The Government response to covid-19: fixed penalty notices Contents

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2The legal framework

Coronavirus restrictions and fixed penalty notices

11.Since March 2020, laws have been in place to respond to and control the covid-19 outbreak. Restrictions have been placed on meeting with others both inside and outside; on leaving one’s home; on the activities of business; and on the movement of people both within and into the United Kingdom. The laws have continually changed as the pandemic and the experience of what works to control it have evolved. In England, the laws and restrictions imposed under the various coronavirus Regulations have changed more than 65 times since March 2020.16

12.When people breach the coronavirus Regulations, part of the enforcement powers for police are to issue Fixed Penalty Notices (FPNs). The chart below summarises the coronavirus offences for which FPNs can be issued in England, and the size of the penalties. Similar laws are in place in Scotland, Wales and Northern Ireland, but these are not considered in detail in this report.

FPN levels for coronavirus offences applicable to individuals in England
		First Offence	Subsequent Offences		Maximum
Lockdown*	Restrictions on leaving the home, and restrictions on small gatherings	£200 (reduced to £100 if paid within 14 days)		Doubles with each subsequent offence		£6,400 (for the sixth and subsequent offences)
	Large gatherings of more than fifteen people	£800 (reduced to £400 if paid within 14 days)		Doubles with each subsequent offence		£6,400 (for the fifth and subsequent offences)
	Illegal raves and large gatherings of more than thirty people	£10,000		£10,000		£10,000
	Attempting to leave the United Kingdom without a “reasonable excuse”	£5,000		£5,000		£5,000
	Failure to present a “travel declaration form”	£200		£200		£200
Face coverings**	Failure to wear a face covering as required	£200 (reduced to £100 if paid within 14 days)		Doubles with each subsequent offence		£6,400 (for the sixth and subsequent offences)
	Failure to quarantine at self-designated place as required	£1,000		Doubles with each subsequent offence		£10,000 (for fourth and subsequent offences)
International quarantine***	Failure to quarantine in a hotel as required	£5,000		£8,000		£10,000 (for third and subsequent offences)
	Failure to provide a “passenger locator form”/ coronavirus test result on arrival	£500		Doubles with each subsequent offence		£4,000 (for forth and subsequent offences)
	Failure to possess a coronavirus testing package on arrival	£1,000		£1,000		£1,000
	Failure to obtain a coronavirus testing package	£2,000		£2,000		£2,000
	Failure to take coronavirus tests in accordance with the testing package	£1,000		£2,000 (for second test)		£2,000
	Obstructing the enforcement of international quarantine requirements	£1,000		£1,000		£1,000
	Providing false or misleading information about ones travel through “red list“ countries/ entering the country via an undesignated port.	£10,000		£10,000		£10,000
	Failure to self-isolate	£1,000		Doubles at the second and third offence		£10,000 (for the fourth and subsequent offences)
Self-isolation****	Failure to self-isolate and come into close contact with someone/ were likely to meet someone/ was negligent to the possibility of meeting someone	£4,000		£10,000 for second offence		£10,000
	Failure of worker to notify employer of need to self-isolate	£50		£50		£50
	Employers allowing worker to leave place of self-isolation	£1,000		£1,000		£1,000

* The Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 (SI 2020/364) Regulations 12–17
**The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 (SI 2020/791), Regulation 7; The Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020 (SI 2020/592), Regulation 7
*** The Health Protection (Coronavirus, International Travel) (England) Regulations 2020 (SI 2020/568), Regulation 7
****The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020, (SI 2020/1045), Regulation 7

Source: Coronavirus: Enforcing restrictions, Briefing Paper 9024, House of Commons Library, March 2021

13.Fixed penalty notices (FPNs) have been an enforcement tool in the UK since they were introduced to deal with minor parking offences in the 1950s. In lieu of prosecution, they punish minor infractions such as littering, graffiti or driving without a seatbelt with a financial penalty. They have previously primarily been used for offences that are easy to prove and where there are no complex or subjective elements to the offence. If paid within a fixed period, most FPNs do not result in or go on a criminal record. Fast payment is often incentivised, for example, an FPN for littering has a default value of £100, but the issuing authority can accept £50 if the penalty is paid within a maximum of 14 days.17 FPNs are ordinarily capped at a relatively low level. Serious offences, that can result in prosecution and prison, such as drink driving, are dealt with through the courts, rather than through FPNs.

