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Joint Committee on Human Rights: Every Fixed Penalty Notice issued under coronavirus Regulations must be reviewed

27 April 2021

A cross-party committee of MPs and Peers says fixed penalty notices (FPNs) - which can be as much as £10,000 - are muddled, discriminatory and unfair.

Today’s report from the Joint Committee on Human Rights calls for:

  • comprehensive review of all FPNs which have been issued

  • a mechanism to challenge new FPNs

  • a decision that no criminal record should result from covid-19 FPNs

  • an assessment of income for big fines.

In The Government’s Response to covid-19: fixed penalty notices, the Committee sets out significant concerns about the validity of FPNs, the inadequacy of the review and appeal process, the size of the penalties and the criminalisation of those who cannot afford to pay.

More than 85,000 fixed penalty notices have been issued to people said to have broken covid-19 laws on restrictions since March 2020. FPNs allow people to pay a penalty instead of facing prosecution and a potential criminal record. Penalties range from £200 for the failure to wear a face covering to £10,000 for organised gatherings offences.

It is possible to tell from penalties that have not been paid and have then progressed through the system towards a prosecution, that a significant number of FPNs are incorrectly issued. A Crown Prosecution Service review of prosecutions brought under coronavirus Regulations that reached open court in February 2021, found that 27 per cent were incorrectly charged. Many more penalties may have been paid by people too intimidated by the prospect of a criminal trial to risk contesting their FPN through a criminal prosecution.

The high rates of error and the disproportionate impact on different groups in society are concerning and the Committee suggests a more graduated approach and consideration of removing these convictions from criminal records.

With no adequate mechanism to seek a review of an FPN other than through a criminal prosecution, the risk that breaches of human rights will not be remedied is significantly increased. The Committee says the current review processes are not clear, consistent or transparent and calls on Government to introduce a means of challenging FPNs by way of administrative review or appeal.

Regulations related to coronavirus restrictions have changed at least 65 times since March 2020, providing obvious challenges for police. Far more must be done by Government and police to ensure officers understand the Regulations they are asked to enforce, says the report. This is crucial to ensure there is no punishment without law (Article 7, ECHR) and no unjustified interference with an individual’s right to family and private live (Article 8, ECHR). The Committee calls on the National Police Chiefs Council to undertake a review to understand why police are issuing so many incorrect FPNs and to take steps to correct this.

However, in respect of offences relating to potentially infectious persons under the Coronavirus Act 2020, which hasn’t changed since March 2020, the Committee’s report says it is ‘astonishing’ that the Coronavirus Act is still being misunderstood and wrongly applied by police to such an extent that every single criminal charge brought under the Act has been brought incorrectly. The Committee says there is no reason for such mistakes to continue.

Chair's comments

The Chair of the Joint Committee on Human Rights, Harriet Harman MP, said:

“Swift action to make restrictions effective is essential in the face of this terrible virus. But the Government needs to ensure that rules are clear, enforcement is fair and that mistakes in the system can be rectified. None of that is the case in respect of covid-19 Fixed Penalty Notices.

“The police have had a difficult job in policing the pandemic. We hope that their initial approach – to engage, explain and encourage before issuing fixed penalty notices will continue. However, since January there have been greater numbers of FPNs as police move more quickly to enforcement action, and because of a lack of legal clarity, likely greater numbers of incorrectly issued FPNs.

“This means we’ve got an unfair system with clear evidence that young people, those from certain ethnic minority backgrounds, men and the most socially deprived are most at risk. Whether people feel the FPN is deserved or not, those who can afford it are likely to pay a penalty to avoid criminality. Those who can’t afford to pay face a criminal record along with all the resulting consequences for their future development. The whole process disproportionately hits the less well-off and criminalises the poor over the better off.

“And once again, this Committee is calling on the Government to distinguish clearly between advice, guidance and the law. Fixed penalty notices were originally designed to deal with straightforward matters of law – easily understood by all involved. But our inquiry has demonstrated is that coronavirus Regulations are neither straightforward nor easily understood either by those who have to obey them or the police who have to enforce them.

“With fixed penalties of up to £10,000 awarded irrespective of the individual’s financial circumstances, there is much at stake. The Government needs to review the pandemic regulations and create new checks and balances to prevent errors and discrimination.”

Image: Gary Butterfield on Unsplash