NOT PROTECTIVELY MARKED FORCE PROCEDURES. Penalty Notices for Disorder. Justice)

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FORCE

PROCEDURES

Procedure Reference Number:

2009.07

Procedure Author:

David Briscoe (Criminal

Justice)

Procedure Review Date:

May 2016

At the time of ratifying this procedure, the author is satisfied that this document complied with relevant legislation and Force requirements.

Sign and date

D Briscoe 2/5/14 (Author(s))

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Procedure Index

ELECTRONIC NAVIGATION: - move the cursor over the page number in the index or blue underlined text until a hand appears. Click the left mouse button once and it will jump to the specified part of the document.

1. Responsibilities ... 3

2. Guidance ... 6

2.1 Offences Covered by the Scheme ... 6

2.2 Pre-conditions for Issuing a Penalty Notice for Disorder ... 7

2.3 Process for Issuing a Penalty Notice for Disorder ... 9

2.4 Administration ... 11

3. Procedure Aim ... 14

4. Appeals ... 14

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1.0 Responsibilities

1.1 Penalty Notices for Disorder (PNDs) are a statutory disposal established by the Criminal Justice and Police Act 2001.

1.2 The PND scheme provides the police and accredited persons with a swift financial punishment to deal with low-level, anti-social and nuisance offending and allows them to spend more time on frontline duties. A PND may be issued at a police station or on-the-spot.

1.3 The Offender must be suitable to receive a PND i.e. is 18 years or over, address known, able to understand what is happening, compliant, offending history

assessed and a PND considered an effective disposal.

1.4 A PND does not form part of an individual’s criminal record, but in relation to a recordable offence, an entry may be made on the Police National Computer (PNC) which may be disclosed as part of an enhanced Disclosure and Barring Service check.

1.5 A PND recipient has 21 days to either pay the penalty of £60 or £90 or request a court hearing. If they fail to do either, then a fine of one and a half times the penalty amount is registered against them by the Magistrate’s Court. By paying the penalty the recipient discharges all liability for the offence.

1.6 Supervisors will be required to check and monitor the quality of completed Penalty Notices for Disorder and ensure they are issued in compliance with this document. They will ensure a Phoenix Source Document is completed for all recordable offences and that all PNDs are issued in accordance with the force Race Equality Scheme.

1.7 Custody Officers and supervisors will be required to identify whether the issue of a PND is the appropriate means of disposal for a detained person. They will arrange for an authorised officer to issue a Penalty Notice for Disorder to the detained person. The Custody Officer will then update the Custody system to show the appropriate level of disposal. In the event of street issue this decision can be made by the issuing officer.

1.8 The Local Hub will be responsible for reviewing each PND that has been issued to check for:

• Crime Recording compliance

• Phoenix Source Document commencement • Data quality

1.9 The Local Hub will forward all PNDs to the Central Ticket Office at HQ once the quality checking has taken place.

1.10 The Central Ticket Office (CTO), Department of Criminal Justice and Custody, will be responsible for the administration of the tickets once issued and will register any unpaid penalties as a fine. They will record and monitor the serialised ticket numbers issued to individual areas.

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1.11 The Central Ticket Office will provide monthly statistical returns for the Home Office and management information as required.

1.12 CCRS / the Police National Computer operators will be responsible for the entry, quality checking and resulting of Penalty Notice for Disorder entries onto the Police National Computer for recordable offences.

1.13 Below is a quick reference guide to the three main stages of the PND process. 1.14 At the decision making stage an officer will need to consider:

• Offence - PNDs may only be issued for 26 penalty offences (plus 3 that

specifically relate to the Royal Parks) and where the offence is not too serious

• Can be issued whilst offender in custody, voluntary attendance or street

issue (certainly not if drunk). Offender must live in England or Wales.

• The offender should not have previously received a Penalty Notice for

Disorder for a recordable offence. If a Police National Computer check reveals the existence of a previous Penalty Notice, another disposal should be used.

