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Penalty Notice for not wearing a mask


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Neither of us are qualified to judge OP's medical condition or degree of anxiety or determine whether OP's medical condition justifies not wearing a mask. 

 

It's not for us tp pass judgment on OP. 

Edited by Ethel Street
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I too struggled with “digital” : would it be better phrased as “binary”?

 

so ‘dead’ and ‘pregnant’ are binary.

you can be ‘almost dead’, but still not dead

you are either dead or alive.

(OK, in a cardiac arrest it can go either way, but you are in fact dead - it is just that, initially, it may be reversible)

 

For asthma, you either have asthma or you don’t, but there are varying degrees of severity, hence “not binary”. You can have “a touch of asthma” (so not needing regular inhalers even) or “life-threatening asthma” (regular inhalers, multiple ITU admissions .......)

 

Binary rather than digital?

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1 hour ago, Ethel Street said:

Neither of us are qualified to judge OP's medical condition or degree of anxiety or determine whether OP's medical condition justifies not wearing a mask. 

 

It's not for us tp pass judgment on OP. 


but it is for the court to decide.

 

Else, the law would be pointless. No one would ever be successfully prosecuted if all anyone* need do to escape prosecution is say “I reasonably believed”.

 

So, the court has to decide if that belief was in fact reasonable.

 

* (I’m taking no position as to if the OP has / had reasonable belief : just highlighting that clearly the court CAN decide)

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I don't want to pass judgement on the OP but I don't think that pointing out different potential outcomes is necessarily judging them.

 

Indeed, it's precisely because none...

 

5 hours ago, Ethel Street said:

... of us are qualified to judge OP's medical condition or degree of anxiety or determine whether OP's medical condition justifies not wearing a mask.

 

that none of us can reliably advise the OP as to whether they might succeed in challenging this penalty or might win in court if it gets that far.  All we know is that the OP believes that his anxiety and acne give him an excuse for not wearing a mask.  Whether his belief is reasonable or not, we don't know.

 

When I first read this thread, based on what I'd read of the government guidelines, I thought the OP was in a win win situation.  Now I'm not so sure.

 

The government guidelines are rubbish.  I'm not sure that following those guidelines would necessarily form a solid foundation for a defence.  So far as I'm aware saying "I read it in government guidance" or "my solicitor advised it was ok" does not usually provide a defence to a criminal charge if the accused has actually broken the law.

 

What also caused me to think again are the posts from Hammy and hightail.  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.  In particular:

 

8 hours ago, hightail said:

... A court might find it isn't at all reasonable not to play your part in protecting yourself and others if you could wear a mask even though you have a condition which makes it slightly more difficult than for the person next to you.  It isn't easy or pleasant for anyone, it will all come down to a matter of degree.

 

 

I don't find it inconceivable that a bench, when faced with the question of deciding whether not wearing a mask was reasonable, might decide that, in the circumstances under consideration, it was not.  (And I'm not making any judgement on the OP's case here - I don't know the details of his circumstances.  I'm just saying it could happen.

 

5 hours ago, Ethel Street said:

...

CAG is here to help people, not to tell them  why, on no evidence, they are not meeting their social obligations (as defined by other posters)

 

 

Yes CAG is here to help people, but that might sometimes mean pointing out that there may be more than one way of looking at something - without necessarily passing judgement on any individual's point of view or sincerely held belief.

 

It might also mean pointing out sometimes that people have some social obligations and responsibilities as well as rights - particularly during the present Covid pandemic which seems at times to be approaching a national emergency.  The problem for the OP is that whilst you and he may not agree with some of the social obliations defined here by others (and I'm not 100% sure I do either to be honest) a bench of lay magistrates considering the reasonableness of his behaviour might agree with them and conclude his behaviour was not reasonable.

 

Now it's not my intention to criticise or judge the OP, and I actually think he's more likely that not either to challenge the penalty successfully or win in court, but I suspect there is a reasonably significant possibility that if the police do not drop the penalty and it goes to court, the OP could lose.

