Mr Bumble: “If the law supposes that, the law is an ass — an idiot. If that’s the eye of the law, the law’s a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.” – ‘Oliver Twist’ by Charles Dickens.
’A prosecution with a heart’, quipped Philip from the Weston A. Price Foundation (London) as we both convened after hearing the verdict. The taste of victory, of justice been done was sweet for everyone involved but especially for both the defendants as they stepped into their local pub for a celebratory drink after the hearing.
Ellie and Richard weren’t in a position where they received a fixed penalty notice (FPN) for £50, better known as a ‘slap on the wrist’ for breaking the rules at a ‘small gathering’ with cheese and wine. No, they could have faced a crushing £3,000 penalty or jail time for being in dire personal circumstances upon their return to the United Kingdom and not being able to afford to book costly testing in accordance with the then Health Protection (Coronavirus, International Travel, Operator Liability) (England) Regulations 2021 since revoked on March 18th 2022.
Here’s what happened.
Ellie and Richard both left for Portugal in December 2020 hoping to start a new life before further COVID-19 restrictions swept across Europe, which they inevitably did. Even though having small funds to sustain them at the time, they had an appointment booked with their local Municipal (pre-Brexit) in order to obtain their residency and to gain further freedoms to travel and work across Europe. By the time they reached Faro they quickly discovered that they were trapped amidst the rapidly changing circumstances with COVID-19 lockdown, border closure and other local restrictions. Sadly, things went from bad to worse.
The couple’s mental health rapidly deteriorated over a period of months. Ellie already suffered from PTSD with regular bouts of anxiety as well as severe flash-blacks. Richard was consistently in pain from previous multiple dislocations and right shoulder reconstruction. On top of it all, dwindling finances, being stuck in foreign country during severe restrictions and being notified by friends that one of their beloved animals had passed away in their absence was becoming all too much to bear. Ellie’s grandmother managed to help them with Western Union payments when possible as well as them relying on the kindness of Portugese citizens for charitable assistance. Clothes were deemed ‘non-essential’ by the Portugese authorities during COVID-19 restrictions and according to their joint sworn statement, whatever Ellie and Richard had left to wear was ‘quite literally falling apart’.
A month before returning to the United Kingdom, Ellie and Richard were informed by friends acting as guardians for their property that criminal damage occurred. Windows and doors were smashed as well as the lights on Richard’s truck. At that particular point their situation became an emergency, but they still had to delay their return home due to the reopening of international borders as well as gathering necessary funds to book flights and pre-departure tests to board a flight from Faro back to England.
Finally in May the couple were all set to return to Britain. Due to their dire financial position and urgency to return home, they were unable to book and pay for private Day 2 testing arriving from a Category 1 country and could not fill out this part of the Passenger Locator Form. Their only solution was to use an exemption category to state that they were regular travellers in order to board the craft home. The Portuguese Immigration and Border Service (SEF) already confirmed to Ellie and Richard that they could still wait for their residency appointment upon their return to Portugal, therefore they had intention to return and to continue their lives as before.
Feeling relieved to be back in the motherland and one step closer to getting home, Ellie and Richard were pulled up by UK Border because of their exemption category and being unable to provide evidence from the SEF that they were intent on returning to Portugal. They were escorted to an interview room and interrogated by officials who not only used the incorrect penalty notice with out of date legislation, i.e. 2020 regulations and arriving from a Category 2 country – which was totally incorrect; but they had to consult other officials because it was unknown if the couple were liable for failing to possess either Day 2 and Day 8 booked tests or just Day 2 under existing legislation. Ellie and Richard struggled to provide detail of what happened to them leading to their position at the UK Border and that they couldn’t afford a Government loan under duress for private tests as they were already in so much debt. The couple were allowed to leave after agreeing to comply with remaining measures. They were told that if they didn’t hear anything withing 30 days that they were in the clear. Unfortunately Ellie and Richard both missed their transport link back home due to the delay at UK Border and had to spend the night on a city bench in torrential rain as they waited for a mainline train station to open in the early hours of the morning.
Fast forward twelve months.
In late July 2022, we were contacted by Ellie after she and Richard both received a second Fixed Penalty Notice from the Crown Prosecution Service (CPS) standing accused of contravening Regulation 6(3)(a), 19(1)(c) and 15 of the Health Protection (Coronavirus, International Travel, Operator Liability) (England) Regulations 2021. The real challenge was Regulation 6(3)(a) corresponding to the main charge which was the failure of ‘P’, a person arriving into England without a booked testing package and demonstrating that Ellie and Richard had ‘reasonable excuse’ to contravene these Regulations due to their emergency. They complied with Regulation 6(4) stating Where ‘P’ is an adult who arrives in England without possessing a testing package required under paragraph (3), P must as soon as practicable obtain such a testing package, which they did as well was quarantining upon advice from NHS Test and Trace.
Regulation 15 under the legislation referred to ‘Records and Information’, connected to Operator Liability, so this charge was incorrectly placed by the prosecutor. And then there was the overall legislation itself. The prosecutor did not specify which amendment of the statutory instrument the charges were made under. By the time Ellie and Richard arrived back to England there was already an amendment to existing legislation when they entered the statute books on 17th May 2021. According to Philip from Weston A. Price, legislation was amended some 42 times by the time the charges were laid. It’s incredible to look back now at how utterly chaotic things were for individuals as they attempted to navigate all of this and that’s not even going into the shambles that was the Traffic Light system for countries and quarantine hotels required for Category 3 or Red List arrivals.
We also had to take into consideration the impact of the entire experience on both the defendants mental health capacity to deal with proceedings not only at UK Border but with all else that followed, as well as their pre-existing medical conditions in order to challenge Regulation 9 and ‘Reasonable Excuse’.
Thanks to the submission of medical records combined with a Statement of Means before the hearing, we were already able to establish firm grounds why this case should be acquitted. In reality, this should have never have gone to court. We now know there have been some 1,200 cases relating to COVID-19 charges filed against individuals since September. 99% of the time these individuals are found guilty, forced to pay excessive fines and never get a court hearing. In our particular case we were lucky to have completed the process otherwise both Ellie and Richard may have faced huge fines and the threat of imprisonment if failing to pay them. The results could have been catastrophic for them both and many others like them.
Ellie and Richard are now able to put these events behind them and get on with their lives. It didn’t take too long for the court to make judgement based on what they heard from the personal and joint sworn statements which were read in person as there was no deputy solicitor to assist. It took great courage for them not only to ask for help, but also in the lead up to the hearing despite an ongoing battle with their health conditions continually being denuded by having to recall traumatic events as well as collecting necessary evidence to submit before the hearing.
What people have had to endure over the past two years of COVID-19 restrictions has been life changing. We’re thankful to Ellie and Richard for giving us carte-blanche to use their first names as well as whatever information provided from their personal and joint sworn statements to the court. But we haven’t given the full picture detailing the full extent of what they went through in Portugal and after their return to England due to its deeply personal and upsetting nature.
We are glad though that justice has been done and can only hope that more people will be spared what both Ellie and Richard have been through.
As a response to the continued development, integration, and implementation of technology that is destructive to global liberty, David Nolan created STOPCOMMONPASS. He investigates technology, privacy, and civil liberties.