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  • Writer's pictureDurham Pro Bono Blog

The Coronavirus Act 2020: The Act that went too far

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Sim Sunner


The Crown Prosecution has recently announced that one year on since the passing of the highly controversial Coronavirus Act that all 270 charges brought under the most controversial offence introduced by the Act had been withdrawn or overturned after an initial conviction. This creates the need to address whether the Act is firstly effective and whether it is even necessary.



The Coronavirus Act 2020 was introduced to enable the Government with the emergency powers necessary to handle and address the issues triggered by the outbreak of Covid-19.[1] The Act is hotly debated and controversial for granting the Government what can only be described as unprecedented powers. The provisions it contains, which consists of 102 sections and 29 schedules affects almost every area of life. From allowing the government to prohibit and restrict gatherings and public events, mandating the closure of businesses, pensions to investigations.[2]


Perhaps the most controversial aspect of the Act is the introduction of power given to police officers. Under Schedule 21, 22 and 23 Police officers have the power to detain ‘potentially infectious persons’, the powers to prevent mass gatherings, mass surveillance powers and finally to impose criminal sanctions for disease transmission, respectively.


This means that Police, immigration officers and public health officials can direct people to seek treatment or attend treatment centres for help in instances where there are reasonable grounds to suspect that a person may be infected with Covid-19 and it is necessary to take such action.[3] Failure to comply would constitute a criminal offence.[4] Effectively, they have the power to detain those who they perceive to be ‘potentially infectious persons’. Which under the Act is defined as someone who “is, or maybe, infected with coronavirus” or who has been in “an infected area within 14 days”. And put them into an isolation facility. People who fail to do so can be fined up to £1,000.


A year has passed since the passing of the Act and the CPS reviewed all 1,821 finalised cases that were brought under the Coronavirus Act during this period. This arguably damning report revealed that 549 of these cases were incorrect charges that were either withdrawn by prosecutors at the first court hearing or returned to the relevant CPS area to be set aside. And that no instance of a potentially infectious person refusing to comply with a lawful instruction has been prosecuted, meaning all 270 charges brought under this legislation were incorrect.[5] Most of the suspected breaches being punished by way of having the alleged offender pay a fine over an arrest or prosecution. These fines can amount to thousands and go up to £10,000. The report highlighted the danger of this when there was such a high degree of error identified in the issuing of these fines. Ultimately, the report concluded that despite a year passing since its enactment, the Act was and continues to be universally misused for prosecutions at an astonishing rate.[6]


Given this report and its extremely contentious nature consideration should be given to the growing calls to scrap the legislation and particularly the controversial offences it introduced.


Schedule 21 of the Act allows police, immigration officers and public health officers to detain anyone they have ‘reasonable grounds’ to suspect is ‘potentially infectious’ [7] for up to 14 days[8]. This power draws from powers already granted under the Public Health (Control of Disease) Act 1984 which enables the government to quarantine, detain and subject persons to compulsory medical detentions. However, given the unprecedented nature of the Covid-19 pandemic, it is fair to consider how the provision contained in Schedule 21 operates in the wider legal framework and given the CPS report the extent of its necessity.


There is no denying the wide scope of this provision and consequently how it can be easily abused. As any member of the public may at any point in time be infected with Covid-19. The disproportionally broad provision flies directly in the face of Article 5 of the European Convention of Human Rights which ensures our right to personal liberty. Thus Article also ensures protection against arbitrary detention even in times of crisis. There is no guidance on what constitutes reasonable grounds for suspecting someone is infected with Covid-19. Arguably only medical professionals would be able to make this judgement and not police officers. By handing over such discretion to make a medical judgment there is a risk that rights may be violated due to this lack of expertise and experience. And the findings of the CPS results only serve as evidence of this.


The Article is a qualified right and the European Court which court itself even confirming that a person can lawfully be detained to prevent the spread of disease when it is clear there is: a danger to public health or safety, detention is the last resort or other less severe measures have proved insufficient.[9] Whilst this may be the case the provision itself calls for reusable grounds and this is difficult to satisfy. Undoubtedly, we need to protect the public from the devastating effects of the unnecessary spread of Covid-19 but this cannot be achieved if the Act is being incorrectly used. Procedural Fairness cannot be discarded simply because it is inconvenient, it ensures public trust and compliance with these never before seen interferences in daily life.[10] But it also ensures that police time and resources are allocated to the most serious of breaches and not small inconsequential instances that erode public trust in the Police’s efficiency.


Evidently, what it comes down to is the Coronavirus Legislation wasn’t written to accommodate the fast-paced and rapidly changing needs the Coronavirus Pandemic presented. The laws contained in the provisions of the Act continuously clashed with government advice and was incompatible with regional variations of rules. As well as this the body responsible for enforcing these laws, the police, have voiced their frustrations with the lack of timely and clear guidance on how to enforce these new offences. They heard about changes in legislation at the same time as the wider public and were not given any further guidance.[11]


All of which adds weight to the argument that these offences should be abandoned. A rate of 100% wrongful prosecutions should be enough. Human Right Barristers, in particular, have criticised the Act, who highlight that this wrongful prosecution rate is evidence that these laws cannot be implemented safely. Parliament’s Joint Committee on Human Rights also branded the sweeping powers granted under the act as causing an unprecedented interference with Human Rights.[12] The only solution is to repeal this Act.


 

[1] ‘Coronavirus Act 2020’ (Wikipedia) < https://en.wikipedia.org/wiki/Coronavirus_Act_2020> accessed June 2021. [2] Walawalker, ‘What You Need To Know About The Coronavirus Act’ (Each Other, 26 March 2020) < https://eachother.org.uk/what-you-need-to-know-about-the-coronavirus-bill/ > accessed June 2021. [3] The Coronavirus Act 2020. [4] ‘Coronavirus Act 2020: everything you need to know’ (Rethink Mental Illness, 29 March 2021) < https://www.rethink.org/news-and-stories/blogs/2020/03/coronavirus-act-2020-everything-you-need-to-know/ > accessed June 2021. [5] ‘CPS review findings for first year of coronavirus prosecutions’ (CPS, 13 May 2021) < https://www.cps.gov.uk/cps/news/cps-review-findings-first-year-coronavirus-prosecutions > accessed June 2021. [6] Dearden, ‘ All 270 charges brought under Coronavirus Act wrongful, official review finds’ ( The Independent, 14 May 2021) < https://www.independent.co.uk/news/uk/home-news/coronavirus-act-prosecutions-wrongful-cps-review-b1847194.html > accessed June 2021. [7] para 7(1) CA 2020. [8] para 15 (1) CA 2020. [9] Article 5, Human Rights Act 1998. [10] Dearden, ‘Miscarriages of justice under coronavirus laws ‘going unchallenged’ as court hearings bypassed’ ( The Independent, 31 May 2021) < https://www.independent.co.uk/news/uk/home-news/coronavirus-fines-laws-letters-court-prosecution-b1856653.html > accessed June 2021. [11] ibid (6). [12] ‘The Government’s response to COVID-19: Human Rights Implications’ (www.parliament.uk, 21 September 2020) <https://publications.parliament.uk/pa/jt5801/jtselect/jtrights/265/26503.htm#_idTextAnchor000 > accessed June 2021.


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