Transposition of the Financial Penalties Framework Decision
The Criminal Justice and Immigration Bill received Royal Assent on 8 May 2008, with the result that Council Framework Decision 2005/214/JHA applying the principle of mutual recognition to financial penalties (known as COPEN 24) was transposed from EU to UK law.
The relevant provisions - part six of the new Criminal Justice & Immigration Act 2008 - are expected to come into force sometime during 2009. This means the UK has almost fulfilled its obligation to transpose the Framework Decision, a piece of legislation that has not attracted much comment in UK national or legal press.
The UK is late in carrying out the transposition; the EU required member states to do so by 22 March 2007. However, the UK is still one of the first member states to implement this law.
The significance of Part Six is that it gives UK courts powers to enforce criminal fines against non-paying offenders resident in other member states (outbound enforcement). Reciprocally, it will allow foreign courts to enforce their fines against UK-based citizens here in the UK (inbound enforcement).
The outbound process is set out in sections 80-81 for England & Wales and in sections 82-83 for Northern Ireland. It involves the following steps:
- The court or fines officer issues a certificate requesting enforcement under the Framework Decision
- The court or fines officer gives the certificate to the Lord Chancellor, together with a certified copy of the decision requiring payment of the financial penalty
- The Lord Chancellor gives the certificate and the certified copy to the central authority or competent authority of the foreign member state where enforcement is sought
- No further steps to enforce the decision may then be taken in the United Kingdom, unless in accordance with an order by the Lord Chancellor.
Under the act the court will issue a certificate requesting enforcement, only if it appears to the officer of the court that the adult defendant is normally resident, or has property or income, in another EU member state and that:
- The person is required to pay a financial penalty
- The penalty has not been paid in full within the time allowed for payment
- There is no appeal outstanding in relation to the penalty.
If a foreign court wants to enforce a financial penalty here in the UK the inbound enforcement process, set out in sections 84 and 85, applies:
- The Lord Chancellor receives a certificate requesting enforcement under the Framework Decision, together with a certified copy of the decision requiring payment of the financial penalty, by the competent authority or central authority in another member state
- The Lord Chancellor passes these documents to a designated officer for the local justice area in which the person is normally resident, or the local justice area that appears appropriate to him. In addition the Lord Chancellor must give the designated officer a notice stating whether he thinks that any of the grounds for refusal apply and giving reasons for that opinion
- The designated officer then refers the matter to a magistrates' court acting for that area, which must decide whether any of the grounds for refusal apply. The designated officer informs the Lord Chancellor of the magistrates' court decision
- At that point the financial penalty is treated as if it were to be paid following a conviction in the magistrates' court - unless the court is satisfied that one or more of the grounds for refusal apply.
Other Relevant Aspects of the Act.
Schedule 18 specifies when a financial penalty is suitable for enforcement in England and Wales, or Northern Ireland. The schedule considers options for enforcement when defaulting defendants have property or income in several of the countries making up the United Kingdom.
Schedule 19 specifies the grounds for refusal to enforce financial penalties.
Shortcomings of the Act
Firstly, the mutual recognition process set out in the Act depends upon the Framework Decision being transposed into national law across Europe. A UK court cannot enforce a financial penalty in a foreign member state that has not transposed the Framework Decision.
The process also depends upon there being a competent authority designated in each state for the purposes of the Framework Decision. If the decision has not been transposed there will be no competent authority and the process cannot start.
Secondly, given that there are no infraction proceedings for a member state failing to transpose a Framework decision, some states may never get around to doing so. The Commission confirmed - in June 2008 - that of the 27 members states only seven (Austria, Denmark, Finland, France, Hungary, The Netherlands and Romania) have sent them of copies of their transposition legislation.
Thirdly, the Act applies to criminal financial penalties within the meaning of the Framework Decision. Administrative penalties, such as civil charges relating to parking offences, do not fit the definition in Article One so do not fall within the scope of the Criminal Justice and Immigration Act. This will be so even though ‘conduct which infringes road traffic regulations’ is listed in the Framework Decision, because civil traffic penalties do not have a criminal element.
Fourthly, the Framework Decision does not contain a cross-border information sharing facility to support identification of defaulting defendants, although the inbound procedure under the Act depends upon an accurate identification of the defendant's residence or of his property.
In many cases the foreign court will fail to gather this information at the time of conviction – particularly if, in the case of traffic offences, the defendant is not present in court. As a consequence the information sent on the certificate may not be sufficient to ensure that the Lord Chancellor can do anything useful with it.
Under Article Seven of the Framework Decision if the certificate provided is incomplete the competent authority may refuse to enforce the penalty, although this is not listed in the Act as a ground for refusal.
Fifthly, once the outbound procedure has started, the local court in England or Wales that issued the original penalty can take no further action without an order from the Lord Chancellor. If the defaulting defendant returns to the UK it will not normally be permissible to take further UK enforcement action. The EU has an increasingly mobile population that regularly and easily moves across borders, non-paying defendants among this population will continue to escape their fines simply because they are more agile than court processes.
In summary, the Criminal Justice and Immigration Act has turned into UK law a piece of European legislation that has significant weaknesses. The Framework Decision process is highly bureaucratic and contains important flaws, which will limit its ability to be effective. It is also a poor fit with UK law in relation to traffic penalties – an area in which it could have played a useful role. After all, how many financial penalties are likely to be issued for murder, rape, terrorism, or armed robbery (all of which are listed within the scope of the act and of the framework decision) compared with traffic penalties?
The UK government was one of the original initiators of the Framework Decision along with France and Sweden. Now that that initiative has completed its passage we suggest that work should start to address some of the weaknesses we have identified.
To see the text of Part Six of the Criminal Justice & Immigration Act 2008 click here.
To see the text of the Framework Decision click here.
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Facts & Figures- Over 3 million foreign registered vehicles (FRVs)enter the UK each year
- At any one time 142,000 FRVs are in the UK - 90% are cars, 8% are HGVs, 1% are coaches
- At any one time 3% of all vehicles driving on London's roads are FRVs; 47% are cars, 43% are HGVs, 7% are coaches
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