• For street issue – officer must be in uniform – No longer applies (from 8th

April 2013, following implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 – LASPO)

• Evidential standard - must have reasonable suspicion that a penalty

offence has been committed and there is sufficient evidence that could be obtained to support a successful prosecution

• Admission - an admission of guilt is not required and accepting a PND is not

an admission of guilt

• Consent - explicit consent is not required, but a PND should be issued to

and received by the suspect

• A PND will not be appropriate where the person is uncooperative. Where a

person is uncooperative or non-compliant, consideration must be given to an alternative course of action.

• A PND will not be appropriate where a constable believes the person

presents a considerable risk of not paying the penalty.

• Offender - must be suitable to receive a PND i.e. 18 years or over address

known, able to understand what is happening, compliant, offending history assessed and a PND considered an effective disposal.

• Victim - views should be sought and recorded • Implications - a crime record will be created

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• Rationale – for this disposal to be recorded on Niche occurrence enquiry

log. OEL.

1.15 At the point of issuean officer will need to:

• explain the PND process to the recipient - including how the recipient

should pay the penalty or request a court hearing and the consequences of not paying or requesting a court hearing It will go on PNC

• explain the implications of receiving a PND to the recipient - it does not

form part of a criminal record, but a crime record will be created. The PND may also be disclosed as part of an enhanced CRB check if deemed relevant (CRB now actually Disclosure and Barring Service)

• ensure the PND is recorded appropriately and completely - all crime

recording in relation to ‘Notifiable crimes’ must be carried out in accordance with the National Crime Recording Standard (NCRS) and Home Office Counting Rules (HOCR)

1.16 Post-issue:

• if the PND is paid in full within 21 days then no further action is

required - payment involves no admission of guilt and the recipient discharges their liability to conviction of the penalty offence

• the recipient may request a court hearing within 21 days - Where the 21

day suspended enforcement period (SEP) has elapsed and the person has not paid the penalty notice or requested to be tried, it will be permissible, in exceptional circumstances, for a prosecution to be brought against the person for the original offence. This may be where, for example, further evidence has emerged as to the seriousness of the original offence, or the person’s full criminal history is discovered.

• if the PND is not paid within 21 days then a fine is registered against

the recipient at court - the fine is one and a half times the original penalty offence and is enforced by the courts in the usual way.

• the PND may be disclosed as part of an enhanced DBS check - if

deemed relevant

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2. Guidance

2.1 Offences Covered by the Scheme

2.1.1 For a Penalty Notice for Disorder of

£90:-Upper Tier - £90 penalty

PND Code

CJS

Code Act Description RecordableNotifiable/

DA01 CL67008 s.5(2) Criminal Law Act 1967 Wasting police time, giving false report Recordable DA02 CA03007 s.127(2) Communications

Act 2003

Send false message/persistently use a public electronic communications network in order to cause annoyance, inconvenience or needless anxiety

Recordable

DA03 FS04009 s.49 Fire and Rescue Services Act 2004

Knowingly gives a false alarm to a person acting on behalf of a fire and rescue authority.

Recordable

DA04 PU86 149 s.5 Public Order Act 1986 Words/behaviour likely to cause harassment, alarm or distress

Notifiable & recordable DA05 EP75006 s.80 Explosives Act 1875 Fire or throw firework(s)

Non-recordable DA06 CJ67002 s.91 Criminal Justice Act

1967

Drunk & disorderly in a public place Recordable

DA11 CD71039 s.1 Criminal Damage Act 1971

Destroying or damaging property (under £300 and may only be given on one occasion)

Notifiable & recordable

DA12 TH68010 s.1(1) Theft Act 1968 Retail Theft (under £100 and may only be given on one occasion)

DA13 FW04003 reg.7 Fireworks Regulations 2004 under s11 of the Fireworks Act 2003

Breach of fireworks curfew (11pm-7am) Recordable

DA14 FW04002 reg.5 Fireworks Regulations 2004 under s11 of the Fireworks Act 2003

Possession of a category 4 firework Recordable

DA16 LG03036 s.141 Licensing Act 2003 (c.17)

Sells or attempts to sell alcohol to a person who is drunk.

