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Anti-Social Behaviour Act 2003

Penalty Notices for graffiti and fly-posting

104.Sections 43 – 47 give authorised local authority officials the ability to issue fixed penalty notices to offenders who have perpetrated acts of graffiti or fly posting. The intention is to levy the penalties only on the persons actually committing these acts, and not in the case of fly-posting on the person (unless he is one and the same) whose goods or services are advertised on the poster.

Section 43: Penalty notices for graffiti or fly-posting

105.Subsection (1) sets out the power for the local authority official to issue a penalty for the relevant offence (defined at section 44). Subsection(2) excludes from the scope of such offences capable of being dealt with by means of a fixed penalty notice any that is racially or religiously targeted or motivated. Subsection (3) restricts the possibility of being issued with a fixed penalty notice in lieu of prosecution for an offence under s.224(3) Town and Country Planning Act 1990 to the person personally affixing or placing the unlawful advertisement in question. Subsection (4)(a) provides that offenders have 14 days in which to pay the penalty, after which prosecution for the offence may be initiated. Subsection (4)(b) sets out that no proceedings may be brought where payment of the fixed penalty has been made within the 14 day period. Subsection (5) provides that in issuing a fixed penalty a local authority officer must provide a written statement setting out the particulars of the offence. Subsection (6)(a), (b) and (c) sets out that the notice setting out the particulars of the offence must state that legal proceedings will not be initiated until after 14 days, the amount of the fixed penalty and details of where and to whom the penalty should be paid.

106.Subsection (7) provides that payment of a penalty may be made by pre-paying and posting a letter containing the full amount of the penalty (in cash or otherwise) to the person named on the notice. Subsection (8) provides that where a letter is sent containing payment of the penalty, that payment is deemed as having been made at the time the letter would ordinarily be expected to be delivered. Subsection (9) provides that the penalty notice shall be in such form as the “appropriate person” (i.e. the Secretary of State, in England, or the National Assembly for Wales, in Wales) shall prescribe. Subsection (10) provides that the penalty for these offences is £50. Subsection (11) provides that the appropriate person may subsequently change the amount of the fixed penalty by means of an order (i.e. a statutory instrument).

Section 44: Relevant offences

107.This section describes the offences in respect of which fixed penalty notices may be issued, being the graffiti-type and fly-posting-type offences otherwise prosecutable under the enactments listed at subsection (1)(a)-(f). It is understood that graffiti-type offences are almost always prosecuted under the Criminal Damage Act 1971, although the enactments listed at subsection (1)(a),(b),(d) and (e) contain provisions which might also equate to the same offence.

Section 45: Penalty receipts

108.Subsection (1) provides that penalties issued under section 43 are payable to the local authority. Subsection (2) sets out that a local authority officer may make a statement/certificate stating the facts about payments which may be used in evidence in any proceedings. Subsection (3) provides that any sums received by a local authority from fixed penalties may be used by it only for the purposes of its “qualifying functions” (being its functions under section 43 and any subsequently so specified in Regulations made by the appropriate person). Subsection (4) and (5) relate to the qualifying functions. Subsection (6) sets out that the local authority must provide the appropriate person with information relating to the use of the penalty receipts. Subsection (7) provides that the appropriate person may, by Regulations, make provision for what local authorities must do with receipts if they are not being spent, and make provision for appropriate accounting arrangements. Subsection (8) says that such Regulations may provide that where a local authority has not spent these receipts they may be required to surrender them to another person (including the appropriate person). Subsection (9) sets out that the appropriate person must consult with local authorities and others he considers appropriate before making any Regulations under this section.

Section 46: Powers of police civilians

109.Subsection (1) amends Schedule 4 to the Police Reform Act 2002 to include powers for a community support officer to issue penalty notices in respect of graffiti and fly posting (as they currently have for issuing penalties in respect of littering and dog fouling). Subsection (2)amends Schedule 5 to the Police Reform Act 2002 in respect of powers of accredited persons to issue fixed penalty notices to include being able to do so in respect of graffiti and fly-posting.

Section 47: Interpretation

110.Subsection (1) defines “advertisement”, “land” “appropriate person”, “authorised officer”, “local authority”, “racial group” and “religious group”. Subsection (2) applies a provision of the Crime and Disorder Act 1998. Subsection (3) permits the appropriate person to issue guidance to local authorities in respect of the exercise of their officers’ discretion to issue fixed penalty notices under section 43 and about the giving of such notices. The intention is to specify that such notices are appropriate only in the case of “minor” instances of graffiti or fly-posting; where major criminal damage has been done, criminal prosecution will continue to be the appropriate course.

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