10k fine for not wearing a face mask

[Acker79]

https://barristerblogger.com/2020/0...-crank-but-his-treatment-should-worry-us-all/ It's quite long, a bit dry and goes off on tangents but, trying to pick out the most relevant bits...

It is not often that I have much sympathy with Jeremy Corbyn’s weather-forecaster brother Piers ...

Nevertheless the £10,000 Fixed Penalty Notice issued to Piers Corbyn as one of the “organisers” of the demonstration is disturbing. Mr Corbyn’s “FPN” requires him – strictly speaking one could argue it “invites him” but it is an invitation backed by a threat – to pay £10,000 for breaching Regulation 5B of The Health Protection (Coronavirus) (Restrictions on Holding of Gatherings and Amendment) (England) Regulations 2020.

Regulation 5B was hastily made law last Friday 28th August, the day before the demonstration was held. It was introduced under an emergency procedure and was neither debated nor given even the most cursory scrutiny by any Parliamentary process. It permits the most junior Community Support Officer in the country to issue a Fixed Penalty Notice to the suspected organiser of a political event, demanding £10,000 to avoid prosecution and consequent financial ruin. Given its timing, even if it was not introduced with the purpose of targetting the organisers of a political protest against government policy, it very much has that appearance.

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All the relevant coronavirus criminal laws – the lock-downs national and local, the closure of businesses, the requirements to wear masks, to quarantine and so on – have been created by statutory instrument. (The Coronavirus Act 2020, though the target of much misdirected criticism, is largely irrelevant). For readers with legal knowledge I apologise for stating the obvious, but a “statutory instrument” is a law made not by Parliament, like an Act, but by a Minister under a delegated authority given by an Act of Parliament, the “parent Act.”

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Particularly relevant to Mr Corbyn’s fixed penalty, these restrictions can include [see S.45C (4) (b)]:

“a prohibition or restriction relating to the holding of an event or gathering.”

There are limits to the regulations that can be made. Under S.45D:

“Regulations under S.45C may not include provision imposing a restriction or requirement by virtue of subsection (3)(c) of that section unless the appropriate Minister considers, when making the regulations, that the restriction or requirement is proportionate to what is sought to be achieved by imposing it.”

The “appropriate Minister” is Mr Hancock, and he has dealt with that somewhat fatuous requirement by including within the preamble to the regulations the statement that he considers that they are indeed proportionate to what he seeks to achieve (“a public health response … to the threat of SARS-CoV-2 in England”).

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Generally a statutory instrument, though made by a minister and not Parliament, must go through some sort of parliamentary scrutiny process before it becomes or remains law. The exact procedure varies but however it is done there is no power to amend, and in practice it is almost unheard of for an instrument to be rejected or annulled. Between 1950 and 2015 only 17 out of over 170,000 statutory instruments were rejected by Parliament.

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S.45Q of the 1984 Act provides that statutory instruments containing regulations under S.45C should not become law unless:

“a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

In theory, if not in practice, this should ensure a higher level of scrutiny than most statutory instruments receive. That is quite sensible given that the regulations capable of being made under S. 45C have been described by a Lord Justice of Appeal as “possibly the most restrictive regime on the public life of persons and businesses ever, certainly outside times of war.”

However, since Parliament was in recess, this procedure could not be followed.

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Some might question why there was such urgency to make a law targetting event organisers with a £10,000 fixed penalty on August 28th when the instrument could have been made in the usual way, laying it before Parliament at any time between March and July, when Parliament was sitting and the incidence of the disease was much higher; or why it could not wait three days until Parliament returned from its summer holiday on September 1st, but Mr Hancock’s bland statement that he thinks such urgency exists is all the law requires.

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The regulations do provide a “defence” of a sort to the organisers of political meetings. They do not apply to events organised by a “political body” if the organiser has carried out a risk assessment and taken “all reasonable measures to limit the risk of transmission of the coronavirus.” It is possible that the ad hoc alliance of lock-down sceptics of which Mr Corbyn is a supporter comes within the definition of a “political body” under the regulations, but it is very improbable, given the aims of the alliance, that it had taken any measures, let alone all reasonable measures, to limit the risk of transmission.

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The quasi-criminal procedure of the FPN was originally devised to deal with minor parking and traffic offences. Over the years their use has expanded, to include minor public order incidents, litter, dog fouling and the like. Until the Coronavirus Regulations the maximum amount of any fixed penalty was £500 (for permitting noise from licensed premises). The procedure has now been deployed, with 2 days notice and no Parliamentary scrutiny of any sort, to target the organiser of a political meeting with a sum 20 times greater than any fixed penalty ever before created under English law. This is unprecedented and deeply disturbing and no less so because it is being used against a crank.

The fact that Mr Corbyn may be a crank, and that many of those at his meeting may have had disreputable or even disgusting political opinions is quite beside the point. As Sedley LJ put it in Redman-Bate v. DPP [1999] EWHC 733:

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. … From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power.”