Recordable

DA17 LG03067 s.146(3) Licensing Act 2003 Supply of alcohol by or on behalf of a club to a person aged under 18

Recordable

DA18 LG03064 s.146(1) Licensing Act 2003 Sale of alcohol anywhere to a person under 18

Recordable

DA19 LG03081 s.149(3) Licensing Act 2003 Buys or attempts to buy alcohol on behalf of person under 18

Recordable

DA20 LG03083 s.149(4) Licensing Act 2003 Buys or attempts to buy alcohol for

consumption on relevant premises by person under 18.

Recordable

DA21 LG03088 s.151 Licensing Act 2003 Delivery of alcohol to person under 18 or allowing such delivery

Recordable

DA 22 MD71530 s.5(2) & Sch 2 Misuse of Drugs Act 1971

Possess a controlled drug of Class B - cannabis/cannabis resin

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Lower Tier - £60 penalty

PND Code

CJS

Code Act Description RecordableNotifiable/

DB03 BT49005 s.55 British Transport Commission Act 1949

Trespassing on a railway Non-recordable

DB04 BT49006 s.56 British Transport Commission Act 1949

Throwing stones/matter/thing at a train or railway

Non-recordable

DB05 LG72008 s.12 Licensing Act 1872 Drunk in a highway, other public place or licensed premises

Recordable

DB07 CJ01002 s.12 Criminal Justice & Police Act 2001

Consume alcohol in designated public place, contrary to requirement by constable not to do so

Non-recordable

DB08 EP90046 s.87 Environmental Protection Act 1990

Depositing and leaving litter Non-recordable

DB13 LG03086 s.150(2) Licensing Act 2003 Allowing consumption of alcohol by a person under 18 on relevant premises.

Recordable

DB29 RP97006 Regulation 3(3) of the Royal Parks and Other Open Spaces Regulations 1997

Drop / leave litter / refuse except in a receptacle provided for the purpose in a Royal Park or other open space

Non-recordable

Use pedal cycle / skates / blade / board / foot-propelled device in a Royal Park or other open spaces

Non-recordable

Unless the person is registered blind, failing to immediately remove animal faeces from a Royal Park or other open space

Non-recordable

2.1.2 Operational Guidance issued by the Home Office restricts the issue of Penalty Notices for Disorder for Theft (retail) and Criminal Damage as follows:

• Thefts involving property over the value of £100 will be expected to be dealt

with by existing disposal, i.e. prosecution. Criminal Damage involving values over £300 up to a maximum of £500 will be expected to be dealt with by existing disposal, i.e. prosecution. Penalty Notice disposal between these values would be exceptional (except for public property) and require explanation as well as the agreement of the victim.

2.2 Pre-conditions for Issuing a Penalty Notice for Disorder

2.2.1 An officer may issue a Penalty Notice for Disorder only where: -

• They have reason to believe a person has committed a penalty offence and

there is sufficient evidence to bring a charge,

• The offence is not too serious and is of a nature suitable to be dealt with by

way of penalty notice,

• The suspect fits the issuing criteria (see Appendix 1), is compliant and is

neither intoxicated nor is a person with mental health problems / learning disabilities or unable to understand the process involved,

• That there are no other offences involved (unless they are so minor that the

offender can be warned for those offences),

• The offence(s) involve(s) no one below the age of 18 years,

• Sufficient evidence is available as to the offender’s age, identity and place of

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• That the offender is resident in either England or Wales

2.2.2 A Penalty Notice for Disorder will not be used where injury or realistic threat or risk of causing injury forms a part of the incident.

2.2.3 Penalty Notices for Disorder should not be issued for incidents in connection with:-

• Harassment, • Domestic violence,

• Football related offences, • Hate crime, and

• Prolific and other priority offender.

2.2.4 A Penalty Notice for Disorder may not be issued to a person who is under the age of 18 years old. The offender should not be given a penalty notice if the offence involves another offender under the age of 18 years old. If so, another method of disposal should be considered.

2.2.5 A Penalty Notice for Disorder should not be given to a person who cannot understand what is being offered to them e.g. if there are language barriers or a disability which impedes understanding.

2.2.6 A Penalty Notice for Disorder will not be appropriate to licensees for licensing offences. Consideration should be given to another form of disposal so that offences are to be recorded to support action to revoke a licence.

