The emergency coronavirus laws (the Health Protection (Coronavirus Restrictions) Regulations 2020 of England (SI No 350) and Wales (SI No 353 (W 80)) (the regulations), and the Coronavirus Act 2020) represent the most significant interference with the liberty of UK citizens since the second world war. They have given the police powers to control fundamental features of our day-to-day lives, including whether and when we leave our homes, whom we spend time with both in public and in our own homes, and where we sleep. In that context, it would have been reasonable to expect, as a minimum, that these laws would have been set out with clarity and exercised with consistency and restraint. Unfortunately, the reality has fallen a long way short of those basic requirements.
Throughout April, journalists and NGOs exposed repeated examples of cases in which people had been prosecuted and convicted for offences that either did not exist
, did not apply to the country they were in
, or simply could not apply to them
. Those unlawfully prosecuted frequently appeared to be young or vulnerable. These repeated failures to understand and apply the laws correctly by police, prosecutors and the courts eventually led the Crown Prosecution Service (CPS) to announce on 2 May 2020 that it was reviewing every charge brought under coronavirus laws
. This represents the first time the CPS has ever reviewed every charge under a particular legislative instrument and demonstrates the level of concern arising from the repeated misuse and misapplication of draconian emergency powers.
The results have indicated systemic failures in policing during lockdown. The latest review, the results of which were published on 15 June
, found that, in May, 100 per cent of prosecutions under the Coronavirus Act 2020 were unlawful, and nearly 10 per cent of cases under the regulations were unlawful (rising from over six per cent up to the end of April
). This equates to 73 people having been wrongly charged. Over a quarter of those went on to be convicted of a criminal offence they had not committed.
However, the coronavirus legislation not only provides a power to bring criminal charges, it also gives the police powers to issue fixed penalty notices (FPNs) to anyone whom they ‘reasonably believe’ has breached the regulations. This power has been deployed readily, with 17,997 issued by police in England and Wales prior to 8 June
. There is a high probability that very large numbers of those fines will have been unlawful. Taking a conservative estimate of 10 per cent (based on the proportion of wrongful prosecutions under the regulations in May), this would mean 1,800 unlawful FPNs. In reality, the number is likely to be much higher given that FPNs may be issued on the spot, with far less scrutiny than charges and without additional checks by the CPS or magistrates.
Receiving an FPN is not a trivial matter. The values of the fines are high (reg 10(6)–(7) of the English regulations (as amended) provides that it is £100 for a first notice increasing to as much as £3,200 thereafter) and come at a time when many are already financially stretched. There is no procedure by which to appeal the FPN itself. Those who do not pay within 28 days lose their chance to avoid criminalisation, become liable to prosecution and must take their chances in the magistrates’ court. In light of this, many people have paid the fines, even where they may be unlawful or unfair, either for fear of going to court or because they feel they do not have the resources (or knowledge) to obtain legal representation.
The absence of scrutiny of decisions to issue FPNs, or any procedure to challenge fines without risking litigation and criminalisation renders police powers ripe for abuse. Combined with poorly drafted and barely scrutinised legislation, and government guidance about ‘rules’ that bears little resemblance to the law, there is a perfect storm in which the rights of innocent people may be casually disregarded. Lawyers have seen repeated instances of police failing to understand the difference between unenforceable guidance and the law, with fines issued to people outside perfectly lawfully as key workers
, for health reasons
, or to care for children.
New evidence also suggests that these powers have disproportionately punished black, Asian and minority ethnic (BAME) communities who may be 54 per cent more likely to be fined than white people
. Figures released by the Metropolitan Police
show that in London, 26 per cent of fines handed out prior to 15 May were issued to black people, despite the fact that they make up only 12 per cent of the population. Reflecting these trends, the anecdotal experience of lawyers in this field also indicates that cases of unlawfully issued FPNs overwhelmingly involve BAME people.
Even where police may have been justified in finding a breach of the regulations, they have discretion as to whether or not to issue FPNs and have often exercised this discretion in a way that is inconsistent, unfair and further undermines the legitimacy of the powers themselves. National Police Chiefs’ Council (NPCC)/College of Policing guidance
makes clear that fines should only be used as a last resort, where 'explanation’ and ‘encouragement’ have failed. This is a sensible approach given the draconian nature of these emergency laws. Despite this guidance, lawyers are seeing increasing numbers of cases in which ‘explanation and ‘encouragement’ have not been pursued, and fines issued almost immediately. This failure is all the more damaging when contrasted with the more restrained approach adopted for those such as Dominic Cummings.
An obvious remedy
The unprecedented CPS review of all coronavirus prosecutions provides a blueprint for safeguarding the rights of innocent people in the face of this storm. The health and social care secretary has recognised the ‘perfectly reasonable’ case
to undertake a similar exercise for FPNs. A review would provide an opportunity to restore confidence in policing and the rule of law at a time when both are more important than ever.
It is unclear therefore why the police have continued to resist calls for a review from lawyers
, MPs and peers
, and even the Joint Committee on Human Rights
. Even where lawyers have sought to challenge the unlawful issuing of FPNs in individual cases, the response has been inconsistent, with some forces withdrawing individual fines, some forces unsure what to do where fines have already been paid and some failing to engage with individual cases altogether.
A statement from the NPCC
, issued on 3 June in response to the death of George Floyd in the US, said: '[W]e are not afraid to shine a light on injustices or to be held to account.’ Its response to evidence of the unlawful and discriminatory use of emergency laws provides a litmus test. If this statement has any substance, it must surely require scrutiny of the use of draconian emergency powers where there is clear evidence that it has been unlawful and discriminatory.
While it is vital that the government amend the regulations to include an appeal procedure to protect future recipients, review is the only means to secure justice for those already caught in the storm. The case for review of FPNs is now overwhelming. The time has come for the police to turn on the light.