14.Unlike more regular uses of FPNs, offences for which FPNs may be issued under the coronavirus Regulations deal with complex offences where there may be a need for a considered appreciation of, for example, whether a person had a “reasonable excuse” for being outside their home. They also differ because the level of the fine is more punitive: penalties for offences on the road are worth hundreds of pounds, but some breaches of the coronavirus Regulations can result in a £10,000 fine.18 The police (or other enforcement officers) have no discretion as to the amount of the penalty notice.

ECHR Articles engaged by FPNs issued under coronavirus Regulations

15.The right to life (Article 2 ECHR) has been, and must remain, central to the Government’s response to covid-19. The Government has a positive duty to take appropriate steps to safeguard the lives of those within its jurisdiction (Article 2 ECHR). The Government has had to protect lives whilst also only interfering with other human rights to the extent that it is necessary and proportionate in the circumstances.

16.The restrictions contained in the coronavirus Regulations and the use of FPNs to enforce those restrictions, engage consideration of other human rights—in particular the right to private and family life (Article 8 ECHR), no punishment without law (Article 7 ECHR), the right to a fair trial (Article 6 ECHR) and the principle of non-discrimination in the enjoyment of other Convention rights (Article 14 ECHR). They also engage the right to freedom of expression and the right to assembly (Articles 10 and 11 ECHR) which we considered in detail in our March 2021 report: The Government response to covid-19: freedom of assembly and the right to protest.19

17.Other human rights are engaged by restrictions put in place in response to the threat posed by covid-19. For example, the right to liberty and security under Article 5 ECHR prohibits the arbitrary or unjustified deprivation of liberty. The prohibition on leaving the home during lockdown, with its exceptions for exercise, essential shopping and work etc, is not strict enough to amount to a deprivation of liberty for the purposes of Article 5 ECHR, as interpreted by the European Court of Human Rights (ECtHR). However, it is possible that Article 5 ECHR could be engaged by the travel restrictions under the Health Protection (Coronavirus, International travel) (England) Regulations 2020, and especially in light of the conditions attaching to those required to undergo hotel quarantine under those Regulations.20 The travel restrictions mean that everyone who arrives from outside the common travel area21 must undergo mandatory 14-day self-isolation, either at home, staying with a friend, or in a hotel. These requirements may be proportionate to prevent the spread of disease and protect the right to life, but appropriate safeguards against arbitrariness are required. As the ECtHR has held in Enhorn v Sweden:

“[…] the essential criteria when assessing the “lawfulness” of the detention of a person “for the prevention of the spreading of infectious diseases” are whether the spreading of the infectious disease is dangerous to public health or safety, and whether detention of the person infected is the last resort in order to prevent the spreading of the disease, because less severe measures have been considered and found to be insufficient to safeguard the public interest. When these criteria are no longer fulfilled, the basis for the deprivation of liberty ceases to exist.22

The right to private and family life (Article 8 ECHR)

18.The restrictions contained in the various coronavirus Regulations have made previously normal and private activities illegal—including interaction with family and friends. These restrictions engage the right to private and family life (Article 8 ECHR).23 As Article 8 ECHR is a qualified right, it can be interfered with where necessary and proportionate, and for a legitimate reason—for example if an interference is necessary in the interest of protecting the health and the rights of others and does not exceed what is necessary for that purpose. Therefore, lawful and proportionate restrictions on our ability to interact with family and friends imposed in order to prevent the spread of covid-19 will not violate Article 8 ECHR.

19.However, in order to be compatible with Article 8 ECHR, such restrictions must contain sufficient exceptions such that they do not have a disproportionate impact on certain groups’ and individuals’ quality of life. In the current pandemic this has arisen in many different scenarios, such as people who live alone being allowed to form a bubble so that they are not entirely isolated; some people in a loving relationship being allowed to see each-other if they fall within the ‘linked household’ exception; people being allowed to maintain their health, fitness and emotional well-being through outdoor recreation and safe visits being facilitated to those in hospitals, care homes and prisons.

20.Article 8 ECHR rights may be violated by excessive or unnecessary interferences with private life in the application of the restrictions by authorities such as the police or by any interference that is not ’in accordance with the law’. Therefore were the police to seek to restrict a person’s family or private life by enforcing ‘rules’ that were not reflected in the law in force, then this would be an unjustified interference with that person’s right to private or family life. This could arise, for example, where the police seek to enforce requirements not reflected in the law, but merely in guidance or a press statement. There have been a number of examples of such conduct, such as when Northamptonshire’s Chief Constable threatened to search people’s shopping trolleys to ensure they were only buying “essential” items and to mount roadblocks to stop non-essential travel—neither of which were prohibited by law.24

21.The fact that there is no adequate mechanism to seek a review of a FPN other than through a criminal prosecution makes this all the more troubling. It significantly increases the risk that breaches of human rights will not be remedied.

