Source · Select Committees · Human Rights (Joint Committee)
Fourteenth Report: The Government response to covid-19: fixed penalty notices
Human Rights (Joint Committee)
HC 1364
Published 27 April 2021
Source-linked government response
First Special Report - The Government response to covid-19: fixed penalty notices: Government Response to the Committee’s Fourteenth Report of Session 2019–21 · published 15 Jul 2021
Recommendations & Conclusions
1
Conclusion
Para 36
The number of FPNs issued by the police in England was at its highest during...
Conclusion
The number of FPNs issued by the police in England was at its highest during the January-March 2021 lockdown. We hope that the police are still engaging, explaining and encouraging rather than moving quickly on to issuing fines which can penalise and potentially criminalise a wide range of behaviour.
Ministry of Justice
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2
Conclusion
In order to understand the impact of the enforcement of the coronavirus Regulations on businesses...
Conclusion
In order to understand the impact of the enforcement of the coronavirus Regulations on businesses and the people who own, work at, or visit them, local authorities must publish data on the number of FPNs issued by individuals to whom they have designated powers. The data should be collated by the Ministry of Housing, Communities and Local Government and published regularly. (Paragraph 38) Is there unlawful discrimination in the use of FPNs?
Ministry of Justice
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3
Conclusion
Para 48
The way that FPNs have been used under coronavirus Regulations has disproportionately penalised some groups...
Conclusion
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).
Ministry of Justice
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4
Recommendation
The Government must commission research and analysis of the FPNs that have been issued to...
Recommendation
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. (Paragraph 49) Wrongly issued FPNs
Ministry of Justice
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5
Conclusion
Para 56
CPS data shows that a significant proportion of the cases which go to open court...
Conclusion
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.
Ministry of Justice
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6
Conclusion
Para 57
It is astonishing that the Coronavirus Act is still being misunderstood and wrongly applied by...
Conclusion
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.
Ministry of Justice
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7
Conclusion
Far more must be done by Government and police forces to ensure officers understand the...
Conclusion
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). (Paragraph 62) 34 The Government response to covid-19: fixed penalty notices
Ministry of Justice
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8
Conclusion
As we noted in our April 2020 Chair’s briefing note, and recommended in our September...
Conclusion
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. (Paragraph 67) Inadequate review and appeal process
Ministry of Justice
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9
Conclusion
Para 72
The nature and extent of any police reviews prior to the FPN being sent are...
Conclusion
The nature and extent of any police reviews prior to the FPN being sent are not transparent. There needs to be a clear internal review process in place before the FPN is issued. Without such a consistent internal review process there are significant risks of the law being misapplied and people penalised for what is actually lawful conduct.
Ministry of Justice
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10
Conclusion
Para 81
An informal, unpublicised and seemingly ad hoc process is neither an adequate nor sustainable way...
Conclusion
An informal, unpublicised and seemingly ad hoc process is neither an adequate nor sustainable way of delivering justice. It will necessarily result in unequal outcomes between those who have legal representatives who seek out ways of making such informal approaches to local police forces, and those who do not. Moreover, it appears to rely entirely on legal representatives doing work, often pro bono, to rectify mistakes that the police are not pro-actively rectifying themselves.
Ministry of Justice
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11
Recommendation
Para 83
The current review processes are not clear, consistent, or transparent.
Recommendation
The current review processes are not clear, consistent, or transparent. They are inadequate. The CPS figures show large numbers of incorrectly issued penalties slip through those nets. The Government must now introduce a means of challenging FPNs by way of administrative review or appeal.
