Covid and the criminal law
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Covid and the criminal law
Journalists and a barrister speak truth to power
The House of Commons justice committee has begun an inquiry into Covid-19 and the criminal law. It took oral evidence yesterday. The first witness was Sir Jonathan Jones KCB, QC (hon). He was followed by a panel of three: Pippa Woodrow from Doughty Street Chambers, Tristan Kirk who’s the courts correspondent of the London Evening Standard and myself. You can watch the full recording on the committee’s website and I have posted a recording of the panel session below. It lasts for just over an hour and a quarter. The transcript is here.
For once, we were not talking about the backlog of untried cases. Instead, MPs asked us how effectively the authorities had used the criminal law to tackle the pandemic.
Jones set the scene by deprecating the UK government’s tendency to legislate at extremely short notice, using the emergency procedures provided in the Public Health (Control of Disease) Act 1984. Those powers are used in Wales as well as England; although the Scottish and Northern Irish governments use powers derived from the Coronavirus Act 2020.
The former head of the government legal department said that bad legislative habits had become ingrained and that the rule of law would be at risk if people could not find laws that bound them. He emphasised that the police needed to understand the difference between policies announced by ministers at press conferences and laws made under the authority of parliament.
At one point Jones was questioned by Andy Slaughter MP about the comments on judicial review he had made last week and which I reported here. Slaughter made a generous reference to this blog.
We then moved on to the panel of three.
Pippa Woodrow was junior counsel — with Tom Hickman QC and Adam Wagner — for the claimants in Leigh v Metropolitan Police. This was the case brought last month by campaigners who wanted to know whether the law would permit them to hold a vigil at Clapham Common in memory of Sarah Everard. Woodrow told the committee that the restrictions on gatherings in the Covid regulations had to be read in a way that was compatible with the human rights convention. Article 10 of the convention respects freedom of expression and article 11 protects peaceful assembly.
I complained that the government’s main guidance page makes no mention of these rights. Its starting point is this:
Gatherings above the limit of six people or two households outdoors, or any gatherings indoors, can only take place if they are permitted by an exemption. These exemptions are listed on this page.
If you look under Other circumstances where you can gather in groups of more than six people or two households it says:
There are further reasonable excuses. For example, you may gather in larger groups or meet indoors… for the purpose of COVID-secure protests or picketing where the organiser has taken the required precautions, including completing a risk assessment.
An individual demonstrator is unlikely to know whether the organiser of a demonstration has taken the required precautions. It would be much more useful for demonstrators to know that they have rights to free speech and peaceful assembly — although these have to be balanced against the rights of others. There is certainly no right to put other people’s health at risk.
Under the firm but fair chairmanship of Sir Bob Neill, MPs questioned us at length about the fixed penalty notices that the regulations permit. Kirk revealed that less than 15 per cent of notices issued by the Metropolitan police for breaches of the Covid regulations over the past year had actually been paid.
According to his research,
a total of 14,174 fines were dished out, adding up to £3,625,440, but just £538,100 of the bill was settled between the start of the pandemic and mid-March this year.
It’s widely agreed that the government should have provided a way of challenging Covid fixed penalty notices, as it does for road traffic offences. At the moment, the only option is to ignore the notice and wait to see if a prosecution will follow. As Woodrow said, someone in her position would be tempted to pay a penalty to avoid prosecution — even if the notice was entirely unjustified.
I had not realised that the decision to launch a prosecution in those circumstances was one taken by the police alone. Given Kirk’s prediction of a wave of prosecutions facing an already-overstretched justice system, I argued that the director of public prosecutions should review the position and take some strategic decisions.
Rob Butler MP, who owned up to having been a BBC reporter in an earlier life, ended the session by questioning Kirk and me about reporting the courts during the pandemic.
It was a fascinating hour or so and I emerged from it much better informed than I had been at the outset. Do watch.
Update 23 April: I referred rather vaguely to a six-month time limit for prosecutions under the regulations. I’ve since been advised that the normal rules don’t apply.
Section 64A of the Public Health (Control of Disease) Act 1984 says, in part:
(1) Notwithstanding anything in section 127(1) of the Magistrates’ Courts Act 1980, a magistrates’ court may try an information (or written charge) relating to an offence created by or under this Act if the information is laid (or the charge is issued)—
(a) before the end of the period of 3 years beginning with the date of the commission of the offence, and
(b) before the end of the period of 6 months beginning with the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to the prosecutor’s knowledge.
