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Government must learn lessons from the use of criminal law in the covid-19 pandemic

24 September 2021

The Justice Committee has called on the Government to learn lessons from its use of the criminal law in the covid-19 pandemic.

In a report published today, the Committee has argued that a central lesson from covid-19 has been the enduring impact pandemics can have on the criminal justice system and courts. In future, it argues, the Government need to have the requisite legislative tools in advance respond in a swift and proportionate manner that does not risk criminalising behaviour in ways incompatible with widely understood principles of the rule of law.

The Committee found that the Government was justified in acting quickly in the face of an unprecedented health crisis but must learn lessons to ensure it is better prepared for the future. It calls for the Ministry of Justice to have a more central role in the development of all new criminal offences, as well as improvements in the Parliamentary scrutiny and public communication of such measures. It further calls for a wide ranging study to be conducted by the new pandemic preparedness agency (the UK Health Security Agency) to review the effectiveness of key elements of the justice response to the pandemic, including Fixed Penalty Notices and the single justice procedure, to assess their appropriateness for future use. 

The Government implemented a series of new offences to enforce restrictions implemented to protect public health in response to the Covid-19 pandemic. Failure to wear face coverings when required, restrictions on public gatherings, and quarantine following a positive test or international travel could see fines of up to £10,000 for repeat offenders. 

The Justice Committee found that the Government was justified in acting with speed to implement new enforcement measures in the face of a public health crisis. However, valuable lessons must be learnt to improve the development and implementation of such measures in the future. 

The establishment of the UK Health Security Agency is a welcome step in improving pandemic preparedness, but it must have adequate criminal law expertise to influence the direction of enforcement measures.  The Committee recommends that the agency launches a study into the role the criminal justice system played in protecting public health during the pandemic and the effectiveness of new offences in ensuring compliance of covid-19 restrictions. 

Parliamentary scrutiny is avital in testing the case for new criminal offences and assessing their impact, as well as ensuring the law-making process is transparent and public. The Government must work with the Procedure Committee to understand how scrutiny of future emergency regulations can be done more quickly. Improvements must also be made in how public health restrictions are communicated to the public, particularly in ensuring the line between what is guidance and what is prohibited by law is absolutely clear.  

The Committee also calls on the Government to move away from an over-reliance on issuing fixed penalty notices (FPNs) of increasing amounts to ensure compliance with public health regulations. The Government should undertake a review of the effectiveness of FPNs and establish parameters for their future use. 

The use of the single justice procedure, where a case may be dealt with by a single magistrate rather than a trial in open court, should be reviewed to assess if it provided the appropriate transparency for new and complex offences. 

Chair's comment 

Chair of the Justice Committee Sir Robert Neill MP said: 

“The speed and seriousness of the Covid-19 pandemic necessitated restrictions that we previously thought unimaginable. New criminal offences were introduced to enforce them and it is right that the Government acted quickly to create them. However, it is also clear that lessons need to be learnt and improvements made. 

“As the Justice Committee, our focus is on the integrity of the criminal justice system and the Rule of Law. Our report sets out a number of lessons for the every Government on the development, communication and enforcement of new criminal offences.

“The new UK Health Security Agency should review the way in which the Government used the criminal law to protect public health during the pandemic. In particular it should examine the effectiveness of certain measures, such as  Fixed Penalty Notices and the single justice procedure. We need to better understand whether their use was always appropriate and proportionate, and a model we should follow in the future. 

“That the justice approach to the pandemic was not perfect in its early stages is understandable; to fail to learn valuable lessons to better prepare for the future would be much less so.”

Further information

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