 

 

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Just to add, consideration and respect for others is not a one-way street.  We need to remember that others who may be vulnerable themselves may be caused considerable alarm and distress when being confronted by other shoppers not wearing masks.

 

Now I'm not saying the OP does not have a valid reason not to wear a mask, but I don't think everybody who doesn't wear one necessarily does have a good reason.  And that's why I don't think a court can, or will, simply say "Oh well - the defendant says they have a reasonable excuse not to wear a mask, therefore we must believe him without further consideration".

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5 hours ago, BazzaS said:

Binary rather than digital?

Probably better.  One way or another I was just trying to point out that a court may take context into consideration. Severity of condition is an obvious factor  but not the only one.  Someone may be able to wear a mask perfectly well for five minutes in a local shop without it causing them distress whereas doing a supermarket ‘big’ shop for a family could be a very different matter.  

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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.

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On 22/02/2021 at 13:29, Man in the middle said:

 

 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.

 

I don't disagree.

 

But I think the uncertainty will be how the court dertermines if it is reasonable or not.

 

If you assume the severity of someone's anxiety can be rated on a scale of 1 (least severe) to 10 (most severe), it's quite possible that one court might decide that relatively mild anxiety (say 2 - 4) would suffice as reasonable excuse whereas another might say that only severe or really severe anxiety (say 8 - 9) should qualify.  (And I assume this is what hightail was getting at with their digital/binary analogy).  And I suspect it would be possible for even an individual magistrate to arrive at different conclusions in different cases.

 

I can't help but think some magistrates may come to a decision about reasonableness based in part on weighing the distress/discomfort/even pain suffered by the person in question against the purpose of the regulations - reducing cases of infection, possible deaths and possible distress caused to others.

 

I don't see how any decision about reasonableness can be made without taking account of such considerations - indeed they go toward the meaning of "reasonable" in this context.

 

And I'm not saying this with the intention of criticising the OP.  I'm saying that without knowing the severity of the OP's condition(s) it is impossible to say with any certain what the likely outcome will be.  All we really know is that the police officers concerned did not think it a reasonable excuse (for what it's worth).

 

And as I've already said, if I was the OP and was happy that I had a reasonable excuse, I'd challenge it and/or let it go to court.

 

It would be good to know how it turns out if the OP decides not to pay.

 

 

Edited by Manxman in exile
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20 minutes ago, Manxman in exile said:

All we really know is that the police officers concerned did not think it a reasonable excuse (for what it's worth).

 

I hope OP comes back with more information as one key thing we don't know is what the police said when OP told them he had a medical condition. All that OP posted was "I explained this to the police but they still issued me with the notice...". I'd like to know what the police actually said. What was their response to OP when OP told the police she/he had a medical condition? I assume they didn't carry out a medical assessment in the middle of Asda!

Edited by Ethel Street
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The way I look at it is to ask the question "Is simply having a particular medical condition a reasonable excuse in itself for not wearing a mask?"  I don't see how it can be.

 

Obviously we don't know what was said, but presumably it may have been along the lines of:

 

Police:  "Excuse me sir, but I see you are not wearing a face covering.  Would you mind explaining to us what your reason for not doing so is?"

 

Now, the OP may have responded in one of at least two different ways.  For example, one way would be:  "No - I don't mind explaining at all officer.  I have a long-standing diagnosis of severe anxiety for which I receive regular treatment including medication.  Since the wearing of face coverings have become compulsory while shopping I have discovered that the wearing of a mask brings about really severe and disorienting panic attacks in me, and these attacks are so bad that they cause palpitations, my heart-rate to go through the roof and really severe dizziness.  If I had somebody else to do my shopping for me, I wouldn't be here, but I don't.  Also I've looked on the government website and that appears to state quite clearly that I don't need any documentation or anything to demonstrate that I have a reasonable excuse for not wearing a mask.  Have I got that wrong?  I'm terrible sorry if I have... "

 

Or the OP could possible have said:  "I suffer from anxiety and acne*.  The government website says that because of that I don't have to wear a mask".

