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

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5Wrongly issued FPNs

50.There have been cases of coronavirus Regulations being wrongly applied and FPNs incorrectly issued. As we set out above, the coronavirus Regulations themselves interfere with the right to private and family life (Article 8 ECHR). Where an FPN is issued for conduct that is not prohibited by the Regulations, this becomes an unlawful interference with Article 8 ECHR. Such an unlawful FPN also potentially engages Article 7 ECHR (“no punishment without law”).

How many FPNs have been wrongly issued?

51.Throughout the pandemic, the CPS has reviewed all cases where a person decided to contest or not pay an FPN and was prosecuted in open court. Since 3 June 2020, and more so since 9 February, many cases have not reached (and will not reach) open court and have not been reviewed by the CPS.53 This is because the Attorney General passed statutory instruments enabling offences under different coronavirus Regulations to be prosecuted through the single justice procedure.54The single justice procedure is where a magistrate (and legal advisor) reads the details of the case and delivers a verdict without hearing from the individual charged. If the individual pleads not guilty or does not want to be dealt with by the single justice procedure, then they will still be prosecuted in open court. The proportion of incorrect charges identified by the CPS is high. It was 25% in January 2021,55 and 27% in February 2021.56

52.The majority of FPNs are not challenged in such a way as to lead to review by the CPS. For example, in September 2020 while 122 cases were reviewed by the CPS,57 929 cases under the coronavirus Regulations were dealt with by the single justice procedure.58 None of these 929 cases as we understand it were reviewed by the CPS. Given the likelihood of errors, and the numbers of mistakes found by the CPS in the cases they review, it is concerning that so many completed prosecutions lack this safeguard.

53.As there are fewer safeguards for an FPN that is simply paid, the numbers issued incorrectly could be even higher. Kirsty Brimelow QC told us:

“I do not think that those statistics are usual in a criminal justice context. It is not usual at all to see the law being repeatedly unlawfully applied. It demonstrates that the safeguards are not working within the criminal justice system. It is highly likely, where there are no safeguards in the application of fixed penalty notices, where there is no lawyer overseeing them, that thousands of those fixed penalty notices have been unlawfully issued.”59

54.The FPNs reviewed by the CPS have, according to the NPCC, already passed through a “force level review”. The NPCC website explains:

“if an FPN is contested or not complied with within the 28 day payment period, the case becomes a matter for HM Courts and Tribunals Service following a force level review.”60

55.It is not clear what this “force level review” involves but if, after this process, the CPS is still finding large numbers of incorrectly issued penalties this is clearly problematic.

56.CPS data shows that a significant proportion of the cases which go to open court are incorrectly charged. These cases will have been through more safeguards than those penalties dealt with by payment or through the single justice procedure. The NPCC must undertake a review to understand why police are issuing so many incorrect FPNs and then take appropriate action based on that review to prevent such mistakes from occurring in the future.

57.The CPS also reviews every case brought under the Coronavirus Act 2020 as these are prosecuted in court rather than dealt with through the FPN process. The numbers show that all of the 252 charges for an offence under the Act (relating to infectious and potentially infectious persons) were wrongly charged in the period between March 2020 and February 2021.61 This raises serious questions about the efficacy and utility of the legislation. Individuals have suffered the stress of a prosecution that was wrongly brought, and the costs of legal representation. Each case is an administrative burden and cost for the CPS and the courts in trying to untangle these incorrect charges. 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. While the coronavirus Regulations have changed frequently, the Act has not, and there is no reason for such mistakes to continue.

Box 1: Case study: FPNs issued to two women in Derbyshire, January 2021

In January 2021 the media widely reported the case of two women who had gone for a walk to Foremark Reservoir, a local beauty spot in Derbyshire, and were issued FPNs that were later rescinded. The women had driven about seven miles to the Reservoir, in separate cars. They had coffee with them from home to drink on their walk. They were stopped by the police who issued them each with £200 FPNs. Initially, according to media reports, the police stated that driving a distance to the beauty spot was “not in the spirit” of lockdown and claimed that taking pre-prepared coffees meant the outing constituted a picnic.62 At the time, there was no restriction on how far people in England could travel to take exercise, although guidance was to stay local. Two people meeting outside for exercise was a reasonable excuse under the law to leave home, but socialising was not. Several days later the police issued an apology stating the women had not broken any law and the fines were rescinded. The NPCC also sent guidance to Derbyshire Constabulary after the event clarifying that there was no restriction in English law on how far people could be from their home to exercise and FPNs could not be issued for people travelling to exercise.63

Why are FPNs being incorrectly issued?

