Many are surprised to learn that a fine has been imposed on them in a case in which they attended no hearing and were never called to trial. This is not a procedural error but an established system known as the penal order, provided by the legislature for the swift disposal of minor cases without burdening the courts and litigants with full trial procedures. The legislature balanced this procedural abbreviation with an essential safeguard, the right to object. The difficulty is that many are unaware of that right and its deadlines, allowing the order to become final. This article explains the system under Criminal Procedure Law No. 17 of 1960.
What a Penal Order Is
- Definition: an order issued by the competent judge on the application of the Public Prosecution imposing a penalty on the accused in a minor case without a trial and without hearing argument.
- Purpose: swift disposal of cases requiring no investigation or argument, easing the burden on the courts and saving the accused's own time.
- Basis: the clarity and simplicity of the facts and the sufficiency of the papers to determine the matter without oral inquiry.
- No attendance: the accused is not summoned and their defence is not heard before the order issues, which makes the right to object an indispensable safeguard.
Scope of Application
- Contraventions: the primary field for this procedure, covering many traffic, municipal, and regulatory contraventions.
- Minor misdemeanours: extends to defined misdemeanours where the facts are simple and clear.
- Where it is not available: no penal order issues in felonies or in misdemeanours requiring investigation or carrying serious penalties.
- The judge's power: where the judge considers the case unsuitable for a penal order, the application is refused and the case referred to ordinary trial.
- The prosecution's role: the prosecution assesses in the first instance whether this route is appropriate and applies to the judge.
Penalties That May Be Imposed
- Fines: the principal penalty under this procedure, assessed within the limits the law fixes.
- Limits: a penal order may not impose a penalty exceeding a defined limit. Where the judge considers the facts warrant more, the case is referred to trial.
- Supplementary penalties: the order may include consequential measures such as confiscation or restitution within the limits the law permits.
- What is not permitted: a penal order may not in principle impose a custodial penalty, as deprivation of liberty requires a full trial with its safeguards.
- Civil rights: a penal order does not determine civil rights, and an injured party may still go to the civil courts for compensation.
Objecting to the Order
The essential safeguard that must not be missed:
- The right: the accused may object to a penal order, as may the prosecution where it considers the penalty inadequate.
- Time limit: the objection must be filed within the statutory period from service of the order, a short and decisive period.
- Form: filed by declaration at the registry or by the means the law prescribes, and reasons need not be stated.
- Effect: objection renders the order as though it had never been made, and the case is heard by the court under ordinary procedure with full safeguards.
- No penalty for objecting: objection is a right that cannot be penalised, but it exposes the accused to a full trial that may end in a heavier or lighter penalty, requiring a measured assessment.
Failing to Object
- Becoming final: where the objection period expires without objection, the order becomes final and enforceable like a judgment.
- Enforcement: the fine is enforced by the prescribed means, and non-payment may lead to enforcement measures.
- Record entry: entry in the criminal record is governed by the applicable provisions and varies with the nature of the matter.
- No reopening: once final the matter cannot be reopened save on exceptional grounds the law provides.
- The service problem: the most significant practical difficulty is that a person may be unaware of the order where it was served at an old address, which makes updating your address in the civil register a necessity rather than a formality.
Practical Guidance
- Update your address in the civil register, as most who miss the objection period never learned of the order at all.
- On receiving service of a penal order, calculate the objection period immediately and do not delay.
- Before objecting, weigh whether you have a serious defence justifying a full trial or whether the fine costs less than the risk.
- Take advice in cases that may create an entry affecting your profession or licence.
- Retain the receipt for payment of the fine as evidence that the order was executed.
- Check periodically that no cases are registered against you if you move frequently or have recently changed address.
The penal order is a useful simplifying tool, but its usefulness depends on the accused knowing of it and of their right to object and its deadlines. Yamnak Law Firm advises on whether objecting to a penal order is worthwhile and represents clients in the trials that follow before the criminal courts.
