Collective HMG response to call for written evidence
In response to the extraordinary circumstances created by the pandemic, the Government has taken a range of measures to control the spread of the virus and to protect the most vulnerable, in order to protect lives and livelihoods. The vast majority of the public and businesses have followed these rules and made huge sacrifices. Unfortunately, small numbers of people and businesses have not followed the requirements and thereby put others at risk. As part of the Government response, therefore, it has been necessary to provide for new criminal offences and powers to allow the police to enforce the rules as part of the “4E’s” model of Engage, Explain, Encourage, with Enforcement as a last resort. With the rollout of the vaccination programme and the re-opening of society according to the steps set out in the Government’s roadmap, the Government will continue to keep these powers under review to ensure they remain necessary and proportionate and in line with scientific advice on stemming transmission.
Departments across government have worked closely with each other and enforcement agencies on all aspects of the Covid-19 response, including in relation to enforcement and criminal offences. There has also been continued dialogue with the National Police Chiefs’ Council (NPCC), engagement with local authorities, and scientific input to inform which measures are needed.
One of the most significant challenges of legislating for Covid-19 has been legislating at speed to respond to the rapidly evolving context. Under normal circumstances, it takes between six and eight weeks for a draft affirmative instrument to pass through Parliament. Waiting this long to implement some of the measures, such as the national lockdown initiated in January, would have led to significantly more cases, hospitalisations - which would have placed the NHS under ever greater strain - and deaths.
The fast-moving and urgent nature of the pandemic has necessitated the use of the made affirmative procedure in a number of instances. Through this procedure, the Government has the power to respond quickly in an emergency such as the one we face, and then come to Parliament for the right and proper Parliamentary scrutiny. In its report ‘Parliamentary Scrutiny of the Government’s handling of Covid-19’, the Public Administration and Constitutional Affairs Committee (PACAC) acknowledged that this approach was appropriate, stating that the use of this urgent procedure for the initial lockdown regulations “was accepted by witnesses to our inquiry”.
To ensure effective scrutiny of the Government’s Covid-19 response, the Secretary of State for Health and Social Care committed during the first debate on the extension of the Coronavirus Act (30 September 2020) “that for significant national measures with effect in the whole of England or UK-wide, we will consult Parliament; wherever possible, we will hold votes before such regulations come into force.” Parliament scrutinised the package of SIs on Local COVID Alert Levels on 13 October 2020; the regulations that enforced a national lockdown in November on 4 November 2020; and the regulations for the new tiers system on 1 December 2020, before they came into force. Most recently, the regulations implementing the majority of the Roadmap were laid in Parliament on 22 March and approved by both Houses on 25 March, before coming into force on 29 March.
The restrictions put in place using different sets of regulations include different review and sunset clauses. There is an obligation to revoke the restrictions as soon as they are no longer necessary or proportionate for controlling the threat to public health.
Throughout the pandemic the Government has continued to evolve its approach to legislating, keeping it under ongoing review and drawing on feedback from Parliamentarians and key committees, including the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee.
The measures that have been introduced have been designed to protect people and reduce the spread of the virus. The Government has kept these new regulations under review to ensure that they are proportionate and we have eased or strengthened regulations accordingly, in line with scientific advice.
When determining whether a new offence is needed, the Government has reviewed the need for a new offence and any potential negative impact that it would have on the general public, including people sharing protected characteristics. When assessing whether there is a need for a new offence we have considered:
● The impact of the behaviour if there were no offence and people were to take part in that activity. For example, would this behaviour encourage greater transmission of the virus and thereby potentially harm the individual, their contacts and the wider general public?
● Whether the current offence is proportionate to the risk caused by the behaviour.
● The impact that a new offence will have on the public, including on different sectors of the population. This will include consultation across Whitehall to understand the impact that the offence will have on different stakeholders.
● Finally, there is engagement with police and local authorities to test whether new rules can be enforced effectively and whether they can be communicated clearly to the public to deliver high levels of compliance.
Any new offence is then drafted and introduced through related secondary legislation. This has mostly been through the made affirmative procedure.
The Home Office has maintained continuing dialogue with the National Police Chiefs’ Council on the Government’s enforcement approach during the pandemic. The engagement has been led at both Ministerial and official level and has informed the measures that were put in place by the Government to respond to this emergency.
The Attorney General is responsible for deciding whether Coronavirus regulations criminal offences should be specified under Section 3(2)(a) of the Prosecution of Offences Act 1985.
