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

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4Is there unlawful discrimination in the use of FPNs?

39.The statistics published by the NPCC show that FPNs are disproportionately issued to certain groups in society: young people; people from certain racial or ethnic minority groups; and men.41 Whilst there could be a number of reasons as to why this is the case, such disparities can raise human rights concerns under Article 14 ECHR. 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.

Age

40.Younger people are more likely to be issued FPNs than older people. Of all FPNs issued up to 14 March, 46% went to those aged 18–24, 17% to those aged 25–29 and 12% to those aged 30–34.42

41.Gracie Bradley suggested young people are perhaps less able to articulate why they might have a reasonable excuse to leave the house and therefore more likely to end up with a fine:

“When you consider who is potentially most likely to understand the rules, but also who has the most power to potentially challenge or give a valid reason for being out and about, younger people have less of that kind of power. As far as I am aware, there has not been a huge amount of targeted information to younger people, so we can see that it may have been more difficult for them to explain what they were out and about doing.”43

42.It is possible that young people are receiving proportionally more FPNs because young people’s infringements of the rules are by their nature more likely to be picked up by police. For example, they may be more likely to socialise outside as they have less private space of their own—potentially sharing homes with families, friends or near-strangers in shared accommodation—or living in very small, cramped accommodation. As such, socialising would be more noticeable to police. In contrast, those with their own homes might be more likely to break the rules in a much less visible way. However, more detailed information, research and analysis would be required to understand fully why young people are receiving disproportionately more FPNs.

Gender

43.Men received 72% of FPNs issued under coronavirus Regulations up until 14 March 2021.44 This is consistent with the pattern of the criminal justice system where men are significantly more likely to be engaged at every stage.45 However, given how the restrictions under the coronavirus Regulations affect basic elements of daily life, this gender divide is surprising. It is difficult to know whether this discrepancy reflects a different approach to complying with the restrictions as between men and women, or perhaps a different approach to enforcement by the police, based on gender.

Ethnicity

44.Those who belong to certain ethnic minority groups are over-represented among those who have received FPNs for breaches of the coronavirus Regulations. 22% of FPNs issued in England went to people whose ethnicity was not recorded, but where an individual provided an ethnicity, the NPCC figures show 75% of FPNs issued up to 14 March were issued to white people, 13% went to Asian people, and 8% to Black people.46 This is compared to general population figures of 86% white, 7.5% Asian and 3.3% Black.47

45.The NPCC conducted a review into potential disproportionality in July 2020.48 This found that people from all BAME backgrounds were issued FPNs at a rate of 4.0 per 10,000 of the population, compared to 2.5 per 10,000 for white people. FPNs were issued to Black and Asian people at a rate 1.8 times higher than white people. The review compared this disparity to Stop and Search, where Black people are 9.7 times more likely to be stopped than white people. This comparison is not comforting; in a context where we are criminalising what would otherwise be everyday behaviours, any disparity is deeply problematic. Gracie Bradley told us that, given the pre-existing bias of the criminal justice system, such a disparity was predictable, and steps should have been taken to mitigate it:

“I think it is important to reflect on this disproportionality in its context, because the overpolicing of certain communities is not a new development. Overall rates of stop and search, for example, have decreased since 2014, but race disproportionality in the use of the powers has risen. Despite a dramatic drop in people being outdoors during the first lockdown, use of stop and search in London surged to its highest in over seven years. We have not seen necessarily less police activity, and Liberty’s view is that the Government failed to take steps to assess, address or mitigate the foreseeable impact of race discrimination when the regulations were made and additionally since they have been implemented.”49

Socio-economic status

46.Research conducted in Scotland showed that people living in the 10% most deprived Scottish neighbourhoods were 11.2 times more likely to receive an FPN than those living in the 10% least deprived Scottish neighbourhoods.50 ONS data in England and Wales showed that people in the most deprived areas were twice as likely to die of covid-19 than those in the least deprived areas.51 The disproportionate application of FPNs could be another way in which the pandemic, and the Government response to it, is being experienced unequally by the most deprived. Better data is required to understand the extent of the issue.

Conclusions

47.Some groups in society seem more likely to receive FPNs under coronavirus Regulations than others. But not enough is known about why this is the case. Kirsty Brimelow QC of Doughty Street Chambers explained how it is difficult to draw any conclusions in the absence of thorough analysis of the disproportionate application of FPNs by the NPCC. She told us that analysis was needed, “Then it would be clearer whether what we are seeing is a matter of discrimination, and whether it is direct or indirect discrimination”.52

48.The way that FPNs have been used under coronavirus Regulations has disproportionately penalised some groups over others. Given the human rights engaged by the enforcement of the coronavirus Regulations, the disproportionate use of FPNs seems likely to engage the principle of non-discrimination in the enjoyment of other human rights (Article 14 ECHR).

49.The Government must commission research and analysis of the FPNs that have been issued to people by a range of characteristics including age, gender, race and social deprivation. Such analysis must look into the reasons behind such variable rates of enforcement amongst different groups. If this analysis finds that the approach to enforcement, and to issuing FPNs, is discriminatory, swift action must be taken to address this.