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17 August 2010

A fixed penalty notice which had been issued to a defendant pursuant to s 2 of the Criminal Justice and Police Act 2001 was not a conviction, admission of guilt, proof that a crime had been committed, or a stain on the defendant’s character, and therefore could not be regarded as evidence which impugned the character of the defendant or admitted as such.

The Court of Appeal (Criminal Divison) so held when dismissing an appeal by the defendant, Gareth Hamer, against his conviction on 12 January 2010 by the Crown Court at Harrow, before Judge Holt and a jury, for an offence of assault occasioning actual bodily harm, contrary to s 47 of the Offences against the Person Act 1861.

The prosecution alleged that the defendant had assaulted the complainant taxi driver after an evening out. The defendant pleaded self defence. He had no previous convictions or cautions, but had received a fixed penalty notice under s 2 of the Criminal Justice and Police Act 2001 for a minor public disorder matter, two months after the instant offence. After discussion between counsel and the judge regarding whether a good character direction should be given, the judge ruled that the jury should be told about the defendant’s penalty notice, but directed the jury that they might think it fairer to disregard it and treat him as of good character, and he gave the defendant a full good character direction. The defendant appealed on the ground that the judge had erred in admitting the fixed penalty notice, since it was not a criminal conviction and involved no admission of guilt.

THOMAS LJ, delivering the judgment of the court, said that the fixed penalty notice scheme was a method of dealing with low level crime without the need to prove the offence and commission of it by the person to whom it was issued. It involved no admission of guilt, nor did it create a criminal record. The scheme went no further than that. If the notice was accepted, payment of the penalty provided that no further action could be taken. The notice was distinct from a caution, where commission of a crime was acknowledged. Its issue was not a form of justice, as justice normally included guilt. It was not a conviction, admission of guilt, any proof that a crime had been committed, or a stain on the persons character. It therefore followed that it was not admissible as an admission of an offence or of bad character in the sense of impugning the defendant’s character. It might be that in some cases the Crown might wish to adduce evidence regarding matters in respect of which the notice had been issued. Counsel for the Crown had not wished the issue of the notice to go before the jury, and it was only at the insistence of the judge that it had done. It was unfair to mention the notice without an attempt to call evidence regarding the circumstances of it. The notice was entirely irrelevant and ought to have been kept from the jury. However, since the defendant had no plausible explanation for the injuries caused to the complainant, in all the circumstances the conviction could not be regarded as unsafe.

Appearances: James McCrindell (assigned by the Registrar of Criminal Appeals) for the defendant; Simon Gladwell (instructed by the Crown Prosecution Service, Harrow) for the Crown.