Covid-19 and the Criminal Law

Wed, 05 Aug 2020

When ‘lockdown’ was announced on 23 March 2020, in many ways it halted the pace of modern life. Overnight, roads were gutted of traffic, shops and public houses were locked and the nation began to adjust to a life spent largely in their own homes. In the same fashion, around the country, criminal courts closed their doors to in-person hearings. This did not mean, though, that the criminal law was about to be placed on pause. In fact, the result was quite the opposite.

First, after a meteorically rapid journey through the Houses of Parliament, the Coronavirus Act 2020 came into force only days after ‘lockdown’ began. Within that Act were set out a number of new criminal offences. Practitioners may be relieved to know that of the 545 pages that comprise the Act, though, they can focus on Schedules 21 and 22. Within those Schedules are a number of powers afforded to public health officials, immigration officers and constables when dealing with infectious or potentially infectious persons. They also include a number of provisions that make it an offence for an infectious or potentially infectious person to fail to comply when the officials exercise their powers under the Act. It should be remembered, though, that a person can only be required to comply if they are infectious or potentially infectious. If that is not the case, then they are not required to comply and so cannot commit an offence for failing to do so.

Secondly, alongside the Act came the Coronavirus Regulations 2020. These Regulations contain a number of provisions for how everybody – whether infectious or not – should act. Regulation 9 makes it a criminal offence to contravene a requirement in Regulations 4, 5, 7 or 8 without a reasonable excuse, or to contravene a requirement in Regulation 6. Those Regulations cover gatherings, staying overnight at a place other than one’s home, opening business premises and enforcement by an appropriate officer.

It will be essential for any person representing someone charged with an offence under the Coronavirus Act 2020 or the Coronavirus Regulations to: 1) ensure that their client has been charged under the correct instrument, given that the Act only applies to potentially infectious or infectious persons; 2) ensure that they are aware of which version of the Regulations was in force at the time, given the numerous and quick changes that have been made to the rules.

Thirdly, existing offences were not exempt from impact. With a nation turning online for its needs, people were increasingly vulnerable to online crime. Those trapped in the house with their abuser had little to no respite or means of seeking help. A misconception that saw some people blaming people of Chinese ethnicity for the virus resulted in an increase in racially based hate crime. So it was that we saw an increase in cases of hate crime, domestic abuse, ‘revenge porn’, and online fraud, amongst others.

Finally, the way the criminal courts functioned underwent a large-scale overhaul. Virtual hearings were implemented for all cases that did not involve witnesses. Trials were adjourned in their tens of thousands. Heated debate took place as to the best way to move forward, to ensure that safety was not disregarded whilst attempting to pull trials out of an ever-widening backlog.

These changes are ones that affect – and will continue to affect - the lives of us all: practitioners and non-practitioners alike. I discuss them in detail in my new book “Covid-19 and the Criminal Law: an Essential Guide”, published by LawBrief Publishing

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