Recommendation 24

HM Government Not Addressed

It is regrettable that any incorrect charging decisions were made under the Coronavirus Act 2020. The primary issue identified by the Crown Prosecution Service (CPS) was that individuals were erroneously charged under Schedule 21 and 22 of the Act rather than being charged under other pieces of legislation, such as the various Health Protection Regulations. As such, the issue was primarily administrative rather than being the “wrongful” use of the powers provided by the Coronavirus Act. Since April 2020, the CPS reviewed all finalised cases* which were charged under the Coronavirus Act 2020 to ensure that correct offences had been charged and prosecuted. That review is ongoing with finalised cases being reviewed each week by CPS lawyers. Whenever the CPS identify that an error has occurred in a case where the defendant has gone onto plead guilty or be found guilty, the case is referred back to the local CPS Area. This provides an effective safeguard by ensuring the case is re-opened and re-listed in court so that the error can be corrected (either by way of amending the charge or withdrawing the charge entirely). In addition, the Government committed that these powers would not remain in place any longer than necessary or proportionate. The Schedules 21 and 22 powers were expired from the Coronavirus Act as of 9 December 2021. It should be noted that the error rate under the Health Protection Regulations has not been unduly high. The CPS review shows that 79% of cases charged between April 2020 and January 2022 were correct. As this was a bespoke analysis developed in response to the unique circumstances of the pandemic, the CPS does not have a direct comparator that this can be measured against but an HMCPSI report on charging published in September 2020 may provide a useful comparison. From a sample of 1,400 cases charged by the CPS, inspectors found that 82.4% fully met the requirement to select offences that were appropriate and proportionate. The error rate of charges brought under the Health Protection Regulations is therefore broadly in line with other criminal offences. *Finalised cases are cases where a prosecution has either been stopped or concluded with the defendant being found guilty, or where a guilty plea is entered and accepted.