Criminal offences are generally prosecuted through the courts, but from the 1950s onwards, police officers were given the power to issue on-the-spot fines for minor offences. This began with parking offences (which were subsequently decriminalised), but over time the power has been extended to a range of offences as diverse as shoplifting, littering and driving offences; and to persons other than police officers, such as local authority enforcement officers. Although the details vary depending on the offence, the procedure in each case is broadly the same: if the officer reasonably believes an offence has been committed, they can issue a fixed penalty notice (‘FPN’); if the recipient pays the penalty, which is usually a few hundred pounds at most, the matter ends there; if the recipient does not pay, they can be summoned to court and tried in the usual way.
The major advantages of FPNs are that they allow minor offences to be dealt with proportionately: the state saves on the significant resources required to prosecute and try a case, and the recipient of the notice avoids the stress of court proceedings and the potentially very damaging consequences of a criminal conviction. The major risks of FPNs are firstly that people who are innocent of the offence may be cowed into paying by the fear of prosecution, and secondly that there is at best limited oversight of an officer’s decision to issue an FPN, in contrast to prosecutions, which are usually managed by an independent agency (most often the Crown Prosecution Service, though other public bodies may prosecute in certain circumstances).
Speeding ‘tickets’ are the most conspicuously successful example of FPNs in operation. FPNs work well in this arena because there is usually little room for doubt about the guilty of the recipient and the vast majority of recipients would prefer to pay a fixed penalty than to be convicted in the magistrates’ court and acquire a criminal record.
It is probably safe to say that the most controversial FPNs are those introduced under regulations designed to counter the spread of COVID-19, partly because of the controversial nature of the regulations themselves, but also because the maximum penalties are very high: £6,400 under the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020, £10,000 under the Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020, and £10,000 under the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020.
The criminal justice system has had very little time to get to grips with the new coronavirus legislation and this has inevitably led to mistakes, including wrongful convictions. We applaud the work of lawyers like Kirsty Brimelow QC, who has helped to bring these cases to light and to correct miscarriages of justice. We also welcome the review by the CPS of all coronavirus-related prosecutions, which resulted in the discontinuance of many prosecutions and, in at least one case, the setting aside of a conviction.
However, we believe that calls for an independent appeal process for coronavirus-related FPNs should be treated with some caution. Advocates for such a process have not, so far as we are aware, set out their proposals in detail, but we assume that they envisage a right of appeal to an independent statutory body which would have the power to quash the FPN or substitute a lesser penalty.
The case against a pre-trial right of appeal
It is, of course, a fundamental principle that no one should be subject to a state-imposed penalty without having had the opportunity to defend themselves before an independent and impartial tribunal. That right is recognised under Article 6 of the European Convention on Human Rights, but it has a much longer history in English law, dating back at least as far as the Bill of Rights.
However, this right is already provided for in relation to FPNs because the person issued with the FPN can elect not to pay and to have the case dealt with by the magistrates’ court. What is more, if they are dissatisfied with that decision, there is a further, unfettered right of appeal to the Crown Court, and potentially onwards and upwards from there. In 2015, Jon Platt refused to pay an FPN issued in relation to his daughter’s unauthorised absences from school, and his case ended up in the Supreme Court.
Critics say that this is not satisfactory because a person who chooses to be tried in the magistrates’ court risks the prospect of criminal conviction. While that is certainly true, it is a feature that stems not from a flaw in the design of the FPN system but because Parliament has decided that breaches of the coronavirus regulations are to be treated as criminal conduct. It might be argued that they should not be, and that there should instead be a civil enforcement regime as now exists for parking fines. To that there are two ripostes: firstly, that we have as a society chosen to criminalise all manner of conduct that is arguably less dangerous than breaching the regulations; secondly, criminal proceedings have significantly stronger procedural protections for defendants: the presumption of innocence, a higher burden of proof, the right to legal representation, the right to call witnesses and to cross-examine prosecution witnesses, and the right to free interpretation if the defendant does not speak English. None of these rights applies to, for example, appeals against parking fines.
Those who advocate for a right of appeal against the issuing of coronavirus FPNs before criminal charges are brought are, in effect, asking for the best of both worlds. It might be said that there is nothing intrinsically objectionable about that, but that is to overlook the cost to the public purse of enabling such appeals – training and paying adjudicators, finding suitable premises etc. – particularly when the promising recent news about vaccines means that the coronavirus regulations may well be a dead letter by this time next year. Advocates of a pre-trial appeal process need to justify why that procedure should exist only for coronavirus FPNs and not for any of the other offences for which an FPN may be issued.
Furthermore, it will not always be necessary for a person who receives a coronavirus FPN to contest the matter in court. They may be able to have it withdrawn by making representations to the police; similarly, representations to the prosecuting authority may persuade it not to bring charges or to discontinue an existing case. There are a number of reported cases in which the police have withdrawn FPNs having considered representations made on behalf of the defendant. While it is true that there is no statutory right to make representations and have them considered, the Code for Crown Prosecutors (which should be followed not only by the CPS but also by other public prosecutors such as the police) sets out the prosecutor’s duty to review the evidence and make an independent decision about whether to proceed with criminal charges, and then to keep the case under review as it progresses. As any criminal solicitor can confirm, many an unmeritorious charge has been dropped following representations to the prosecuting authority.
Some alternative suggestions
This is not to say that the FPN regime could not be improved. We would suggest two relatively easy wins. The first would be the issuing of national guidance to police forces about how they should treat representations, with a view to achieving a fair and consistent approach across the country. The second would be the abolition of FPNs for more than £1,000. £10,000 fines may be eye-catching, but all but the wealthiest of defendants would be better advised to go to court, even if they admit the offence; while there is no limit to the fine the court can impose, section 164 of the Criminal Justice Act 2003 obliges the court to take into account the defendant’s means when fixing the fine. In other words, FPNs for very large sums are self-defeating. There is also some tension between the principle that FPNs should only be available for minor offences and the gravity implied by a penalty of thousands of pounds. Finally, high FPNs create a danger of two-tier justice: defendants of ample means can pay their way out of criminal charges while those of modest means cannot.