COVID-19 and the criminal law

On 24 September 2021, the House of Commons Justice Committee [1] published Covid-19 and the criminal law, HC 71, Fourth Report of Session 2021–22, together with formal minutes relating to the report. Whilst not addressing matters concerning religion per se, this 46-page report examines the way in which COVID-19 related offences in England were created and enforced throughout the pandemic – issues which we highlighted in our joint paper “COVID-19 and religious freedom in the UK” [2] and in a forthcoming publication in Law and Justice. 

The report examines what lessons can be learnt from the way in which new covid-19 related offences have been created and enforced throughout the pandemic. Specifically, the Committee considered the creation and enforcement of these offences within the context of the wider criminal justice system and from a rule of law perspective. It considers two broad areas – the creation of COVID-19 offences and their enforcement. The summary of the report is reproduced below.


Summary

“… A central lesson from our inquiry has been that the Government needs to ensure that the criminal law is fully considered within future pandemic planning. In addition to creating a public health crisis, the COVID-19 pandemic has shown that pandemics can have an enduring impact on our criminal justice system and courts. Given the speed and scale with which the Government needed to create new regulations in response to the pandemic, in future it needs to have the requisite tools in advance to respond in a swift and proportionate manner that does not risk criminalising behaviour in ways incompatible with widely understood principles of the rule of law, and avoids any lasting damage to our criminal justice system.

Other lessons we have identified in our report include:

  • Parliament should play a bigger role in scrutinising the creation of new criminal offences in response to emergencies. One of the primary functions of parliamentary scrutiny is to make the law-making process more transparent and to aid public understanding. Parliament should ensure that the Government’s justification for the creation of new criminal offences is tested and ensure that the Government explains why a particular offence is both proportionate and necessary.
  • The Government should review how public health restrictions have been communicated to the public. While the priority must always be to communicate any new restrictions as clearly as possible, blurring the line between guidance and the law has potentially damaging long-term consequences, including for the rule of law.
  • Fixed penalty notices have played a valuable role in policing the pandemic and protecting the public. However, in future the Government should be cautious of relying solely on fixed penalty notices of increasing magnitude to deliver compliance with public health regulations.
  • The single justice procedure is an efficient way to avoid over burdening the courts. However, the use of the single justice procedure to deal with covid-19 offences has been problematic when there has been uncertainty caused by the fast-changing nature of the COVID-19 regulations.

We commend the Government for learning lessons quickly throughout the pandemic and for its creation of the UK Health Security Agency to focus on future pandemic preparedness. The new agency must have sufficient criminal law expertise at its disposal. To further understand the lessons learnt from our inquiry we recommend that the UK Health Security Agency launches a study into the role played by the criminal justice system in protecting public health during pandemics. The aim of the study should be to examine how effective the new COVID-19 offences have been at achieving compliance with public health restrictions.”


[1]. The Justice Committee is appointed by the House of Commons to examine the expenditure, administration and policy of the Ministry of Justice and its associated public bodies (including the work of staff provided for the administrative work of courts and tribunals, but excluding consideration of individual cases and appointments, and excluding the work of the Scotland and Wales Offices and of the Advocate General for Scotland); and administration and expenditure of the Attorney General’s Office, the Treasury Solicitor’s Department, the Crown Prosecution Service and the Serious Fraud Office (but excluding individual cases and appointments and advice given within government by Law Officers).

[2]. Published in the monographic section of issue No. 54 of the Revista General de Derecho Canónico y Derecho Eclesiástico del Estado – it has also been published as a chapter in COVID-19 y libertad religiosa, Iustel Publishing Company, Madrid. 

Cite this article as: David Pocklington, "COVID-19 and the criminal law" in Law & Religion UK, 12 October 2021, https://lawandreligionuk.com/2021/10/12/covid-19-and-the-criminal-law/

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