NI High Court: Covid-19 penalty notices which were incorrectly filled out are unenforceable

NI High Court: Covid-19 penalty notices which were incorrectly filled out are unenforceable

Northern Ireland’s High Court has declared several penalties under the Covid-19 regulations unlawful in circumstances where some had not been filled out and where others were filled out incorrectly by PSNI officers who variously entered private dwellings or dispersed protesters.

This case involved three separate challenges to decisions by the PSNI relating to fixed penalty notices (FPNs) under the Health Protection (Coronavirus Restrictions) (No.2) Regulations 2020, which stated: “No person may participate in a gathering indoors in a private dwelling which consists of persons from more than one household.”

Klara Kozubikova

Applicant Klara Kozubikova moved in with her step-mother when Covid-19 restrictions were put in place. On 28 December 2020, she was present in those premises when two PSNI officers entered the house. Several people were in the house, including her stepmother, two of her sons, three other persons and two other children.

The PSNI issued a FPN to all the adults in the property, stating: “You were in contravention of a requirement without a reasonable excuse – Regulation 8(1).” The penalty was £200.

Ms Kozubikova’s case was that the FPN was invalid, because it did not give “reasonably detailed particulars” as required under the regulations, and because the PSNI did not have the power to enter her home prior to issuing the FPN.

On the first point, the PSNI accepted that the form had been incorrectly filled out. They have since issued further instructions to officers on the information required.

However, the court also accepted that the applicant could still face potential proceedings as the issuing of a FPN (valid or not) is not a pre-requisite for the commencement of proceedings.

Therefore, although the applicant had established to the court that the FPN was issued unlawfully and in breach of the regulations, they also had to be satisfied on the issue to grant leave to seek certiorari of the notice.

Certiorari was sought also because this penalty was a “stain” on the applicant’s record, and could be disclosed as part of a criminal record check.

On the second point, relating to the unconsented entry of PSNI into their home, the court was also persuaded that “it is at least arguable that the regulations are insufficient to provide the power of entry argued for by the proposed respondent, are not compliant with the Human Rights Act 1998 and lack the necessary quality of law”.

The respondent argued that this point should have been dealt with in the ongoing criminal proceedings, so as to prevent satellite litigation.

However, the court rejected this argument; they noted that the powers of the police in relation to the enforcement of these emergency regulations was a matter of public importance and debate. A district judge hearing the prosecution may not provide a definitive ruling on the issue.

Therefore, leave was granted in respect of the applicant’s challenge to Regulation 7(1) and whether it gives a “relevant person” the right to enter any premises.

Michelle Anne Hughes

On 3 January 2021, police were called to 3 Killowen Drive, Magherafelt by the applicant Michelle Anne Hughes, who reported that a Mr Woods was refusing to leave her property. Three people were present, and all were intoxicated. FPNs were served on all three.

Here, under the form heading “OFFENCE DETAILS (only select one offence per recipient per incident)”, none of the three options in the FPN were ticked.

The applicant sought an order of certiorari quashing the decision to issue a fixed penalty notice and a declaration that the impugned decision was unlawful, ultra vires and of no force or effect.

The court found that there could be no doubt that the fixed penalty notice breached Regulation 9(4)(a), which requires that the penalty form give “reasonably detailed particulars”.

The court found that the applicant should be granted leave to challenge the FPN.

Susan Fitzgerald and Others

Susan Fitzgerald and four other persons were involved in a protest organised by ROSA NI, a socialist feminist organisation which campaigns for the end of gender-based violence. Held in the wake of the murder of Sarah Everard in London, this was an outdoor “stand-out” protest on 16 March 2021 in Writers’ Square, Donegal Street, Belfast.

The five protesters were issued with FPNs, and again the court concluded that these were also invalid, due to their failure to comply with Regulation 9(5). As in the case of Ms Kozubikova, the only details of the offence on the forms was a tick opposite “You were in contravention of a requirement without reasonable excuse – Regulation 8(1).”

Here too leave was granted to the applicants to challenge the issuing of the FPN.

It was further argued that, pursuant to the 2020 Regulations, the meaning of “reasonable excuse” in the context of a public gathering under Regulations 5A and 8 is so ambiguous, vague and uncertain that the regulations cannot constitute valid law and be enforceable.

The applicants further argued that the proposed respondent breached the Human Rights Act 1998 and, in particular, Article 10 ECHR (freedom of expression) and Article 11 ECHR (freedom of assembly) through the issuing of the fixed penalty notices.

The court disagreed, and referenced the recent decision of the Court of Appeal in England and Wales in Dolan and others [2020] EWCA Civ 1605, which challenged almost identical regulations and rejected those claims. The court agreed with this precedence and found these human rights infringement claims unarguable.

Whether or not the applicants could establish a “reasonable excuse” for any alleged breach of the regulations was inherently a fact-specific inquiry, which should appropriately be dealt with in a magistrate’s court rather than by way of judicial review.

Therefore, leave to challenge the validity of the regulations was rejected, as this challenge was unarguable and had no reasonable prospect of success.

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