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NEWS

Protection of suspects and defendants’ rights in England & Wales during COVID-19

This post was written by Dr Tom Smith, University of the West of England, Bristol, UK

As with jurisdictions across the world, England and Wales (E&W) saw sweeping changes to virtually all aspects of social life in 2020, including the operation of criminal justice. On the latter, many changes were introduced via new legislation, as well as extensive and often complex guidance. New criminal offences were created and enforcement powers for the police extended, accompanied by more visible and proactive policing generally. The need to minimise social contact between individuals in criminal justice system (CJS) environments – such as custody and courtrooms – required huge changes to existing practices. The timeframe for all of this was extremely short (almost immediate, in fact) and combined a massive expansion of some pre-existing practices, with completely new ways of working. In this context, there was (and has been) very little time to fully consider the short and long-term implications for the protection of suspect and defendant rights in the ‘new’ CJS forged so swiftly by the pandemic. Key rights in this context include fair trial; liberty; privacy; protection from torture and cruel, inhumane or degrading treatment; and protection from discrimination.

Generally, the normal operation of all stages of the CJS have, in one way or another, implications for these vital civil liberties – and even more so in the wake of Covid-19. Key questions, therefore, are: how have the changes described impacted on the protection of these rights, and will they continue to do so? For E&W, Covid-19 was – and continues to be – an unprecedented situation, involving forms of national chaos and anxiety not experienced in decades. Police officers and court officials (including judges, lawyers and administrative staff) have played an important ‘key worker’ role throughout, in situations of high pressure; requiring fast-paced adaptation to challenging problems; and (of course) increased personal risk of exposure to Covid-19 infection. It should also be noted that, prior to the pandemic, both of these central CJS institutions faced long-term challenges in relation to resources, with resulting pressure on workload for many years prior to the pandemic. The changes described above had to be implemented with unprecedented speed. It is important and fair to bear this context in mind when offering critical analysis of these issues. Nonetheless, this also does not exclude these institutions from fair comment, particularly when rights protection is at stake.

One of the powers granted to the police as part of efforts to control the pandemic was the ability to issue ‘on the spot’ fines (formally, Fixed Penalty Notices (FPNs)) to persons suspected of breaching rules related to health control. Criticisms have included that the police have used these powers excessively and disproportionately, with significant implications for rights protection. Analysis by the Government Statistical Service suggested (according to the National Police Chiefs’ Council (NPCC)) that use of FPNs in relation to Covid-19 was ‘low’, with the latter arguing that this represented a fraction of all pandemic related incidents. However, this only provides a partial analysis. As the NPCC also implicitly recognised, the way in which FPNs are used and who they are issued to are also relevant to the question of fairness. For example, the apparent targeting of the top-level £10,000 FPN at students and teenagers for hosting house parties; or the issuing of fines to people attending remote beauty spots, with no clear breach of rules, might be questioned in terms of both fairness, equal application and enforceability. FPNs also raise issues related to scrutiny and equity of treatment for the subject. A person issued with an FPN can challenge it before a court (and therefore be subject to means-testing). However, the nature of FPNs naturally discourages most people from doing so, not only due to the obvious additional burden of pursuing this but by increased levels of penalty (and therefore financial cost) if their challenge fails.

Evidence also suggests that BAME persons have been more likely to be fined under Covid-19 regulations than other groups, leading to concerns about racial discrimination – a problem that has long dogged not only the police but the CJS generally. Moreover, FPNs appear to have been used inconsistently across E&W, with some police forces using them heavily whilst others have used them very little. In this sense, it might be suggested that enforcement is subject to a form of ‘postcode lottery’, with people in more policed areas (nearly always urban and marginalised) more likely to be on the receiving end. It has also been argued that the new offences and related powers are wide and characterised by low thresholds of certainty for officers to satisfy before acting; are unnecessary (due to pre-existing legislation, which could have been used for the same effect); and are too complex. Indeed, hundreds of pieces of legislation and guidance have been issued since March 2020, with rapid change to these since their inception. Unsurprisingly, there are several publicised examples of mistakes and wrongful convictions (such as the case of Marie Dinou in April 2020), and almost certainly many undiscovered ones too. Reviews by the Crown Prosecution Service (CPS) have repeatedly shown that virtually all offences charged under the Coronavirus Act 2020 (the primary piece of legislation) have been in error.

The use of police custody and its impact on suspect rights has also been a source of concern during the pandemic. After March 2020, remote attendance of defence lawyers at police stations (either by phone or video link) became (and has remained) standard, leading to reports of issues with providing adequate representation remotely; a lack of genuine privacy for client consultations; and inconsistent practices across the country. Alongside the inherent criticism levelled at ‘remote’ forms of advice, such issues can arguably increase both the isolation and legal vulnerability of suspects in custody, and negatively impact on the take-up of advice (since there would almost no chance of a face-to-face consultation). As well as the physical absence of lawyers from police custody suites, it is also worth noting that independent custody observers and appropriate adults (provided to juvenile and vulnerable suspects) have also had variable access, heightening concerns for those in custody who most vulnerable and therefore face even greater pressures. These circumstances – which involve even lower levels of scrutiny than usual and more limited opportunities for independent, protective interventions – naturally give rise to concerns about how effectively suspect rights are being respected in custody.

