Coronavirus: Public must risk prosecution to challenge lockdown fines, justice secretary says

Robert Buckland says people have a right to ‘fair trial’ if they believe they were wrongly fined

People must risk criminal prosecution in order to challenge fines for alleged lockdown breaches, the justice secretary has said.

Police have so far issued more than 3,200 fines under new coronavirus laws that make leaving home without “reasonable excuse” an offence.

A lawyer told The Independent of concerns that penalties had been handed out incorrectly amid confusion over differences between the law and government guidance.

But the justice secretary told a parliamentary committee that the only way to challenge the new fines is by refusing to pay and risking prosecution.

Speaking at a remote hearing of the Joint Committee on Human Rights on Monday, Robert Buckland said: “If the individual doesn’t accept that notice the matter will then, on the discretion of a prosecutor, proceed to court. Then we have the due process.”

Mr Buckland argued that people would then be able to “challenge the allegation and have a fair trial” in line with human rights and common law.

When asked why an alternative route of appeal had not been created, he insisted that the government had “struck the right balance”.

Fines under the Health Protection Regulations are set at a default of £60 — reduced to £30 if paid promptly — but can be increased to a maximum of £960 for repeat offences.

If a fine is paid, no criminal offence is recorded because the law states that the person has “discharged any liability to conviction for the offence”.

But if the fine is not paid within 28 days, the Crown Prosecution Service (CPS) can charge them with committing the alleged crime, making them attend a magistrates’ court and face receiving both a higher fine and a criminal record if convicted.

There are fears that the coronavirus pandemic will make people even more unwilling to attend court to defend themselves because of caring responsibilities and the potential risk of infection.

Last week, police leaders admitted that 39 fines had unlawfully been given to children, who cannot be punished under the Health Protection Regulations.

Several forces have apologised for officers’ actions and statements that appeared to overstep the regulations, which are different from government guidance.

The law does not limit how many times people can exercise outside a day, has no exhaustive list of “reasonable excuses” to leave home, does not ban driving into the countryside for a walk or define “essential travel”.

Thomas Sherrington, a barrister who specialises in crime and regulatory work, told The Independent anecdotal reports suggest the “misuse of police powers”.

“If some people receiving fines took it to court they would probably successfully defend themselves, but many will avoid the prosecution and pay £30,” he added. “I suspect many people have just paid up.”

Mr Sherrington, of St John’s Buildings, said it was “impossible to know” how many of the thousands of fines handed out so far were justified because of the lack of public proceedings.

“You can’t possibly know how many of those are accurate,” he added. “I don’t criticise the police so much in this because the legislation was drafted at pace, but there is an overeagerness and lack of understanding about what the powers are and how far they go.”

The Joint Committee on Human Rights previously raised concern that police were punishing people “without any legal basis”.

Chair Harriet Harman said “widespread confusion as to what people are and are not permitted to do” was leading to violations of fundamental freedoms, with people being questioned, fined and even arrested when they have not broken the law.

Mr Buckland said the government was attempting to “strike the right balance” between human rights and slowing the spread of coronavirus.

He admitted that the lockdown “does represent an infringement with regard to human rights” because of the measures needed.

“The measures have the ultimate function and purpose of upholding a fundamental human right – the right to life,” Mr Buckland added, saying all government departments had sought legal advice.

The justice secretary admitted that “difficulty was arising from the differences and contradictions between the regulations and the guidance set out” by the government.

But he argued that the law deals with “need” and the guidance illustrates “the way in which you go about it”.

Following the exposure of several wrongful convictions under the Coronavirus Act, which was intended to allow police to enforce potential testing and quarantine measures that were not imposed, Mr Buckland said there had been “deeply unfortunate” cases.

He claimed the judiciary would “make the necessary rulings” to correct errors where police had “made interpretations that go beyond what we would say is reasonable”.

“Policing by consent principles should apply if we’re in an emergency or not,” Mr Buckland said, calling for the 43 forces in England and Wales to publish regional guidance on coronavirus.

Officers have already been given several sets of national guidance aiming to improve consistency in the application of new laws, including examples of reasonable excuses to be outside drawn up by the CPS.

The authority has told prosecutors to consider the coronavirus pandemic when deciding whether it is in the “public interest” to charge suspects with an offence, as backlogs mount following the closure of more than half of the courts in England and Wales.

Mr Buckland said the criminal justice system was “facing an unprecedented challenge” and that courts were attempting to use more telephone and video hearings.

“While the effects are going to be felt for some time in the system, we are doing everything we can to operate it and the judiciary are planning for what the recovery might look like,” he added.