Borough association London Councils is to lobby the Government for legislation to partially decriminalise speed limit enforcement. The powers would allow local authorities to enforce low level offences, leaving the police to deal with more serious exceedances as criminal offences.
London Councils has been exploring the legal grounds for speed limit enforcement and the case for decriminalising some or all offences (LTT 17 Dec 18). The investigations come amid heightened concern about the number of drivers speeding, particularly in light of the increased use of signed-only 20mph limits, including on main roads.
London Councils’ transport and environment committee this month resolved to lobby for primary legislation to partially decriminalise speed limit enforcement after considering a report setting out the legal framework for speed limits. The decision was taken despite members hearing that the police do not support a two-tier system.
Transport manager Andrew Luck told the committee there had been little discussion about decriminalising speed limits in public forums and there was no parliamentary group currently advocating it. “None of the recognised road lobby groups is openly calling for decriminalisation and no public body has yet advocated for it. Coupled with the lack of current support from the police, it may be very difficult to successfully lobby for this change.”
He said counsel advice had confirmed that legislation could be changed to allow for decriminalisation of speeding offences. “This could be undertaken by adding these to the list of contraventions at section 73 of the Traffic Management Act 2004.”
Luck said it would also be feasible to separate out civil and criminal proceedings, enabling boroughs to enforce minor contraventions and the police the more serious offences. “Again this would require changes to primary legislation to define what is criminal and what is civil.”
Under a decriminalised system, fine revenue could be retained by boroughs and reinvested in enforcement, rather than being passed to the Treasury.
Decriminalisation would allow the police to concentrate on other priorities, he said. Boroughs could also be more responsive to residents’ complaints about excessive speed.
“The required legislative change could potentially also include a reduction in evidential requirements to allow fully automatic enforcement,” said Luck. “This in theory could happen outside of decriminalisation to enable increased police activity.”
Decriminalisation had some possible drawbacks, said Luck. “The deterrent effect of a non-endorsable penalty charge notice (PCN) or civil fixed penalty notice (FPN) may be less than that of an endorsable FPN. If a speeding offence no longer carried the threat of a ban, points on one’s licence or a higher insurance premium then the deterrent effect may be diminished. This may be particularly true of more affluent offenders.
“Often the intelligence that the police gather whilst enforcing speeds leads to the identification of other non-speed or traffic related offences,” he added. “This may not be captured if the police are no longer enforcing speed limits or playing a reduced role in doing so.”
Further legal advice received by London Councils suggests that local authorities could prosecute speeding as a criminal offence under section 222 of the Local Government Act 1972.
“In order to prosecute a case using s.222, the borough would need to be satisfied that this is ‘expedient for the promotion of or protection of interests of the inhabitants of their area’,” said Luck. “The Court of Appeal had held that s.222 afforded boroughs a ‘very broad discretion’ but there would need to be a real basis in exercising that discretion subject to a proper public interest assessment before using the power. Any fines collected by using this power would go to the Treasury.”
Luck said using these existing powers “would perhaps negate the need for decriminalisation, but there are practical difficulties” and the police did not support a dual enforcement regime.
“Currently boroughs are not permitted to access driver details, only keeper details. The police have this power under the Road Traffic Offenders Act 1988 so it would require a change to this Act to allow for this, as keeper details are not sufficient to prosecute. The police can delegate powers to highway authorities to request details of the driver, but these would be for police purposes only.”
Councils are unable to issue fixed penalty notices (FPNs) for excess speed. “Road traffic legislation does not confer or imply boroughs have this power but does confer such power on police constables and police examiners. To amend this would require a change in primary legislation.
“There is an argument that the police cannot delegate responsibility to councils to enforce, as this would be an abdication of their responsibility in enforcing the law,” said Luck. “It could be counter-argued that this may be acceptable if boroughs step in to take on this function, rather than it not being undertaken, but this would need to be tested in court.”
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