Let’s say you had a law enforcement agency out there (a council) that over a two year period that issued 43,936 expiation notices (must be a high crime area!!!!!) Let’s say that the law enforcement agency operates a ‘dual’ informal ‘in-house’ expiation notice review system that allows you to apply to the agency to have the issuing of the expiation notice reviewed. The system allows that if your first application for review of the issuing of the expiation notice is rejected, you are allowed to make a second application for review (sort of sounds like a dodgy insurance scam in a Grisham novel where an insurance company automatically rejects your first claim in the hope you go away). Let’s say that examples of expiation notices issued by that law enforcement agency include: 1. Person issued expiation notice for having maybe 1/3 of their vehicle stopped in a restricted taxi zone for literally seconds to allow a teenager to enter the vehicle. No taxis were anywhere near the zone. 2. Person issued expiation notice for stopping their vehicle in a restricted taxi zone for approximately 5 seconds while the passenger and driver changed sides. The driver had immediately beforehand almost been involved in a collision, was shaken and had pulled into the taxi zone to change drivers. Again, there were no taxis anywhere near the taxi zone. It was even alleged that the white van driven by the inspector came barrelling though the car park much too fast and in an attempt to take photographs, veering into oncoming traffic. 3. Person issued expiation notice for parking in a 8am to 9am no standing zone at 8.57am. The person alleged that the time was 9.03am and not 8.57am. Let’s say at least one of the above accused had their first application for an informal review of their expiation notice rejected. Let’s say at least one of the above accused was told when making a telephone enquiry with the agency that the matter would be taken to court if the expiation notice wasn’t paid. Let’s say that the law enforcement agency ended up withdrawing all three of the above expiation notices. If the above occurred, the question is should the expiation notices have been issued in the first place? To come to that decision the issuing officer/officers should have asked the questions required by their agency’s own enforcement policy before determining what course of action to take (which would hopefully mirror responsible and ethical law enforcement practices) e.g. What is the detriment or possible detriment to the community of the illegal conduct? What is the history of the offender? What enforcement action would be proportionate with the illegal conduct? Would a warning suffice? Is the matter trifling? etc… Let’s say that the law enforcement agency withdrew 2,501 of the 43,936 expiation notices they issued during the two-year period, some of these being withdrawn after the first application for review of the expiation notice was rejected. Let’s say that out of the 43,936 expiation notices issued in the two year period, the law enforcement agency only prosecuted in court a maximum of half a dozen expiation notices (if any at all??) that were contested by the recipients. If the above was occurring you would be left with no alternative other than to think that something very, very fishy was going on. Sure, the occasional expiation notice has to be pulled as the recipient might come up with some medical or mechanical evidence why they could not avoid breaching the law. But 2,501 in two years? Expiation notices are not a tool that creates a class of offence where responsible and ethical law enforcement practices (and complying with your agency’s enforcement policy) go out the window. All expiation notices are are a tool that is used in lieu of prosecution. They give the accused a chance to finalise the matter without the necessity of being taken to court. However, expiation notices are the start of a legal process that can lead to prosecution action (and should lead to prosecution action if they are contested unless the accused can come up with a very strong reason and supporting evidence to have the notice withdrawn). Every time an officer considers issuing an expiation notice they need to treat the situation exactly as they would for a matter where the use of expiation notices is not available and prosecution is the only option. They need to understand that it is the expiation notice recipient’s right to elect to be prosecuted. The officer should ask exactly the same questions when considering issuing an expiation notice as they would when considering reporting someone and recommending they be prosecuted (in fact, they should probably take even greater care in complying with their agency’s own enforcement policy and the principles of responsible and ethical law enforcement as they are in essence starting their agency on the path of a certain course of action, whereas if they are reporting someone for an offence that has to be prosecuted, the decision whether to prosecute or not is normally made by someone else who asks the required questions). The officer should gather sufficient evidence of the offence to be able to prove the matter beyond reasonable doubt in court as they may have to defend the allegation they have made on the expiation notice. The test as to whether an expiation notice has been issued properly is the court. If there was a law enforcement agency withdrawing seemingly excessive quantities of expiation notices and was unwilling to defend very few (if any) contested expiation notices in court, one would have to ask the question how many of the 2,501 expiation notices were issued properly (as the testing mechanism isn’t being called into play and as notices are withdrawn before getting that far, we may never know). One would also have to ask the question of how many more were there? How many more expiation notices should probably not have been issued but were paid anyway? Let’s say the law enforcement agency received a total of 7,821 informal ‘in-house’ applications to review the issue of expiation notices (this figure included multiple applications on same expiation notice). How many expiation notice recipients were knocked back on their first request for review and decided to simply pay them? To issue an expiation notice to someone means that you are saying to them ‘You have committed an offence that is so serious that you need to be punished for your actions’. You are also starting the ball rolling on a legal process that can ultimately lead to a person being convicted of an offence by a court. Expiation notices are not things that should just be handed out ‘willy nilly’ with the view ‘Oh well, we’ll just pull it if the recipient jacks up enough’. To be responsible for issuing expiation notices gives you a great deal of power. With that power comes great responsibility. That responsibility is placed on you by the courts and ultimately the community.
Posted on: Thu, 13 Mar 2014 10:20:45 +0000
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