Recent weeks have seen a concerning trend of police overreach and casual criminalisation, often of young or other potentially vulnerable people, under the recent coronavirus legislation, namely the Health Protection (Coronavirus Restrictions) Regulations, and Schedule 21 of the Coronavirus Act 2000.
There have been (at least) five confirmed cases in which people have been prosecuted and convicted for offences that either don’t exist, don’t apply to the country they were in, or simply could not apply to them. At a time when the justice system is largely operating in secret due to the lockdown restrictions, the wrongful convictions that we are aware of have only come to light as a result of police publicising their apparent “victories” and through diligent press reporting.
The exposure of the unlawfulness of these convictions started with the questioning by Times journalist Fariha Karim who quickly brought in Kirsty Brimelow QC to provide pro bono legal analysis. The cases of Marie Dinou (conviction on 30 March 2020) and Lewis Brown (conviction 20 April 2020) were identified by Fariha Karim and then by Silkie Carlo, Director of Big Brother Watch. Kirsty Brimelow QC worked rapidly with Fariha on Dinou’s case and with both Fariha and Silkie on Brown’s case. Both cases were accepted by the police and prosecution to have been wrongly prosecuted, convicted and sentenced. They were returned the magistrates’ courts at a faster pace than was possible on appeal. The convictions were set aside.
On 2 May 2020 the Crown Prosecution Service announced that it was reviewing every charge brought under the Coronavirus laws. The CPS has said that this is the first time it has ever launched a review of every charge under a specific piece of legislation. It has identified “several” convictions that are to be relisted so that they can be overturned. This is reflective of a systemic failure. Analysis has not yet been completed but years of starving the entire criminal justice system of funds and slashing legal aid is a powerful justice suppressant.
But what about the thousands of Fixed Penalty Notices (FPNs) that have now been handed out across the country? Recent data from the National Police Chiefs shows that 3,203 fines were recorded in England and Wales between 27 March and 13 April. And there is a wide disparity between the police forces; with Lancashire taking a dubious first place with 380. Given the failures by prosecutors and courts to understand and correctly apply the law in court, there can be no confidence that police, who are not lawyers, are acting within their powers. The debacle in summary prosecutions suggests the opposite.
It is worth remembering that wrongful convictions, and unlawful FPNs are not minor infringements of peoples’ rights . Those who are convicted have a criminal record that although ‘non-recordable’ may well affect their lives in many ways – including where there are enhanced DBS Checks, foreign travel and the like. The fines themselves may be difficult to pay. In addition to the stress and distress, non-payment may lead to further criminalisation.
In order for the wrongful convictions to have occurred, the police, CPS, courtroom advocates, and most importantly the district judges, (and of course the defendant themselves) must all have failed to understand what is required. The CPS has stepped up to accept responsibility. This is welcome but is insufficient. The police, and local authorities, must now transparently review every fixed penalty notice that has been issued. Restoration of public trust is paramount and could be addressed by further training for District Judges upon the emergency laws so that they can be properly applied.
In the spirit of assistance and informed by errors that already have been made, Kirsty Brimelow QC, and Pippa Woodrow have produced a 6-step guide for members of the public and ‘quick check’ guide for lay persons and lawyers dealing with allegations and enforcement of the Health Protection (Coronavirus Restriction) Regulations and Coronavirus Act 2020. The document outlines basic questions to be asked when facing a criminal charge or a fixed penalty notice under this legislation, and sets out the various offences, time limits, potential defences, powers of enforcement and penalties that apply.
The guide can be found below.We hope that this guide will assist in ending the wrongful criminalisation that has plagued the legal response to the Covid-19 outbreak.
We have updated the guidance below to reflect amendments to the regulations that came into force on 13.05.2020.
It is important to ensure you are applying the law in force at the time the offence was allegedly committed, and applicable in each of the four nations of the UK. It is notable that since 13.05.2020 there are more differences between in England England, and the equivalent provisions in the other nations.
Kirsty Brimelow QC & Pippa Woodrow
Doughty Street Crime, and Actions Against the Police