No punishment without law (Article 7 ECHR)

22.The enforcement of the coronavirus Regulations has the potential to raise rule of law concerns due to confusion and ambiguity as to what has been prohibited by law, as opposed to what is contained in “guidance”. Where the authorities, such as the police, have sought to penalise people for behaviour that is not prohibited by law, then this risks breaching Article 7 ECHR (“no punishment without law”).

23.Article 7 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”. This embodies the principles that “only the law can define a crime and prescribe a penalty and that the criminal law must not be extensively construed to an accused person’s disadvantage”.25 Where FPNs are issued by the police for behaviour that is considered to be in breach of guidance or in breach of ‘the spirit’ of lockdown, but is not actually prohibited by law, then Article 7 ECHR may be engaged.

24.The concept of law and the principle of legality require that the law is sufficiently accessible and foreseeable and that any offences are clearly defined. Failings in these respects, resulting in insufficient “quality of law” can constitute a breach of Article 7 ECHR.26 To the extent that it has at times been difficult to ascertain what conduct is prohibited by the restrictions contained in the coronavirus Regulations and to the extent that there has been public confusion as to what is prohibited, there could be concerns as to whether these laws have been sufficiently accessible, foreseeable and clearly defined, as is required by Article 7 ECHR. Therefore, efforts to impose penalties or otherwise enforce lockdown ‘rules’ where those ‘rules’ were not sufficiently accessible, foreseeable or clearly defined could constitute a breach of Article 7 ECHR.

The right to a fair trial (Article 6 ECHR)

25.The right to a fair trial is guaranteed to anyone subjected to a criminal charge (or in its civil form, to anyone whose civil rights or obligations are determined). Issuing an FPN amounts to a criminal charge, and the general position is that Article 6 ECHR rights are guaranteed by the ability to opt for a criminal trial where those rights, such as the presumption of innocence and the right to legal representation and to equality of arms, will be respected.27 However, whether Article 6 ECHR is properly protected when an FPN recipient is unaware of their right to not pay the FPN and risk prosecution, or too intimidated by the risk of a criminal record to challenge the FPN at trial, is questionable.

26.FPNs as an approach have always blurred, somewhat, the distinction between administrative law and criminal law. They have traditionally been used in relation to simpler, often strict liability, offences, such as speeding, where it was more clear-cut as to what constituted the offending behaviour and the severity of it. It is doubtful whether FPNs are really suited for use with offences such as those relating to the restrictions under the coronavirus Regulations. Under the coronavirus Regulations, there is some ambiguity or subjectivity as to exactly what would constitute an offence, for example, whether certain conduct is, or is not, a “reasonable excuse” for being outside, or for participating in a gathering. The enforcement of such laws is better suited to the protections offered by involvement of the CPS and the courts.

27.Moreover, it is also questionable whether the FPN process is appropriate at all when the potential penalty is as high as £10,000. The police have no discretion to issue an FPN of a lower value than £10,000 for certain offences under the coronavirus Regulations,28 even where there may be mitigating factors that would make such a fine wholly unreasonable and disproportionate. These large fines are for non-imprisonable offences. If a person went to court, their fine would likely be much smaller because courts assess fines by taking into account the seriousness of the offence and also the financial circumstances of the offender.29 This raises significant concerns about the proportionality of these high value FPNs, as applied in individual cases, and therefore their legality.

The principle of non-discrimination in the enjoyment of other human rights (Article 14 ECHR)

28.Article 14 ECHR provides for protection from discrimination in the application of other ECHR rights. Were the rights guaranteed by the ECHR (as above) being respected unequally on the basis of factors such as, sex, race, age or other status without justification, then Article 14 ECHR would be breached. For example, if Black males, or young people were being given disproportionately more FPNs for breaching coronavirus Regulations by gathering with family and friends, this could amount to a breach of Article 14 ECHR taken together with Article 8 ECHR.

29.Given that the statistics, which we cover in detail below, show that a disproportionate number of younger people have been receiving FPNs, as well as males and those of Black or Asian ethnic origin, then this could lead to concerns that the rules and their enforcement are having a disproportionate and discriminatory impact, for example, on their Article 8 ECHR rights.