Rapidly changing law

58.The unprecedented and changing context of the pandemic has led to frequent changes in the Regulations. This may be understandable, but it puts significant pressure on police forces to understand the new rules and communicate changes to their officers. John Apter noted the lack of time police officers have had to understand the new Regulations before they come into force. He said they often have “very little time, if not no time at all, to digest it.”64 This echoed comments made in May 2020 by Martin Hewitt when he apologised for the proportion of incorrect FPNs issued in March and April of that year, “These were unprecedented circumstances in which officers were presented with new powers within days of them being announced. This has all been done at pace and everyone in the Criminal Justice System has had to deal with a new body of legislation, which has undoubtedly led to some confusion.”65 Officers were cited in the HMICFRS report as feeling “frequent frustration at the lack of notice they were given about some changes in the law and guidance.”66

59.We identified this issue in our September 2020 report on the Human Rights Implications of the Government Response to Covid-19 and concluded:

“it is imperative that Government provide sufficient warning of changes to the law, and coordinate with appropriate bodies, so that police forces and bodies such as the NPCC and CoP [College of Policing] have time to understand and explain those changes.”67

Clarity in law

60.Ambiguities in the law cause problems for the police and public. The coronavirus Regulations have been (in)famously difficult to interpret. When exactly does exercise stop being exercise? How long can someone rest while exercising with a friend before they are no longer exercising? What exactly is a “substantial meal”?68 Such questions may appear frivolous but are not when criminal sanction may result. It is deeply concerning that laws lacking sufficient clarity are being promulgated and even more concerning that people may be receiving criminal sanctions based on unclear laws. To do so runs up against both the rule of law and Article 7 ECHR. All possible steps must be taken to avoid such ambiguities.

61.John Apter, Chair of the Police Federation, told us that “A recent survey that we did showed that 9 out of 10 officers felt that the regulations were not clear. They are the ones who are having to deal with it out on the street.”69 This raises questions about the accuracy of the FPNs and as such it seems likely that people are being penalised and even criminalised outside of the law in breach of Articles 8 and 7 ECHR, as well as any other ECHR rights that may be engaged, such as Article 10 and 11 ECHR.

62.Far more must be done by Government and police forces to ensure officers understand the Regulations they are asked to enforce. This is crucial to ensure that there is no punishment without law (Article 7 ECHR) and no unjustified interference with individual’s right to family and private life (Article 8 ECHR).

Divergence between guidance and the law

63.Government guidance has at times been more restrictive than the legislation. There may be good reasons for some of this, as the Government may wish to encourage people to avoid something where possible, but where it would be disproportionate to establish an outright ban. But having different requirements in law than in guidance, and referring to both interchangeably as “the rules,” has led to misunderstandings. Consequently, the police and public have at times misunderstood what the law requires, often with serious consequences for those involved. The HMICFRS analysis found

“Their (police officers’) difficulty was made worse by a widespread confusion in relation to the status of Government announcements and statements by ministers. Ministers asserting that their guidance—which had no higher status than requests—were in fact “instructions to the British people” inevitably confused people. In some cases, police officers misunderstood the distinction, and appeared to believe that ministerial instructions were equivalent to the criminal law.”70

64.Gracie Bradley told us “there has been widespread confusion on the part of more or less everybody about what is law and what is guidance”.71 Kirsty Brimelow QC even suggested this confusion extended to the level of judges, initially in response to a question about the right to protest, but clarifying that it went further, “People are just confused. That goes all the way to those who are sitting in positions as district judges and similarly with the fixed penalty notices.”72

Government communications

65.It is not uncommon for guidance to go into more detail or to give examples of how the law might apply to a given case. Sometimes guidance can also contain advice as to what conduct might be best practice, going beyond what is legally required. However, it needs to be clear whether it is advisory or reflective of the law, otherwise there will be a lack of clarity as to the law and consequent real risks for the rule of law. The principal confusion has been caused by Government messaging not drawing any distinction between what is law and what is advice or guidance.

66.Indeed, Ministers have on occasion specifically endorsed police actions that have gone beyond the law. In the case in Derbyshire set out in Box 1 above the Secretary of State for Health and Social care said that he “absolutely backs” the police who issued the FPNs, despite the police force later rescinding the FPNs because the women involved had not broken any law.73 The Home Secretary has also publicly described large gatherings as “illegal” and “unlawful”, when the law did not impose a blanket ban.74 The HMICFRS report criticised Government communications for seeming to create criminal offences; it reiterated: “Ministers may create criminal offences only if authorised by Parliament to do so; they may not do so by the simple expedient of demanding action from a podium or behind a lectern.”75 Ministers should be clear that it is unlawful for the police to issue sanctions for behaviour that does not breach the law—to do so runs counter to the principle of legality, the rule of law and the protection of human rights. We made the same point regarding to the right to protest as protected by Articles 10 and 11 of the ECHR in our March 2021 report.76

67.As we noted in our April 2020 Chair’s briefing note, and recommended in our September 2020 report, more care must be taken by the Government to distinguish between advice, guidance and the law. The public cannot be expected to know the law if the guidance does not reflect the law, and politicians’ statements match neither. It is disappointing that the problem has persisted.