BLOG: The Corona-Coaster of Corona-virus Emergency Legislation

A review of some of the twists and turns we have seen under Covid-19 emergency legislation – what’s gone wrong and what to consider when dealing with these cases.

In this article, Chris Henley KC and Chloe Birch look at various charging decisions, out of Court penalties, and prosecutions brought to Court under the emergency legislation created during the Covid-19 pandemic. They provide an insight into the importance of legislation being properly scrutinised, the role of the defence lawyer and free legal representation for all, and consistency of prosecution review.

In mid-April, Chris Henley KC wrote an article for The Times noting the imprecise drafting and inconsistent enforcement of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. These regulations had been brought into force some 19 days earlier on 26th March. A generous view might be that the very short time to clarify and understand the imposition of these regulations by police and lawyers alike before they came into force was unavoidable, and so a degree of confusion and uncertainty in their application was inevitable; these are unprecedented times after all. However, some 40 days, or five weeks, after the regulations were brought into force, a homeless man named Sultan Monsour was arrested in the vicinity of Liverpool Street Station in London and charged with a criminal offence. The offence he was charged with was one of leaving the place that he was living, namely “no fixed address” in an alleged breach of Regulation 6 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.

At the time of his arrest, regulation 6(1) stated: “during the emergency period, no person may leave the place where they are living without reasonable excuse”.

However, the very same part of the regulations at section 6(4) expressly state that “paragraph (1) does not apply to any person who is homeless”. It doesn’t take much to appreciate, as the legislators clearly did, that those who are homeless on our streets do not have the luxury of a “place of living” to leave, and there can be no mistaking the clarity of the rules on that point. Regulation 6 simply did not apply to Mr Monsour if he was homeless. The regulations have been updated since then, and it is important to remember that they are not retrospective. The law applies as it was in force at the time of the alleged offence, and in any event, despite the amendments, section 6(4) still reads the same.

The District Judge dealing with the case at Westminster Magistrates’ Court questioned the legality of the arrest and wisdom of the charge and invited the Crown Prosecution Service (CPS) to look at this again. However, the CPS have nevertheless insisted they will proceed with the case. Mr Monsour pleaded not guilty and the case will go to trial. This will be a trial held at a time when Magistrates’ Courts are purportedly dealing with the highest priority trial cases. We await to see how the case will be put against Mr Monsour at trial and what the specific disputed issues will be. Not only do we have to question the public interest in spending time and resources to prosecute a man for a charge which may not legally apply to him, but surely and as importantly the disregard to Mr Monsour’s safety and the potential spreading of infection during arrest, interview, attendance at court and remand into custody in these circumstances makes it all the more shocking.

This is not a London-centric issue. The same happened in Manchester when a charge had to be withdrawn against a rough sleeper, Mr John Brogan, who was initially arrested for breaching the Regulations in a similar way.

It is particularly surprising that wrongful arrests and convictions under the emergency legislation continue following the legally flawed conviction of Ms Marie Dinou, on 30th March in Newcastle, which received extensive coverage in the National Press on 3rd April and sparked a furore from lawyers and journalists alike. The Coronavirus Act 2020, under which Ms Dinou was prosecuted only applies to those suspected of carrying the virus. This was never suspected to be the case with Ms Dinou. At every stage of that process those discharging important legal duties and powers got it wrong; indeed, Ms Dinou was removed from court for refusing to enter a plea, proven guilty in her absence, and punished with a very severe financial penalty. The Assistant Chief Constable even sent out a self-congratulatory press release marking the conviction. Thankfully Ms Dinou’s conviction has now been set aside. And yet the prosecutions continue.

CPS Review

As a result of Ms Dinou’s wrongful conviction, the CPS launched a review into the first 200 cases brought under the Coronavirus legislation. On 15th May, they published their findings. Of 44 cases charged under the Coronavirus Act, all 44 were incorrectly charged. 31 of those were withdrawn, and 13 cases had to be returned to court to be dealt with. Of the 187 cases brought under the Health Protection Regulations, 12 were incorrectly charged and 7 were withdrawn. Considering these staggering statistics, the CPS have announced that “any charge under this legislation must now be reviewed by a supervising lawyer before being called on in court”. But still the CPS press on with the prosecution of Sultan Monsour; with the trial fixed for 22nd June.

The offences under the Regulations are summary-only offences, which means that they are dealt with under the “speedy justice” principles of the Magistrates’ Courts. They are non-imprisonable offences, and therefore on their own are unlikely to qualify for legal representation under legal aid at the Magistrates’ Court. Giving evidence to the House of Commons Select Committee on 21st May, the Director of Public Prosecutions (DPP) Max Hill KC accepted that the number people wrongly charged with offences who were represented by a lawyer was a “low number” but that “the vast majority were not represented”.

In a time of such legal uncertainty, when the rule of law is being routinely compromised in different ways, the work of defence lawyers is of particular importance to educate the police, courts and prosecutors and to protect members of the public from wrongful sanction. Not only must representation be available to all – but lawyers are having to work increasingly hard to clarify the rules for practitioners and the public alike. Felicity Gerry KC and Ashley Hendron of Carmelite Chambers have created a comprehensive reference guide for criminal lawyers which does just that.

