Border Force, the RYA, and £1000 fine !

[sarabande]

Some of you will be aware that two of the Jester Azores Challengers were fined on returning in 2021 to the UK by Border Force for

1 not having a PCR test before leaving Praia and
2 not filling in a Passenger Locator Form.

Background
Two Jester sailors set off on the 14th July 2021 from Azores towards the UK, a distance of some 1200 miles, taking about 12 days. They were sailing single-handed, and independently. On the 26 July ne of them had called National Yachtline in compliance with the government arrival regulations re Covid, and also asked Border Force if he needed to do anything else.

It seems that the Covid regulations changed on the 18th July whilst the two sailors were on passage and hence unable to keep up with the changes. However, Border Force decided that the two solo, blue water, sailors were in breach of the regulations and processed them for those breaches of the test and Locator Form rules.

The two Jesters had formal statements taken, and were fined £500 and £1000.

Not unnaturally, they felt aggrieved as they were in compliance with the regulations at the time of their departure, and asked to appeal. They have been told that there is no process for an appeal, and their solicitors say that taking the matter to the courts it is likely that the fees will exceed the fines. It seems that the fines relating to the Passenger Locator Form which had to be completed less than 10 days before arrival in the UK (i.e.while they were still isolated at sea) may be overturned if representations are made to Border Force.

One of the sailors later asked Border Force to see the statement he made, and his request has been refused. This may relate to a concern he has expressed that the statement may not accurately reflect what he is purported to have said at the interview, including the accuracy of his departure dates from Praia.

A request was made to the RYA for help, and this was treated “with disdain” – a matter of grave concern about the role of that organisation in supporting ordinary yachtsmen.

The Jesters have raised the matter directly to Nadeen Dorries and Priti Patel, and to other influential persons.

This matter has been raised on the forum, not only to provide support for the two men at the centre of the legislative tempest, but also to improve the understanding of Border Force and the RYA about the practicalities of sailing out of mobile phone and internet range. We are anxious to resolve this matter at the earliest opportunity, and to the benefit of all persons and organisations concerned.

Your advice and observations are requested, but please keep any advice or comments to the practicalities of the case, and resist the temptation to generalise about Covid or the organisations involved.

TIA

 

[Daydream believer]

Just out of interest. What action would Border Force have taken if the fine had not been paid? Does that automatically trigger court proceedings, thus giving them a chance to put their case to a magistrate?
Are the parties aware that the RYA membership includes free consultation with a solicitor in the first instance? Therefore, whatever the RYA office representatives might have said, could be corrected by an independent legal representative.

 

[sarabande]

I think the fines have not yet been paid, as there has been 'correspondence'. I will find out.

 

[sarabande]

An interesting point has been brought to light.

The fines relate to alleged offences under The Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021.

Section 3 seems to create the obligation regarding the passenger locator form.

But Section 19 of the Regulations create the offences, ( for failing to obey the earlier dictates) which all seem to have a requirement for a lack of a reasonable excuse to be complete....and furthermore there are a lists of what are reasonable excuses and some seem to be clearly applicable.

[previous Jester group emails find that] Section 2, defines "passenger" as a person travelling on a conveyance who is not a member of the conveyances crew...



If any of the forum legal eagles could comment please, it would be kind and very useful.


(Information within this post made available and updated from Jester Group )

 

[Frogmogman]

This all seems very heavy handed, compared to the Met’s initial reluctance to prosecute a bunch of people who should have known better, for blatant breaches of lockdown rules, followed by a very lengthy investigation and eventually 20 (no doubt tiny) fines.

One rule for them…….

 

[dunedin]

Yes clearly very harsh and unfair application of rules (compared to other public examples).

But these rules/laws are now withdrawn so no future precedent setting to worry about. In the wider scheme of things £1,500 fines are tiny compared to any legal costs likely to be incurred.
I would tend to think better to pay up under protest - and try to make as big a PR splash as possible with the local press (emphasising / satirising the comparisons with other rule breakers being more leniently treated). Could probably crowd fund the fines.
And approaching local MP, with press support, to seek the fines being reviewed.

Publicity and satire is cheaper than lawyers.

And before criticising the RYA, were the Jester sailers actually members at the time? Again if it were an important future precedent they may take up a case for non members, but for a withdrawn law they probably see as risking throwing lots of money in excess of the fines, for people IF they had not bothered to join.

 

[jordanbasset]

Not sure the legal costs would be that great. If they go to the Magistrates court they can defend themselves with a little research (which looks to have already been done perhaps with the help of a kind soul who is knowledgeable in the area). They just need to explain clearly to the magistrates the facts of the case and let the magistrates decide.
It's not like a civil court case where fees can be huge. Yes there may be some prosecution costs if they lose, but these are likely to be fairly small. Magistrates will look at the evidence and I would not be surprised if they get a sympathetic hearing. Border Force will have to prove beyond all reasonable doubt the sailors were guilty, I think that would be quite difficult and would not be surprised if they dropped it before the case arrived in court. As always nothing is certain in life however

 

[Daydream believer]

Border Force will have to prove beyond all reasonable doubt the sailors were guilty,

But in the eyes of the law, they ARE guilty. It would be up to the defendants to prove that it is the application of the law that is wrong. Judging by the original post that should be easy enough - one would hope. But in any event it puts the onus on the defendants rather than the other way round.

 

[Gargleblaster]

The person who raised the matter with the RYA was a member at the time but has since cancelled their membership and explained why.

