FPNs are different to Penalty Charge Notices (PCNs), which are generally given in respect of contravention of parking restrictions, usually a civil and non-criminal matter. On the other hand, a FPN can be given where an authorised officer reasonably believes a criminal offence has been committed under Health Protection Regulations made under the Public Health (Control of Disease) Act 1984.

Payment of the penalty does not constitute an admission of guilt to an offence and does not result in a ‘criminal record’ (although the information is likely to be held for some time on local police databases), but payment by the deadline does prevent a person from being prosecuted or convicted of the offence for which the FPN is given. If a person pays the penalty amount under a FPN within 28 days their name should not be made public by the police (although Number 10 have now said that it would be made public if the Prime Minister were given a FPN).

A person who chooses not to pay the penalty amount may be prosecuted for the offence in the Magistrates’ Court, provided the police/CPS (either or which can prosecute offences under the Health Protection Regulations) consider there is sufficient evidence for a realistic prospect of conviction, and prosecution is in the public interest. Usually, a person’s name and address becomes public at their first court appearance, although the police sometimes publicise these details following a charging decision.

There is no statutory mechanism for appeal or review of a FPN issued under Health Protection Regulations. Those who choose not to pay may ‘request a hearing’ and be prosecuted, risking criminalisation. However, it is possible to make representations to the police requesting withdrawal of a FPN. This is not something that has been generally invited by the police during the pandemic and those unable to afford legal representation may not have been aware of this possibility. There have, however, been reports in the press that the Met will invite suspects in the Downing Street cases the opportunity to respond to allegations in written questionnaires before any FPNs are issued. This is not an opportunity afforded to the vast majority of members of the public given FPNs and appears to undermine the rationale for the decision to ask Sue Gray not to publish her full report before the conclusion of the police investigation, given suspects will now have the opportunity to confer and prepare their answers to police questions with the assistance of their lawyers.

Bindmans have acted for many individuals given FPNs throughout the Covid-19 pandemic, including over a dozen students given £10,000 FPNs for alleged involvement in organising large gatherings. In most of our cases, the police forces concerned have been persuaded, following representations, either to withdraw FPNs or replace them with FPNs for less serious offences.

Another route of challenge may involve judicial review proceedings in the High Court. It is not clear whether the decision to give a FPN is a decision which the High Court would consider to be susceptible to judicial review. However, we have been successful in persuading police forces to withdraw FPNs and pay our clients’ legal costs after sending pre-action correspondence.

While each iteration of the Health Protection Regulations made since March 2020 has contained powers of arrest and prosecution, during the pandemic police forces have usually administered FPNs for suspected breaches of Regulations before resorting to prosecution, in accordance with policy. However, that does not mean that the Prime Minister and others involved in the Downing Street gatherings cannot be prosecuted if offence(s) are uncovered by the Met’s investigation. There are a number of scenarios in which prosecutions are possible and in some cases there are strong reasons to suggest that the public interest would require it, should there be sufficient evidence.

First, the Prime Minister has stated repeatedly that he does not believe he has broken any ‘rules’. If he is given a FPN will he pay it or will he opt to subject himself to prosecution in the Magistrates’ Court to attempt to clear his name, as so many ordinary citizens have done? While lawyers, Parliament’s Joint Committee on Human Rights, and the Justice Committee have complained about the lack of appeal mechanism for FPNs, the government has consistently pointed to the possibility of contesting a notice by choosing to be prosecuted instead.

Secondly, despite the Met’s usual policy of issuing FPNs before resorting to prosecution, there is no reason in law preventing a person from being charged with an offence under the Health Protection Regulations rather than being given a FPN, provided the evidential and public interest tests set out in the Code for Crown Prosecutors (which the police must consider) are met, and it is arguable that in particularly egregious cases the public interest may tend towards prosecution rather than FPNs.

The law allows prosecutors to depart from a usual policy where the circumstances of an individual case justify it and the Met’s previously unpublished policy on retrospective enforcement of Coronavirus breaches (which is referred in the Good Law Project’s grounds for judicial review in respect of the original decision of the Met not to investigate) appears to envisage this in saying “in those exceptional circumstances [where the criteria for ‘retrospective’ investigation are met], there is no requirement to follow the 4 E approach”.

The Met’s public statement dated 9 February 2022, which states “if, following an investigation, officers believe it is appropriate because the Covid regulations have been breached without reasonable excuse, a fixed penalty notice will normally be issued” [our emphasis], appears to leave open the possibility of prosecution(s).

As for the public interest, this is something that should usually be considered by the police (and/or CPS) after considering whether there is sufficient evidence to prosecute and only once the broad extent of any criminality has been determined. Factors set out in the Code for Crown Prosecutors, which prosecutors (this includes the police) must consider in relation to whether prosecution is required, include (amongst others) ‘whether the offending was or is likely to be continued, repeated or escalated’, ‘where a position of trust or authority exists between the suspect and the victim’, and ‘the impact of the offending on the community’.

CPS guidance on Covid-19 offences specifically states “given that the offences in the Regulations are related to measures imposed to prevent the spread of infection throughout the UK, and potentially high incidences of serious illness and death, they should be considered serious. A prosecution will therefore likely be required in the public interest in the majority of cases” (although generally speaking – but not always – FPNs have been administered by the police first). It is important to note that Cressida Dick, herself, indicated in her statement on 25 January 2022 that the reason an investigation had been launched is that there is evidence of ‘flagrant breaches’, that those involved knew or ought to have known that what they were doing was an offence and that not investigating would significantly undermine the legitimacy of the law.

