Private enforcement corrupts the courts

Our report, the Corruption of Punishment 2022 highlighted the injustice that results when on-the-spot fines are issued by private contractors being paid per fine issued.

The market in on-the-spot fines is also having a knock-on effect on the court system, as councils move to prosecute non-payers. This means that penalties issued by financially motivated wardens is resulting in a criminal record for thousands of members of the public.

Councils often see prosecution of non-payers as important in order to keep on-the-spot fine payment rates high. Successful prosecutions are often publicised in local newspapers, in order to encourage others to pay the fine. For example, Thurrock Council said that there was a need to prosecute non-payers, in order to stop payment rates falling to a level where the private enforcement contract become unprofitable for the council:

‘The current payment rate at 64% is resulting in a positive financial position. If the payment rate dropped below 40%, this would mean the contract was making a loss. To prevent a drop in payments this Council is committed to prosecuting non payers and publicising those cases that result in a successful prosecution against offenders. The Council have an effective prosecution process in place and have passed over 1200 cases of non-payment for prosecution, resulting in an increase in the estimated 60% payment rate and a successful prosecution rate.’ (Thurrock Council report).

Our report The Corruption of Punishment 2022 found that there were 188,895 FPNs issued by private enforcement companies in the year 2021-2. Given 65% or 70% payment rates, this leaves thousands of unpaid FPNs to be prosecuted, which requires a substantial amount of court time.

The private enforcement company Kingdom Security complained that in one area they had not been allocated sufficient court time:

‘There are continued concerns from Kingdom that the number of court slots they have been allocated under the new single justice system (cases can be heard by a single magistrate) is insufficient to cope with the numbers of tickets coming through, and are still working to resolve this.’ (Barnsley Chronicle)

We asked councils employing private enforcement contractors about their prosecution of privately issued FPNs in the financial year April 2021-March 2022.

In total, we found that there were 11,954 prosecutions of unpaid FPNs that had been issued by private enforcement companies. These prosecutions were brought on behalf of 41 councils. The highest number of prosecutions was carried out by Waltham Forest Council, which initiated 3439 prosecutions.

FOI responses also showed that private enforcement companies are becoming more involved in the prosecution process. Many private enforcement contracts now include an obligation on the company to prepare legal files for the prosecution of unpaid FPNs. In one case (Bournemouth, Christchurch and Poole Council) the company even brings legal proceedings on behalf of the council and will keep any awarded costs. The council told us:

From the recovered fines, the provider will pay their operational and staffing costs and undertake prosecutions against perpetrators who have not paid, keeping any costs awarded at Court.

Unfortunately, prosecution in court does not always provide an opportunity for these FPNs to be scrutinised. Increasingly, prosecution is through the Single Justice Procedure (SJP), where the defendant is not present and the case is heard by a single magistrate on the basis of papers alone. Indeed, some private companies are pushing this prosecution route as quicker and allowing for a greater case volume.

Walsall Council says that it is using the SJP on Kingdom Security’s initiative:

Kingdom Services Group has worked with Legal Services during the term of the current contract to introduce the use of the Single Justice Procedure to simplify the prosecution process for unpaid FPNs. (Walsall Council document for Cabinet, 18 December 2019).

Dudley Council told us that it used the SJP to carry out 572 prosecutions of privately issued FPNs, which included considering 50 litter fines in a single session. Of these litter fines, most penalties (40) were proven in the absence of the person, 6 were withdrawn by the council, and only one involved a not-guilty plea and proceeded to a full hearing.

Similarly, most of North East Lincolnshire Council’s prosecutions were ‘proved in absence’ of the defendant, suggesting that the only submitted evidence was that provided by the private company. These prosecutions in absentia included a £710 fine for the offence of having a dog on the beach, and a £707 fine for violating a no-cycling PSPO.

For some councils, prosecutions of privately issued FPNs can yield an income for legal departments, since the council generally receives costs from successful prosecutions, while the fine and victim surcharge go to the court. For example, Manchester City Council received £56,675 in legal costs from prosecutions in the financial year April 2021-March 2022, while Birmingham City Council received £97,259.

The 13 councils able to state awards from these prosecutions reported £1,028,716 income in total (including court fines, victim surcharge and council legal costs).

This data shows the growing reach of private enforcement, and its corrupting effect, into the heart of the public legal system.

It means that over 11,000 prosecutions were carried out on the back of incentivised penalties, where the officer was driven by the need to make a commission rather than the interests of proportionality or justice. Thousands of people now have criminal records as a result.

This further emphasises the need for proper regulation to stop payment-per-fine and other incentivised punishment.