Penalty Notice for not wearing a mask

[Man in the middle]

2 hours ago, 45002 said:

I would think by the time a formal complaint was dealt with, your penalty notice would have gone up another £100 even more when it gets to court !

 

No it wouldn't. These Fixed Penalty Offers are not like car parking notices. If you take the matter to court the Fixed Penalty becomes irrelevant. The FP is an offer to you to dispose of the matter without criminal prosecution. If you decline the offer the only alternative is for the police to prosecute you.

 

In court the police have to prove that you were not wearing a mask and you did not have a "reasonable excuse" for failing to do so. You don't have to prove anything.

 

Quite how they will do this is not very clear. You told them your reason and they chose not to believe you. That's fine for dishing out a fixed penalty; it's not fine to secure a criminal conviction. They would have to prove that your excuse was either not reasonable or was not true.

 

The only evidence they can provide is that they asked you why you were not wearing a mask, you told them and they did not accept your "reasonable excuse". It would be for the court to decide the issue. If you are found guilty you will face an income related fine and prosecution costs.

 

If you decide to go to court I'll give you some more advice on how to approach the matter but you may like to consult a solicitor (many will give you a free consultation - go to the CAB for guidance) before you make your decision.

[Man in the middle]

38 minutes ago, Hammy1962 said:

Absolutely no help but.....................

Correct!  

 

The issue here is not what you think of the OP's action. It is whether or not he is guilty of the alleged offence.

[Man in the middle]

I think we need to be a bit careful here.

 

The OP is not claiming an ”exemption”. He is claiming that he failed to wear a face covering because he had a “reasonable excuse.” Whilst the legislation mentions both, there is a critical difference.  The legislation says this:

 

Regulation 3 (1) No person may, without reasonable excuse, enter or remain within a relevant place without wearing a face covering.

 

(2) The requirement in paragraph (1) does not apply—

 

(a) to a child who is under the age of 11;

.

.

[and other people, such as those working in the shop, a police officer, an emergency responder, etc]

 

It then goes on to say:

 

Regulation 4 (1) For the purposes of regulation 3(1), the circumstances in which a person (“P”) has a reasonable excuse include those where—

 

(a) P cannot put on, wear or remove a face covering—

(i) because of any physical or mental illness or impairment, or disability (within the meaning of section 6 of the Equality Act 2010(10)), or

(ii) without severe distress;

.

.

 [There then follows another eight examples of reasonable excuses, none of which relate to medical reasons]

 

Two things need to be borne in mind:

 

The OP is relying on (3)(1) on its own – that is that he had a “reasonable excuse”. He then goes on to employ (4)(1)(ii) – that he suffers severe distress if wearing a face covering.

 

Even if this might fail, it should be noted that the list of “reasonable excuses” mentioned in (4)(1) is not exhaustive. His combination of suffering from acne and from suffering anxiety is a separate, unlisted reasonable excuse which the court would be bound to consider. This aspect makes the interpretation of the legislation subjective. He is not relying on (3)(2) which provides for specified (exhaustive)  exemptions. The police have obviously decided that his “reasonable excuse” does not fit the bill. On what basis is unclear.

 

The legislators have, either deliberately or because of sloppiness, drafted the legislation in a vague manner. Particularly, “severe distress” (or its synonym, “anxiety”) are highly subjective. At the end of the day it would be for a court to decide just whether the OP’s “reasonable excuse” is reasonable enough or not. Depending on the prosecution’s evidence it would be debateable whether the OP would have to give evidence to defend the matter. But they would be bound to say when giving their evidence (or if not, under cross examination) that the OP mentioned he had read the guidance and decided he had a reasonable excuse. They would also be bound to mention that he was wearing the lanyard. It is scarcely the defendant's fault that the legislation has been drafted with these escape clauses. In fact it may be deliberate. I do not think it is a foregone conclusion by any means that he would be convicted.

Edited February 20, 2021 by Man in the middle

[Man in the middle]

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I agree with your analysis of the language of the regulations but informally "exemption" is used to describe "reasonable excuse for medical reasons" even by the government in their guidance

 

I agree. But the difference is quite important. The list of exemptions is exhaustive. If you don't fit the list you are not exempt and that's that. So if you went to court claiming an exemption all the prosecution would have to prove was that none of the exempt categories applied to you. In fact, all the person suspected of the offence would have to do, when tackled by a police officer, would be to prove that he was exempt and (provided the officer is sensible) that would be that. No subjective decision is required on the officer's part.

 

With a "reasonable excuse" it's different. In this case the officer either did not believe the OP's excuse (e.g. did not believe he suffered anxiety) or if he did he did not believe it was reasonable. The only place to adjudicate on that disagreement is in court. Either that or you accept the officer's ruling and pay the fixed penalty.

 

Much of the Covid legislation which effects most people is peppered with exemptions, exceptions and "reasonable excuses". It's almost as if the legislators were reluctant to impose any restrictions and provided as many get-out clauses as they could think of. However, I digress. It would be nice if the OP were to come back and give us his thoughts now we have provided ours.

 

 

[Man in the middle]

Quote

While it might be the case that according to the letter of the law the OP has no charge to answer, I wonder if a magistrates court might just possibly convict on the grounds that not wearing a mask was against the spirit of the law, and not in the public interest. 

 

Magistrates are guided on matters of law by their Legal Advisor (LA). Before reaching their verdict and announcing it in open court they must run their reasoning past their LA. Any LA hearing that a conviction was being considered even though the defendant had no case to answer would strongly counsel against it and the matter would be open to challenge in the Crown Court (where matters of law are ruled upon by a judge - his accompanying "lay" Magistrates hearing the appeal have no say on matters of law). 
 

When reaching their verdict Magistrates should have no consideration for the "spirit of the law". They may consider - where it is not clear in the circumstances - what Parliament's intentions were when the law was enacted, but that's about as far as it goes. They should never decide that, although the defendant is  Not Guilty, it is in the public interest to convict him nonetheless.

 

This matter is quite straightforward for a Bench of Magistrates to decide. It is simply whether they consider the defendant had a reasonable excuse for not wearing a face covering. The legislation makes it clear in the non-exhaustive list of reasonable excuses that it provides, that if suffering "severe distress" when wearing one, then it is acceptable not to do so. The OP says he suffers "anxiety". It will simply be for a court to decide whether such anxiety as explained by the OP is a reasonable excuse or not. They have no need to get bogged down with the spirit of the law, nor with the public interest.