Written evidence from The Crown Prosecution Service

The Crown Prosecution Service (CPS) prosecutes criminal cases that have been investigated by the police and other investigative organisations in England and Wales. The CPS is independent, and we make our decisions independently of the police and government.

Our duty is to make sure that the right person is prosecuted for the right offence, and to bring offenders to justice wherever possible.

The CPS:

• decides which cases should be prosecuted;
• determines the appropriate charges in more serious or complex cases, and advises the police during the early stages of investigations;
• prepares cases and presents them at court; and
• provides information, assistance and support to victims and prosecution witnesses.

Coronavirus related offences

A large number of new criminal offences have been introduced as part of the Government's response to the Covid-19 pandemic. These are contained in the Coronavirus Act 2020 (the Act) and various Coronavirus Regulations (the Regulations), with separate Regulations for England, Wales and local areas.

Coronavirus Act

The offences under the Act relate to:

• Potentially infectious persons being required to undergo screening (section 51 and schedule 21).
• Secretary of State declarations and directions in relation to prohibitions, requirements and restrictions on events, gatherings and premises (section 52 and schedule 22). These are distinct from Regulations that place restrictions on gatherings and businesses.
• Secretary of State directions in relation to the power to suspend the operation and management of an airport, seaport or an international rail terminal (section 50 and schedule 20).

Coronavirus Regulations

Not all Coronavirus Regulations contain criminal offences. As can be seen on legislation.gov.uk, there are more than 500 Regulations to date but most do not contain criminal offences. 

Each set of Regulations contain a number of summary-only offences that relate to breaches or contraventions of a large number of restrictions, prohibitions, instructions and requirements imposed by the Regulations.

The CPS has worked with the Ministry of Justice and the Police National Legal Database (PNLD) to create new National Standard Offence Wordings, for charging purposes, for new offences under the Coronavirus Regulations. These are placed on the PLND database for access by the police, CPS and HM Courts and Tribunal Service, so should provide accurate and consistent wording of charges in a complex area of law.

CPS guidance

The CPS has published legal guidance on the Regulations that apply in England that contain criminal offences, which can be found on the prosecution guidance page of the CPS website. CPS Cymru–Wales produces its own guidance on the Welsh Coronavirus Regulations, accessible to all CPS Cymru–Wales prosecutors.

Inquiry into Covid-19 and the criminal law

This section focuses on the inquiry’s terms of reference, as they apply to the work of the CPS.

Government consultation in drafting and developing coronavirus offences

The CPS acknowledges that the imminent threat posed by the Covid-19 pandemic has caused the Government to introduce emergency legislation at short notice in exercise of the powers conferred by the Public Health (Control of Disease) Act 1984.

However, despite the speed with which the various Regulations have been introduced, the CPS has had the opportunity to work with government departments and the police to aid our understanding of the policy intent behind the Regulations and to raise any practical difficulties we have encountered in enforcing them. In particular:

• Prior to the first Health Protection Regulations coming into force in March 2020, the CPS viewed and commented on a number of draft Regulations, helping to clarify the text and identifying any perceived problems. Since this text served as the basis for a number of subsequent Regulations, CPS involvement has ensured that we are able to readily interpret most of the provisions, to assist the police by way of advice, and to enforce them through prosecutions.
• The CPS continues to support the police and government departments by providing feedback on new draft Regulations and Amendments via a legal working group set up under the NPCC Operation Talla response.
• We also provide ongoing feedback on any statutory provisions that are not clear or prove to be difficult to enforce in practice and could be improved upon. If necessary, these may be the subject of working group discussions with the police and other government departments. At times, such provisions have been amended in subsequent Regulations.
• The CPS also provides feedback to the police on police guidance, which ensures a consistent interpretation of, and approach to, enforcement of the Regulations by the CPS and the police.

As a result of this involvement, the CPS has been able to produce and publish the guidance copied above at the same time, or shortly after, any new Regulations or Amendments have been brought into force. We were also able to roll out training for CPS prosecutors shortly after the Act and the first Regulations became law.

The use of fixed penalty notices

Breaches of the Coronavirus Regulations can be dealt with initially either by way of a fixed penalty notices (FPN) or the prosecution of the offence. If an FPN is issued and is not paid within the stipulated time period of 28 days a prosecution may follow.

Under the Regulations, the CPS is not authorised to issue an FPN. The police and other authorised persons may issue an FPN to anyone aged 18 or over who they reasonably believe has committed an offence. The level of the fine in the FPN varies according to the type of breach and whether it is a first or subsequent breach. FPNs can be issued for up to £10,000 for some breaches including, for example, organising or facilitating a house party of more than 30 persons. 

For enforcement of breaches of Coronavirus Regulations, the police have adopted the ‘Four Es’ approach – Engage, Explain, Encourage, Enforce. Since this aims to educate the public and take a proportionate response to enforcement, many contraventions of the Regulations are not met with an FPN. This approach means that  prosecutions are very much a last resort, as if the police do issue an FPN and it is paid within the relevant period, under the Regulations the person cannot be charged with, or convicted of, a criminal offence.

