Zero Tolerance Policing

Zero-tolerance style policing is never far away from the headlines, it seems that no matter what area of policy, one can launch a 'zero tolerance crackdown' on behavior.

In motoring enforcement the phrase is never far away from policymakers lips, perhaps the most recent example is the report of a 'zero tolerance crackdown' on mobile phone use while driving in Northern Ireland.  Whilst I certainly do not condone the activity, it is very dangerous, I do have reservations of any policy that sells itself as 'zero tolerance'.  Frequently such policies aren't truly zero tolerance; officers do still exercise discretion albeit perhaps with less frequency than they may have previously.  But my main objection  is that frequently those who claim to want zero tolerance, don't actually want anything of the sort, they want zero tolerance against certain types of people not certain types of behaviour.

My objection to zero tolerance stems more from the idea that it represents something that we, the public want.  Frequently we don't want anything like zero tolerance policing on the roads, just listen to anyone debating speeding and you will soon hear the call for greater discretion

In speeding enforcement the argument typically means that we want zero tolerance against boyracers etc... but in our case, good honest upstanding decent hardworking citizens that we are want our police force to have a bit of discretion, a bit of common sense, to recognise that although we may speed, we are not speeders.

True zero tolerance policing would not recognise that difference, the zero tolerance is to behaviour not motivation.  Thus if we accidentally speed, under zero tolerance, the accidental nature of our speeding is unimportant we will be punished in exactly the same manner as if we had deliberately set out to speed (£100 fine and 3 Points).  It is no exaggeration to suggest that great feelings of injustice typically accompany being found to be a speeder, and typically our first complaint is that the officer / police force lacks discretion and common sense.

These calls to commonsense are the antithesis of zero tolerance, it's a call for personalised discretion based on our common understand that it is the other, not us, that is the real problem, and the officers / agencies zero tolerance focus should be on them. 

Actual zero tolerance policing can, thus, create greater problems for law enforcement agencies, where citizens feel that the actions they are taking are illegitimate and used for an illegitimate purpose ("to catch out" or "prey on the easy target").

Zero tolerance certainly does have benefits for enforcement agencies, and can be defended on a principled basis.  It removes the potential for "bad" discretion (where officers undertake enforcement for less noble purposes e.g. racism), although, short of constant surveillance of officers actions, even a policy of zero tolerance cannot outlaw this practice.  However it does save officers the need for having to justify each instance of punishment, especially in hard cases, and can thus encourage more robust action against behaviour.  (Note behaviour not motivation!)

Do we really want zero tolerance, I suspect not, what we want is an operationalised form of zero tolerance, one that can recognize the difference between behaviour and motivation, and punish those where both motivation and behaviour are aimed at law breaking.  However this is not what zero tolerance generally implies.

Zero tolerance is an easy statement to make and conjures up images of an efficient, effective enforcement scheme that captures all the people we want it to capture.  But the hard cases, what about them? What about the car that parks 5cm over the line, or 1cm over the line.  With ZTP we should say, a la Hawaii Five-O, 'book em Danno'? I suspect not many would agree with that.  Thus do we really want zero tolerance? Probably not.  

Do we need zero tolerance?  Well that is a question for another day.

Decriminalised Parking Enforcement

There is a tendency in academia at times to shy away from making concrete proposals for reform of the law.   It is so much easier to "critique" than offer positive solutions that have real practical input.  That being said I am going to offer my suggestion for a change to the law in parking enforcement, specifically in relation to local authorities.

At present there is a dual system of parking enforcement (outside London) local authorities may adopt the provisions (accept to be bound by them) of the Traffic Management Act 2004 and operate a system of decriminalised parking enforcement.  Otherwise the authority acts under the old criminal law contained in section 35 Road Traffic Regulation Act 1984.  That means that if you receive a parking ticket in certain authorities and do not pay that authority may prosecute you in the magistrates court and you may be convicted of a criminal offence.

I have yet to come across a person, be it an official, magistrate or member of the public, who believes that such matters should be dealt with in court.  As one senior official once quipped to me 'no court wants to deal with this shit, only weirdos like you and me are remotely interested in parking.'

When it comes to the criminal law that is certainly a fair assumption I think, the criminal law should not be used for parking enforcement.  No one sees it as a criminal offence and no one who has received a parking ticket would even consider their actions as criminal.  Be that as it may approximately 20 local authorities still use the criminal law offence (i.e. they have not adopted the provisions of the Traffic Management Act 2004)

This cannot be right and I would, for my part, amend the law to make it far harder for local authorities to use the criminal law for parking transgressions.

