The need for discretion in law enforcement

There was a time when substance had precedent over form. The best examples I ever saw of this were in my early appearances in Magistrates' Courts as a fledgling barrister. While waiting for my tiny and inconsequential hearing to come around I would witness how things actually happened, not what a textbook said, not what an Act of Parliament said, not what might be portrayed in a television drama, but what actually happened.

Take this, for example. Mr Bloggins has been summoned to court because his car was seen on a public road without a current tax disc visible in the window. For the benefit of anyone who does not know, in the UK we have to pay an annual tax, known as vehicle excise duty, if we keep or use a car on a public road. The receipt given for this tax is a paper disc showing the registration number of our vehicle, the amount paid and the period for which we have paid. Mr Bloggins turns up with the tax disc which clearly shows it was issued prior to the date of the alleged offence. The Act of Parliament made it an offence to have a motor vehicle on the road without displaying a vehicle excise licence (tax disc). The offence was not failure to pay the tax of failure to be in possession of a tax disc, but failure to display a tax disc. If he turned up with a little circular piece of paper with perforated edges showing he had paid his road tax for the relevant period, the summons would be withdrawn. The prosecutor would explain to the court that Mr Bloggins had in fact paid the relevant tax and has the disc as evidence of that, and the magistrates would agree to the case against him being withdrawn. In almost all instances Mr Bloggins would not be required to pay any costs and would not receive an admonition for his error.

You see, anyone with any common sense will understand that failing to display a receipt for a tax is a purely technical default. Of itself it does no harm to anyone or anything. The substance of the offence lay in a failure to pay the tax even though the way the Act was worded it was failure to display the receipt which was the actual offence. Any prosecutor daft enough to seek to continue a prosecution once shown irrefutable evidence that the tax had been paid would have faced an immediate question from the bench: "what's the point of this prosecution when Mr Bloggins has paid the tax?" On being reminded of the wording of the relevant part of whatever Road Traffic Act it was, he would have been reminded that the court was interested in the substance of the thing.

The modern way is to promote form over substance, especially when it comes to many of the minor infringements of the law punishable by fixed penalty notices rather than criminal prosecution. Drop a bit of litter and there is no one to turn to when you are slapped with a £50 ticket on the spot. A court, on being satisfied by your evidence that the littering was entirely accidental and happened when you pulled your handkerchief from your pocket and unintentionally dislodged the business card of Chantelle (the quick relief therapist at Madam Fifi's Sauna and Hanky Panky Parlour), might well clear you of the accusation completely. Or, if satisfied that you were careless but not intentional in your conduct, impose a far lower penalty than £50. None of that comes into it now. No sooner have the words "let Chantelle French polish your helmet" hit the tarmac than you are down £50 and that is that.

I was thinking of this (discretion I mean, not Chantelle) a few months ago after running into an old chum who sits occasionally as an adjudicator hearing appeals against parking tickets and other fixed penalty notices issued for car-related wickednesses. He explained to me that his role is limited to looking into the strict legality of the matter and that he has no discretion. No matter how much sympathy he might have with the plight of the appellant and no matter how minor or technical the infringement was, if there was an infringement of the strict letter of the law he must uphold the penalty notice. He can only quash a notice if, for example, the signs denoting the restriction on parking did not comply with the relevant regulations or were ambiguous or misleading.

Law enforcement is an important part of setting the atmosphere in a country. There are two extreme positions which are guaranteed to lead to discontent - arbitrariness and inflexibility. Random enforcement subject to the whim of the enforcer can lead to corruption and increased lawbreaking but its greatest fault is that the people never know where they stand. Inflexibility is guaranteed to lead to seething resentment among those who believe they were treated unfairly when genuine mitigating circumstances were ignored.

A degree of arbitrariness is inevitable because those who decide how and against whom to enforce laws are human beings and exercise their own judgment. It is impractical to expect these decisions to be uniform, nonetheless the risk of wild variation can be tempered by guidelines, training and discussion between those making the decisions. Similarly a degree of inflexibility is inevitable because a standard has to be set and sometimes that means a minimum sentence for a particular offence. The task of government is to reach a sensible balance.

We are not particularly beset by arbitrary law enforcement in this country but inflexibility is becoming systemic as more and more new offences are created and made enforceable by fixed penalty tickets. Often enforcement is in the hands of low-grade employees of local councils who either are not given discretion or do not have the ability to exercise it. The risk of cash-strapped councils looking to fixed penalties as a means to raise money is a further problem. Whether they set formal targets or not, once they are reliant on receiving a certain income from that source the appearance will arise of law enforcement being a revenue-raising issue and not one concerned primarily with justice.

You can label it a loss of liberty or the erosion of freedoms, but I would suggest that the real vice behind inflexible law enforcement is that people feel they are being treated unfairly. The fixed penalties for dropping litter or breaching any of the hundreds of other regulatory offences subject to such penalties are often greater than those for minor thefts and assaults. How many people think dropping a toffee wrapper is more serious than stealing a packet of toffees? Yet it's fifty quid for the former and a written warning for the latter. The balance is wrong, and when the balance is wrong resentment builds, a sense of being put upon builds, a sense of government (local or national) bullying the essentially law abiding builds. A sense also builds of law enforcement being guided by money, targets and statistics rather than by the need to maintain the peace and protect people and property.

And this all comes from removing discretion from the process and replacing it with the soft option of strict liability.