2.2.7 A Penalty Notice for Disorder is not appropriate for issue to a person who is known to be already subject to :-

• Court Bail,

• A custodial sentence, including home curfew orders,

• Any community penalty (other than a fine) including Anti Social Behaviour

Orders, or

• A Substance addiction problem.

2.2.8 If it is known locally that an offender has had a number of Penalty Notices for Disorder, consideration should be given to another means of disposal.

2.2.9 Whilst no admission of guilt (i.e. taped interview) is required from a suspect, a notice should not be issued to someone denying the offence.

2.2.10 Where the identity or address of the offender is unknown or uncertain, officers should consider their powers under section 110 the Serious Organised Crime and Police Act or section 24 of the Police and Criminal Evidence Act. A person of no fixed abode would not be suitable for the issue of a Penalty Notice for Disorder. 2.2.11 Nothing prevents a Penalty Notice for Disorder 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 Penalty Notice for Disorder scheme as a means of disposal.

2.2.12 In the case of offences that are recordable and notifiable, the following actions are required if dealt with by Penalty Notice for Disorder:-

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• Detected entry onto the NICHE occurrence (custody and street issue) • Phoenix Source Document (custody and street issue)

• DNA sample (custody and street issue) • Fingerprints and photograph ( custody issue)

2.2.13 Instructions as to whether a Phoenix Source Document and / or a detected crime entry on NICHE are required are shown on the inside cover of each booklet. 2.2.14 The victim should be consulted on their views regarding a Penalty Notice disposal,

however, the final decision remains with the Police. Consideration should be given to the circumstances and offending history to establish if a Penalty Notice is the appropriate disposal. Penalty Notices will not be issued to Prolific and other Priority Offenders. Only in exceptional circumstances would an offender receive more than two penalty notices for these offences.

2.2.15 Penalty Notices should only be used for minor straightforward offences that do not form part of a pattern of offending behaviour and the circumstances do not

suggest that greater intervention is required.

2.2.16 The Penalty Notice for Disorder scheme is designed to offer an additional method of disposal to officers for dealing with offences which comprise low-level, anti-social and nuisance behaviour. The scheme is not designed to cater for

serious or repeat offending, but subject to that, a Penalty Notice for Disorder may be used at any stage in the offending career of a person aged 18 or over.

2.2.17 A Penalty Notice will not be appropriate where the person appears to be mentally distressed, confused or have any vulnerability that impairs their understanding of what is going on.

2.2.18 The offender should not have previously received a Penalty Notice for Disorder for a recordable offence. If a Police National Computer check reveals the existence of a previous Penalty Notice, another disposal should be used.

2.3 Process for Issuing a Penalty Notice for Disorder

2.3.1 A Constable who has reason to believe that a person aged 18 years or over and has committed a relevant offence may give that person a Penalty Notice for Disorder.

2.3.2 The notice may be issued either on the spot (street issue) or after arrest at a police station by an authorised officer. (An authorised officer within Cheshire Police is all constables, including Special Constables subject to training.)

2.3.3 Evidence will be in the form of an officer’s statement, which will form part of the notice or a full pocket book entry. Details of witnesses should be included on the notice to enable follow-up enquiries where necessary. If the space on the notice is insufficient a form MG11 should be completed and attached to the notice.

2.3.4 Sections in respect of gender, ethnicity, occupation and other descriptive details

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be included on the notice. Officers should be mindful not to make judgements on people or discriminate against individuals on the basis of a persons colour, age, hairstyle or manner of dress. This is in accordance with the force Equality and Diversity policy. Police Officers will ensure that all members of the public are treated fairly and on a case by case basis.

2.3.5 Supervisors who sign Part 8 of the Penalty Notice for Disorder form must ensure that the officer is being fair and proportionate in the application of the Penalty Notices for Disorder scheme. This is in accordance with the force’s commitment to uphold its obligations under the Race Equality Scheme. Supervision should in the first instance identify if there is any disproportionality in the number of Penalty Notices for Disorder an officer is applying to any ethnic group.

2.3.6 Where additional details have been recorded in a pocket book the reference number should be included in Part 5 of the notice.

