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Covid justice – how not to do it?

Penelope Gibbs
02 Oct 2021

This week we discovered that Sarah Everard’s killer falsely arrested her by accusing her of breaching Covid legislation. We don’t know which of the many laws he used, but it could have related to her spending the evening having dinner with friends – something many people did even when the law forbade it. Police turned a blind eye to minor indiscretions, but most ordinary people were quite confused as to what was inadvisable and what was illegal. So Sarah was probably anxious that she had transgressed and thus did not challenge her arrest.

A new report from the Justice Committee is pretty trenchant in its criticism of how Covid related criminal offences were designed, enforced and communicated. It suggests that too much criminal legislation was created by the Department of Health, with no real consultation of the Ministry of Justice and the Home Office. Much of the legislation was not scrutinised by parliament and was brought in at breakneck speed, giving police forces insufficient time to understand it. I remember @pkquinton (of the College of Policing) expressing his frustration on twitter, faced with new legislation. He had to read and interpret it for forces, but often only had a few night hours in which to work out what it meant. And the forces had no training in how to enforce it, just had to read and act. No wonder police got confused between guidance and legislation.

The Justice Committee also found that the enforcement and prosecution of Covid offences left a lot to be desired. Many defendants were prosecuted using the single justice procedure. This is cut-price justice, sold as more convenient for defendants. People who are accused of breaking the law – by not paying their TV licence fee, or breaking Covid laws etc – are sent the charge in the post. If they plead guilty, it can be dealt with through filling in a paper or online form. The problem with the system is that no defendant is eligible for legal advice and three quarters of defendants do not participate – they don’t plead guilty or not guilty. They may not receive the post, or may not understand its importance. This was the case for Covid offences where 88% of those accused did not respond (March-Sept 2020). All defendants who do not respond are convicted in their absence and receive the maximum fine. Covid offences were particularly complicated legally, since it was not clear what constituted a viable defence. CPS reviews of a sample of prosecutions indicated that many were simply wrongly prosecuted (20% incorrectly charged). So the Committee concluded that though the SJP may have been suitable for the most straightforward of SJP offences, the government should “conduct a review of the use of the single justice procedure in covid-19 cases. The review should consider the relative complexity of different covid-19 cases and whether it was appropriate for more complex cases”.

That review should probably look at all lessons from the conduct of justice during the pandemic, including the extent to which defendant’s rights were sacrificed to keep the wheels of justice turning. In some cases suspects and defendants’ rights are still being sacrificed. Most suspects interviewed in police custody during the pandemic received legal advice remotely – on the phone or on video – since lawyers were concerned about covid safety in custody. This unprecedented arrangement was agreed behind closed doors and “ratified” by a protocol. Last year we learnt that remote advice was in some cases leading to suspects being let down. We have recently been advised by the expert defence lawyers Joel Bennathan QC and Peta-Louise Bagott what we already suspected – that the protocol had no legal basis, and thus that remote legal advice was not consistent with primary legislation. But a protocol allowing for remote advice in a number of circumstances is still in force.

We cut corners in the pandemic and created makeshift arrangements. It was good that the wheels of justice did keep turning, and that we strived to keep workers safe but in some cases did we cut the wrong corners, and in others cut them the wrong way?  Now is the time to reflect.