Is paying a fixed penalty notice or civil penalty an admission of guilt?

Fixed penalty notices are all over the news at the moment as reports emerge that the Metropolitan Police expect to impose penalties on several individuals who attended parties at 10 Downing Street during lockdown. The Metropolitan Police might even give a fine to the Prime Minister, Boris Johnson,  if they conclude that he personally breached the law by participating in a prohibited ‘gathering’.

Fixed Penalty Notices

Fixed Penalty Notices (FPNs) are meant to be a quick and easy form of punishment, and this was probably why they were selected as the primary means of enforcing the Covid-19 restrictions. To give one example of the many powers to serve FPN under Covid-19 rules, regulation 9 of the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 allows police and other authorised officers to give a FPN imposing a penalty between £100 and £6,400 for a breach of those regulations. Although the lockdown restriction no longer apply, FPNs for past breaches can still be imposed.

FPNs have existed for a long time now. There are forms of fixed penalty notice which apply to different aspects of life, ranging from motoring offences and disorderly conduct to school truancy. FPNs tend to be given for minor offences, and generally are for relatively small amounts of money.

FPNs are a form of civil penalty, but not all civil penalties are fixed, and they are certainly not restricted to minor offences.

Civil Penalties in the Property Sector

There are now various civil sanctions which apply in the property sector. Landlords who rent property to individuals who do not have a ‘right to rent’ under the Immigration Act 2014 can face civil penalties of up to £3,000 from the Home Office. The Consumer Rights Act 2015 allows penalties of up to £5,000 to be imposed on agents who fail to comply with fee transparency rules. The Tenant Fees Act 2019 contains powers for councils to impose penalties of up to £5,000 for first breaches, and up to £30,000 for subsequent offences. The Housing and Planning Act 2016 gave local housing authorities the power to impose penalties of up to £30,000 for various housing offences, and most recently the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 also contains power for financial penalties of up to £30,000 (without creating any criminal offence).

Appeals

There are slightly different rules which apply to the different types of penalty. All the penalties I deal with in my professional practice have some can be appealed to a civil court or tribunal. Most appeals are made to the First-tier Tribunal, either in the Property Chamber or the General Regulatory Chamber, but ‘right to rent’ penalties can be appealed to the County Court.

FPNs work differently. A penalty under the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 cannot be formally appealed. A person who receives an FPN has the option to pay the penalty within 28 days, and if they do so, they cannot be prosecuted for the same offence. If they do not pay, they can face prosecution in the criminal courts.

It is possible to write the police or local authority and ask for a penalty to be withdrawn, but this is not the same as a right of appeal to an independent court or tribunal.

Consequences of Paying

It is possible to pay a penalty without ever admitting guilt, or any formal finding of guilt. The police only need to ‘reasonably believe’ that someone has committed an offence to give an FPN under the Covid-19 regulations. Other types of FPN have an even lower threshold – under the Criminal Justice and Police Act 2001, an FPN may be given by “a constable who has reason to believe that a person aged 18 or over has committed a penalty offence”.

In R v Hamer [2010] EWCA Crim 2053 the Court of Appeal Criminal Division held that an FPN under the Criminal Justice and Police Act 2001 should not be regarded as a conviction that in paying the penalty the Defendant “was not admitting any offence, not admitting any criminality, and would not have any stain imputed to his character.”

Based on this analysis, it would appear that in the eyes of the law, someone given an FPN under the coronavirus regulations could pay the penalty and then later claim that they were innocent of any crime. Indeed, one Conservative party MP has already been making this point online, stating: “Fixed Penalty Notices are given out for prescribes minor breaches of law. They’re not fines, convictions or proof of guilt – all of which can only be handed out or determined by a court.” We might not all agree that breaches of covid restrictions were ‘minor’, but its true that an FPN is not the same as a criminal conviction, and it is not proof of guilt.

Consequences of Paying – Housing and Planning Act 2016 penalties

There is a striking contrast between such FPNs and ‘Financial Penalties as an alternative to prosecution’ under the Housing and Planning Act 2016. These financial penalties can only be imposed where the local authority is satisfied beyond reasonable doubt that a landlord or agent has committed a criminal offence. A landlord who believes they are innocent can appeal to the tribunal, and on appeal an independent panel (a judge and an experience property professional) will weigh up the evidence and make a decision about whether the local authority have proved that alleged offence was committed.

But what if the landlord decides not to appeal – are they admitting guilt by not doing so? Formally the answer has to be no, because there is no need to make an admission of guilt to pay one of these penalties.

The more difficult question appears to be – how much weight should be given to the local authorities’ conclusion that the landlord committed an offence? Local authorities are not very likely to accept that only a court can determine guilt, and I am sure that some officers would take the view that their decision should be treated as final unless overturned by a court or tribunal.

In various ways, both practical and legal, financial penalties which are not appealed are treated as findings of guilt:

1. Financial penalties are publicised by local authorities. This can be through press releases, on their websites or in London, on the Mayor’s Rogue Landlord Checker.
2. A landlord or agent who receives received two or more financial penalties in respect of a ‘banning order offence’ within a period of 12 months can be added to the Government’s database of rogue landlords and agents.
3. A financial penalty can affect the amount of a rent repayment order in the same way as a conviction under section 46 of the Housing and Planning Act 2016.
4. Local authorities might take account of these penalties when assessing whether or not a landlord is a fit and proper person.

So, a paying a financial penalty of this sort is not itself a formal admission of guilt, but it does involve giving up the opportunity to challenge a finding by a local housing authority that an offence was committed, and it does – whether rightly or wrongly – come with some stigma and potentially adverse publicity.

The sheer range of civil sanctions and penalty notices now available to enforcement bodies make this a complex area of law, and it is impossible to an accurate account of the full consequences of accepting a civil penalty or FPN in a short article like this – in particular, there are legal questions about when Housing and Planning Act financial penalties which will need to be resolved at some point, such as when they should be admissible as evidence. Landlords and agents need to think carefully about the effect of appealing or not appealing any penalties.