2.3.7 Officers will ensure that the notice includes the circumstances alleged to constitute the offence.

2.3.8 The notice provides a space for the recipient to sign acknowledging receipt of the notice. Whilst subjects should be invited to sign, there is no legal obligation.

2.3.9 Where a decision has been made by the Custody Officer to issue a Penalty Notice for Disorder the Custody system will be updated to show an appropriate disposal. An authorised officer will be directed to issue a Penalty Notice for Disorder. A record to this effect will then be made on the Custody record.

2.3.10 Where the offender is to be charged with a more serious offence, then any lesser offence should not be dealt with by way of a Penalty Notice for Disorder.

2.3.11 The payment of a Penalty Notice for Disorder discharges the offender’s liability for a conviction, however ‘recordable’ offences will be recorded onto the Police

National Computer. Payment does not in law amount to an admission of guilt but should an individual elect a court hearing they would run the risk of being

convicted.

2.3.12 Once issued in accordance with the law, a notice may not be withdrawn or any other action taken until the 21 day enforcement period has expired. The suspect must either pay the amount shown on the notice or request a hearing. If the recipient requests a hearing the papers will be returned to the issuing officer for a postal requisition file to be prepared and submitted in the normal manner. All payments and registered fines will be administered by HMCTS. Failure to do either will result in the registration of a fine of one and a half times the penalty amount against the recipient in respect of the original offence.

2.3.13 Phoenix Source Documents should be completed in all circumstances when a person has been issued with a Penalty Notice for Disorder for a recordable offence. The Phoenix form contains a section for Penalty Notice for Disorder disposal.

2.3.14 The introduction of the scheme in no way precludes the use of any existing

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issue of a notice will be at the officer’s ‘discretion’. Powers of arrest remain unchanged and should be used where appropriate.

2.3.15 No one has the right to demand a Penalty Notice for Disorder and no one should be forced to accept one.

2.3.16 Tickets issued for Section 5 Public Order, Theft (retail), Criminal Damage and possession of cannabis offences will require the completion of a detected crime on NICHE. The recipient will be shown as the offender and informed that they will be shown as such.

2.3.17 The Criminal Justice Act 2003 provides that a person detained at a police station may have their fingerprints and DNA taken without the appropriate consent if they have been detained in consequence to their arrest for a recordable offence.

2.3.18 Section 64a of the Police and Criminal Evidence Act provides a Constable a power to photograph a person who is detained at a police station with the appropriate consent or where the consent is withheld without it.

2.3.19 If officers decide to issue a Penalty Notice for Disorder for simple possession of cannabis for personal use they must adhere to the Operational Guidance as shown in Weekly Orders 05/09.

2.4 Administration

2.4.1 Parts 1, 4, 5 and 6 of the Penalty Notice for Disorder form must be completed by the issuing officer. The top sheet which includes Parts 1, 2 and 3 should be given to the recipient. The remaining parts should be checked and then signed by a supervisor in the space provided at the end of Part 8. These remaining parts (4, 5, 6, 7 and 8) together with any additional paperwork should be forwarded to the local Hub.

2.4.2 Once processed by the local Hub, the Penalty Notice for Disorder form must be forwarded to the Central Ticket Office (CTO) for input to the national PentiP system. HMCTS also have access to the PentiP system in order to facilitate payment.

2.4.3 The Penalty Notice for Disorder scheme is a positive means of disposal for recorded crime and reportable offences. In order that the integrity of the Penalty Notice scheme is maintained, reporting and recording of relevant offences must be carried out in accordance with the Home Office counting rules and individual force policies. Care should be taken by managers to convey to staff, that whilst the Penalty Notice scheme offers a quick and effective method of disposal, the necessary administrative procedures must be strictly adhered to, in order to enable accurate and ethical recording of offences being detected.

2.4.4 Suspects issued with a Penalty Notice for Disorder will not receive a criminal record. But this does not preclude the retention of information as police

intelligence. A facility is available on the Police National Computer which allows an entry to be recorded which does not constitute a criminal record, but is

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2.4.5 Recordable offences should be logged on the Police National Computer in

accordance with Police National Computer Bureau instructions. This entry will not constitute a criminal record, but will enable DNA, fingerprints and a photograph to be logged against the entry (DNA only if street issue).

