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Government must learn lessons from use of criminal law in pandemic including avoiding blurred line between guidance and the law: Justice Committee

Given the speed and scale with which the Government needed to create new regulations in response to the Covid-19 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 the criminal justice system", MPs have said.

In a report, Covid-19 and the criminal law, the Justice Committee concluded that the Government had been “justified in acting quickly in the face of an unprecedented health crisis but must learn lessons to ensure it is better prepared for the future”.

Other lessons identified in the 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 had 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.”

The Justice Committee also called for a wide-ranging study to be conducted by the new pandemic preparedness agency (the UK Health Security Agency) to review the effectiveness of key elements of the justice response to the pandemic, including fixed penalty notices and the single justice procedure, to assess their appropriateness for future use. The new agency must have sufficient criminal law expertise at its disposal, the report said.

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Chair of the Justice Committee Sir Robert Neill MP said: “The speed and seriousness of the Covid-19 pandemic necessitated restrictions that we previously thought unimaginable. New criminal offences were introduced to enforce them and it is right that the Government acted quickly to create them. However, it is also clear that lessons need to be learnt and improvements made. 

“As the Justice Committee, our focus is on the integrity of the criminal justice system and the Rule of Law. Our report sets out a number of lessons for the every Government on the development, communication and enforcement of new criminal offences.”

Neill added: “The new UK Health Security Agency should review the way in which the Government used the criminal law to protect public health during the pandemic. In particular it should examine the effectiveness of certain measures, such as  Fixed Penalty Notices and the single justice procedure. We need to better understand whether their use was always appropriate and proportionate, and a model we should follow in the future. 

“That the justice approach to the pandemic was not perfect in its early stages is understandable; to fail to learn valuable lessons to better prepare for the future would be much less so.”

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