A Joint Committee on Human Rights has recommended that all 85,000 fixed penalty notices (FPNs) issued for Covid-19 breaches are reviewed. Concerns have been raised that some FPNs were wrongly issued and that the fines were disproportionate and discriminatory.
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Since March 2020, more than 85,000 fixed penalty notices have been issued for breaches of the Covid-19 restrictions in England. Police officers have handed out FPNs for a range of offenses, including failing to wear a mask, large gatherings, and failing to quarantine or self-isolate. The cost of the penalty varies dramatically, from £200 to £10,000.
Police officers are given the discretion to decide whether or not to issue an FPN, where someone is in breach of the law. The Government urged police forces to only use FPNs as a last resort. Instead, they were asked to engage, explain and encourage the public to follow the rules. However, it seems this approach was not applied consistently across the board.
Joint Committee on Human Rights
Now, a Joint Committee on Human Rights has been appointed by the House of Commons and the House of Lords. It has been tasked with looking into the issues surrounding the use of FPNs for the breach of Covid restrictions. Specifically, the Committee focused on the following questions:
- Is the way that 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 produced a report, and their findings are so concerning that it has called for a review into every single FPN issued in England in relation to Covid-19 – all 85,000 of them.
Why is a review needed?
The Committee discovered a range of issues, including:
Wrongly issued FPNs
Where the individual challenged the penalty and faced prosecution in an open court, the Crown Prosecution Service (CPS) identified incorrect charges in around 25% of cases. This figure could actually be higher, because the majority of cases were subject to the single justice procedure, rather than reviewed by the CPS.
The police and the Committee blame the frequent changes in legislation. The Coronavirus Regulations changed at least 65 times from the start of the pandemic. Different parts of the country also had different regulations to follow. Changes were implemented with very little notice, putting significant pressure on forces to understand and communicate the new rules to officers.
The rules were also extremely ambiguous, creating further complexities for police officers. For example, 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?
The law was not breached
There was also confusion over what was guidance and what was a law on the part of the police and the public. The Government produced guidance to follow, which is not the same as the law. In certain situations, the Committee found that the accused breached the Covid-19 guidelines, but did not actually breach the law. Receiving an FPN for such a breach is contrary to Article 7 of the European Convention on Human Rights (ECHR), which provides that: “no one shall be held guilty of any criminal offense on account of any act or omission which did not constitute a criminal offense… at the time when it was committed”.
Discrimination against certain groups
Statistics show that a disproportionate number of younger people, males and those of a black or ethnic origin, have received FPNs. Article 14 of the European Convention on Human Rights (ECHR) provides protection from discrimination.
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 offense, and a person’s financial circumstances would be taken into consideration.
Right to a fair trial not upheld
Article 6 of the ECHR says that everyone has the right to a fair trial – including those who are issued an FPN, which in theory amounts to a criminal charge. However, it is questionable if a recipient of an FPN was made aware of this right, or was too scared of risking a criminal record to make a challenge.
The Committee has made a number of recommendations, although it remains to be seen whether the Government will act on these recommendations.
The Committee has advised that:
- 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 anyone, or at least for any individual with limited financial means.
- A comprehensive review of all FPNs is recommended as soon as is feasible.
- Convictions under the Coronavirus Regulations are removed from criminal records.
If you need advice regarding penalties issued under the Coronavirus Regulations, contact us at Ashmans Solicitors. As this report shows, penalties are often wrongly issued and are grossly disproportionate to the crime that has been committed. You are entitled to challenge the FPN, and our solicitors can help you do this.
To speak to a solicitor, call us on 0333 009 6275 for a free initial inquiry. We are available to take your call 24 hours a day, 7 days a week.