 

We don't know what was actually said by either party (the OP hasn't really told us) but I can easily see if the OP's response was along the lines of the former example then the police might have said to themselves "OK - he seems legitimate - no further action".  But if the Op's response was more like the latter, the police might have thought "Hmmm.  Not sure about this.  Give him penalty to be on the safe side and tell him he can challenge it if he disagrees."

 

If we're agreed the police aren't really in a position to assess whether an excuse is or is not reasonable, I can easily see them issuing penalties in non-clear cut cases and deciding to allow the system to decide the reasonableness or otherwise of a particular excuse.  Simply tell the person being penailsed that they can complain about the penalty or let it go to court.

 

I don't necessarily see this as the police abdicating their responsibility or not doing their duty.  I can see their thought process as being - We're in the middle of a pandemic killing unprecedented numbers of people; emergency measures are in place to prevent the spread of infection and deaths by making shoppers wear masks, unless they have a reasonable excuse; this person isn't wearing a mask but I have no way of telling if their excuse is reasonable or not; I'm not the best person to decide that - court is.

 

Now that's far from ideal but it's the sort of place we end up when the government wants to have its cake and eat it as to whether it wants to make people wear masks - or not.  They don't seem to have decided.  (Actually, I suspect the OP's predicament is exactly what the government intended when they brought this is.  Opportunity for police to impose on the spot penalties but with the possibility of going to court for those with reasonable excuse).

 

*As mentioned in an earlier post, I might not have mentioned the acne as I'm not sure if would strengthen or weaken my reasonable excuse argument.

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https://www.bindmans.com/news/neale-v-dpp-the-right-to-silence-citizens-duties-and-coronavirus-regulations

 

Perhaps the OP should have said nothing - and risked arrest!

 

"Firstly, the case calls into question the logic behind aspects of the criminal justice response to the public health crisis created by the Coronavirus pandemic...

 

"Secondly, it is clear that some police officers have misunderstood and misstated their powers, and citizens’ obligations, under the Regulations and at common law...

 

"Thirdly, the case confirms reasonable excuses for being outside are not limited to those explicitly set out in the Regulations. Police officers considering whether there are reasonable grounds for believing that an offence has been committed under the Regulations so that an FPN may be issued, or the reasonable grounds for suspicion that are necessary for an arrest, should give proper consideration to any explanation given by members of the public (and what a court might think of them) rather than only recognising those exceptions explicitly listed in the Regulations and/or government guidance...

 

Fourthly, the case is an example of a failure of the CPS review into prosecutions brought under Coronavirus Regulations, which has found that alarming numbers of cases were wrongly charged..."

 

Above quotes from the Bindman's article, not the decision.  Case arose from the first lockdown and was in Wales.  Same now?  Also was about not being at home - not mask wearing.

 

 

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After reading everything I still can’t decide if you think I should bother taking this to cab or I should just pay the fine? I’ve made an appointment with my GP to see if they’ll give me an exemption letter because I don’t want to feel like I can’t leave my home without risking a fine. 

We live in a world where seeing is not believing, where only a few know what really happened.

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Posted (edited)

Nobody here can say for sure whether you should challenge this penalty or just pay it because nobody knows if a court would consider your reason(s) for not wearing a mask a reasonable excuse or not.

 

But... my view would be that if you can get a letter from your doctor saying that because of your medical conditions (acne and anxiety) that wearing a mask causes you such distress (and/or discomfort and/or pain) that you have a medically based reasonable excuse for not wearing a mask, then that should do it for you - in my view.

 

You can then use that letter to challenge the police as to the validity of the fixed penalty, and if they don't back down you can let it go to court - if you want to do that.  I would expect the court to accept your doctor's letter at face value and quash the penalty - but nothing is certain!

