Police conduct at the recent vigil for Sarah Everard, as well as over the weekend in Bristol, has thrown a harsh light on the way that police have enforced the lockdown rules. While news coverage has rightly focused on the contradiction of the police using violence to keep people safe, less attention has been paid to other enforcement mechanisms, in particular fixed penalty notices (FPNs).
Where a police officer believes someone has broken the lockdown rules, they can take two main actions: either they can pass the case to the Crown Prosecution Service (CPS) and ask them to prosecute, or they can issue an FPN. Introduced in the 1950s for dealing with minor parking offences, the remit of FPNs was expanded significantly in the 1980s to include a wide array of offences, from fly-tipping to anti-social behaviour – and more recently, coronavirus lockdown breaches. In the eyes of the police, the benefit of an FPN is that if the defendant agrees to pay, the police are saved the bureaucracy of bringing a case to court. This makes FPNs particularly tempting now, when the courts are so backlogged that even the most serious cases are often taking years to come to trial.
In other words, FPNs allow the police to operate as both judges and as jury, with no appeal courts able to intervene in cases of real injustice.
All this makes FPNs a blunt instrument at the best of times, but especially now, when the rules they are enforcing are themselves so vague.
The lockdown rules are not primary legislation, or statutes, but secondary legislation, or regulations. This means they didn’t pass through parliament as a bill over many weeks, with multiple opportunities for the opposition to challenge or amend them, but instead were rushed through by government ministers with virtually no parliamentary oversight.
More than 60 such regulations have been introduced since the start of the first lockdown. That alone makes it very difficult for anyone to know what is lawful and what isn’t; in Manchester, police officers were seen flicking through their mobile phones trying to make sense of badly-written laws. Meanwhile, Dominic Cummings’s and Boris Johnson’s flagrant breaches of the lockdown rules, and ministers’ rush to defend them, has created further confusion. A UCL study published in October found that only 13% of Britons felt they “fully understood” the lockdown rules. Unsurprisingly, the police have rarely given the public the benefit of the doubt.
In the first nine months of the lockdown, police in England and Wales issued 32,000 Fixed Penalty Notices. It is clear that many – such as the photographer fined £200 for working at a protest, or the £10,000 a nurse in Manchester was fined for organising a socially-distanced protest – were wrongly issued either because there was no underlying breach of the rules, or because the fines were in excess of those permitted under the regulations (the rules on fines are themselves byzantine). Indeed, it is clear that the police either misunderstand or misuse the coronavirus regulations from the cases they refer to prosecution: a May 2020 CPS survey found that every one of 232 charges made under the Coronavirus Act had been wrongly brought. Yet perhaps the clearest sign that FPNs specifically have been misapplied is the racial breakdown of those who’ve received them: young black and Asian men are roughly twice as likely to receive FPNs as their white counterparts.
However, knowledge of this injustice will not help you if you find yourself on the receiving end of an FPN. What should you do in that case?
A fixed penalty notice is not a criminal record. If you pay, it goes away. If you don’t, you still need to be found guilty by a court.
The coronavirus regulations are labyrinthine, but both Netpol and Liberty have published helpful guides to how they work. Check if you’ve breached the law and if you have, and the fine is appropriate, pay it.
Don’t assume you can resist
The bad news is that there is no appeal mechanism for FPNs, despite everyone, from Liberty to the House of Commons and House of Lords Joint Committee on Human Rights, agreeing that there should be one. Even if the notice was wrongly, ie illegally, issued, you cannot complain. Your only choice is to refuse to pay, and risk prosecution.
Think hard before paying
The good news is that there is no enforcement mechanism, either – or at least, no direct one.
The regulations define a fixed penalty notice as an “opportunity of discharging any liability to conviction for the offence by payment of a fixed penalty”. What that means is that if you fail to pay, the police cannot call in the bailiffs.
Any person subject to an FPN is therefore perfectly entitled to say that they have had their “opportunity” and they have declined to make use of it. The police then pass the case to the CPS who decide whether to prosecute.
Depending on the facts of the case, an individual defendant may feel that the chance of the CPS prosecuting are close to zero; the courts are not going to want the media to be full of reports of nurses fined for protesting wage cuts. Alternatively, you might feel when your read the regulations that the amount in the FPN was disproportionate.
Get a lawyer
If you do decide to refuse to pay and risk prosecution, look for a committed lawyer; Netpol publishes a list of recommended firms. Think about raising the money for your defence through a crowdfunding campaign; there are thousands of people out there shocked by the growth of police power. A number of groups have already successfully crowdfunded to pay off the FPNs of Black Lives Matters and Sisters Uncut organisers and protesters.
The possibility of fighting a charge is especially important for people issued FPNs during protests. One of the issues that remains untested in the courts – and could be, in any prosecution under the lockdown rules – is whether the coronavirus regulations have been lawful in that they have, since December, effectively made all protests illegal irrespective of their location, the precautions taken or the reasons for them. Under the European Convention of Human Rights to which the UK remains a signatory, the state has the power to limit but not extinguish protest rights. A court case taken by a protester has the potential to set a powerful precedent.
However, court action should not be undertaken lightly. Doing so means risking a criminal record – something some people are more able to do than others.
The government knows that FPNs are unpopular. In just the past few days, they have dropped their plans to force the Police, Crime, Sentencing and Courts Bill through parliament by Easter. They have also announced that protests will be permitted again from the end of March (although subject to conditions, including that the police will retain the power to decide which protests are legal). The government knows that most people dislike its authoritarian lurch. The more that FPNs’ power to criminalise protest is challenged, the sooner the system will be dropped.
David Renton is a barrister. His book Jobs and Homes: Stories of the Law in the Lockdown is published by Legal Action Group in April.