Thirdly, there are example(s) during the first lockdown, such as the 20 May 2020 ‘bring your own booze’ garden party, where FPNs are unlikely to be available for the Prime Minister or anyone living at 10 Downing Street as they are unlikely to be considered personally guilty as principal offenders under the Regulations. This is because the Regulations in force at the time only prohibited gatherings of more than two people in ‘public places’ – 10 Downing Street is unlikely to meet that definition – and, given the Prime Minister lived there, he is unlikely to be guilty of being away from the place where he was living without reasonable excuse. However, depending on the evidence uncovered, the Prime Minister may have cases to answer as an accessory pursuant to section 44 of the Magistrates’ Court Act 1980, for conspiring with other(s) to pursue a course of conduct that would result in the breach of the Regulations by others contrary to section 1(1) of the Criminal Law Act 1977, or for encouraging or assisting the breach of Coronavirus Regulations by others, under sections 44, 45 or 46 of the Serious Crime Act 2007. If there is sufficient evidence that the Prime Minister assisted or encouraged others, or conspired with others, to break the law at the height of the first lockdown it would arguably be in the public interest for the police to prosecute rather than take no further action.

Fourthly, the investigation may uncover evidence of the common law offence of misconduct in public office. The offence is committed when a public officer acting as such wilfully neglects to perform his duty and/or wilfully misconducts himself to such a degree as to amount to an abuse of the public’s trust in the office holder without reasonable excuse or justification. The offence is triable only in the Crown Court and there is no maximum prison sentence. Usually, where there is clear evidence of one or more statutory offences, they should be prosecuted instead. However, in cases where it would be inappropriate to use the statutory offence – for example, because the maximum sentence for the statutory offence would be entirely insufficient for the seriousness of the misconduct – misconduct in public office may be prosecuted if the elements of the offence are present.

Finally, in the light of reports that Downing Street staff were directed to ‘clean up their phones’, the offence of perverting the course of justice may also be worthy of investigation. This offence is committed when a person does an act or series of acts which has or have a tendency to pervert, and which is or are intended to pervert the course of public justice. This is another common law offence, triable only in the Crown Court, with no maximum sentence. Those found guilty of the offence are almost always given immediate custodial sentences. In such cases, it is the ‘cover up’ which attracts a greater sentence than the original offence being investigated (which ex-MP Chris Huhne learnt to his cost when he asked his then-wife to be the ‘named driver’ on a speeding case).

In practice, the likelihood of the Prime Minister, his wife, Downing Street staff and/or civil servants being prosecuted will depend on the evidence uncovered, the credibility of witnesses and those accused and a consideration of where the public interest lies in deciding whether to prosecute, taking into consideration the policy to usually offer FPNs first and the exceptional circumstances of the Downing Street cases which involve allegations of repeated and deliberate breaches by those with responsibility for creating the laws in question, which could justify a departure from the usual policy.

Most cases under the Health Protection Regulations are dealt with by the police by the administration of FPNs and/or police charging decisions (often under the Single Justice Procedure, meaning the case may never reach the desk of a CPS prosecutor). However, the DPP’s Guidance on Charging, which deals with matters including ‘how and when advice should be sought from a prosecutor’, states that “prosecutors may advise the police and other investigators about possible lines of inquiry, potential charges, evidential requirements, pre-charge procedures, disclosure management, asset recovery, including the overall financial strategy, the overall investigation strategy, including whether to refine or narrow the scope of the criminal conduct and the number of suspects under investigation, legal elements of offences…. Where advice is given prior to a request for a charging decision it is regarded as “early advice”… Investigators must consider seeking early advice in serious, sensitive or complex cases.”

Annex 6 of the DPP’s Guidance on Charging states that the provision of ‘early advice’ is ‘strongly recommended’ in specific case types, including ‘investigation of an institution with multiple victims and/or suspects’, ‘where the issues or scale of material make it likely that a prosecutor’s review would be significantly over 90 minutes’, and where there are ‘multiple suspects so that consideration is likely to be significantly over 90 minutes’. It goes on to state, ‘these are all cases which must be referred to the relevant CPS Area or Casework Division for a charging decision’. Moreover, we are aware of cases during the pandemic in which police have sought CPS advice in respect of alleged breaches of Coronavirus Regulations in significantly more straightforward investigations than ‘Partygate’.

In addition, the DPP’s Guidance on charging states in paragraph 4.15 that “where the offences under consideration for charging include an offence which must be referred to a prosecutor under this Guidance, all related offences which the police ordinarily have authority to charge must also be referred.” Therefore if more serious offences than those under the Regulations are under consideration, like misconduct in public office, the Met would likely be under a duty to refer the whole investigation to the CPS.

There are clearly very good reasons why the Met should seek advice from the CPS during the current investigation before issuing any FPNs (which, if paid, would prevent prosecution of the recipients for the offences concerned) or making charging decisions, given the number of events and suspects, the complex issues potentially involving allegations of misconduct in public office, accessorial liability and the Serious Crime Act 2007, and evidence (according to Sue Gray) of repeated wrongdoing by those at the heart of government.

The reputation of the Met has suffered immensely during the past year as a result of a number of scandals and dragging its feet before finally agreeing to investigate the Downing Street Parties two days before the proposed disclosure of the Sue Gray report, following public pressure and litigation brought by the Good Law Project. These scandals ultimately led to the resignation of the Commissioner yesterday. The Met would be wise to seek assistance from the CPS with this important investigation if it wishes to avoid allegations of political bias and further damage to its reputation. The CPS, for its part, may take a more serious view of the allegations than the Met has done, publicly at least, to date.

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