 

Have you given your doctor/your practice notice of what you want and why you need it?  Have you explained that you have already received a fixed penalty for not wearing a mask, that you want to challenge it and that you need a letter explaining your reasonable excuse for not wearing a mask so that this does not happen again?  At my GP surgery I could either have phoned them up to explain all this in advance, or emailed them explaining it.  It might not be a good idea just to turn up for an appointment without letting the GP know in advance why you are there.

 

If your GP won't give you a "reasonable excuse" letter - and they may refuse to do so - then you need to think again.

 

First thing to consider if they don't is that you need to decide if you really have a reasonable excuse or not.  If you still think you do, then you need to decide if you want to challenge the penalty further or if you just want to pay it.  But if you do that, what happens next time* you are caught without a mask?  If you don't think you have a reasonable excuse, then you'd better start wearing a mask.

 

*If you can't get a GP's letter I have a few other thoughts but will have to post those later - I'm just going out.

Edited by Manxman in exile
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Hi 

 

I’ve spoke to my GP and they said they’ve been told by the government not to hand out any letters for people and I need to go onto the government website and I can get a letter of there. 
 

I’ve searched all over the website and can’t find anything but the template for the exemption card I already have. 
 

It makes clear on the website that you don’t need to proof any medical exemption but the police and shop keepers clearly think otherwise. 
 

I don’t no if I’ll have an argument now since my doctor won’t even see me so I can proof my anxiety. I don’t fancy paying solicitors fees if it has to go to court. I’d struggle paying the £200 fine at the moment let alone anything else. 
 

I’m going to ring CAB today and see if they can help in anyway. I think it’s likely I’ll end up paying but I really don’t think it’s fair as I followed the rules the government set. 
 

If I do have to pay it is there anyway I can pay it in instalments or convince them to still give me the £100 discount? I’m not a solicitor so I’ve needed more time then two weeks to figure out were I stand. 
 

Thanks 

Andrew 

We live in a world where seeing is not believing, where only a few know what really happened.

NatWest Problem *****Refunded*****

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Posted (edited)

Speaking to CAB is a good idea as if the police in your area are "trigger-happy", then they may already have experience of advising on this sort of problem.

 

If you pay the £200 then it goes away - but doesn't address what you do in future if you can't wear a mask.

 

Your best bet might still be to do what Ethel Street first suggested which is to complain officially to the police (or whoever issued the penalty charge) and argue that they were wrong to issue it because you had a reasonable excuse not to wear a mask under the Covid Regulations because doing so causes you distress because of your acne and anxiety.  Also point out that the official government website says this: 

 

"If you have an age, health or disability reason for not wearing a face covering:

  • you do not routinely need to show any written evidence of this
  • you do not need show an exemption card

This means that you do not need to seek advice or request a letter from a medical professional about your reason for not wearing a face covering."

 

https://www.gov.uk/government/publications/face-coverings-when-to-wear-one-and-how-to-make-your-own/face-coverings-when-to-wear-one-and-how-to-make-your-own

 

Ask them to withdraw the penalty as you have a reasonable excuse not to wear a mask and you have complied with government guidance.

 

If the police won't withdraw it then you either pay it or you don't.  If you pay it then it goes away but you've lost £200.  If you don't pay it, you wait to see if they will take you to court.  If they take you to court and you win - great!   But if you lose you get a criminal record and probably have to pay some prosecution costs too.

 

Nobody here can tell you what you should do.  Only you really know if the extent of your acne and anxiety is such as to cause so much distress when wearing a mask as to give you a reasonable excuse not to wear one.

 

The probelm with the govt website (which may not accurately reflect the law) is that it appears to declare that you can simply say that you have reasonable excuse not to wear a mask without providing any evidence that you do - which seems daft to some people.

 

You need to read back through this thread and pay attention to the points made - particularly those by Ethel Street and Man in the middle.

