By Jamie Bryson
The initial quarantine regulations were laid on 5 June 2020 and came into force on 8 June. Their long title is The Health Protection (Coronavirus, International Travel) Regulations (Northern Ireland) 2020 (‘the regulations’). They can be found HERE
The obligations on persons arriving in Northern Ireland from a country on the quarantine list are set out in Part 2 of the regulations, which includes a requirement to provide information and at regulation 4, sets out the requirement to self-isolate for (at that time) a period of 14 days.
Part 3 of the regulations deals with the enforcement of the requirements set out in Part 2. Regulation 5 of Part 3 sets out the ability of authorised persons to remove a person to their place of isolation or direct he/she returns to there, if it is reasonably believed such a person is in breach of a requirement under regulation 4.
Regulation 6 of Part 3 sets out the offences and penalties for a breach of the regulations.
Regulation 7, which is crucial for present purposes, sets out the process for issuing fixed penalty notices for a breach of the regulations. It is as follows:
Fixed penalty notices
7.—(1) An authorised person may issue a fixed penalty notice to anyone that the authorised person has reasonable grounds to believe—
(a) has committed an offence under these Regulations;
(b) is aged 18 or over.
(2) A fixed penalty notice is a notice offering the person to whom it is issued the opportunity of discharging any liability to conviction for the offence by payment of a fixed penalty to the clerk of petty sessions
(3) Where a person is issued with a notice under this regulation in respect of an offence—
(a) no proceedings may be taken for the offence before the end of the period of 28 days following the date of the notice;
(b) the person may not be convicted of the offence if the person pays the fixed penalty before the end of that period.
One point of note; it has been repeatedly said that persons are ‘fined’ upon receipt of a notice (known as a COV 3). This is incorrect, as set out at regulation 7 (2), the notice is an offer of a fine, in exchange for discharging any liability for conviction. If a person rejects such an offer, they have not been ‘fined’.
The crucial provision is then laid out in regulation 8. It states:
Effect of fixed penalty notice
8.—(1) This regulation applies if a fixed penalty notice is given to any person under regulation 7.
(2) If the person asks to be tried for the alleged offence, proceedings may be brought against the person.
This is the crucial error in the original regulations, which remained in place until 11 December 2020. If a person receives a notice under regulation 7, but simply decides not to avail of the offer to pay a fine, there is nothing which can be done to enforce the fine, as it cannot be registered for enforcement. It follows therefore that a person cannot be registered as a defaulter, and there is accordingly no power for a Magistrate to issue a collection order under Section 3 of the Justice Act (Northern Ireland) 2016.
After 28 days, unless a person pursuant to regulation 8 (2) “asks to be tried” (prosecuted) for the offence, the person is by default taken to have accepted the fixed penalty notice, but crucially it is unenforceable.
Therefore, if a person simply does not pay the fine, and does not ask to be tried, then the effect of the fixed penalty notice is effectively null and void as there is no means of enforcing the fine, and no means of trying the person for the offence on foot of the fixed penalty notice.
It is arguable that technically there may be an implied power to nevertheless refer the matter to the PPS (which would of course be subject to the statute of limitations of 6 months for summary only matters) however given the error in the legislation and the fact that persons in analogous situations are therefore likely to be treated differently under the law, it seems hard to envisage how such a prosecution would not amount to an abuse of process.
The regulations were quietly amended on 11 December 2020 via The Health Protection (Coronavirus, International Travel) (Amendment No. 25) Regulations (Northern Ireland) 2020 which at paragraph 6 amended regulation 8 and inserted regulation 8A (Registration certificates), 8B (Registration of penalty), 8C (challenge to notice) and 8D (setting aside sum enforceable under regulation 8B). You can find Amendment 25 HERE
Note: A total of 51 COV3 notices have been issued at the time of the last PSNI update.
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