The effect of this approach on the CPS is that the overwhelming majority of breaches of the Regulations will not be dealt with by the CPS, as many will not attract an FPN and, where an FPN is issued and paid, the case will not be charged or subject to any CPS review.

As offences under the Regulations are ‘summary only’, in line with the Director's Guidance on Charging, the police are authorised to charge all offences under the Regulations, and this will not require prior CPS involvement. Some of these cases will be reviewed by the CPS subsequently, and this will depend on whether the case is commenced under the single justice procedure (SJP). Where not guilty pleas are entered the CPS will conduct the prosecution of those cases.

The use of the single justice procedure

Under section 3 of the Prosecution of Offences Act 1985 the Director of Public Prosecutions (DPP) must take over the conduct of all criminal proceedings instituted on behalf of a police force, unless the proceedings are specified in an Order made by the Attorney General under section 3(3).

Specified proceedings are subject to the SJP, which is a police-led prosecution that applies solely to summary only, non-imprisonable offences, where the defendant is 18 years or over when charged. The SJP allows suspects to plead guilty by post and a single justice will determine the level of fine on the papers without a traditional court hearing. The CPS only become involved in the SJP if and when a defendant pleads not guilty, at which point the case will be passed to the CPS to prosecute.

Initially, only offences under two sets of Coronavirus Regulations were specified: these were the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 and the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020, which came into force on 26 March 2020 and were revoked on 4 July 2020 and 11 July 2020 respectively.

Subsequently, on 8 February 2021, further offences were specified, under 25 sets of Regulations, so that the SJP could be used for all existing Coronavirus Regulations offences.

For the CPS, the impact of offences under the Regulations being specified and subject to the SJP is that the CPS does not have conduct of these cases unless the suspect enters a not guilty plea.

With regard to offences that were not initially specified, and so not subject to the SJP, these were charged by the police and subsequently prosecuted by the CPS, regardless of plea.

Offences under the Coronavirus Act 2020 are not specified, so are all subject to CPS prosecution, regardless of plea.

When a case passes to the CPS to prosecute, a CPS prosecutor will review the evidence to determine whether there is sufficient evidence of an offence and whether the alleged offending merits a prosecution and, if so, whether the correct charge has been applied to the offending.

Under SJP, the police need to supervise and assure their charging decisions as they are made, as the CPS has no role at this stage.

The role of the CPS in reviewing charges of coronavirus offences

In addition to prosecutors’ reviews of police charged cases described above, since the beginning of April 2020 the CPS Compliance and Assurance Team has separately reviewed all finalised cases which were charged under the Act or the Regulations to ensure the correct offences were charged and prosecuted. There are cases where a prosecution has either been stopped, concluded or a guilty plea has been entered and accepted.

The CPS publishes the results of these monthly reviews on its website. The latest review publication is for February 2021 and can be accessed here.

A detailed analysis of the reviews since March 2020 shows that:

• Of the 1,597 cases finalised under the Coronavirus Act and Coronavirus Regulations, 1,132 (71%) were charged correctly.
• Of the 1,345 prosecutions brought under the Regulations, 1,132 (84%) were found to be correctly charged. Prosecutors withdrew 208 of the incorrect charges at court.
• Of the 1,132 correctly charged offences under the Regulations, there were 568 guilty pleas and 79 cases found guilty at trial. Of the remaining 485, 17 were found not guilty at trial and the vast majority were withdrawn because they were charged with other more serious offences that were sufficient to reflect the overall criminality of the offending.
• The main criminal offence under the Act relates to potentially infectious persons who refuse to co-operate with the police, when they are required to be screened for Covid-19. All 252 offences charged under the Act were incorrectly charged and therefore discontinued.

The more common examples of incorrect charges include:

• Offences under Welsh Regulations charged in England
• Offences under English Regulations charged in Wales
• Some charges failed on evidential grounds, such as the charging of homeless people being outside without a reasonable excuse
• Offences charged under s51/sch21 of the Coronavirus Act had insufficient evidence that the defendant was potentially infectious
• Increasingly we have also identified offending being prosecuted under the wrong iteration of the Regulations (e.g. using repealed Regulations).

Whenever the CPS identifies that an error has occurred which has resulted in the suspect being convicted, the case is referred back to the local CPS Area to ensure the case is relisted in court so that the error can be corrected (either by way of amending the charge or, more likely, withdrawing the charge entirely). Areas also use this information as a learning opportunity.

When the CPS began its monthly review of charges, a strong onus was placed on the police to put supervising officers in charge of decision-making at police stations and elsewhere, as any errors in the charging of coronavirus offences under the Regulations or the Act are made initially at this point in the prosecution process.

To mitigate the risk of any incorrectly charged cases reaching court, the CPS has put in place an internal safeguard: a ‘triage check’ is carried out by a supervising lawyer on our first handling of cases, which is usually the day after the police charge the case, and will take place before a case is called on in court. This helps to ensure that any errors are identified immediately and amended. Using a supervising lawyer for this role allows them to build up an understanding of the Regulations and common errors so that they can be easily identified and rectified.

The CPS remains committed to reviewing all offences charged under the Coronavirus Act and Regulations for as long as necessary, to ensure the new laws are being applied consistently and appropriately.