and a custody number issued in accordance with Force Policy. Officers should note that in these situations statutory powers to take fingerprints, DNA and photographs are not enforceable. 25. Cell Management The Custody Officer will be responsible for ensuring that visits to detainees are conducted in accordance with Code ‘C’ of the Police and Criminal Evidence Act 1984. To assist in the management of cell space within the Force, an assessment will be made on carrying out visits to detainees of the fitness of those who would be eligible for disposal by a PND. This is to ensure they are processed and released as soon as practicable. In these instances statutory powers will be exercised prior to release. 18 NOT PROTECTIVELY MARKED NOT PROTECTIVELY MARKED 26. Prisoner Handover Where officer ‘A’ takes a suspect into custody and it is their intent to issue a PND but they ‘go-off shift’ before the suspect can be issued with the notice, they may hand this responsibility to officer ‘B’. Officer ‘A’ will complete as much of the notice as possible, and at the very least, the following elements in order to ensure the integrity and legality of the disposal. Part 1 Offence date Part 1 Offence location Part 1 Offence code Part 1 Particulars of the offence Part 1 The Act containing the offence Part 4 Additional details of recipient Part 6a Height, build and complexion of suspect Part 6b Officer witness statement, signed and dated When the detainee is fit to be dealt with, the PND will be completed by either the officer in the case or custody staff, depending upon availability, and issued in the normal manner. If the offender does not accept the notice or a decision is made not to issue the PND, the partially completed notice will be exhibited and attached to the prosecution file. 27. PNC Recording of PNDs The Force will comply with Home Office guidance in relation to the PNC recording of PNDs. When a PND is issued in the custody suite for a PNC recordable offence, photograph, fingerprints and DNA will be obtained to be recorded against the entry without constituting a criminal record. This will be administered in line with current working practices by the Criminal Data Sections during weekdays and at weekends by Custody staff. PNDs issued on the street for PNC recordable offences will also be entered on PNC however fingerprints, photographs and DNA are not required. Officers are reminded that timeliness is a key issue, as the Penalty Notice must to be entered onto PNC within 24 hours to comply with Home Office guidance. Relevant copies of PND’s must therefore be delivered to the Criminal Data Section or Custody Office immediately following issue. Where BCUs establish a participating retailer scheme which provides processing facilities or where a targeted PND operation utilising a mobile police station is used, photograph, fingerprints and DNA may be obtained by consent and in these circumstances this would require PNC entry within 24 hours. 28. C.I.S. The officer or PCSO issuing the PND will make a CIS entry in relation to the issue of the notice prior to ceasing their tour of duty. 19 NOT PROTECTIVELY MARKED NOT PROTECTIVELY MARKED 29. Performance Line Managers are encouraged to monitor the use of Penalty Notice disposals. Performance information can be obtained by accessing the following link to the NMIS website. http://srvfhq18/Performance_Monitoring/BCU/default.htm Regular monitoring of Fixed Penalty Tickets as to adverse or disproportionate issue will be undertaken within the Central Process Unit and scrutinised by the Central Process Unit Manager. Where adverse impact is found, further scrutiny will be undertaken by the officer’s supervisor. 30. Mobile Police Stations BCU Commanders are encouraged to consider the deployment of Mobile Police Stations as mobile processing centres to be used in conjunction with the Penalty Notice Scheme. This may be particularly effective in crime and disorder hotspots where the use of the Mobile Police Station, together with a targeted PND operation will promote visibility, maintain a police presence, promote public confidence and allow officers to obtain fingerprints and DNA by consent in the Mobile Police Station in appropriate circumstances. 31. Professional Standards It will be mandatory for any Police Officer or member of Police Staff who is issued with a Penalty Notice for Disorder to declare this as soon as possible to the Head of the Professional Standards Department. Following any such declaration the Head of Professional Standards will consider whether the issue of the Penalty Notice warrants further investigation in relation to potential misconduct and whether the issue of the Penalty Notice is subject to disclosure under the JOPI. 20 NOT PROTECTIVELY MARKED NOT PROTECTIVELY MARKED 21 NOT PROTECTIVELY MARKED
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