I read in the SMH that Premier Iemma is planning to reform the law to allow police to issue on-the-spot fines for minor criminal offences such as shoplifting, offensive language and minor fraud.

Can I just say that I think this is a really interesting, as well as a potentially troubling, development. I’m not aware of other situations in which conduct we might consider ‘truly criminal’, albeit only in a minor way, has been the subject of on the spot fines. And it seems to me that this approach, while having all the attraction of ‘efficiency’ in the allocation of policing forces, runs the serious risk of muddying the civil-criminal waters in undesirable ways.

I got all obsessed with strict liability offences for a little while earlier this year, when I was writing about Australia’s copyright reforms (which introduced strict liability and on the spot fines for certain copyright infringements). A few things emerged from that research:

  1. that, according to Commonwealth policy, the power to issue ‘on the spot fines’ (or infringement notices) should only be given to police in relation to offences of strict liability. This is because if you are going to give police the power to issue fines (without all the palaver of a court case/trial/etc), then you do so on the basis that the police have at least a ‘reasonable suspicion’ that the offence has occurred, and only where such reasonable suspicion can be reached on the basis of readily observable facts. You do not want to ask the police to engage in a detailed analysis of motivations or criminal intent on the spot, and issue fines accordingly;
  2. That strict liability offences, because they involve the imposition of criminal liability without proof of moral wrongdoing, are used in Commonwealth law mostly for what you might call ‘regulatory’ offences. That is, they are used to provide more incentives for people to comply with laws that aren’t really ‘truly criminal’ and do not involve the attachment of any kind of moral obloquy to the offender. Think of situations where a person causes pollution (unintentionally and without neglience), or fails to report some corporate development, or fails to comply with safety standards (at least where that failure does not cause injury).
  3. that the literature on strict liability and on the spot fines talks generally about such kinds of regulatory offence, rather than ‘truly criminal’ offences.
  4. that one of the points of ‘on the spot fines’ is that when someone pays up, they are deterred but they are not being ‘shamed’. They are not admitting liability, nor are we finding them to be ‘criminal’ as a result of paying the fine.

Now, consider on the spot fines for, say, shoplifting. Let’s say a police officer accosts you and gives you a fine for shoplifting – an infringement notice. In these circumstances, you either have to pay up, or you have to go through the process of challenging the notice in court. Let’s say that it seems much easier (indeed, it is), to pay up. You are of course told that paying up is no admission of guilt – although records of such fines ARE kept.

It seems to me that this has one of two effects, neither of them good:

  1. You pay up, but you find that you are still being stigmatised. Regardless of it not being a criminal offence, there is still a record, somewhere, that you were caught shoplifting, fined, and chose to pay. It seems to me that it is still likely there is a stigma here: it is qualitatively different to ‘pay up’ on a fine for shoplifting, than say to pay up a fine for speeding. We treat these two acts differently in moral terms, and I suspect that has an impact.
  2. Alternatively, you pay up but there is no stigma attached. But then, if there is no stigma, aren’t you weakening the moral condemnation attaching to shoplifting? If you say – actually, we are going to treat this like a regulatory offence, not a ‘truly criminal one’, aren’t you saying it isn’t that big a deal? Is that really the message we want to send?

In other words, it seems to me that you have one of two effects of on the spot fines for shoplifting. EITHER you ARE attaching stigma to a person on the basis of them paying up – despite the fact that they’ve not admitted guilt, and inconsistent with all the general principles of criminal law I’ve ever read about. OR you are NOT attaching stigma to the person who has been caught shoplifting and paid up – in which case, you are cheapening the condemnation for theft.

Don’t get me wrong. I can see perfectly well why police might consider it attractive to be able to issue on the spot fines for shoplifting and such like – avoiding the expense of a full prosecution, and the trouble, where deterrence can be imposed by the fine. Easy, efficient, ensures scarce police resources can be directed at more important things. But I think there are risks in this approach. It is certainly contrary to everything I have seen ever written on the appropriate application of the criminal law.