In courts, a central issue has been the swift and large-scale move to ‘virtual hearings’. Long before the pandemic, various concerns were raised about this method of delivering criminal justice, which has gradually expanded over the years. Separate research studies by the Ministry of Justice, Transform Justice and the University of Sussex have raised questions about the ability of defendants and lawyers to meaningfully engage with hearings and each other; the effect of virtual hearings on take-up of representation; and the apparently negative impact on outcomes for defendants (particularly in relation to bail and custody – in short, detention is more likely). Of course, the pandemic instantly accelerated the pace of change in this regard, leaving little opportunity to fully consider or address any of these issues (beyond tackling them on an ad hoc basis, at court level). This is not to criticise the judiciary, lawyers and officials working virtually in criminal courts or, necessarily, the decision to roll out virtual hearings on a large scale. It is appreciated that it was borne of necessity, in unique circumstances. It is also important to note that many proceedings have returned to ‘normal’ (to some extent), with many more cases being heard physically in courts than were during the March - June 2020 period. However, notwithstanding this, the CJS is undoubtedly not back ‘where it was’ prior to the pandemic (and indeed, may be in a worse position than it was as the peak of the second wave hits the UK). Large numbers of hearings have also been suspended for many months and in some cases, years. There now exists a very large ‘backlog’ of cases, adding to one that existed for some time prior to the pandemic. This, of course, delays the delivery of justice for defendants (and victims of crime), as well as risking extended periods in custody for those courts choose to detain prior to trial.

The use of pre-trial detention (PTD) is particularly problematic in relation to custody time limits (CTLs) - statutory restrictions on the maximum length of incarceration before trial. Such restrictions seek to ensure PTD is not excessively long, though CTLs can be extended by courts should good and sufficient cause justify it. The backlog; the continued need to deal with cases both during and beyond lockdown; and the significantly reduced capacity of courts to hear cases (particularly trials), has increasingly presented courts with a challenging predicament. In cases where a defendant has been imprisoned for a long period but cannot yet be brought to trial due to a lack of capacity, courts have been forced to contend with a choice: grant extensions of CTLs; or release defendants until trial. Arguably, extensions – based essentially on the lack of court capacity – is questionable as robust justification. Indeed, CPS guidance (based on existing legal precedent) suggests a lack of resources should not routinely justify an extension. This conflict was (to an extent) kicked into the long grass when the Government passed legislation to extend the maximum periods of CTLs in September 2020, partly in response to a controversial case in which a judge refused to extend a defendant’s detention. Nonetheless, the threat defendant rights in the form of excessive PTD remains a real one.

What are the implications of all the above in the long-term?

History suggests there is always a risk of ‘emergency powers’ becoming the norm. Logically, the emergency powers related to Covid-19 should end with the risk of the disease; but how do we define this ‘end’ point? Notwithstanding the beginning of mass vaccination across the UK, there is no clear answer to this (in E&W or anywhere else). The disparate emergency changes that were introduced in March 2020 and since will, equally, not disappear ‘as one’. Additionally, we might consider whether, during the course of the pandemic, police officers, judges, lawyers and other CJS practitioners have developed new habits, norms and informal practices, and therefore ask: if these have become culturally embedded and do not represent a positive development for rights protection, how are they to be undone? Clearly, in all jurisdictions, the post-pandemic world will be logistically and financially challenging for all.

One might wonder whether many of the changes to the CJS ushered in by temporary necessity may be an irreversible tide, for practical reasons of resourcing. There is also, arguably, a political dimension to consider. The current Government has shown particular ambivalence (if not hostility) to human rights law, coupled with a pre-pandemic inclination towards ‘crime control’ type measures (for example, expanded police powers of stop and search; and increased prison capacity). The Conservatives have long promised to dismantle the current human rights framework. Given this context, one might be forgiven for wondering whether the changes described above are a serendipitous progression of this agenda; whether they in fact reflect long-held ideological objectives of the Government for the CJS; and will, as a result, eventually transition into permanence. As such, there is a vital need for careful and sustained scrutiny of the process of ‘phasing out’ emergency powers and assessing their long-term impact. There is a crucial role in this for various CJS stakeholders - including defence and prosecution lawyers, police, the judiciary, academics, journalists, statisticians and NGOs. Additionally, regardless of the future impact of Covid-19, the CJS desperately needs investment to properly ensure protection of rights. Otherwise, all of these factors in combination risk the emergence of a system that merely functions; and does not adequately protect the rights of those accused of crime.

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