A householder unlawfully issued with a penalty notice after being accused of breaching Covid regulations still faces a criminal charge following an already marathon more than three-year legal battle.
Klara Kozubikova successfully fought paying the £200 fixed penalty notice (FPN), with the High Court recently ruling police entered her home unlawfully and failed to specify what offence she committed.
Others issued with penalty notices inside their homes during the pandemic are contemplating civil action, said solicitor Michael Brentnall, who represents Ms Kozubikova.
Close to 4,000 people were issued with penalty notices, the majority in homes and other premises, from March to December 2020, when Ms Kozubikova and others in her household, including four adults, were confronted by police. All the others in the house off the Cregagh Road in east Belfast paid fines.
Despite the issuing of the notice being declared unlawful, Ms Kozubikova is still facing a criminal charge. This is due to the criminal process beginning once police inform the Public Prosecution Service (PPS) an individual has refused to pay the notice.
Mr Brentnall said his client is now seeking to have the charge dismissed in the public interest.
A PPS spokesperson said: “The PPS is aware the Divisional Court recently gave judgment in a case relating to the Health Protection (Coronavirus, Restrictions) (No.2) Regulations (Northern Ireland) 2020.
“The PPS was not a party to those proceedings and the judgment will be reviewed in order to consider the impact on any outstanding cases.”
Three and a half years after refusing the pay the penalty, the High Court found the police entered her premises without a warrant or explicit invitation.
There was no power included in the regulations to enter if there was a reasonable suspicion an offence was being committed, as is allowed under the PACE Act.
Further, no details of the offence were revealed to Ms Kozubikova, also ruled unlawful by the court.
Following the filing of this case, more than eight months into the pandemic, officers were “reissued instructions....regarding the need to record reasonably detailed particulars of the circumstances alleged to constitute the offence”.
The individuals potentially taking further legal action are not motivated by money as they are unlikely to receive anything other than re-imbursement of any fine, said Mr Brentnall.
There is more a sense police powers, granted or taken, approached Draconian during the pandemic and that their application was deeply unfair, the lawyer has claimed.
He citing one case where police allegedly jumped over a fence and entered the home through a back door and another of an employer being contacted over garnishment of wages.
Further, hundreds of students were suspended from Queen’s and Ulster universities after police passed information on to the institutions.
It unclear how many other occasions police entered premises without a warrant or being explicitly invited and where details of the offence were not spelled out, either of which would make the issuing of any notice unlawful, Mr Brentnall said.
Daniel Holder, director of the Committee on the Administration of Justice (CAJ), said the Kozubikova case highlights how the regulations during the health emergency “were absolutely all over the place” and warned of the need to prepare in case of another.
“It does not surprise me that this is all spinning out into the courts,” Mr Holder said. “It was all done in such a cavalier fashion.”
It was an unsatisfactory position for the police to be in, having to navigate the hastily crafted regulations, which were essentially “cut and pasted” from those drawn up in England and Wales, he said.
“The Executive needs to be ready to make good law if there’s another epidemic. It was woefully inadequate for over a year. There needs to be a state of preparedness, including properly codifying police powers, not making it up as go along. Otherwise you are putting citizens and police in an impossible situation.”
In a written answer to an Assembly question, Health Minister Mike Nesbitt said the High Court decision was a matter for police but added “to enable us to respond to 21st century public health emergencies, my Department is currently reviewing our Health Protection legislative framework”.
“I am seeking Executive colleagues’ agreement to publish a public consultation on the policy proposals underpinning a draft Bill, with a view to Introduction in late autumn of this year,” the minister said.
