Exclusive: Official review finds a third of Covid prosecutions were unlawful – but at least 5,000 cases heard behind closed doors haven’t been checked
Ministers have not implemented official recommendations by parliamentary committees to ensure that people can challenge fines of up to £10,000 without ending up in court, or to review over 100,000 penalties that have already been handed out.
Anyone who refuses to pay can be charged with an offence, and a review by the Crown Prosecution Service (CPS) has found that a third of the coronavirus prosecutions checked have so far been wrongful.
Legal experts are concerned that even more miscarriages of justice may have occured in at least 5,000 closed hearings under the controversial “single justice procedure”, which the CPS does not review.
They have seen people handed huge fines for Covid offences without entering pleas or having legal representation, including several people fined £1,100 over gatherings on the same date as alleged government Christmas parties.
Sir Bob Neill, the chair of parliament’s Justice Committee, told The Independent he was “disappointed” that the government had reintroduced Covid fines without changing the regime.
“There seems to be an unwillingness to learn lessons from the unsatisfactory way in which Covid offences were brought in last time, and a worrying failure to appreciate that rule-of-law safeguards should never be traded for speed or expediency,” the Conservative MP added.
“The latest ‘Covid certification’ regulations were particularly poorly drafted, and in my judgement will be extremely difficult to enforce.
“It remains objectionable to use fixed penalty notices (FPNs) to impose such high penalties.”
A Justice Committee report published in September called for the government to consider “alternative approaches” to enforcing future coronavirus restrictions, but the same regime has been imposed for new face covering and Covid pass laws.
A report said a £10,000 fine was “so large that only a court should issue it”, but new laws mean the punishment can be handed without trial to people who supply false evidence of Covid status.
The Justice Committee called for the government to conduct a review of the wider Covid fine scheme but the recommendation was not followed.
Members also raised concerns that people contesting fines had inconsistent responses from different police forces, and said the government “should ensure the review process enables an individual to challenge a notice without risking a criminal prosecution”. No change has been made.
A recommendation to review the “problematic” use of the single justice procedure to deal with Covid offences was also ignored.
Analysis by The Independent shows that by the end of March 2021, 4,785 people had been prosecuted for crimes including “breaching emergency period restrictions” and “offences in relation to events and gatherings” under the scheme.
Despite the process being formulated for people who plead guilty, only one in 10 defendants admitted the crimes and the vast majority entered no plea, leaving the cases to be decided by a single magistrate, behind closed doors and with no legal representation for defendants.
Anyone can request a court hearing or trigger one by pleading not guilty, but only a tiny fraction of people formally denied offences, raising questions over whether they were aware of prosecutions.
Concerns about the system were raised officially as early as September 2020, when parliament’s Joint Committee on Human Rights (JCHR) said the absence of formal process for appealing fines would “invariably lead to injustice”.
A report said: “It is unacceptable that many thousands of people are being fined in circumstances where the lockdown regulations contain unclear and ambiguous language, there is evidence that the police do not fully understand their powers, a significant percentage of prosecutions have been shown to be wrongly charged, there has been no systematic review of FPNs and there is no appeal or review provided for under the regulations.”
The committee called for all fines to be reviewed and drafted an amendment to Covid laws that would have introduced an appeal mechanism. The government rejected the proposed change and ignored the recommendations.
Chair Harriet Harman told The Independent the number of wrongful charges found by the CPS “show just how important the right of appeal is”.
“This is a fundamental human right and basic pillar of the rule of law,” she added.
“It was very disappointing that the government chose not to act when it had the chance to do so, and the committee will continue to be clear that any future restrictions and regulations that are introduced must include a right to appeal.”
Evidence gathered by the JCHR suggests that young people, black and Asian groups, men and the most socially deprived are most at risk of being prosecuted.
Ms Harman said: “Whether a fixed penalty notice was deserved or not, those who could afford it were likely to pay a penalty to avoid criminality whilst those who couldn’t afford to pay faced a criminal record along with all the resulting consequences for their future development.
“The whole process had inequality and unfair treatment baked into it, hitting the less well-off and criminalising the poor over the better off.”
By the end of October, figures obtained by The Independent show that the CPS review found 773 out of 2,573 coronavirus prosecutions it checked had been wrongful.
Every single one of the 300 charges brought in open court under the Coronavirus Act was unlawful, and an additional 2,273 were brought under versions of the Health Protection Regulations, which enforced various lockdowns and restrictions.
Campaigners say the figures suggest that thousands of cases brought under the single justice procedure are wrongful, but have not been reviewed.
Griff Ferris, the legal and policy officer at Fair Trials, said: “The single justice procedure is rushed justice, on the cheap, and it is completely inappropriate for assessing charges under confusing lockdown laws.
“It’s deeply unjust that so many people are being criminalised and financially penalised by this opaque and unchecked process behind closed doors.”
Madeleine Stone, the legal and policy officer at Big Brother Watch, said the pandemic had caused a “wave of injustice”.
“It is unacceptable that unlawful fines and prosecutions have become the norm,” she added.
“The government should urgently address this continuing injustice, stop the use of the secretive single justice procedure for covid offences and review all lockdown fines.”
A government spokesperson said: “The overwhelming majority of the public have played their part to control the virus but it is right that strong deterrents were in place for those breaching the rules most egregiously.
“The government had to act quickly in the face of an unprecedented health crisis and we have introduced measures to reduce transmission of the virus that have been proportionate and appropriate.”