4th Report - Covid-19 and the criminal law

In considering the Government’s approach to its use of the criminal law during the covid-19 pandemic we recognise that the Government was required to act in exceptional circumstances and to respond to a public health emergency of a scale not seen in recent times. We therefore give credit to the Government and all those involved in developing and enforcing covid-19 offences in such difficult and unpredictable circumstances. The creation and enforcement of these offences played an important part in protecting the public.

The Government’s first priority must be to protect public health and save lives. The Government should be commended for moving to strike a difficult balance between the need to provide police forces with tools to enforce the rules without criminalising behaviour in ways incompatible with the fundamental values of our society.

However, the creation and enforcement of any new criminal offence must be compatible with widely understood principles of the rule of law. Ensuring that those principles are upheld serves to enhance understanding of and compliance with the law, which is essential to achieving positive public health outcomes and to save lives.

At the time of publication of this report, we recognise that almost of all of the covid-19 restrictions we refer to are no longer in force. However, should the covid-19 situation worsen again, and restrictions need to be reintroduced, we would urge the Government to act in line with the principles embodied in the conclusions of this report and with the lessons learnt. (Paragraph 8) Creating covid-19 offences

A central lesson from the covid-19 pandemic is that future responses to pandemics needs to be cross-governmental from the outset, and not just led out of an individual department, such as in this case the Department for Health and Social Care.

Another lesson is that the Ministry of Justice should have greater oversight over the creation of criminal offences in response to public health emergencies, including a pandemic. As government guidance states, the Ministry of Justice should be consulted on the creation of new criminal offences to ensure they are proportionate and necessary and to consider their impact on the wider justice system. This is as important in a pandemic as in ordinary times, notwithstanding the need to move at pace.

The Government should update its guidance on the creation of new criminal offences for all departments to clarify that the Ministry of Justice should as a rule be consulted. While circumstances may conceivably arise in which the need for a speedy response may temporarily suspend that need, as may have been the case in the early stages of Covid-19 and the criminal law 33 the covid response, the Government should make a clear commitment to undertake the necessary consultation in all but the most exceptional circumstances and to do so retrospectively in the event of new offences being created without the proper procedures having been followed. The Ministry of Justice can play an important role in both ensuring a degree of consistency of approach and identifying the potential impact on the criminal justice system.

We support the creation of the UK Health Security Agency as a new body designed to ensure the nation can respond quickly and at greater scale to future pandemics. In line with Lord Wolfson’s suggestion that expertise in the criminal law needs in future to be brought into pandemic planning, we urge the Government to ensure that the Agency has sufficient expertise in the criminal law, and factors such expertise into future pandemic preparation. We support the creation of the UK Health Security Agency as a new body designed to ensure the nation can respond quickly and at greater scale to future pandemics.

Given the central role that new covid-19 related offences and lockdown laws played in protecting public health, we recommend that the Government commission a study, to be conducted by the UK Health Security Agency or other relevant body, into the role of the criminal justice system in protecting public health during pandemics. The aim of the study should be to examine how effective the creation of covid-19 offences was in achieving compliance with public health regulations and protecting public health.

There has been general recognition of the need to respond very quickly to the changing circumstances of the pandemic, particularly as it began when facts about the virus were not well known. The Government was right to use all the legislative tools at its disposal, as granted by Parliament, in order to legislate to protect public health during the covid-19 pandemic.

Parliament has a responsibility to ensure that any criminalisation has democratic legitimacy. Legitimacy is vital when widespread curtailment of civil liberties is at stake and the risk of people ignoring the rules owing to low risk of detection is high.

A lesson from the covid-19 pandemic is that Parliament should play a more active role in the creation, scrutiny and oversight of new criminal offences in response to emergencies. One of the primary functions of parliamentary scrutiny of legislation is to make the legislative process, and the law it creates, accessible and transparent. Parliament plays an important role in making sure that the law and any new criminal offences are so far as is possible intelligible, clear and predictable. It is not satisfactory in this context that Parliament was not always able to fulfil its function when Members were required to consider statutory instruments already repealed or already superseded. We recommend that the Government and the Procedure Committee of the House of Commons consider how future scrutiny of emergency regulations can be conducted in a timely fashion.

