Covid 19 – fixed penalty notices

[Image credit: “London, United Kingdom – 12th May 2012. Metropolitan Police Officers wearing Hi-Viz jackets ensuring public safety during a protest march”.”)

More than 85,000 fixed penalty notices (FPNs) have been issued for breaches of the Covid restrictions in England since March 2020.

What is a fixed penalty notice?

An FPN allows a penalty to be paid instead of being prosecuted and risking a criminal conviction. Fast payment is incentivised by reducing the penalty for early settlement. If payment is made within the required time, most FPNs do not go on a criminal record. If payment is not made, the individual may be summoned to court for prosecution.

Joint Committee on Human Rights

The Joint Committee on Human Rights is appointed by the House of Commons and the House of Lords to consider matters relating to human rights. The Committee has various powers, including requiring written evidence, examining witnesses and appoint specialist advisers. They can then make proposals for remedial orders, draft remedial orders and remedial orders.

The Committee has produced a report focussing on the following question:

“Is the way that Fixed Penalty Notices (FPNs) are being used to enforce lockdown justifiable, fair and non-discriminatory? Is it clear why FPNs have been issued? Are there adequate ways to seek a review or appeal of an FPN? Are the amounts of FPN fines proportionate? Has there been a disproportionate impact on certain groups?”

The Committee has looked into the issues surrounding the use of FPNs for breach of Covid restrictions. Their concerns were so serious that the Committee recommended that every penalty issued, all 85,000 of them, is reviewed.

Covid penalties

The penalties imposed for a breach of the regulations range from £200 up to £10,000. The offences include failing to wear a mask, large gatherings, and failing to quarantine or self-isolate.

The Covid FPNs differ from others due to the complex nature of the offences and the high-level penalties that can be imposed. The police have no discretion as to the level of the penalty.

What has caused problems?

The Coronavirus regulations changed at least 65 times from the start of the pandemic; different parts of the country sometimes had different regulations to follow. The Government also produced guidance to follow, which wasn’t the same as the law. The distinction between law and guidance often wasn’t clear, causing more confusion. The Committee referred to a “recent survey” that said nine out of ten police officers didn’t feel the regulations were clear.

The complexity of the offences has also caused problems, “a considered appreciation” may be needed to decide whether a person had a reasonable excuse to be outside their home, for example.

Human Rights

Article 8, the right to family life, 10 and 11, the right to freedom of expression and assembly and 14, the principle of non-discrimination, may all be engaged in some way with the regulations and use of FPNS. They all need to be balanced with Article 2, the right to life, and the Government’s duty to safeguard the lives of those in the UK.

Article 7 of the ECHR provides “no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence … at the time when it was committed”. Article 7 may be engaged when the police issue an FPN for behaviour that breached the guidelines rather than prohibited by law.

Article 6 is the right to a fair trial, and the issue of an FPN amounts to a criminal charge. Article 6 rights are guaranteed where the recipient is aware of their right to challenge the FPN and opt for a criminal trial. However, it is questionable if a recipient is unaware of that right or is too scared of risking a criminal record to challenge the FPN.

The Committee also questioned whether the FPN process was at all appropriate for a penalty as high as £10,000, especially when there was no discretion for the police to lower that amount to take account of ability to pay or mitigating circumstances. If it was dealt with at court, it is likely a much lower fine would be imposed as of the seriousness of the offence, and a person’s financial circumstances would be taken into consideration.

Article 14 provides protection from discrimination; statistics show that a disproportionate number of younger people, males and those of a black or ethnic origin, have received FPNs.

What went wrong on the streets?

The approach to policing the pandemic was supposed to be the four Es model; to engage, explain, encourage and only if absolutely necessary enforce. Police officers do have some discretion not to issue an FPN and could issue a warning instead. The interim director of Liberty raised concerns last year that the four Es model was not being applied consistently across police forces. As stated earlier, there was also confusion over what was guidance and what was law on the part of the police and the public.

Wrongly issued FPNs

The Crown Prosecution Service reviewed all cases where an individual challenged or did not pay an FPN and was prosecuted in open court (rather than through the single justice procedure). The proportion of incorrect charges identified has been around 25%. The proportion could be higher in reality as most cases have been subject to the single justice procedure and not reviewed by the CPS. Those FPNs that were simply paid are not subject to the same safeguards.

The Crown Prosecution Service also found that all 252 cases prosecuted rather than dealt with as FPNs were incorrectly charged. This in itself led the Committee to have serious questions about the efficacy and utility of the legislation.

Why were FPNs wrongly issued?

The police and the Committee blame the frequent changes in legislation. The shortness of notice in changes put significant pressure on forces to understand and communicate the new rules to officers.

Ambiguities in the law also caused problems, and the regulations themselves were hard to interpret. Examples given were when does exercise stop being exercise, what is a ‘substantial’ meal and when does a rest while exercising stop being a rest and mean the person is no longer exercising?

What happens now?

The Committee came to several conclusions and made various recommendations as follows:
• The Government must commission research and analysis of the FPNs issued. If the approach to enforcement is found to be discriminatory, action must be taken to address it.
• The National Police Chiefs Council must undertake a review to understand why so many incorrect FPNs were issued and take action to prevent future mistakes.
• The Government must introduce a means of challenging FPNs through administrative appeal or review.
• The Government should explain and justify why a £10,000 fine is proportionate for (a) anyone and (b) an individual with limited financial means.

Finally, a comprehensive review of all FPNs is recommended as soon as is feasible. The Committee had “significant concerns” about the validity of the FPNs issued, the inadequacies of the review process, the size of the penalties and the criminalisation of those who could not afford to pay. A further recommendation was the removal of convictions under the coronavirus regulations from criminal records.

How can we help?

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Mr John Stokes (John.Stokes@danielwoodman.co.uk),
Mr Anthony Pearce (Anthony.Pearce@danielwoodman.co.uk) or
Mr Daniel Woodman (Daniel.Woodman@danielwoodman.co.uk).