When Professor Lockdown himself, Neil Ferguson, was accused of breaking Covid-19 rules in the early stages of the pandemic, then-Health Secretary Matt Hancock was “speechless” but absolutely clear what should happen next. “It’s a matter for the police”, he said.
The Government had drawn up strict rules for enforcing its ‘stay at home’ message and banned social gatherings, handing over responsibility to police forces to fine and prosecute those who failed to comply.
But when ‘Partygate’ erupted this month and the public learned about the festive fun inside Downing Street and Tory HQ last Christmas, the reaction was somewhat different: denials, obfuscation, and a stubborn refusal by the Metropolitan Police to even investigate.
As Scotland Yard waits to see if an internal Cabinet Office investigation throws up any evidence of criminal wrongdoing, you’d be forgiven for thinking that police action and prosecutions for Covid-19 rule-breaking were a thing of the past.
But in fact, a conveyor belt of cases are still passing – virtually unnoticed – through England’s courts, with magistrates dishing out criminal convictions and millions of pounds in fines to members of the public who failed to follow the government’s rules.
More than £1.2 million in fines have been handed out by Westminster magistrates court since September last year, in over 2,000 completed prosecutions with many hundreds more in the pipeline.
While the alleged shenanigans of ‘Partygate’, with pictures of revelry and insider leaks, have weakened the government’s moral authority to bring in future curbs on liberty – in the face of the Omicron wave or lurking new variants – it is the opaque, illiberal, and sometimes unfair way rule-breakers have been prosecuted that should concern us all.
Back in April 2020, police and justice officials agreed that Covid-19 offences could be prosecuted through the Single Justice Procedure (SJP), a process that allows a magistrate to conduct mini-trials and convict defendants in behind-closed-doors hearings.
The SJP process – introduced in 2015 for the lowest level offences such as fishing without a rod licence, speeding, and train fare-dodging – had been quietly expanded to include a catalogue of Covid-19 offences which are riddled with legal complexities, and are of significant public interest.
The public – and journalists for that matter – are banned from attending SJP hearings, and in the initial stages some courts failed to tell anyone at all that hearings were taking place, apparently unaware or untroubled that they were effectively running secret prosecutions.
Scratch the surface of Covid-19 cases and you’ll find a troubling undercurrent of rampant inequality, questionable decision-making, and a litany of potential miscarriages of justice.
The deeper I have delved, the more convinced I am that the courts and the police should be stopped from prosecuting all but the most egregious breaches of the Covid laws, at least until the fundamental problems have been fixed.
PC Roberto-Cristian Varvara and his girlfriend Special Constable Alexandra Chiriac were prosecuted in June for allegedly breaking quarantine and were handed £2,000 fines each, in convictions that would likely have ended their police careers.
But when they challenged the SJP convictions, which had been conducted in their absence, and pushed the case to trial, a judge discovered they had been charged under the wrong law.
Even worse, the police had failed to deliver proof that they had actually travelled to Romania as alleged, while key evidence was thrown out as inadmissible. A deeply-flawed prosecution eventually collapsed in the glare of open court, but had slid through unchallenged in the behind-closed-doors hearings.
In the last couple of months, a handful of Westminster magistrates have started throwing out prosecutions of people accused of gathering with others in cars, on the grounds that a vehicle isn’t an ‘indoor space’.
While this could be seen as a judicial effort to root out flawed police prosecutions, there are scores of identical cases that other magistrates have not challenged, ending in hefty fines. It’s hard to see how this is anything other than unequal and unfair.
Adding to the list of concerns is levels of financial penalties coming down on offenders – MPs on the Justice Select Committee have questioned whether fines of £13,000 should be handed out in closed-door hearings, but the practice has continued unabated.
An entrenched problem with SJP prosecutions is the low number of defendants who actually engage with the court process, not even entering a plea when a potentially life-changing fine and criminal conviction is on the cards.
The lack of engagement should be a red flag to any government hoping to send a deterrent message through the courts. If the defendants ignore the prosecutions – or worse, are not even aware of them – and the public has no idea what’s happening, what kind of message does that send?
HM Courts and Tribunal Service says anyone who believes they have been wrongly convicted can apply to the court to reopen the case and demand a trial. But when you delve past the theory, the reality can be alarming.
Student Othniel Agyei, 21, was given a £10,000 fine for allegedly throwing a party on December 13 last year, at the same time the Conservatives are said to have been enjoying gatherings of their own. However, in Agyei’s case, the police had told him “case closed” and to not worry about the possibility of being prosecuted.
The alarm of the young man – without legal representation – is palpable as you read his furious emails to the court, trying to mount a challenge. Six months on from being convicted and a year into his nightmare, the fine still stands. It will be hanging over him at Christmas and comes with the threat of bailiffs, more fines, arrest and even prison if he does not pay up.
There has been a steadfast refusal by the police, government, and the CPS to review the SJP prosecutions that have gone before, perhaps for fear of how deep the problems may run. But the main issue for the government is illustrated by cases like that of café owner Mehmet Emin.
He was ordered to pay more than £500 for opening his Bromley coffee shop to customers on December 22 last year. His fledgling business had not been open long before the pandemic hit, the café had already suffered a break-in, and facing a dilemma that may have been familiar to small businesses around the country, he decided to open up in a one-off breach. Mr Emin held his hands up: “I accept my guilt”.
The point is, when you choose to criminalise rule-breaking and commit the courts and police to this task, the rules must apply to everyone, from tea and sandwiches at Mr Emin’s café in Bromley to cheese and wine at the heart of government.
Covid-19 prosecutions go through the courts in their hundreds every week, draining the precious resources at a time when the justice system is stretched to breaking point. It’s possible they will still be happening when 2023 rolls around.
Scotland Yard’s justification for not yet probing the Downing Street quiz night and Secret Santa parties – at a time when large social gatherings were banned – appears to rest on its officers not busting the events at the time.
It’s a questionable policy not to investigate anything retrospectively, it doesn’t sit well with the fact that ordinary members of the public continue to be prosecuted every week. It also didn’t seem to be a consideration for Matt Hancock when Professor Ferguson was in the firing line.
A New Year 2022 lockdown – if needed – could be nearly impossible to enforce by police officers who sometimes struggle to understand the rapidly-changing laws; by a court system lacking in transparency and open to widespread criticism; and when those in power appear immune from consequences.