The Ministry of Justice has undertaken to write to this Committee whenever it introduces a statutory instrument which may be of interest to this Committee. During the pandemic, we have corresponded with the Lord Chancellor over a number 34 Covid-19 and the criminal law of statutory instruments, such as those for example regarding custody time limits and the stay on possession proceedings. The Ministry of Justice’s commitment to ensure that this Committee is informed of significant changes to the justice system through statutory instruments is very important for our work. It would represent good practice if all other government departments also undertook to keep their corresponding select committees informed of significant changes to the law made by statutory instrument.

To facilitate effective scrutiny of new criminal offences in statutory instruments, it would be helpful if the Government would ensure that the accompanying explanatory memorandum should contain a specific section detailing any new offences, the reasons behind their creation, and the justification for the penalty applied. The memorandum should also contain a short statement setting out why the offence is considered both proportionate and necessary.

The Government’s communication of new covid-19 offences created in response to the pandemic was essential to ensuring both that public and law enforcement agencies understood what was prohibited and delivering high levels of compliance.

We recognise that throughout the pandemic the Government’s priority has been to communicate as clearly as possible to the public what they should and should not do. We also recognise that due to the speed with which legislation needed to be passed, and the complexity of the legislative framework, it was difficult always to capture the nuance between what was advisable and what was prohibited by law within Government announcements and ministerial press conferences.

However, blurring the line between government guidance and the law has potentially damaging long-term consequences, including for the rule of law. In a free society that respects the rule of law, only legislation can criminalise conduct, and it should be open to a person to decide whether to follow government guidance. The Government has a responsibility to ensure that the public and the police have a clear understanding of the distinction between guidance and the law.

We recognise that sometimes novel offences were created at speed and that there was inevitably, therefore, some initial uncertainty about their extent and application. The concept of legal certainty is also an essential component of the rule of law. In principle, all restrictions should be cast in terms of sufficient clarity and certainty to enable people to understand whether certain kinds of activity will or will not incur criminal liability. Government communication of any new criminal offences must always accurately reflect the true legal position so as not to undermine public trust, and subsequently public compliance. We recognise that the novelty of these offences meant the usual clarity in the law that evolves as cases are prosecuted and heard by the courts was necessarily absent and clarity and understanding of the public, police and the courts can naturally be expected to improve over time as happens with other offences.

A key lesson from the covid-19 pandemic is the importance of public communication of any new restrictions and criminal offences to delivering compliance and protecting public health. The Government should review how public health guidance and public Covid-19 and the criminal law 35 health regulations are communicated to the public in future pandemics, including via public announcements and gov.uk, to ensure that it is clear to the public what constitutes advice and what is legally required of them. This could be done as part of the study which we recommend the UKHSA undertakes. (Paragraph 46) The enforcement of covid-19 offences

Fixed penalty notices have an established a role in our legal system, for example for road traffic offences, but the context of new covid-19 offences is different from many of these offences and curtailed freedoms considered fundamental in a democratic society. We recognise that fixed penalty notices played a valuable role in policing the pandemic. However, in principle, when offences in question are complex, difficult to apply and give rise to significant sanctions, it should ordinarily be the responsibility of a court, rather than an official to determine liability. Any future review considering alternative approaches should give due weight to this.

A £10,000 fine for a criminal offence is a penalty so large that only a court should issue it. When a court issues a fine, it takes into account the financial circumstances of an individual; this is not the case with fixed penalty notices.

