WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
December 01 2020
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

CPS review finds all prosecutions under the Coronavirus Act unlawful

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CPS review finds all prosecutions under the Coronavirus Act unlawful

Red Cell: Patrick Maguire - from Proof, issue 4

A review conducted by the Crown Prosecution Service (CPS) has found that all prosecutions under the new Coronavirus Act were incorrectly charged. The ‘vast majority’ of those under the separate Health Protection Regulations were, however, correct.

According to the CPS, all 44 cases under the Coronavirus Act 2020 had been incorrectly charged because there was no evidence that they covered ‘potentially infectious’ people, as defined by Schedule 21 of the Act. 31 of those cases have now been withdrawn, and 13 returned to court to be relisted following convictions.

The CPS launched the review following a number of miscarriages of justice being highlighted in the press. It covered all 231 charges since the new coronavirus legislation was brought into force; of them, 228 had been by the police.

Gregor McGill, director of legal services at the CPS, said that it was right they apologised for the above mistakes, but that the rushed passing of the laws put ‘immense pressure on everyone involved’ and they were ‘all having to run to keep pace’. ‘Where mistakes were made it was usually because Welsh regulations were used in England or vice versa,’ he told a remote press conference last Friday.

The same sentiment was echoed by Martin Hewitt, chair of the National Police Chiefs’ Council. He said that the new body of legislation had ‘undoubtedly led to some confusion’ and that errors were indeed ‘inevitable’ when considering the context in which the law had been introduced. Hewitt added, however, that all parties had worked hard to manage the situation as effectively as possible ‘to keep the public safe’.

Of those prosecutions under the Health Protection (Coronavirus) Regulations 2020, which instead introduced a number of restrictions on movement and gatherings, 175 out of 187 were found to have been charged correctly. Seven of the twelve incorrect charges were withdrawn following the review, and five have been returned to court for the convictions to be re-opened and withdrawn.

McGill acknowledged that ‘the criminal justice system’ has been given ‘exceptional powers’ as a result of the coronavirus outbreak. He explained that ‘[i]n such a fast-moving and unprecedented situation, it is important there are safeguards to assist police and prosecutors in applying these laws correctly.’

Officers have been given further guidance on the correct use of legislation and additional safeguards have been put in place since the review. These include an internal review conducted by a supervising lawyer at the CPS before any charge is called on in court. In answer to a question from The Independent, McGill said: ‘It’s not for the CPS to stop charging offences, it’s to make sure that it’s appropriate.’

‘I am confident the measures we have put in place will enhance the consistency of charging decisions across the country and ensure a fair criminal justice response for all as we adjust to these challenging times,’ he continued.

In addition to the above statistics, provisional data was released on Friday that showed how many fixed penalty notices had been issued since 27 March 2020. A total of 14,244 fixed penalty notices were recorded by forces in England and Wales, prior to the easing of lockdown measures in England last week. These figures were not included in the review carried out by the CPS, despite the fact that there is no route to appeal available to those who have been issued with a fine unless they refuse to pay and risk prosecution.

The differences between the powers contained within the Coronavirus Act and the Health Protection Regulations as enacted at the end of March are explained by Robert O’Sullivan and Dominic Lewis of 5 Paper Buildings (here).