Specified proceedings are subject to the Single Justice Procedure, 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 Single Justice Procedure allows suspects to plead guilty by post and a single justice will determine the level of fine by consideration of the papers alone, without a traditional court hearing. The Crown Prosecution Service (CPS) only becomes involved in the Single Justice Procedure, if the defendant pleads not guilty, at which point the case will be passed to the CPS to prosecute.
Coronavirus regulations offences tend to be factually straightforward and punishable only by a fine, making it disproportionate for the CPS to have conduct of the cases. Uncontested cases are conducted without any party attending court, which supports the Government’s social distancing and public health objectives for managing the pandemic.
Police in England and Wales have processed a total of 94,368 fixed penalty notices for breaches of Covid-19 restrictions up to 14 March 2021. The total processed in England is now 85,975 and 8,393 in Wales. An individual in receipt of an FPN may challenge it; at this point the police force will review and may cancel the FPN. If the notice is neither cancelled nor paid, the police may decide to prosecute. Payment is an absolute bar to prosecution.
There is a rigorous process to review the way FPNs are issued and this was confirmed by senior police officers at the Joint Committee on Human Rights Oral Evidence session on the Government’s Response to Covid-19 on 24 February 2021. When an FPN is issued by a police force, it will go through a force-level process before it is referred to the ACRO Criminal Records Office (the body that issues the FPN regime) where it is reviewed, before the formal FPN is issued. Should the recipient then fail to pay the FPN, it will be returned to the originating force who will conduct a further review. Crucially, these three reviews ensure that the FPN complies with the regulations and that the evidence is sufficient to meet the standard that applies to that offence. In addition, police collate demographic data and publish this along with other FPN data on a monthly basis.
The CPS considers:
● All charges for Covid-19 offences which are not specified.
● All cases where the defendant does not pay an FPN and pleads not guilty to the offences, as these cases are passed to the CPS to prosecute.
In these cases, a CPS prosecutor will review the evidence to determine whether there is sufficient evidence of an offence, a prosecution is in the public interest and, if so, whether the correct charge has been applied to the offending.
Furthermore, since the beginning of April 2020 the CPS Compliance and Assurance Team has separately reviewed all finalised cases which were charged under the Coronavirus Act 2020 or the Coronavirus regulations to ensure the correct offences were charged and prosecuted. 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.
The NPCC has also been leading work, with all police forces, the CPS and Her Majesty's Court and Tribunals Service (HMCTS) to understand and mitigate errors in charging decisions. This has included hosting Single Justice Procedure error workshops with officials from the police, the CPS and HMCTS and providing guidance and support to police forces to reduce errors. This also included working with police forces to embed the required level of supervisory review at all stages of the process. The approach to monitoring of FPNs was agreed between the NPCC and Home Office and was put in place in early 2020. The initial review covered the period of 27 March to 25 May and the findings were published by the NPCC in July 2020. The NPCC plans to publish an update covering the period to the end of November 2020.
If an individual does not pay a FPN, they may be prosecuted for the Covid-19 offence in the magistrates’ court. It is open to a defendant to plead not guilty, in which case the court fixes a trial and the evidence is heard in a public hearing before three justices or a district judge. A defendant may appeal against a conviction or sentence to the Crown Court or on the grounds that the magistrates’ court made a legal error to the High Court. If an error was made in the court proceedings, for whatever reason, the court can revoke the conviction and/or sentence. If a fine is excessive due to the defendant not providing evidence of means, the court can remit the excess.
A defendant may also make a statutory declaration stating they were unaware of the proceedings. This declaration revokes the sentence and conviction and resets the proceedings back to the beginning.
Before convicting a person through the Single Justice Procedure, the justice must be satisfied beyond reasonable doubt on the evidence presented. The justice is always advised by a legally qualified justices’ legal adviser. In addition, Single Justice Procedure is a fair process as:
● The court cannot compel the use of the Single Justice Procedure, and both parties can opt out;
● A defendant who pleads 'not guilty' cannot not be dealt with through Single Justice Procedure;
● Service of the notice is subject to the same rules of service as other forms of process, requisition and summons;
● The court cannot proceed without proof of service;
● All the routes of appeal and challenge listed above apply to Single Justice Procedure proceedings. Single Justice Procedure proceedings are not secret;
● Lists of pending cases and the justice’s decisions are sent to the press. The press can obtain the evidence and defendant’s mitigating statement.
 The Government’s approach to legislation and the framework for Parliamentary Scrutiny, 10 September 2020
 Hansard, 30 September 2020