What has happened?

On 27th April 2021, the Parliamentary Joint Committee on Human Rights published its report entitled “The Government’s response to COVID-19: human rights implications”. The Inquiry was set up to investigate the Fixed Penalty Notices handed down during the pandemic. [1]

This article will examine the issue of widespread unlawful discrimination in the use of Covid-19 Fixed Penalty Notices in breach of Articles 7, 8, and 14 of the European Convention on Human Rights and Fundamental Freedoms and some of the damaging findings before then exploring some of the suggested solutions advanced by the Committee. [2][3]

Most interesting of all at Paragraph 95 of The Report echoes the concerns of many during the past year. The Committee calls for a comprehensive review of all FPNs issued due to the concerns about the validity of the FPNs that have been issued, the size of the penalties being imposed, and the criminalisation of those who cannot afford to pay the extortionate fees. [4]

What does this mean?

Firstly, the Report found the enforcement of the Coronavirus Regulations and the way that FPNs have been handed down undermined the human rights of those affected and disproportionately penalised some groups over others.[5]

Secondly, the report was critical of the size of the penalties being imposed, the disproportionate use of FPNs seems likely to violate the principle of non-discrimination. [6]

Thirdly, there is a worrying trend towards a large amount of court cases proceeding having been incorrectly charged and in breach of the human right to ‘no punishment without law’ pursuant to Article 7 and the right to private life, home, and correspondence under Article 8 under the European Convention on Human Rights and Fundamental Freedoms. [7][8][9]

Fourthly, the report drew attention to the plight of the least well-off and therefore most vulnerable in society. In particular, the unjust way the system operates and the disproportionate impact of the FPN process. The size of the penalties imposed was concerning because the system punishes poorer people more severely than their richer counterparts. An example cited by the Committee was the large arbitrary £10,000 fixed penalties being imposed without considering the individual’s mitigating circumstances.[10]

The Committee was less than impressed. “It is woefully inadequate to assert that FPN fines can be contested in the course of a criminal prosecution for those willing to run the risk of having a criminal record”.[11] It added, “This can seriously damage the future prospects of those convicted as it risks casualising criminality without considering whether such measures are disproportionate”.[12]

Even more damning the Committee found it difficult to see neither a causative nor correlative link as to why a breach of the coronavirus Regulations would be relevant to someone’s future employment prospects or ability to travel to certain countries. [13]

Summing up the current state of affairs the Committee said, “It is astonishing that the Coronavirus Act is still being misunderstood and wrongly applied by the police. Every single criminal charge has been brought incorrectly and there is no reason for such mistakes to continue.”[14]

What does this mean for the legal sector?

The Report nostalgically reminded the purist of the traditional approach which was for interference with human rights was only permitted if it was necessary and proportionate. However, this concept appears to be new to the police. [15]

The Committee wants swift action to address this issue focus on the range of characteristics of those affected and the reasons behind the variable rates of enforcement amongst different groups. [16]

On the incorrect use of FPNs the Committee were scathing. To uphold the hard-won rights under Article 7 ECHR and Article 8 ECHR the Committee want more to be done by the Government and police to ensure police officers in these matters understand the Regulations they are enforcing. [17]{18][19]

The Committee called on the Government to explain and justify the reasoning behind why it considers that a £10,000 fine is proportionate for anyone, and for individuals with limited financial means. [20]

The Secretary of State should carefully consider whether a more proportionate and graduated fining system might be a more proportionate approach to FPN amounts and might ease these concerns. [21]

It recommends that consideration be given to removing convictions under the coronavirus Regulations from criminal records and for a full review to be carried out as soon as is feasible. [22]

These recommendations may open the floodgates and could lead to many more unsafe convictions and unlawful discrimination claims. The Report called on the Government to commission research and analysis of the FPNs that have been issued to people. [23]

In terms of reform the Committee recommended for the NPCC to undertake a review to understand why police are issuing so many incorrect FPNs and then take action to prevent such mistakes from being repeated. [24]

However many fear that we have been down this road before with this government and the same warmed-up solutions will come back round the conveyor belt again and again.

Written by Adam Green

Assessing Firms

#Linklaters #Clifford Chance #Slaughter&May #White & Case #Bird&Bird #RPC #McGrath Nicholl #ShooSmiths #Kennedys #Pinsent Masons #Accenture #Latham & Watkins #Goldman Sachs #JP Morgan #King Wood Malleson# @KTS_Law @StatewatchEU

References

[1] UK Parliament – Fourteenth Report: The Government’s response to COVID-19: fixed penalty notices: human rights implications: Human Rights (Joint Committee).

https://www.parliament.uk/business/publications/coronavirus/inquiries-and-reports/

[2] Article 7, 8 and 14 of the European Convention on Human Rights and Fundamental Freedoms.

[3] Siddique, Haroon – “All Covid-19 fines in England should be reviewed, MPs say” – 27 April 2021 - All Covid-19 fines in England should be reviewed, MPs say | Police | The Guardian

[4] UK Parliament – Fourteenth Report: The Government’s response to COVID-19: fixed penalty notices: human rights implications: Human Rights (Joint Committee).

https://www.parliament.uk/business/publications/coronavirus/inquiries-and-reports/

[5] Ibid.

[6] Ibid.

[7] Article 7 of the European Convention on Human Rights and Fundamental Freedoms.

[8] Article 8 of the European Convention on Human Rights and Fundamental Freedoms.

[9] UK Parliament – Fourteenth Report: The Government’s response to COVID-19: fixed penalty notices: human rights implications: Human Rights (Joint Committee).

https://www.parliament.uk/business/publications/coronavirus/inquiries-and-reports/

[10] Ibid.

[11] UK Parliament – Fourteenth Report: The Government’s response to COVID-19: fixed penalty notices: human rights implications: Human Rights (Joint Committee).

https://www.parliament.uk/business/publications/coronavirus/inquiries-and-reports/

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Article 7 of the European Convention on Human Rights and Fundamental Freedoms.

[17] Article 8 of the European Convention on Human Rights and Fundamental Freedoms.

[18] UK Parliament – Fourteenth Report: The Government’s response to COVID-19: fixed penalty notices: human rights implications: Human Rights (Joint Committee).

https://www.parliament.uk/business/publications/coronavirus/inquiries-and-reports/

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Ibid.