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Ending the rule of law

One of the immense ironies at the present time is that a government which is so obsessed with passing torrents of legislation, whilst not putting in place a system which allows realistic funding of access to justice so as to enforce those rights, has such little respect for the rule of law.

The signs were there with the approach to Human Rights Act. If you pass a piece of legislation it seems a little churlish to object when judges actually apply it. Moreover it is indicative of an approach which is disinclined to appreciate the idea that whilst it is for Parliament to pass laws, it is for the courts to interpret them. It may be that the passing of the Human Rights Act has served to blur the distinction in terms of judges being drawn more into issues of policy, but the principle of the distinction still applies.

Whilst in those circumstances one might characterise the government being irked with judicial decisions as not necessarily inconsistent with the rule of law, the move towards trying to move offences out of the judicial system and instead replace them with on the spot fines seems to be an attempt (whatever caveats are hedged around it) to go to a criminal system of bureaucratic regulation rather than judicial decision. It is bad enough when such a system is operated through official channels, namely the police. Any attempt to extend it to the private sector smacks either of justice for sale or justice replaced.

One particular scheme which is in force and appears to be being expanded through use is the Community Safety Accreditation Scheme. This was introduced under the Police Reform Act 2002, in particular sections 40-42 and schedule 5 thereof. As a 2007 comment on the Police Federation specified, the schemes were always ones to which the Federation was opposed "as we believe this is effectively another way of bringing in private policing".

These sections potentially give a wide range of powers to accredited persons. Although there is a requirement for a consultation process, essentially a chief constable is responsible for designating whom the approved persons are (whether specifically or as employees of a particular organisation) and specifying whether all or any of the potential powers which can be given to those persons are in fact to be given. Once a person is accredited, then it is a criminal offence to assault resist or obstruct them in the exercise of their duty. The powers that they have include powers to issue fixed penalty notices for certain designated offences, namely dog fouling, riding a bicycle on the pavement, or littering. There will also have access to the Police National Computer to check for previous convictions so as to know when they have to take a different course such as involving the police. There are also powers to require a person to give their name and address to the accredited person, where the accredited person has reason to believe that the person to whom the request is made has committed a relevant offence in a relevant area. The relevant area is the one where the accreditation is for, and relevant offences are either those in respect of which the accredited person has the power to issue fixed penalty notices, or an offence the commission of which appears to the accredited person to have caused injury, alarm or distress to any other person, or the loss of, or any damage to, any other personís property. Likewise there is a power to request a person's name and address where a police constable in uniform could in respect of a person whom he has reason to believe to have been acting, or to be acting, in an anti-social manner (within the meaning of section 1 of the Crime and Disorder Act 1998 which relates to anti-social behaviour orders). There are various other powers relating to such matters as confiscating alcohol or tobacco in certain circumstances.

Whilst the Director of Public Prosecutions Keir Starmer QC may defend out-of-court penalties on the basis that it will ease the pressure on the courts, one could just as well say that having no trials at all would also ease pressure on the courts. It is bad enough that there is a trend towards out-of-court penalties. It is still more deplorable that people who are not police officers should be effectively drafted into the scheme. Some of those covered by the scheme now include or may include club doormen. They do not just include local authority employees but also private organisations. It is foolish to suppose that there is no potential for abuse of these powers or any ground for concern that, debatable though it is that such powers should be used anyway, they are being given to the wrong people to be used.

This is the thin end of a very large wedge. Use of out-of-court fines , especially when not undertaken by the police, risks gross unfairness and potential contempt for the law. If the law is something which is seen as governed by expediency and capable of being enforced through the private sector, it is likely to be viewed both as unfair and as indicating that the law no longer is something special. Sending out that message is more likely to increase rather than reduce offending.

Michael J. Booth QC