Written evidence from Tristan Kirk, Courts Correspondent, London Evening Standard

Supplementary Evidence to the Justice Select Committee

I’d like to thank the committee for the invitation to give live evidence yesterday on the Covid-19 regulations and how they have been used.

Set out below are two aspects of my evidence which there was not chance to cover in full during yesterday’s committee session. I hope it is of use.

The first section covers the Single Justice Procedure, how it operates in practice, and how it has hampered media and public knowledge of Covid-19 regulation.

The second section contains the full figures disclosed to me under the Freedom of Information Act of Fixed Penalties Notices imposed and paid in the first year of the pandemic.

Section 1

The majority of Covid-19 regulation prosecutions that have reached courts in London have been dealt with under the Single Justice Procedure (SJP), rather than in a full, open court session.

SJP allows for cases to be prosecuted on the papers alone, dealt with by a single magistrate with the support of a legal advisor. The hearings are conducted in private, but they amount to a full criminal prosecution.

Appropriateness of SJP for Covid-19 offences

When SJP passed through Parliament in 2014/15, Hansard records Justice Minister Shailesh Vara as saying the process would deal with “low-level, routine offences”. He promised: “These are very low-level issues, possibly involving somebody who did not have a rail ticket, or a TV licence. The measure does not go beyond that.”

Members raised significant concerns at the time that SJP would be seen by the public as a ‘private’ justice system. They were given reassurances that, to paraphrase, the offences involved would not be ones that anyone is interested in. It was also stated that the offences under SJP did not warrant the presence of a full bench of magistrates, or a prosecutor.

I have significant concerns about the way SJP is administered in ‘low level’ offences, such as traffic violations, fare evasion, and the like. Notwithstanding that, it appears to me to be wholly inappropriate that SJP is being used to deal with large numbers of Covid-19 offences. The government’s own figures show that more than 1,000 cases passed through SJP between March and September last year.

These are cases of high public importance, given the context of the pandemic. They are new offences, sometimes legally complex, and appear to have been substantially misunderstood at times. There appears to me to be a pressing need for a full magistrate bench, or a District Judge to oversee these cases, with the presence of a prosecutor and the scrutiny that an open court offers.

It is understandable that, with the pressures that the court system is under at the moment, SJP may seem a desirable process for high-volume Covid-19 cases. But in the context of an unacceptable level of unlawful prosecutions, and the transparency issues I have set out below, it seems ill-advised. On a very basic level, having a prosecutor in the room to spot issues with charging decisions would, I suspect, be a step in the right direction. 

The minister promised in 2014 that SJP would “not go beyond” low-level offending. I would encourage the committee to look into how far the system is now being allowed to spread. Government figures show SJP has been used recently for 22 cases of assault and battery, as well as one incident of an assault on an emergency worker. A blog published by HM Courts and Tribunal Service on April 1, 2021 (Adapting the single justice procedure for Coronavirus (COVID-19) - Inside HMCTS (blog.gov.uk)) reveals that work to adapt SJP to accommodate Covid-19 offences began almost as soon as lockdown started a year ago. There appears to have been no public announcement of this decision, and no consultation wider than justice partners. It’s a truly concerning expansion of a process which is questionable in its application and can be described as opaque at best.

Transparency

The first indication that I had of London Covid-19 cases being dealt with by SJP rather than in open court was when a batch of case listings arrived in my inbox in September 2020. I am a regular recipient of SJP traffic cases from magistrates courts in Bromley, Lavender Hill, and Willesden, and the Westminster Covid-19 cases had been tacked onto the same email. That email, which goes out weekly, was sent to a number of media contacts. However many of the email addresses are obvious several years out of date. It’s also clear, and should be appreciated by the court, that many of the journalists sent the lists would not look too closely at them, expecting them to contain low-level traffic offences.

In addition to the substandard efforts to alert the media, there was no effort at all to inform the public about these cases. Westminster did not put up a physical notice with the list of cases, there was no list online, and there was obviously no public hearing. It is difficult to see how this could amount to open justice.

With SJP cases, processes have been established to allow members of the media – on request – to access the documentation that is put before a magistrate. This process is flawed, as I will set out below, but what occurred at Westminster in autumn last year amounted to a complete failure of system.

I requested paperwork in a selection of the SJP cases, heard from September 8 – 17, but was told by multiple members of staff that no documents existed. A week after the request was made, a court manager said they could only provide an ‘extract’ ie. the basic sentence imposed. Astonishingly, it was November 3 before the extracts actually arrived, almost two months after the cases had been heard. Three days later, the full paperwork from the cases finally arrived.

I’ve set this out not to complain to the committee about what happened, but to highlight how transparency has been completely lost in SJP system. Providing even the most basic details about cases to the media is clearly not a priority. The opportunity for contemporaneous reporting simply did not exist. Scrutiny of the application of Covid-19 laws was diminished to almost nil. It stands in stark contrast to the words of the Minister in 2014: “We have made it very clear that we must not lose transparency as a result of these reforms, and we cannot allow the new process to take place without any scrutiny.” He added: “It is of course vital that local media have access to information about what happens in the courts, and we will have mechanisms in place to ensure that the public have access to court decisions.”

Current state of SJP

It may well be thought that the issues I’ve detailed above can be put down to wrinkles in a new system. I don’t believe that is the case, but more accurately is a symptom of an SJP system that has consistently prioritised efficiency over transparency.

These are short observations about SJP traffic cases I have pursued within the last year:

-         The entire system depends on the responsiveness of court administration staff

-         There appears to have been an under-resourcing of court admin for many years

-         Requests for SJP paperwork can take up to nine months to be processed

-         Paperwork requests usually take between one and two months to be resolved

-         Whole weeks of listings - involving hundreds of cases of SJP cases - are never disclosed to the media or the public

-         Results of cases are routinely not sent out to the media. The last batch sent out in London was from February 5.

I would happily give further detailed evidence on the flaws in the SJP system. But I hope the snapshot I have given shows why it is wholly inappropriate for the system in its current state to be used for Covid-19 prosecutions. That, however, remains the stated intention of the National Police Chiefs’ Council and is apparently the desire of HMCTS.

Section 2

A Freedom of Information Act request to the NPCC and ACRO delivered figures in the tables below.

I requested data on the value of Fixed Penalty Notices administered in the last year, and data on payment of those fines.

In response, the Metropolitan Police gave these comments which reflect the NPCC guidance:

Q. On rate of payment:

Once a fine is contested or unpaid the case will proceed to court. Police forces review all of these cases to further ensure only those cases that meet the evidential and public interest test are heard in court. 

The payment proportions for Regulation No1 FPNs published by the NPCC in September are broadly in line with what we would expect for other types of FPNs, such as for traffic offences. 

Q. On Single Justice Procedure:

While many who receive a fixed penalty notice for blatantly breaching coronavirus restrictions pay the fine, where the notice is ignored the issue will be dealt with through the single justice procedure which helps to resolve the issue quicker and at a lower cost than formal court proceedings. Where someone chooses to contest the notice, they will be informed of the court process and an evidential review will be carried out by the police and the Crown Prosecution Service.

City of London Police said: “City of London Police has reported 375 individuals for CV19 fines to date: ACRO are responsible for issuing the Fines.  A significant proportion of those fines have been reported since January 2021, during the third lockdown.  The period of time between ACRO receiving the report and issuing the fine, plus the time allowed for payment or appeal, can be up to four months and so it is too early to determine what the outcomes of those fines are.  ACRO has the responsibility of collecting money from paid fines: money for unpaid or contested fines are the responsibility of the Courts, following conviction.”

21/4/2021