Both people have been told separately by their solicitors that legal costs in defending the case are likely to exceed the fines with no guarantee of success. It has been pointed out to the person failing to fill out the PLF within ten days of arrival (it took them both 12 days to return) that by defending themselves they would have a good chance of success and insignificant costs.

 

[westernman]

Not sure the legal costs would be that great. If they go to the Magistrates court they can defend themselves with a little research (which looks to have already been done perhaps with the help of a kind soul who is knowledgeable in the area). They just need to explain clearly to the magistrates the facts of the case and let the magistrates decide.
It's not like a civil court case where fees can be huge. Yes there may be some prosecution costs if they lose, but these are likely to be fairly small. Magistrates will look at the evidence and I would not be surprised if they get a sympathetic hearing. Border Force will have to prove beyond all reasonable doubt the sailors were guilty, I think that would be quite difficult and would not be surprised if they dropped it before the case arrived in court. As always nothing is certain in life however

I think you are right. I think the right approach would be to let them prosecute.

 

[DJE]

My MP just happens to be the Attorney General. I'm happy to bring this to her attention if you can give me all the relevant details. Not that she has been any use whatsoever when contacted on other matters.

 

[rotrax]

This brings me to a truism I often take note of, one that could be used in a Magistrates Court - for initially such a small matter would go no higher.

" Rules are for the guidence of wise men and the blind obedience of fools. "

 

[jordanbasset]

But in the eyes of the law, they ARE guilty. It would be up to the defendants to prove that it is the application of the law that is wrong. Judging by the original post that should be easy enough - one would hope. But in any event it puts the onus on the defendants rather than the other way round.

It is still up to the Prosecution in a Magistrates court case to prove the case guilt beyond all reasonable doubt. The defendants just need to show reasonable doubt.

 

[stranded]

It is still up to the Prosecution in a Magistrates court case to prove the case guilt beyond all reasonable doubt. The defendants just need to show reasonable doubt.

Doesn’t the reasonable doubt test relate to whether or not they dunnit? It seems clear that they did. The test must be whether they had a reasonable excuse. I imagine every right thinking sailor would agree that they did. But an arsey magistrate might decide that they knew they were taking a chance at a time when rules seemed to be changing all the time. Were the rule changes foreshadowed?

 

[jordanbasset]

Doesn’t the reasonable doubt test relate to whether or not they dunnit? It seems clear that they did. The test must be whether they had a reasonable excuse. I imagine every right thinking sailor would agree that they did. But an arsey magistrate might decide that they knew they were taking a chance at a time when rules seemed to be changing all the time. Were the rule changes foreshadowed?

Reasonable doubt would encompass all the circumstances, from reading what the OP wrote I am not at all sure they did commit an offence. Of course the magistrates could find against them, that will always be the case. The magistrates could even find them guilty but give an absolute discharge 'whereby the court finds that a crime has technically been committed but that any punishment of the defendant would be inappropriate and the case is closed'
My suggestion was just a practical way forward if the defendants can't afford solicitors. The alternative appears to be to pay the fine.

 

[DJE]

If these are fixed penalty notices then they are not technically fines as I understand it. Isn't the notice just an agreement not to prosecute provided that the penalty is paid? Or am I just being pedantic.

 

[stranded]

This from a Parliamentary Committee is interesting:

“It is possible to tell from penalties that have not been paid and have then progressed through the system towards a prosecution, that a significant number of FPNs are incorrectly issued. A Crown Prosecution Service review of prosecutions brought under coronavirus Regulations that reached open court in February 2021, found that 27 per cent were incorrectly charged. Many more penalties may have been paid by people too intimidated by the prospect of a criminal trial to risk contesting their FPN through a criminal prosecution.”

Elsewhere I read that the FPN must be challenged or recovery proceedings for the penalty may be instigated, suggesting that they must not do nothing.

 

[dunedin]

This from a Parliamentary Committee is interesting:

“It is possible to tell from penalties that have not been paid and have then progressed through the system towards a prosecution, that a significant number of FPNs are incorrectly issued. A Crown Prosecution Service review of prosecutions brought under coronavirus Regulations that reached open court in February 2021, found that 27 per cent were incorrectly charged. Many more penalties may have been paid by people too intimidated by the prospect of a criminal trial to risk contesting their FPN through a criminal prosecution.”

Elsewhere I read that the FPN must be challenged or recovery proceedings for the penalty may be instigated, suggesting that they must not do nothing.

I think that is indeed the nub of the issue. Paying the fine the matter is closed. Going to court does risk a CRIMINAL conviction - which can have huge unintended consequences for years to come - and can prevent employment or even doing some voluntary stuff.
Courts may not have much appreciation of the practicalities of boating, and can take some odd decisions. Even a 90%chance of success means a 10% chance of coming out with a criminal record.
Hence per post #6 I would be minded to offer pay under protest to avoid criminal record, but emphasise that will refer to your MP, local press etc. NB Needs to be the local MP of the Jester individuals, not a third party.

 

[Humblebee]

Lots of good advice above, I would just add that it seems most strange for the Border Force to take statements and then charge the two Jesters. I'm not familiar with English law but in Scotland their statements would be inadmissible as evidence.
Oh, and would they not be entitled to see their own statements, even under a Freedom of Information request if it came to that? Is there no procedure where the FPN payment can be put on hold while it is being contested?

 

[Buck Turgidson]

Absolutely shocking!
I wonder how many of the illegal immigrants who arrived by boat on the same day were fined?