Pandemic: Prosecution Mistakes






A piece in the Guardian has highlighted the fact that 56 people have been incorrectly prosecuted for offences under the emergency regulations and that a further 44 charges (that is ALL of them) under the Coronavirus Act 2020 were wrongly brought.  The article concludes that the errors were a result of the rushed nature of the legislation.

Rushed and ill considered legislation rarely works as anybody who has ever tried to use the Dangerous Dogs Act 1991 will know.  How can legislation and the regulations that sit under it be drafted, enacted and enforced within a few days without there being any errors?  The introduction of new legislation takes time.  Police officers and prosecutors need training and briefing.  Procedures and bureaucracy needs to be developed (everything from policy to counting codes).  But of course this was an emergency – things had to move quickly.  This is true, but isn’t this what contingency planning is for?  What was waiting in the wings?  What draft regulations were sitting waiting to be tweaked?  Were there skeleton briefing packs for the police ready to be worked up in the days before introduction?  To me this is a much more important issue than lamenting the inevitable difficulties of short notice enforcement.

There are complicating factors.  Few of us thought that we would end up with different regulations in each part of the UK.  Not helpful and quite unnecessary. Fertile ground for newspapers who feel unable to report on anything except the pandemic (the golf course that sits astride the English/Welsh border was a gift for red top journalists – and the BBC).  Most of the emergency planning community thought that we would see the Civil Contingencies Act 2004 come, at last, into its own.  It was not to be.  Lawyers advise that a pandemic is not the sort of emergency that is covered by the emergency provisions of the Act (another piece of legislation ready for the dustbin).  The Coronavirus Act 2020 showed that civil servants can work at high speed (something they call working ‘at pace’) but it was to older public health legislation that the government turned for the now much amended regulations they needed.  It is perhaps not surprising that police and prosecutors were not ready to enforce the unknowable.

Another complication was the ‘guidance’ issued by every government department, public body and individual politician.  For the police this had to be translated into operational guidance for a fragmented service spread across four countries and 48 forces.  For England and Wales the College of Policing worked very hard to produce material that would help inform what police officers actually had to do.  Of all the slogans floating around the one adopted by the police:  ENGAGE, EXPLAIN, ENCOURAGE and ENFORCE was probably the best.  Of course to EXPLAIN one has to understand and this is not easy in a rush.  Too many senior police officers spoke about ‘enforcing the guidance’.  Police officers enforce the law, not guidance.  Luckily the common sense approach of police officers on the ground has largely averted major problems. The latest version of the College of Policing operational guidance is a tribute its staff.  Of course there have been accusations of over zealous policing but for the most part the police have emerged well from their attempts to do the impossible.

There is another thing that has given me heart from reading the Guardian article.  The prosecution errors have been identified by the Crown Prosecution Service and the police themselves (I am not sure what has happened in Scotland and Northern Ireland).  This has not been done as a result of any great media campaign or public outrage.  It has been done because it was the right thing to do. 

When the inevitable inquiry is launched and other attempts are made at identifying and learning lessons from this latter day plague, a good look at how we can better plan for emergency legislation and its enforcement would be useful.

Philip Trendall
16th May 2020


This blog is taken from:  https://scott-trendall.blogspot.com/.  The views expressed are those of the author and do not represent the views of any client of Scott Trendall Ltd

References

Guardian:  Rushed Coronavirus Laws Led to Wrongful Convictions Say Police:   https://www.theguardian.com/law/2020/may/15/rushed-uk-coronavirus-laws-led-to-wrongful-convictions-say-police?CMP=Share_AndroidApp_Email   Accessed 16th May 2020
College of Policing Guidance: https://www.college.police.uk/What-we-do/COVID-19/understanding-the-law/Pages/default.aspx Accessed 16th May 2020




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