We recognise that, due to the reliance on the Public Health (Control of Diseases) Act as the legislative framework for creating new offences, the Government was limited in its options to create new offences. A lesson from the covid-19 pandemic for future pandemic preparedness is therefore that the Government needs to have a greater range of options at its disposal to introduce public health restrictions swiftly in a proportionate and predictable way. In future the Government should not solely rely upon fixed penalty notices of increasing magnitude to deliver compliance with public health restrictions. For example, given the seriousness of the offence of holding a large unauthorised gathering in a pandemic, the Government should consider developing alternative means of ensuring compliance that does not rely on a fixed penalty notice of £10,000.

The Government should conduct a review of fixed penalty notices for covid-19 offences. The review should consider: • how effective the fixed penalty notice scheme has been for delivering public compliance; • what alternative options there might be for enforcing public health restrictions during a pandemic; and • whether the use of fixed penalty notices should be limited to certain types of offences in the future. These terms of reference could be considered as part of our suggested review by the UKHSA.

The high error rate of charges brought under the Coronavirus Act and the public health regulations illustrates the importance of the need for future pandemic planning to consider the role of the criminal law. (Paragraph 68) 36 Covid-19 and the criminal law

We recognise that the rates of payment for covid-19 related fixed penalty notices are broadly in line with what is expected for other types of fixed penalty notices such as traffic offences. However, given the high profile and pertinent nature of these penalties during the pandemic, we think the public would be concerned to know that the majority of people who were given a fixed penalty notice were either given the notice in error, or were given one correctly but have escaped any penalty.

In its response to this report the Government should provide us with data on: • the number and proportion of fixed penalty notices that have not been paid; • the number of cases where the police have decided not to prosecute or no decision was taken before the expiry of the limitation period; and • the total number of prosecutions of covid-19 cases including single justice procedure cases.

The guidance on ACRO Criminal Records Office’s website is ambiguous. It should be made clearer to reflect the fact that contesting a fixed penalty notice does trigger a review by the relevant police force. If someone has a good reason to suspect that a fixed penalty notice has been issued in error, they should be made aware of the fact that a contest request will not necessarily result in a prosecution.

We acknowledge the policing Minister’s point about proportionality but are concerned that the review process for covid-19 related fixed penalty notices was inconsistently applied by different police forces and unclear. For future use of fixed penalty notices the Government should ensure that the review process that enables an individual to challenge a notice without risking a criminal prosecution or incurring additional costs is clearly and consistently articulated.

For covid-19 related offences a recipient of a fixed penalty notice, who does not pay the fine within 28 days should be told promptly if a police force decides not to charge. A recipient of a fixed penalty notice should also be told when the limitation period for prosecution will expire.

In response to this report the Government should provide us with data on the number of covid-19 related single justice procedure cases, which includes data on the outcome of the cases and the level of fine imposed.

A central lesson from the covid-19 pandemic is the enduring impact that pandemics can have on our criminal justice system and courts. In response to the pandemic the Government was right to look for ways to reduce pressure on the courts system and to avoid overwhelming the magistrates’ courts with covid-19 related cases. We recognise that the efficiency of the single justice procedure had a role to play in this.

However, given the relatively small number of covid-19 cases and their public importance, we do not think that all covid-19 offences in the regulations should necessarily have been specified to allow the procedure to be used. The use of the single justice procedure to deal with covid-19 offences has been problematic in the wider context of public uncertainty over what was prohibited and what was allowed, Covid-19 and the criminal law 37 caused by the fast-changing nature of the covid-19 regulations. We also appreciate concerns expressed to us about the transparency of the single justice procedure. In a pandemic it is also important for the integrity of offences that justice is seen to be delivered in line with the principles of the rule of law.

A lesson learnt from the pandemic is that the Ministry of Justice should review the transparency of the single justice procedure and consider how the process could be made more open and accessible to the media and the public.

The Government should also conduct a review of the use of the single justice procedure in covid-19 cases. The review should consider the relative complexity of different covid-19 cases and whether it was appropriate for more complex cases to be specified to allow use of the single justice procedure. This could be incorporated as part of our recommended review by the UK Health Security Agency into the role of the criminal justice system in protecting public health during pandemics. (Paragraph 92) 38 Covid-19 and the criminal law