2.4.6 Logging of recordable offences will also facilitate checks on whether an individual has previously been issued with a Penalty Notice for Disorder for a recordable offence.

2.4.7 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 Penalty Notice for Disorder. However, police do have statutory powers to disclose information to a third party, where disclosure would be in the interest of the prevention or detection of crime.

2.4.8 Acceptance of a Penalty Notice for Disorder, 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 Anti-Social Behaviour Order (ASBO). The fact that a Penalty Notice for Disorder has been issued can be disclosed in an ASBO hearing as this goes towards establishing a pattern of behaviour.

2.4.9 An Enhanced Disclosure issued by the Criminal Records Bureau would include:

• all convictions, cautions, conditional cautions, youth cautions and youth

conditional cautions recorded centrally by the police on the Police National Computer;

• (in appropriate cases) whether the subject is shown on lists kept by the

Department for Children, Schools and Families of people unsuitable to work with children; and

• any other relevant information provided by the police. A Penalty Notice for

Disorder could be referred to, if the details of the behaviour leading to the Penalty Notice for Disorder were relevant to the matter at hand (e.g. the applicant’s suitability to work with children). However, the mere fact that a Penalty Notice for Disorder had been issued would not make it relevant. 2.4.10 For street issue of Penalty Notices for Disorder officers will be required to obtain a

DNA sample if the offence is recordable. DNA sampling kits will be issued to and carried by officers. Alternatively, officers can request a sampling kit to be brought to the scene if required. Issue from custody for a recordable offence will require DNA, fingerprints and a photograph to be obtained.

2.4.11 For street issue, the offender must consent to the taking of the DNA sample and sign the consent section on the ticket. If the offender refuses to consent to the taking of a DNA sample on the street, they are not being compliant and an alternative method of disposal must be chosen.

2.4.12 Officers should consider choosing a location suitable for both privacy and completion of the DNA sampling process such as a store detective’s office, a vehicle or other available premises.

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2.4.13 If a DNA sample is obtained on the street using a buccal swab kit, the sample must be entered into a freezer before the end of the officer’s tour of duty (or in any event within 12 hours of the taking).

2.4.14 It is imperative that robust and rigorous checks are made on the subject to

establish their identity and any previous offending history before deciding upon a Penalty Notice for Disorder as a method of disposal.

2.4.15 If the ticket is issued on the street, the officer must crime the offence (if notifiable) and complete a Phoenix Source Document (if recordable) before the end of their tour of duty. This server is located on HQ-APPS-A. If unable to access this, contact the CCRS department at Headquarters. (Use the CCRS mailbox). Every street issue ticket, if fully completed, contains sufficient details to commence the Phoenix process.

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3. Procedure Aim

3.1 Cheshire Constabulary will authorise the use of Penalty Notices for Disorder to provide an additional means of disposal for low level anti-social and nuisance offending.

3.2 Cheshire Constabulary is committed to responding efficiently and effectively to all reports of crime and disorder in accordance with the force Fairness and Equality policy.

3.3 This procedure establishes clear directives and guidance in the use of a Penalty Notices for Disorder to ensure that they are used in circumstances which are appropriate, reasonable and proportionate in order to:-

• Deliver swift, simple and effective justice that carries a deterrent effect, • Reduce the amount of time officers spend involved with paperwork, court

attendance and reduce the burden on the courts, and

• Increase the amount of time officers spend on patrol, enabling them to deal

with more serious crime.

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4. Appeals

4.1 Members of the public may make complaints verbally or in writing via the police complaints procedures if the way in which they have been dealt involves alleged misconduct. Additionally, instructions are included upon the ticket itself to explain how the recipient can challenge the procedure.

5. Review

5.1 The procedure will be formally reviewed every two years to consider:

• Its effectiveness in the business area concerned • Any changes to legislation

• Challenges to the procedure

• Any identified inefficiencies in relation to implementation

• Impact on diversity and equality (Medium on the Race Diversity Impact

Assessment Template)