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LEGAL ADVICE FOR ACTIVISTS

19. Penalty Notices - Section 2 Criminal Justice and Police Act 2001

Under Section 2 of the Criminal Justice and Police Act 2001, the police can issue fixed penalty notices where they suspect that a "penalty offence" has been committed. The relevant "penalty offences" are listed in Section 1 of the Act, and are mostly aimed at dealing with minor drunk / disorderly behaviour. But they also include Section 5 Public Order Act 1986 and this is the offence which is most likely to be used against activists.
Section 2 (1) of the Act states that a constable who has reason to believe that a person aged 16 or over has committed a penalty offence may give him a penalty notice in respect of the offence The procedure is then very similar to many road traffic offences. The person who has received the notice has 21 days in which either to pay the penalty or to request to be tried for the offence.

If you pay the penalty, then no further proceedings may be brought for the offence, and the penalty will not form part of your criminal record. If you request to be tried, then the case may go to trial. If the penalty is not paid and no request is made to be tried within 21 days, then normally the penalty goes up by half and is dealt with just like any other fine. But the police may then charge you with an offence in exceptional circumstances eg if the offence turns out to be more serious than originally thought, or they discover you have convictions for similar offences.

There is no requirement to give a warning before issuing a penalty notice (although for Section 5 offences the police are encouraged to do so, see below). There appears to be no time limit for the issue of fixed penalties. They will probably usually be issued around the time of the offence, but could be issued at a police station after arrest and in theory any time up to 6 months after the date of the offence.

The penalties are divided in to “upper” and “lower tiers”. “Upper tier” offences attract a penalty charge of £80, “lower tier” offences £40. Section 5 is an “upper tier offence”.
The use of penalty notices was trialed by five police forces between August 2002 and July 2003. The Home Office issued guidance notes to the police for when and how they should use the notices and how they should exercise their discretion. These are worth reading and can be downloaded on the internet from here:
http://www.homeoffice.gov.uk/crimpol/police/penalty/index.html

The Home Office notes state that with regard to Section 5 offences, the police should consider giving a warning first and that also they should bear in mind the statutory defences to Section 5. These include the defence that your conduct was reasonable and that you were not aware that your conduct was "threatening, insulting or abusive". Reading between the lines, it seems that the Home Office are not keen on the police issuing fixed penalties for each and every instance of minor disorderly conduct. But the guidance notes are not legally binding and ultimately it is a matter of discretion for the individual officer.

The police have already started to use this power against activists. It remains to be seen whether use of these penalties is part of the government's new offensive against animal rights “extremists”. In our opinion this could well be the case.

Whether activists should pay them or not will depend on the circumstances. Often protestors will want to fight them in court for example where they have been issued with a penalty notice for banging a drum or blowing a whistle. In situations where there is no basis for a Section 5 charge, the CPS may well decide not to prosecute you anyway.

On the other hand there will be times when someone might want to pay the penalty for example if he has been involved in serious disorder. Once the penalty is paid the police cannot take any further action for the offence.

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