 

At the end of the day nobody here can predict what a court would do - not least because the guidance provided by the government is of very little help.  See what CAB advise.

 

[EDIT:  The police have already decided on one occasion that you do not have an excuse for not wearing a mask.  You might want to consider why that may be and whether it should affect any decision you make now].

 

 

Edited by Manxman in exile
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Hi everyone 

 

CAB was no help they didn’t even get back to me about the issue like the said they would. 
 

I’ve written up a letter to send below to ACRO it’s probably a long short but if it doesn’t work at least when they get back to me I can say I need help paying the penalty and can ask for more time. 
 

Do you think the following will be okay? 
 

Dear Sir/Madam

 

ACRO Ref No: 

 

I received a penalty notice for not wearing a mask in a relevant place on the 17/02/2020. 

 

I do not believe this penalty to be fair or justified for the reason it was issued. I had a reasonable excuse not to wear a mask under the Covid Regulations because doing so causes me distress and anxiety when I wear a mask. 

 

The official government website says: 

 

"If you have an age, health or disability reason for not wearing a face covering:

 

  • you do not routinely need to show any written evidence of this

 

  • you do not need show an exemption card

 

This means that you do not need to seek advice or request a letter from a medical professional about your reason for not wearing a face covering."

 

https://www.gov.uk/government/publications/face-coverings-when-to-wear-one-and-how-to-make-your-own/face-coverings-when-to-wear-one-and-how-to-make-your-own

 

I downloaded and printed out the exemption card from the government website and told the officers I suffer from anxiety when wearing a mask and have the exemption card for that reason. 

 

They didn’t take any of this into account and issued me with a Penalty Notice.

 

I request the penalty notice to be withdrawn as I had a reasonable excuse not to wear a mask and have complied with government guidance.

We live in a world where seeing is not believing, where only a few know what really happened.

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Seems a reasonable challenge to me.  I might want to tweak it a little bit but I'm not sure I could improve it much, to be honest.  I think you could send that off as it is. 

 

See if anybody else has any comments.

 

One thing - I know that notification is from ACRO and I see that they are administered by Hampshire constabulary, but I also note that the decision to penalise you was actually made by "the undersigned of Merseyside Police".

 

If the decision was made by Merseyside, I'm wondering if you should be writing to them to complain about the penalty under their complaints procedure, with a copy of that to ACRO (and possibly Hampshire constabulary)?  I suppose if you write to all three of them you can't go wrong!

 

If I were you I might try to 'phone or email Merseyside police and ACRO (is there a 'phone number?) to say you want to challenge this penalty and what is the correct way to do it.  If you 'phone make a note of the time and date and person you speak to.

 

See what others here say, but if there's some sort of deadline for paying the charge, try ot to miss it.

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ACRO have a page of FAQs on Covid Penalty Notices. All of it is relevant to you but particulalry note what they say about if you want to complain. There is no point in sending complaints to ACRO because they cannot cancel an FPN, only the police force which issued it can do that (details of how to do that should be on th back of the FPN).

 

"ACRO does not have the authority to review, investigate or cancel your FPN. 

ACRO is only responsible for administering your FPN on behalf of the relevant police force. As such, we do not have the authority to cancel the fines; this decision must come from the force or a court."

 

https://www.acro.police.uk/FPN-FAQs

 

You need to do something urgently if you want to make a complaint. The point was made at the start of the thread about needing to watch out for the timescales and unfortunately you are now almost out of time to submit a complaint. As ACRO site says (and as is presumably shown on the FPN?) you have 28 days from the date of the ACRO letter to pay, or "contest".  Your ACRO letter is dated 17th February. So the 28 days is up on 17th March - the day after tomorrow. 

 

I assume that any request to "contest" or complain must be received by the police within 28 days (not just sent within 28 days).

