Crown prosecution service to review every coronavirus charge

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (the Regulations) came into force at 1:00pm on 26 March 2020. 

These emergency Regulations create a number of criminal offences during the ‘emergency period’ and provide the police with a range powers in regard to enforcement. The ‘emergency period’ is indefinite at this stage and is due for review every 21 days with the next review due on 07 May 2020.

We have previously discussed how these Restrictions impact both individuals and organisations and we warned that the ‘common sense’ approach in order to ensure lawful, proportionate and necessary prosecutions was an unknown and by extension, there was always a risk that the Restrictions would be applied overzealously, arbitrarily and even unlawfully.

In addition, on 25 March 2020, the Coronavirus Act 2020 (‘the Act’) introduced a range of new laws and in particular allows the police to remove or detain a “suspected infectious person” for screening and assessment purposes with “reasonable force”, if necessary.

Over the last six weeks we have seen a number of cases in the media which have highlighted the fact that the police have made unlawful charging decisions – these decisions will mostly fall into two categories:

a. the wrong law has been used – the Coronavirus Act 2020 (‘the Act’) has been wrongly used to charge, prosecute and sentence the accused; these cases concerned breaches of the Restrictions and not the Act; or

b. the correct law has been used, but the facts of the case did not amount to an offence under the Restrictions.

As an example, the Metropolitan Police admitted that in one case heard at Wimbledon Magistrates’ Court the legislation had been applied incorrectly and the charge and fine were subsequently set aside.

In addition, a lady from York was wrongly charged with an offence under the Act and found guilty in her absence when she was sent to the cells for refusing to identify herself; the procedure was entirely incorrect, the charge was wrong and the conviction will be set aside.

Review by the Crown Prosecution Service

The Times has reported that “senior lawyers at Crown Prosecution Service headquarters are re-examining every charge, conviction and sentence brought under the new legislation. Several cases are being re-listed so they can be overturned after being found to have been incorrectly prosecuted.”

At a time when the public are facing unprecedented restrictions on liberty, this can only be a welcome move. It is no small decision; the CPS has never reviewed every single charge under a specific piece of legislation which perhaps goes to suggest just how widespread police failures may be when charging coronavirus offences.

Surely a lawyer will have reviewed the case before charge?

Surprisingly, no.

Notwithstanding the fact that the police are (generally) not legally qualified, they have powers to charge all lower categories of criminal offences, namely ‘summary’ offences and even some more serious ‘either way’ offences.

This means that in the vast majority of coronavirus cases, the accused will likely be charged by the police without reference to the CPS and it is unlikely that the CPS will review the case before the first court hearing, especially when the accused is not legally represented and/or a guilty plea is anticipated.

What about Fixed Penalty Notices?

At this stage, there is no suggestion that cases where a Fixed Penalty Notice (FPN) has been issued will be reviewed.

Whilst accepting and paying a FPN does not result in a conviction, it is concerning that in some cases, the police are likely applying the same “common sense” and misunderstanding of the legislation when issuing a FPN.

This will be of particular concern to those who are part of a regulated profession and their regulator requires disclosure of a FPN.

We have also seen cases where under 18’s have been given a FPN, this is unlawful and it should be appealed.

We understand that these are unprecedented and challenging times and now more than ever you may need specialist criminal or regulatory support; please contact a member of the Regulatory and Corporate Defence Team who will be happy to assist you.