Journalist Andy Aitchison received a Fixed Penalty Notice (FPN) under the Coronavirus Regulations arising from his attendance at a demonstration outside Napier Barracks, in his capacity as a freelance journalist.

The Barracks, which have been used to house asylum seekers and refugees since October 2020, have been the subject of widespread controversy.

The issuing of the FPN, dated 10 February 2021, came only days after Kent Police refused criminal charges against Mr Aitchison on 5 February 2021, following an arrest at his family home.

Under the Coronavirus Regulations a person commits an offence if, ‘without reasonable excuse’, the person contravenes a restriction or requirement imposed under the Regulations (regulation 10(1)). The phrase, ‘reasonable excuse,’ in the public health context, is ‘largely, if not entirely, a question of fact’ (Morris v Beardmore [1981] AC 446 at 461). The phrase can include the exercise of rights under the European Convention on Human Rights (‘Convention’).

A person is permitted to leave or be outside their house if they have a ‘reasonable excuse’. As with the use of this phrase in regulation 10(1), the phase, ‘reasonable excuse’ includes the exercise of Convention rights, such as the right under article 10 of the Convention (the right to freedom of expression and information). Second, a person is permitted to leave or be outside their house where it is reasonably necessary to do so for the purposes of work: Schedule 3A, §2(5).

Journalists clearly play an important role under article 10, as the ‘eyes and ears’ of the public. It is plainly necessary for journalists to leave their house in order to perform this role.

On 17 February 2021, Bindmans LLP sent urgent written representations to Kent Police on behalf of Mr Aitchison and the NUJ (National Union of Journalists), to which Kent Police responded on 18 February 2021.

In their response, Kent Police’s Legal Department confirmed that they had reviewed the matter and that the FPN had been ‘issued erroneously’.

Andy Aitchison and the NUJ were represented by Jules Carey and Rachel Harger of Bindmans LLP. Jude Bunting of Doughty Street Chambers was also instructed on this matter.

Journalist Andy Aitchison, said:

I am really relieved that the Fixed Penalty Notice has been cancelled and it has been acknowledged that it was issued erroneously. Receiving the fine a week after the charges had been dropped on my arrest, felt unbelievable – it appears the Police have such little understanding of the Covid guidance and journalists’ work.

This was an unnecessary stress and concern for myself and my family and cause for concern for all journalists.

I am grateful to Bindmans and NUJ for their support in getting this resolved quickly.

I am still deeply concerned about the freedom of press during these unprecedented times and wonder how many other journalists have been incorrectly issued with these fines, especially as there was no clear mechanism to appeal the fine. 

I am also grateful to my MP, Damian Collins, for raising this issue recently in the House of Commons and his call for a review of the guidance given to Police for when dealing with accredited journalists and really hope that Priti Patel does agree to this and the review takes place soon. 

General Secretary of the NUJ, Michelle Stanistreet, said:

Following action from the NUJ and its instructed solicitors Bindmans, Kent Police Legal Services Department has told us they have written to the Criminal Records Office to request the immediate cancellation of the Fixed Penalty Notice and confirm it was issued erroneously. This has been a sorry story and very distressing for our member Andy Aitchison. We are still waiting for an apology for Andy from Kent Police and the force still has questions to answer. It needs to explain why Andy, who was acting completely within his rights and just doing his job, was wrongly arrested and wrongly had his journalistic material taken.

Bindmans Solicitor, Rachel Harger, who represented Andy Aitchison and the NUJ said:

It is completely unacceptable that not only has our client been subject to the threat of criminal charges for simply attending a demonstration in his capacity as a freelance journalist, Kent Police have now sought to further criminalise him by issuing an FPN days after refusing criminal charges against him.

In doing so Kent Police have acknowledged in the FPN itself that our client was in attendance at the location as a “freelance journalist”. This repeated conduct by Kent Police is arbitrarily obstructive of the crucial work carried out by journalists and it shows a flagrant disregard of all journalists’ right to report on events, which the wider public plainly benefit from being informed of. I am relieved for our client that the FPN has been withdrawn but he must be now afforded a full and meaningful apology by Kent Police.

Bindmans represented Mr Aitchison following his arrest, find out more here.