Sunday, 6 September 2020

Piers Corbyn ~ a £10,000 fixed penalty notice

On 29 August a protest (or "anti-lockdown rally") took place in Trafalgar Square, London - The Guardian 30 August.  As the rally was dispersing, Mr Piers Corbyn (73) was arrested and it is reported that he was held by the Police for some 10 hours before being given a £10,000 fixed penalty notice issued under the heavily amended Health Protection (Coronavirus, Restrictions) (No 2) (England) Regulations 2020 - (SI 2020/684). The rally's purpose was to call for repeal of the legal restrictions imposed by the government to manage the coronavirus pandemic. Piers Corbyn
is the older brother of Jeremy Corbyn MP.

Mr Piers Corbyn appeared on Good Morning Britain and was interviewed by presenter Piers Morgan. Corbyn said that he didn't know whether anyone had invented coronavirus or not but also said that "the numbers of people getting whatever they're getting is declining rapidly and there is no justification whatsoever for continuing lockdown" - see Daily Mail 1 September 2020. [In fact, at the time of writing this post, the infection rate appears to be on the rise].

Given that coronavirus (severe acute respiratory syndrome virus 2 - or SARS-CoV-2) has been scientifically identified and its structure studied, it is risible to argue, as Mr Corbyn appears to do, that it does not exist and work to find an effective vaccine (or vaccines) continues. According to government figures, up to 5 September the virus has claimed 41549 lives in the UK alone and the number of positive tests is currently on the increase (1813 on 5 September). However, to be clear, whilst it may be risible to have a view that coronavirus is some form of conspiracy theory being imposed on the world's population it is a view that Mr Corbyn is entitled to hold  and it is to be emphasised that the fixed penalty notice was issued for his alleged role in organising the rally and not for his views about the virus.

The Regulations:

The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (SI 2020/684) were made by the Secretary of State (Mr Hancock MP) and have been fully in force from 4 July but they have been amended on a number of occasions.  Links to the amending legislation (up to 6 September) are:

S.I. 2020/719, 2020/750, 2020/788, 2020/800, 2020/822, 2020/824, 2020/828, 2020/863 and 2020/865

and

The Health Protection (Coronavirus) (Restrictions on Holding of Gatherings and Amendment) (England) Regulations 2020 - SI 2020/907.

All the amendments use a "cut and paste" technique and extensive work is required to produce a fully up-to-date version. The UK legislation database is publicly available and purports to offer the latest (amended) version of legislation but updating is all too often late. Given the importance and restrictive nature of this particular legislation, an amended version ought to be made publicly available as soon as any amendment is made.

The penalty issued to Mr Corbyn arose because of the amendments made by SI 2020/907 which came into force on 28 August 2020 - the day before the Trafalgar Square rally.

Under the latest amendment - SI 2020/907 - the term "the principal Regulations" refers to The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (SI 2020/684).  

SI 2020/907 inserted Regulations 5A and 5B into the principal Regulation. 

5A is aimed at Restrictions on organisation or facilitation of certain large indoor gatherings. 

5B is aimed at restrictions on organisation or facilitation  of other gatherings. 

SI 2020/907 went further and amended Regulation 9 of the principal Regulations so that the fixed penalty notice for breach of Regulation 5A or 5B must be £10,000.

The reader who has not already lost the will to live can see that by this convoluted process it was possible for an "authorised person" (e.g. a constable; a police community support officer; or other designated official) to hand Mr Corbyn a £10,000 ticket on the basis of legislation amended only the day before his alleged offence. [NB: It is crucial to use the word "alleged" here because receipt of a fixed penalty notice does not constitute conviction for an offence].  

I have no idea how wealthy Mr Corbyn is but a sum of £10,000 is a large penalty and these penalties are issued without any reference to means and ability to pay. When a court imposes a fine, those matters have to be taken into account. Further, the £10,000 fixed penalty has to be paid in full within 28 days.

Mr Corbyn has the option of not paying the notice and a prosecution would then almost certainly (but not necessarily) follow. The Crown Prosecution Service (or any person designated by the Secretary of State) may institute such prosecutions.

The unsatisfactory nature of all of this is made worse by the government continuing to make Regulations using the "emergency power" in the Public Health (Control of Disease) Act 1984 (as amended). The power may be used where the Secretary of State considers that, by reason of urgency, it is necessary to make the legislation without a draft having been laid before, and approved by, a resolution of each House of Parliament. Although the legislation can be negatived later by Parliament it is rare that this happens.

In 2020, under the spur of coronavirus, a lot of legislation has been produced using this method even at times when Parliament has been sitting and has been able in principle to scrutinise and approve the legislation.  Parliament ought to rein the process in otherwise its use is likely to expand.

The £10,000 penalty brought to mind one of our older pieces of legislation - The Bill of Rights 1688 -where it is stated - "That excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted."

Whether a fixed penalty notice of £10,000 can properly be regarded as either a "fine" or "excessive" is a moot point but a power for an "authorised person" to hand out a £10,000 "ticket" seems excessive to me and may, at least in spirit, breach the Bill of Rights which is a foundation stone of our constitutional arrangements.

The use of fixed penalty notices needs to be confined to relatively minor matters. A £10,000 fixed penalty marks a major and worrying escalaton of powers to issue such tickets.

Other posts etc:

Coronavirus restrictions: the thicket of legislation

Tom Hickman - University College, London - The use and misuse of guidance during the UK's coronaviris pandemic

Barrister blogger - Piers Corbyn may be a crank but his treatment should worry us all

Podcast - Adam Wagner and David Allen Green - Covid-19 lockdown and the law - Part 5 

No comments:

Post a comment