In a written report published on 24 September 2021, the Justice Committee called on the government to learn from its use of the criminal law during the Covid-19 pandemic. In this article, we set out the Committee’s key findings.

Introduction

As the pandemic broke, the government acted quickly to combat the threat posed by Covid-19. The government introduced novel offences to enforce the restrictions imposed to protect public health. These included restrictions on public gatherings, mandatory quarantine following a positive test or international travel, and penalties for failure to wear face coverings when required.

In their report, the Committee considered the creation and enforcement of Covid-19 legislation in the wider context of the criminal justice system and from a ‘rule of law’ perspective. It argued that the creation and enforcement of any new criminal offence must be compatible with widely understood rule of law principles, and that upholding these serves to further the public’s understanding of, and compliance, with the law.

Whilst the Committee ultimately found that the government was justified in acting speedily in the face of an unprecedented health crisis, they argued that lessons must be learned to ensure better preparation in the future, noting that the pandemic highlighted the way in which public health crises can have an enduring impact on our criminal justice system.

The role of the Ministry of Justice

The extent of the role played by the Ministry of Justice (MOJ) in the earlier stages of the pandemic in determining how criminal law was to be used in response to Covid-19 is unclear. Ordinarily, a department planning to introduce a bill or statutory instrument containing a new offence consults the MOJ. At the start of the pandemic, the Department of Health and Social Care (DOHSC) was responsible for the origin of most Covid-19 policies. It appears that the urgency of the situation meant that the DOHSC was unable to consult with the MOJ on the creation of new offences.

The Committee, therefore, recommended that future responses to pandemics should not be orchestrated by a single department, encouraging cross-departmental consultation. Furthermore, it recommended that the MOJ should have greater oversight of the creation of new offences in relation to public health crises in order to ensure that any new offences introduced are done so having considered:

1. whether they are necessary and proportionate
2. whether they are necessary and proportionate in the context of the wider justice system itself

The reliance on delegated powers

The government used delegated powers to legislate throughout the pandemic. The Committee found that the government was justified in using all legislative tools at its disposal, given the threat posed. However, concerns were raised around the long-term effects of legislating in this manner, particularly in relation to the rule of law. There were times during the pandemic when MPs were unable to scrutinise instruments; the legislation was often only made available and published at very short notice, and there was little parliamentary debate on the proposed law before it came into force.

The Committee highlighted the fact that democratic legitimacy is vital when widespread curtailment of civil liberties is at stake. It urged Parliament to play a more active role in the scrutiny of new criminal offences, given that one of the main functions of parliamentary scrutiny of legislation is to make the legislative process accessible and transparent. This is a central tenet of the rule of law.  

Throughout the pandemic, there was widespread confusion as to what actions were acceptable, as exemplified by the widely reported case of the two women in Derbyshire who were fined for travelling to exercise. Concerns were expressed as to the combination of regulations and guidance, the chief of which related to legal certainty and specifically the point at which something became required under the law and stopped being ‘merely guidance’. The Committee considered it to be crucial for the public to know definitively whether an act will or will not amount to a criminal offence.

The Committee concluded that blurring the line between guidance and legislation could have damaging long-term implications. Only legislation can criminalise conduct in a free society with respect for the rule of law, and members of the public should be free to choose whether to follow government guidance. Uncertainty undermines public trust, and a lack of trust leads to reduced compliance. In the light of this, the Committee called on the government to improve their public communication of any new restrictions and criminal offences.

The use of enforcement measures

Fixed Penalty Notices (FPNs) were relied on by the government as an enforcement mechanism. Concerns have been raised in relation to the use of FPNs, particularly regarding the fact that it is questionable whether members of the public understood the distinction between a civil and a criminal penalty, and whether they were under an obligation to accept the penalty rather than fight their case in court.

Furthermore, it has been argued that the use of FPNs raised inequality issues. A wealthy couple planning a wedding in breach of the regulations, for example, and faced with a £10,000 penalty, might simply factor this cost into the overall wedding budget. They would be undeterred by a mere civil penalty when potential criminal liability might have deterred them, due to the reputation consequences of a criminal record. The use of civil penalties reflects and deepens socio-economic inequality, which diminishes respect for the justice system in the minds of some citizens, and by association, the rule of law.

To combat this, the Committee recommended that where offences are complex, it should be the responsibility of a court, rather than an official issuing an FPN, to determine liability.

The introduction of a £10,000 fine for unauthorised gatherings of more than 30 people attracted much controversy and was criticised by the Committee, which considered that such a large fine should be issued by a court. A court would take into account the financial circumstances of any individual, which does not happen in the case of FPNs.

The government, so say the Committee, needs to have a wider range of options at its disposal to introduce public health restrictions in a proportionate manner. In future, FPNs should not solely be relied upon to ensure compliance.

Much evidence was received by the Committee that expressed concern about the level of error in the enforcement of Covid-19 FPNs. Pippa Woodrow, a barrister at Doughty Street Chambers, noted that all of those charged under the Coronavirus Act were wrongly prosecuted. Further, it is estimated that around 50% of the FPNs issued remain unpaid.

The use of the single justice procedure

The single justice procedure (SJP) is a court procedure enabling the police to serve a notice and evidence on an accused person in a magistrates’ court without their attendance. A judge can accept a written indication of a guilty plea and issue a fine or, if no such response is received, a magistrate can try the accused in their absence. SJP cases are not reviewed by the CPS, and there is concern around the possibility of this leading to incorrectly charged cases not being identified.

It was argued before the Committee that the SJP is unsuitable for Covid-19 offences – a new area of law – where there is doubt as to whether an offence has been committed at all. These cases are of high public importance and the offences are sometimes legally complex.

The Committee noted that the government was correct to attempt to reduce pressure on the court system, and the efficiency of the SJP had a role to play here. However, the Committee concluded that not all of the Covid-19 offences should have been specified to allow the procedure to be used. The SJP suffers from a lack of transparency, which has a negative effect on public confidence in the rule of law.