Read the full government response
Throughout the pandemic the police have used the 4Es approach: engaging with individuals who are not following the rules, explaining the rules to them and encouraging them to comply before moving on to enforce the law. The police utilise the 4 E’s approach so FPNs are issued after compliance has been encouraged. 2 https://news.npcc.police.uk/releases/independent-analysis-of-coronavirus-fines-published The government believes there are substantial safeguards in place around the issuing of FPNs, the majority of which are set at £200, or £100 upon early payment, with opportunities for individuals to also contest them where appropriate. Where enforcement of the restrictions is required, police forces in England have robust review procedures in place to ensure FPNs are issued in compliance with Public Health Regulations. Each FPN issued is subject to at least two evidential reviews before a person is prosecuted to ensure that it complies with the regulations and that there is sufficient evidence to meet the necessary threshold. When an FPN is to be issued, the vast majority of forces will undertake a discretionary initial force-level review before referring to the ACRO Criminal Records Office (the body that administers the FPN regime) where it is reviewed, ensuring compliance with regulations before the formal FPN is issued. The police have no power to enforce payment of an FPN, and so there are no consequences for the recipient against which they might appeal. It is a matter for the respective force to consider how to deal with any representations received in relation to an FPN. A person can however judicially review the decision to issue an FPN. If the recipient fails to respond to the original FPN letter within 28 days of it being issued, the originating force will conduct a final review. Where the originating force believes it has sufficient evidence to prosecute and that it is in the public interest to do so, it will issue Single Justice Procedure (SJP) proceedings. The recipient can plead guilty or contest where the burden of proof is on the prosecution to prove the breach. A recipient can also choose to ignore the SJP charge, which will result in the case proceeding via the SJP without their input.
Ministry of Justice
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12
Conclusion
We are concerned that the single justice procedure is an inadequate tool to provide the...
Conclusion
We are concerned that the single justice procedure is an inadequate tool to provide the necessary fair trial protections for people accused of offences that are so poorly understood and lacking in clarity and where so many mistakes have been made by enforcement authorities. (Paragraph 87) The size of the penalties
Ministry of Justice
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13
Conclusion
Para 92
A system that punishes poorer people more severely than those with greater economic means is...
Conclusion
A system that punishes poorer people more severely than those with greater economic means is inherently unfair and unjust. The whole FPN process seems to disproportionately impact the least well off.
Ministry of Justice
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14
Conclusion
Para 93
We have significant concerns that large fixed penalties, such as those of £10,000, which are...
Conclusion
We have significant concerns that large fixed penalties, such as those of £10,000, which are awarded irrespective of the individual’s circumstances, risk being inherently unjust. Given all that we know about the flaws in the system of enforcement of the coronavirus Regulations, it is woefully inadequate simply to assert that such FPN fines can be contested in the course of a criminal prosecution for those willing to run the risk of having a criminal record. This can seriously damage the future prospects of those convicted. Such an approach risks casualising criminality for so many, without any adequate appreciation of the significance or proportionality of such measures.
Ministry of Justice
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15
Recommendation
Para 94
The Government may only interfere with human rights to the extent necessary and proportionate.
Recommendation
The Government may only interfere with human rights to the extent necessary and proportionate. The Government should explain and justify why it considers that a £10,000 fine is proportionate (i) for anyone, and (ii) for an individual with limited The Government response to covid-19: fixed penalty notices 35 financial means. The Secretary of State should give careful consideration as to whether a more graduated approach to FPN amounts might be more proportionate. The Secretary of State should furthermore carefully consider whether more can be done to limit the discriminatory approach of the current system that criminalises the poor over the wealthy.
Ministry of Justice
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16
Recommendation
There must be a comprehensive review of all FPNs issued under the coronavirus Regulations as...
Recommendation
There must be a comprehensive review of all FPNs issued under the coronavirus Regulations as soon as is feasible. We have significant concerns about the validity of the FPNs issued, the inadequacies of the review and appeal process, the size of the penalties, and the criminalisation of those who cannot afford to pay. It is also difficult to see why a breach of the coronavirus Regulations would be relevant to someone’s future employment prospects or ability to travel to certain countries. We recommend that consideration be given to removing convictions under the coronavirus Regulations from criminal records. (Paragraph 95) 36 The Government response to covid-19: fixed penalty notices Declaration of interests Lord Brabazon of Tara • No Interests declared Lord Dubs • No relevant interests to declare Lord Henley • No Interests declared Baroness Ludford • No relevant interests to declare Baroness Massey of Darwen • No relevant interests to declare Lord Singh of Wimbledon • No Interests declared The Government response to covid-19: fixed penalty notices 37
Ministry of Justice
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