The release of the CPS’ findings for public scrutiny can only be a good thing in terms of transparency and recognition of errors under emergency legislation, however, it is simply not good enough that innocent people are consistently being brought through the criminal justice system under illegal arrests and misconceived charges, often having been detained in police custody before being brought to court. In the case of Ms Dinou, she had been detained for two nights.

Out of Court

The CPS review only considered “finalised cases” which means cases where there were convictions or guilty pleas, or cases had been stopped. However, it is far more common for breaches of regulation 6(1) to be punished by Fixed Penalty Notices (FPNs) – fines handed out by the police in lieu of prosecution. These FPNs are not regulated by the Courts, by lawyers or by judges, and will not have been included in the CPS review. There is no way to appeal or challenge the implementation of an FPN, other than to refuse to accept it and be prosecuted at Court. Most people would not see that as an enticing alternative.

Thousands of fixed penalty notices have been issued to individuals allegedly breaching the Health Protection (Coronavirus) Regulations 2020 (as opposed to the Coronavirus Act 2020) which restrict movement and free association with others. These FPNs are rarely, if ever, subject to any review, because as explained above the only alternative to accepting one is a court appearance. The pantomime around Dominic Cummings first travelling the length of the country one day, when neither he nor his wife had any symptoms, then days later driving as far as 60 miles ‘to test his eyesight’, with his wife and child in tow and presumably therefore at significant risk, illustrates how unsatisfactory and inconsistent the application of the rules has been. Many have been fined for far less egregious alleged breaches. And depressingly, but predictably, there has been disproportionate enforcement against BAME individuals.

An update from the National Police Chiefs’ Council recorded that 13,445 notices had been issued in England between Friday 27th March and Monday 11th May. 799 FPNs were issued in Wales in the same period. Of note, the NPCC highlight the variety in the way offences are being dealt with, saying that: “variation is likely to reflect a range of factors including how the force has decided to police non-compliance as well as differences in local context”. This variation between forces is particularly concerning and provides no confidence that members of the public are being dealt with fairly and consistently across the country.

Other Offences

Rather than focusing on those homeless people who are unfortunate enough to have been left without accommodation in a pandemic, readers might think that time is better spent dealing with those that actively seek to spread the virus, or at least the fear of contamination of the virus by spitting and coughing at others.

Those who assault emergency workers, including paramedics and police officers, can be prosecuted under the offence of assaulting an emergency worker contrary to the Assaults on Emergency Workers (Offences) Act 2018. Indeed, there have been a number of prosecutions under this Act aggravated by the defendant claiming to be attempting to spread the virus to the complainant. More conventional offences such as these have their own checks and balances under the cover of legislation which has not been brought in as emergency law. Police, lawyers and judges alike are familiar with the legal framework and the way in which defendants should be dealt.

But what about key workers who have continued to work throughout the pandemic but do not fall under the emergency worker category?  At the time of writing some 239,000 people have signed an online petition to seek out and prosecute the person who spat at Ms Belly Mujinga – a Govia Thameslink worker who very sadly died shortly after being spat at by someone claiming to have the virus. Many online are calling for that individual to be sought out and prosecuted for offences ranging from Grievous Bodily Harm (GBH) to murder. It is reported that a suspect was interviewed by police in relation to this case, but subsequently released without charge. The British Transport Police concluded the case following that interview, but following what they have referred to as “wider public interest”, the case has now been referred to the CPS for a review of the evidence and charging advice.

The difficulty with a murder charge in cases such as this, would, in all likelihood, be the issue of intention. For murder to be made out, the prosecution would have to prove, beyond reasonable doubt, that the spitter had an intention to kill or an intention to cause serious injury. Manslaughter does not require proof of such intention. However, it is not without its own difficulties. In that instance, the prosecution would have to establish, beyond reasonable doubt, the chain of causation between the spitting and Ms Mujinga’s death. Given her exposure to the public whilst working at London Victoria train station, as well as a reported underlying health condition, it may be difficult to prove that the coronavirus was not in fact caught or spread to her by another person other than the alleged defendant. Whilst causation is likely to be an issue, there are certainly a range of conventional offences available to prosecutors if the basic facts can be proved i.e. spitting, the threat, and whether the suspect believed he was infected. An interesting comparison to be made would be the transmission of HIV which has been considered to constitute Grievous Bodily Harm contrary to the Offences Against the Person Act 1861. In those cases, there is case law to suggest that the defendant must in fact have transmitted the HIV to be successfully prosecuted.

The Regulations have now been reviewed and amended several times in their very short lifespan. Only time will tell how the CPS goes about dealing with those people in society who see fit to attempt or threaten to spread this horrific virus, but let’s hope that before too long we can say that all prosecutions under the emergency legislation are fully legitimate, appropriately charged, and always in the public interest.

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Chris Henley KC was a founding member of Carmelite Chambers. He specialises in fraud, terrorism and homicide, and is recommended as a leading silk in the Legal 500 and Chambers and Partners. He was the Chair of the CBA in 2018/19 and is a regular media commentator.

Chloe Birch is a pupil at Carmelite Chambers, with a busy practice in all areas of criminal defence at the Magistrates’ Court. Prior to pupillage, Chloe was a paralegal and police station representative at defence firm Sonn Macmillan Walker. She is a Middle Temple scholar and a founding member of Women in Criminal Law, where she is Head of Communications.