4th Report - Covid-19 and the criminal law

The government reiterated its general actions and challenges faced during the pandemic in protecting public health and livelihoods, without specifically engaging with the committee's expression of credit for their efforts.

The government reiterated its general actions and challenges faced during the pandemic in protecting public health and livelihoods, without specifically engaging with the committee's commendation for striking a difficult balance.

The government described its approach to legal changes during the pandemic, asserting that actions were necessary and proportionate and that restrictions were removed when safe. It also outlined its strategy to move away from regulations to public health measures and guidance.

The government outlines its future strategy for managing COVID-19, focusing on removing restrictions, pharmaceutical capabilities, and maintaining resilience, but does not explicitly commit to acting in line with the specific principles and lessons learned from the committee's report.

The government asserts that its response to the COVID-19 pandemic was cross-governmental from the outset, detailing the various coordinating committees and taskforces established to manage the response.

The government accepted the recommendation, stating it will update its guidance for departments to ensure the Ministry of Justice is consulted on new or amended criminal offences and penalties, including outlining standard timeframes and procedures for urgent situations. Updated guidance will be published in due course.

The government accepted the recommendation, stating it will update its guidance for departments to ensure the Ministry of Justice is consulted on new or amended criminal offences and penalties, including outlining standard timeframes and procedures for urgent situations. Updated guidance will be published in due course.

The government acknowledges the need for lessons learned and states central government departments are best placed to consider the criminal justice system's role and ensure relevant expertise is fed into the policy process for future pandemic preparedness. It does not explicitly commit to ensuring UKHSA itself has sufficient criminal law expertise.

The government agrees that lessons must be learned from the pandemic experience and will draw on expertise within UKHSA and other bodies. It states central government departments are best placed to consider the criminal justice system's role and is continuing to review measures for future pandemics, but does not explicitly commit to commissioning the specific study recommended.

The government acknowledges the committee's observation, stating that the UK and Devolved Governments responded to unprecedented challenges during the pandemic to protect public health, the NHS, and livelihoods.

The government response broadly describes its actions during the pandemic but does not specifically address the committee's observation regarding Parliament's responsibility for ensuring democratic legitimacy in criminalisation.

The government agrees on the importance of timely scrutiny for emergency legislation and explains the challenges and measures taken during the pandemic, but does not commit to specific new actions or a formal consideration process for future improvements.

The government rejects the recommendation for all departments to proactively inform select committees of significant statutory instruments. It states that all SIs are publicly available and managing information flow is a matter for individual departments and committees to determine.

The government rejected the idea of a specific heading for new criminal offences in explanatory memoranda, deeming it disproportionate, but committed to updating guidance to ensure the 'Policy background' section clearly explains any new offences.

The government agrees good communication is essential and outlines past efforts to improve guidance. It states it will look to learn lessons on its communications approach through the public inquiry into COVID-19 and apply these for future pandemic planning.

The government acknowledges the challenges in communicating clear guidance during the pandemic, stating they have evolved their approach and continue to make efforts to communicate law and guidance as clearly as possible.

The government states it has consistently evolved its approach to clearly distinguish between law and guidance, using terms like 'must' and 'should', and continues extensive efforts through public information campaigns and engagement with policing partners to ensure clear understanding and lawful enforcement.

The government agrees that good communication is essential for compliance and protecting public health, and states they will learn lessons from pandemic communications via the COVID-19 public inquiry for future planning.

The government agrees good communication is essential and will look to learn lessons on how guidance and public health regulations were communicated, specifically through the COVID-19 public inquiry, for future pandemic planning.

The government explains its rationale for using Fixed Penalty Notices during the pandemic, highlighting the due diligence process undertaken to ensure offences and penalties were proportionate and effective in reducing transmission.

The government justifies the £10,000 FPNs by explaining their role as a deterrent for egregious breaches and describes the existing discretionary review and challenge processes available to recipients.

The government defends the use of Fixed Penalty Notices (FPNs), stating they were not the primary driver of behavior, and details their existing robust process for assessing transmission risk, proportionality, deterrent impact, and stakeholder engagement when creating offences and penalties.

The government repeated the committee's recommendation for a review of fixed penalty notices for COVID-19 offences but did not explicitly commit to conducting such a review. Instead, it described the existing policing approach and the role of FPNs during the pandemic.

The government acknowledges regrettable charging errors under the Coronavirus Act, explaining the CPS is conducting an ongoing review of finalised cases and found the overall error rate was not unduly high. However, it does not explicitly state how this will inform future pandemic planning regarding the role of criminal law as suggested by the conclusion.

The government commits to conducting a review of COVID-19 fixed penalty notices, which will examine their effectiveness, alternative enforcement options, and whether their use should be limited to certain offences.

The government provided specific data on paid and unpaid Fixed Penalty Notices and the total number of COVID-19 prosecutions for 2021. It stated that data on cases where police decided not to prosecute or where no decision was taken is not held centrally.

The government (via ACRO) states that information on contesting a fixed penalty notice, including that it triggers a police review and may not result in prosecution, is already clearly available on the ACRO website and in FPN letters.

The government states that existing processes allow FPN recipients to contest the penalty without immediate consequences, and that this is made clear in the letters issued, outlining the various routes for challenge.

The government response does not address the recommendation, instead discussing the scrutiny of secondary legislation and the challenges of legislating for COVID-19 at an exceptional pace.

The government accepts the recommendation and provides data on 23,983 COVID-19 related prosecutions in 2021, with 20,318 convictions, almost all resulting in fines with an average of £1,001.

The government's response outlines existing provisions for media access and transparency in Single Justice Procedure (SJP) cases, stating the Ministry of Justice does not agree with an unstated recommendation related to the report, but assures continued work with the media.

The government rejects the implicit recommendation for a formal review of the Single Justice Procedure for COVID-19 cases, stating that safeguards are in place, the procedure is continually being improved, and there is no evidence of higher error rates.

The Ministry of Justice does not agree with the recommendation to review the transparency of the single justice procedure, stating current arrangements, including the HMCTS Media Protocol and online lists, already provide sufficient transparency.

The government rejects the recommendation for a formal review of the Single Justice Procedure in COVID-19 cases, stating that safeguards are in place and the Ministry of Justice is continuously reviewing and improving the general SJP process.