Update 25 April: A police force that issued a fixed penalty notice of £10,000 to a nurse has suggested that the question of prosecution for non-payment is now one for the Crown Prosecution Service, the Observer reports.
Around 40 people attended a rally organised by Karen Reissmann in Manchester on 7 March organised to protest against a 1% pay rise for NHS workers.
Refusing to withdraw the penalty notice, Nick Bailey, assistant chief constable of Greater Manchester police, told Reissmann:
We now feel that this is a matter for the CPS and await its consideration around any subsequent prosecution if the fixed penalty notice is not paid.
Her solicitors have told the police they may seek judicial review if the fixed penalty notice (FPN) is not withdrawn.
They add:
Whilst the CPS can decide whether or not to prosecute Ms Reissmann for non-payment of the FPN, the CPS will not decide whether: (a) the GMP was operating an unlawful policy at the relevant time, (b) the GMP unlawfully breached Ms Reissmann’s right to protest, or (c) the FPN was unlawfully administered.
Covid and the criminal law
Fining a mental health worker £10,000 is depriving her of 42% of her annual net salary (pay say £30,000 : tax and NI say £6,000 : net £24,000). How can this be proportionate or just whether a penalty can be justified or not?
Joshua was right; time spent watching was a good investment. This was the Select committee system at its best - not least because of the quality of the evidence. For me it sparked optimism that Parliament will now begin to re-assert itself so that important policy and legislation cannot pass without proper consideration; and that the report of the Committee will underline not only the need to learn from mistakes but also the difficulty for our emaciated criminal justice system in rising to the challenges of the pandemic. Although many people were working under great pressure, as the Chair acknowledged, the inadequacies in the approach to law-making so lucidly articulated by Pippa Woodrow were readily foreseeable so that the volume of casework passing slapdash through the CJS became an inevitability. The statistics for wrongful convictions and unjustified police sanctions were quite shocking. Having been instrumental in the establishment of the CPS, I was dismayed to see that its role in facilitating fair and effective enforcement of such draconian legislation seemed confined to ex-post facto review of the damage done. Whilst the circumstances were exceptional and some shortcomings inevitable, I am sure that with pro-active leadership and the proper ethos, things could have been done better.
On the legislative side, witness spoke of the anticipatory announcements or trailers by Ministers followed by actual policy announcements and finally legislation (primary and secondary) which was different to what had been trumpeted. Generally, it was actually worse because even before Ministers started trailing possible announcements, the world had been treated to a welter of different briefings - the message varying as to which adviser had been chatting to which journalist.
On the enforcement side, these events confirm just how the CPS has lost its way; and that has been exacerbated by the enthusiasm for moving criminal casework out of the courts into an administrative process with little effective review. FPNs may have a place but at present they seem seriously overused. Indeed the whole rationale for the CPS was that only the simplest and most clear cut (i.e. factually based and usually strict liability) should proceed without review - at least until entry of a not guilty plea. As Pippa Woodrow pointed out, most Covid cases hinged on the reasonability of the conduct. Reliance on fixed penalties at once made the police not only investigators but also judge and jury in circumstances where the penalties were far from trivial. Perhaps the worst indictment of the CJS was when Pippa conceded that with the odds so stacked, she - a highly talented lawyer - would if faced with an unjustified FPN probably concede and pay rather than take the risk.
This move away from routine review combines with the single justice scheme to make it all too easy for unmeritorious cases to slip through generally and in the case of Covid cases it becomes all too easy for the CPS to say these are summary cases being dealt with by FPN or by police prosecution under the single justice system So we have no duty to be involved. It was only journalistic activity and people like Pippa Woodrow who forced the issue and exposed the can of worms. Should we have ben surprised? No! Witnesses commented on the single justice process and how it can be misunderstood. In reality it should be given the name which describes it best: guilty by letter (or digital letter) so tat those adopting it understand just what they are doing.
So let us hope that the Justice Committee looks beyond the difficulties that the system faced and addresses the bigger picture of how do we make the system more coherent and resilient. At present, there is no Minister or public official who can be regarded as having overall responsibility for prosecution arrangements.