Of course it is not right to dictate to a local authority how they must operate parking enforcement, that is a matter of local democracy.  I suspect that few of the electorate in these boroughs realise the difference, but authorities are legitimately entitled to operate how they see fit.

How then should the law be altered so that the choice of decriminalising enforcement still exists but but clearly encourages authorities to adopt the decriminalised method?  I think the criminal law concept of mens rea is helpful hear.

Mens rea, or guilty mind, essentially means that a prosecutor must prove that the defendant either intended to commit the criminal act, or appreciated how reckless his / her actions were in committing the act.    At present parking criminal offences are strict liability, this means that the defendant's thoughts and intentions are immaterial all that matters is that the act was committed.  Even if by accident the defendant would still be guilty.  Speeding is an example from general motoring criminal law, it matters not why you were speeding, it only matters that you were.

If you think about this for a second the concept of mens rea can be incredibly difficult for prosecutors.  Imagine trying to prove that a defendant intentionally drove above the speed limit (where that defendant categorically denies they did so intend), I would suggest that most speed prosecutions would fail.  It would be far too high a burden on the prosecution to prove intentional speeding.

Back to parking:  authorities do not have to prove that you intentionally parked your vehicle in contravention of the law, all they need prove is that your vehicle was present and contravening the authority's rules.

This is the point at which I believe the criminal law should be amended.  If authorities want to continue to use the criminal law in parking enforcement then parking offences should carry a mens rea requirement.  Authorities should have to prove, in criminal cases, that those who commit parking offences intended to do so, or acted with clear reckless disregard for the parking rules.  The criminal law is too powerful an instrument to use against actions that are so widely regarded as not criminal.

Whilst this proposal would not force authorities to adopt the decriminalised method (thus keeping local democracy within the system) it would force authorities to reflect on whether they actually think parking transgressions are criminal offences.  I would suspect that those few authorities who do use the criminal law would soon see the benefit of the decriminalised process.

For what it is worth that is my proposal for reform of the law, with the deregulation bill currently going through parliament perhaps it is time to look again at this matter.

Why parking and road traffic?

The Australian academic Richard Fox in 1999 claimed that criminologists were remiss in noticing that criminal sanctions were increasingly being removed from the courts and instead criminal justice was becoming an on the spot phenomena.  The majority of sanctions were not being imposed at court but on the street or through the post. 

These sanctions removed any ceremony or pomp in the criminal justice system and instead appeared as, in the words of another noted Australian academic (Pat O'Malley) little more than another bill. No moral condemnation was attached to the punishment and instead justice imposed prices rather than punishments.

The description of such penalties as prices certainly strikes a familiar note to anyone who has owned a vehicle.  To run a vehicle requires money and in motoring there are endless costs to be paid: insurance, MOT, Road Duty, petrol / diesel and maintenance prices.  Added to this it seems quite fair to state that penalties for illegal parking, speeding, driving through a red light also can seem like just another cost of being a motorist.

As a society in 2013 we traveled over 303 billion miles in Great Britain, 37.8 million of us were entitled to drive a vehicle and in total we had at our disposal over 25 million private vehicles.  The combined length of the road network was estimated to be 245,700  miles.  Clearly if we all decided to drive at the same time it would be chaotic and available space would be soon cease to be available.

Societies then need to manage the flow of vehicles and vehicle ownership in order to maximize the efficiency of an incredibly complex and diverse system, meeting the needs of pedestrians, drivers (commercial and non commercial), organisations, cyclists and many other interests groups.  How society decides to regulate driving behavior is certainly not uncontroversial.  From the earliest transport acts, which could only conceive of the car as specialised form of locomotive, a "light locomotive" to the current mass of road transport regulations, the law has sought to control and regulate vehicle ownership and vehicle use.  The primary means through which it has done this in both policy and practice is through the use of money.

Money, and in particular monetised penalties, have become the primary means of controlling both the supply and demand for the use of available road space.

We have certainly paid a lot, and will continue to do so, for the privilege of driving.  Also as a society we are certainly no angels when it comes to complying with the regulations of the road, anywhere up-to 9.7 million of us were caught illegally parked or driving through areas we shouldn't have in 2013.

When it comes to general driving regulation a little over 3 million of us have points on our driving licence, with one interesting 43 year old in 2012/13 GB  having 45 points on their licence

This amount of problematic behaviour would certainly be challenging for the traditional system of criminal justice to handle.  Whether the current system gets the balance right is certainly an interesting question and one I hope to have piqued your interest in, and hopefully as this blog fills out some interesting facets of road traffic and parking regulation will be presented for your interest.

Please do keep coming back, or get in touch through the comments if you wish to discuss or share.

Adam