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In light of what Ethel Street has posted I would try to get that letter sent off today if I still could.  I'd go to a post office and get it sent first class and I would get a free certificate of posting at the same time.  My understanding is that if the certificate shows a posting date of today then it should be deemed delivered two working days later - ie 17 March.  (I must admit I don't know how that works if the certificate is timed after the last collection time of the day of postage?).

 

Even if the OP can't get to a post office in time today, it might be prudent just to get it sent first class today (before last collection if possible) and also post another one tomorrow from a post office.  Hopefully one, if not both of them, will be delivered no later than Wednesday.

 

Or if convenient they could deliver in person - and get a receipt.

 

The OP will need to read the ACRO FAQs himself to see who this challenge/complaint needs to go to.  Presumably Merseyside Constabulary?

 

If the OP's challenge is not successful, presumably he needs to decide whether to pay up or risk it being taken to court, and losing?

 

NB (1)  I'm assuming any challenge needs to be in writing and can't be by email?

 

NB (2) Even if the OP is technically late with their posted challenge, I hope it would not affect any decision to overturn the penalty.  That would seem very harsh.  I'd argue the challenge should be received within 28 days of service of the penalty notice, which I'd argue should be two days after its date.

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Posted (edited)

My comment on when the 28 days starts from is based on what ACRO say on that page: "If you have received an FPN, you have two options: you can either pay the FPN in full within 28 days (unless otherwise stated) from the date of your FPN letter (the date is located above your ACRO reference number) or contest it"

 

And according that ACRO page you can submit a request to "contest" the FPN by email, this is the relevant bit:

 

"Contesting your FPN

If you do not want to pay your FPN, cannot pay your FPN or if you disagree with any of the information within your FPN, you can contest it and request a court hearing.

I want to contest my fixed penalty notice, what should I do? 

Please email [email protected] with your ACRO reference number, clearly stating that you wish to contest and request a court hearing. 

You are welcome to provide an explanation and any supporting information or evidence you wish to be taken into consideration by the force/court."

 

 

 

 

But if you "contest" it this way that means you are asking to go to court and be tried in a Magistrates court. If you want to complain and ask the police that issued it to cancel it without going to court it will depend on that police force's rules whether you can submit it by email.

 

Just to be clear @Ftgab19both this post and my earlier one today are based only on my reading of the ACRO webpage. I have no expert knowledge or personal experience. You may read the ACRO page differently.

Edited by Ethel Street
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The OP is caught between a rock and a hard place then...

 

Either pay up and it goes away, or "contest" it and risk losing in court.  (And I don't know if a conviction for a breach of Covid regs means a criminal record or if it means paying extra too)

 

Ftgab19 - nobody here can really advise you how to approach this because it's all new to us.

 

If it were me I think I'd be phoning Mersyside police and ACRO on Tuesday saying (as you've said above) that you consider the imposition of the penalty charge to be wholly unfair in that you followed govt guidelines in good faith and that you think the police officers who issued the charge were acting unfairly and unreasonably in not accepting you explanation for no mask.  Say you can't afford to pay the charge let alone afford to go to court.  Ask them if, in all the circumstances (eg following guidelines in good faith) they could exercise their discretion to cancel the charge so you do not have to fight it in court?

 

That's what I think I'd do, but I'm not a lawyer and I'm not qualified to give advice.

 

In the end you have to decide how to handle this.  If you can't speak to anyone helpful on the phone on Tuesday, come back to seeif anyone has a better idea.

 

 

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7 hours ago, Manxman in exile said:

  (And I don't know if a conviction for a breach of Covid regs means a criminal record or if it means paying extra too)

 

According to the ACRO website:

 

"Will my fixed penalty notice result in a criminal record? 

Fixed penalty notices issued for offences under coronavirus legislation are non-recordable, so whether an FPN is paid or contested, it will not be recorded on the Police National Computer. Local records may be held by the relevant force."

 

Although bear in mind that it is still a criminal offence and if, for example, a potential employer asks specifically if you have ever been issued with an FPN it must be disclosed.

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