What is fining for profit?
Private security companies are employed by local authorities to issue penalties for criminal offences such as littering or anti-social behaviour. These companies are generally paid per fine issued, which creates an incentive to issue as many fines as possible.
According to a recent Manifesto Club report, 66 councils employ a private company to issue fines for criminal offences. 90% of these councils pay the company per penalty issued, or use another system that means that the more fines they issue, the more money they make.
Fining for profit began over a decade ago, with a single company Xfor. Now there is a much larger cut-throat market in enforcement, with at least 10 companies competing for local authority enforcement contracts. Councils generally choose the company that promises the highest cut of revenue and the highest number of penalties.
Companies provide targets for the number of penalties to be issued, and income targets for the amount that will be raised. For example, in bidding for the Dartford contract, Kingdom Security provided a ‘projected income’ spreadsheet, detailing how many FPNs it would expect to issue, including 3500 for littering, 1000 for violating PSPOs, 100 for A-boards, and 100 for the offence of ‘selling and repairing vehicles on the highway’. Many local authorities are dependent upon this enforcement revenue, including it in budgets for the year ahead or using it to pay for salaries.
188,895 criminal penalties were issued by private security companies on behalf of councils in 2021-2 – the second highest on record, in spite of covid restrictions existing for much of this period. Some contracts are extremely lucrative. One company (Kingdom LA Support) made £659,077 from handing out penalties on behalf of Ealing Council. Merton Council made £702,632 from privately issued penalties.
In the past, companies only issued criminal penalties for littering, but now they punish up to 27 different offences. These include anti-social behaviour offences such as Public Spaces Protection Orders (PSPOs) and Community Protection Notices (CPNs), as well as smoke-free offences and leafleting offences.
48 councils employ a private company to punish PSPOs. Hillingdon issued 900 penalties for PSPO violations in 2021-2 (its PSPOs include bans on standing in groups and on noisy remote control cars). Private officers in Greenwich issued 423 penalties for ASB and alcohol, and 46 for loitering near a cash machine, while Redbridge issued 667 penalties to people for drinking alcohol in public and 1697 for spitting. Vague criminal offences are made more problematic when they are punished by incentive-driven officers.
Why is this a problem?
Incentives corrupt and distort punishment: the goal becomes to issue as many penalties as possible, rather than to punish offences in a targeted and proportionate manner. Wardens will focus on easy targets rather than the most serious offences, and they tend not to consider context or mitigating circumstances.
Wherever it has occurred, fining for profit has been associated with cases of injustice. People have been fined for dropping something by accident, or even for putting shopping on the floor while loading it into a car. Dog walkers were fined for walking their dogs in areas that were not in fact no dog zones, and non-smokers were fined dropping a cigarette butt.
Peter Rourke, head of the citizens campaign group North Wales Against Kingdom Security, described the effect of private enforcement in his region of Conwy:
These operatives terrorised the elderly and vulnerable in my area. One 94-year-old lady was fined when a tissue blew out of the bottom of her wheelchair. Some elderly people stopped taking their dogs out because they were so afraid of being fined.
As well as shady and dodgy practices, there is also the problem that punishment becomes detached from public authorities and public accountability. 80% of councils refused to provide us with the unredacted contract with the private company. We found that some councils did not even know how many penalties had been issued in their name, or how much money had been made. Only 16% of councils said that they alone considered appeals against unjust penalties.
The company becomes sole proprietor of the criminal process: it takes payments for penalties, considers appeals and complaints, prepares court documents for prosecutions, and in one council even takes these prosecutions.
There is a shadow legal system, operated by agents with a financial incentive to issue penalties. The criminal justice process is being farmed out and sold to the highest bidder. There is a resulting corruption of punishment that has not been seen since the thief catchers and tax farming practices of the eighteenth century.
What needs to happen?
Defra has produced guidance stating that ‘in no circumstances should enforcement be considered a means to raise revenue’. The guidance also requires the publication of contracts and financial arrangements, to reassure the public that penalties are not being issued for financial motives.
However, this guidance is not statutory and is widely ignored. Councils do not reference it in their enforcement policy documents, and representatives from private companies say that it is ‘not the law’. Defra has written to councils reminding them to respect the guidance, and stating that it plans to use powers in the Environment Act to put this guidance on a firm statutory basis.
The Manifesto Club is calling for this guidance to be made legally enforceable. We are also calling for the Home Office to produce comparable restrictions covering the punishment of anti-social behaviour offences, which are regulated under different Statutory Guidance. A prohibition on incentivised punishment must pertain for all offences currently punished, otherwise the enforcement market will merely move from one area to another.
The Corruption of Punishment 2022