Not Saussure

October 26, 2006

Summary justice in Walford

Filed under: civil liberties, EU — notsaussure @ 7:13 pm

Justin, at Chicken Yoghurt, is justifiably concerned about the Government’s latest on-the-spot fine binge for people who break byelaws and for furrininers, particularly Bulgarian and Rumanian ones

With summary justice being the lubricant of this Government’s sweaty authoritarian fantasies, we shouldn’t really be surprised by this. It comes in the same week that John Reid has announced that, after their countries’ accession to the EU in January, Bulgarians and Romanians could face an – altogether now – on the spot fine if found to be working illegally in the UK.

As critics have pointed out, nobody at the Home Office has thought through what will happen if these people can’t or won’t pay. Expecting John Reid, the Tories or the right-wing press to consider the humanitarian implications of making already poor people poorer is, needless to say, a bridge too far.

I don’t think it’s going to work, though; as Bystander JP explains over at The Magistrate’s Blog (formerly known as The Law West of Ealing Broadway), these are going to be well-nigh impossible to enforce:

Of course the fines won’t really be on the spot, that is just a catchy phrase to please the tabloids. In reality the fines will be all but impossible to enforce – imposing them on a group who are by definition unregulated and amorphous will be like trying to catch water in a sieve.

In a previous post on Fixed Penalty Notices — as one of the judiciary who clearly doesn’t get it, he’s got this quaint old idea that it’s up to courts to determine guilt or innocence and to impose penalties, but he would say that, wouldn’t he — he recently noted that

I was chatting to one of our office staff the other day when the subject of fixed penalty tickets came up. As I expected he told me that the payment rate was poor, which is not surprising in a city like London where something like a quarter of the population move house each year. What did amuse me was the news that more than fifty tickets issued in one sector of London were given to people who gave their address as Walford.

(Note for non-UK readers: Walford is a fictional borough created for a popular TV soap).

I’m interested in what’s going to happen if some bloody-minded Bulgarian or Rumanian decides to challenge one of these fixed penalty notices, though.   Remember, the offence is going to have to be working without a work permit as an employee rather than as an independent contractor.   Remember, too, that the defendant enjoys the presumption of innocence.   He has to prove nothing; it’s for the prosecution to prove, in this case, that he was working as an employee.  That’s not going to be particularly easy if all the chap tells whoever’s supposed to be issuing these notices, ‘I am a self-employed contractor; now bugger off and stop pestering me.’   The official can expect no help from the employer, since he faces a fine, too, if it’s proved he was employing the chap illegally.     The chap turns up in court, and simply asks the prosecution to prove their case that he was a paid employee rather than a contractor — what are they supposed to do?

I’m sure it is doable, but it’s going to be hellishly complicated.


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1 Comment »

  1. I can explain in long and tedious detail if you want (being a tedious EU lawyer), but there is no way that applying “on-the-spot” fines to EU citizens found working illegal is going to survive scrutiny under EU law. At the very least such a penalty would be found to be disproportionate to the nature of the “offence”. In any event, it seems likely (although no one has challenged it yet, unfortunately) that a lot of the transitional measures applied by the UK on the EU8 nationals are contrary to EU law as well. Just the job to get a certain constituency foaming at the mouth, isn’t it?

    Comment by Bondwoman — October 26, 2006 @ 8:29 pm


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