24th September 2021
A new report from the House of Commons Justice Committee entitled Covid-19 and the Criminal Law was published on the 24th September 2021, which analyses the impact Covid-19 had on the criminal justice system in England and Wales, and in particular details the lessons that can be learned from how Covid offences were created and enforced during the pandemic. The report acknowledges the exceptional circumstances of the pandemic and highlights that the Government needed to prioritise the health and wellbeing of its citizens, but criticises them for their lack of adherence to the rule of law when it came to overseeing the enaction of new offences, and their enforcement.
In drafting these offences, particular concerns were raised where the Ministry of Justice was not given a huge amount of oversight over the drafting of Covid offences at the beginning of the pandemic. The report recommends having in place a cross-governmental response to any pandemics in the future and not to leave the creation of emergency offences to the Department for Health and Social Care alone.
These comments echo calls by the IPRT to increase oversight when it comes to legislation regarding Covid-19. In Progress in the Penal System 2020, IPRT recommended that an Oireachtas Committee on Human Rights, Equality, and Diversity should be established to allow for proposed pandemic legislation to be viewed through a human-rights-oriented lens, and in particular to scrutinise any legal, social, and economic rights implications that legislation may have. This would also allow for a cross-governmental response to pandemic legislation.
The House of Commons report also criticises the parliamentary process that was used in creating these new offences, which was often too fast to afford parliamentarians any chance to scrutinise proposed legislation.
The report emphasises the importance of scrutiny and democratic legitimacy to the criminalisation of any act, which needs to be prioritised in any future pandemic. The speed with which this legislation was enacted also affected the communication of any new criminalisation to the public, which meant that lines were often blurred between what constituted public advice and what was enshrined in law.
Concerns regarding the lack of scrutiny when it comes to legislation enacted during the pandemic were also raised in IPRT’s Irish Prisons and Covid-19: One Year On. IPRT highlighted in particular changes to the Prison Rules 2007 made in July 2020, which were not scrutinised heavily before being enacted and contain no sunset clause - meaning that the laws are effective indefinitely, unless actively amended again by the Minister for Justice.
In enforcing the new offences, the report analyses the use of Fixed Penalty Notices for breaches of the new Covid laws – these notices were not recorded on the Police National Computer, and were designed to be a “light touch.” The notices were problematic, however, as it was not sufficiently clear to the public what a Fixed Penalty Notice for a criminal law offence entailed, the notices had issues of inequality (given that there is no proportionality to the level of the fine relative to someone’s means), and since the notices were sometimes complex and gave rise to large sanctions, they were better off being administered in a court.
A worrying trend highlighted in the report was a high error rate when it came to prosecutions under the Coronavirus Act 2020 and the public health regulations. When barrister Pippa Woodrow was interviewed for the report, she stated that 100% of those who were charged under the Coronavirus Act were wrongly prosecuted. There was also an issue with those not paying their fines, which led to a significant backlog in the prosecution system. The report therefore recommends more pandemic planning which seriously considers the role of criminal law.
The report therefore highlighted the need for more planning and communication in order to strengthen the role of the criminal justice system in any further pandemic. IPRT also highlighted the importance of communication in Progress in the Penal System 2020, where it noted that communication inside the penal system was vital to keep Covid-19 out of Irish prisons.
Read the full report here.