I. COVID-19 and the Notion of “Law”

The general public in the UK have been on a steep learning curve as they had to assimilate legislation (that mandates compliance) together with accompanying Government ‘Guidance’ (that does not have the force of law unless a legislative measure states otherwise). Unsurprisingly, the tendency has been to conflate those sources, resulting in widespread confusion over actual legal requirements.¹

UK coronavirus legislation has served to demonstrate that “criminalisation” is a nuanced concept, and that the notion of “lawfulness” may say as much about conduct that is permitted as it may about conduct that is prohibited. European lawyers may think the latter statement to be self-evident (applying the notion that actions are “legal” if they are expressly authorised in law). By contrast, a view, once widely held by English jurists, was that “England….is not a country where everything is forbidden except what is expressly permitted: it is a country where everything is permitted except what is expressly forbidden” (Sir Robert Megarry V-C).² This statement was cited by Lord Sales JSC³ (Justice of the UK Supreme Court) who opined in Regina v Copeland that “[t]here is no other sensible criterion of lawfulness to be applied:”⁴

…the general requirement that the criminal law should be clear and give fair notice to an individual of the boundaries of what he may do without attracting criminal liability supports this interpretation: “a person should not be penalised except under clear law”, sometimes called the “principle against doubtful penalisation.”⁵

The traditional English notion of ‘lawfulness’ was arguably outdated before the pandemic, but coronavirus legislation that enacted prohibitions, restrictions and permissions to regulate the actions of millions of people in the UK has challenged that notion to the limit.

II. COVID-19 Legislation and Penalising Conduct

1. Enacting COVID-19 laws

On 25 March 2020, the Coronavirus Act 2020 received Royal Assent. It enacted (among many other provisions) a power to require information relating to food supply chains (section 25); a power to suspend port operations (section 50); powers relating to potentially infectious persons (section 51); powers to issue directions relating to events, gatherings and premises (section 52); and the use of video and audio technology in criminal and civil proceedings (sections 53-57; and schedules 23-25).

However, the majority of coronavirus regulations, which have impacted on the movement and actions of persons, were not made under the 2020 Act, but under the 1984 Public Health (Control of Disease) Act (“PHA”). The latter was significantly amended by the Health and Social Care Act 2008, which inserted into the PHA wide-ranging “Public Health Protection” measures (sections 45A to 45T). The Government’s aim was to take an ‘all hazards’ approach to health as reflected in the World Health Organization’s International Health Regulations 2005 (which came into effect in 2007) and to address threats such as SARS⁶.⁷

Section 45C(1) of the PHA provides that “[t]he appropriate Minister may by regulations make provision for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in England and Wales (whether from risks originating there or elsewhere)”. The Minister may impose or enable the imposition of “restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health” (s.45C(3)). Section 45F(2) stipulates that regulations may (among other things), (a) confer functions on local authorities and other persons; (b) create offences; (c) enable a court to order a person convicted of any such offence to take or pay for remedial action in appropriate circumstances; and (d) enact statutory measures for the execution and enforcement of restrictions and requirements imposed by or under the regulations.

Such regulations must be laid before Parliament but this is subject to an “emergency procedure” by which an instrument containing health protection measures may be made provided that it declares that “the person making it is of the opinion that, by reason of urgency, it is necessary to make the order without a draft being [laid before Parliament] and approved” (s.45R(2)). A number of COVID-19 regulations have been made in this way and brought into force. Shortly thereafter, they were laid before Parliament (and presumably approved).⁸ Measures that are introduced on the basis of a state of emergency challenge fundamental legal and constitutional principles.⁹ Certain COVID-19 regulations required (among other things) specified premises and business to close or to provide a restricted service; and/or mandated that “no person may leave the place where they are living without reasonable excuse”¹⁰ (subject to certain exceptions); and/or that “no person may participate in a gathering in a public place of more than [x] people” (save in specified circumstances).¹¹

2. Criminalisation and penalisation

By section 45F(5) PHA, “health protection regulations ”may not create an offence triable on indictment (that is to say, triable in a Crown Court) or punishable with imprisonment. However, the regulations could – and did – create ‘summary offences’ (that is to say, triable in a Magistrates’ Court) punishable by way of a fine or a “fixed penalty notice”. The aim of the latter was clearly intended to avoid giving offenders a criminal record for one or more breaches of the regulations, but this required police officers to correctly identify an actual breach – and this they could only do if the law was clear and if penalisation was not doubtful.

In practice, penalisation often occupied grey areas of the coronavirus regulations. Thus, when regulations specified that persons (and groups of persons) were not permitted to “mingle”,¹² it was left to individuals and to the police to work out in their minds what this expression meant.¹³ Insofar as the regulations prohibited certain conduct in the absence of a “reasonable excuse” (e.g., leaving home or travelling outside the UK, or failing to comply with a restriction¹⁴) the limits of that defence were illustrated (to some extent) by situations, particularised in the regulations, each of which constituted a “reasonable excuse”. However, much was left to personal judgment.¹⁵

Although a statutory defence of “reasonable excuse” might be thought to offend the ‘principle against doubtful penalisation’, it is available under English law in respect of many statutory offences.¹⁶ In some contexts (such as restricting the right of persons to gather to protest) the defence of “reasonable excuse” may be the means by which the legislation in question satisfies Arts. 10 and 11 of the ECHR (and Arts. 10 and 11 of the UK Human Rights Act 1998) – the rights to freedom of expression and to freedom of assembly/association.¹⁷

Occasionally, one open-textured expression in a regulation was linked with another, thereby compounding problems of interpretation and comprehension. For example, there had been a statutory requirement on persons (in specified areas of England) not to “leave or be outside of the place where they are living without reasonable excuse”¹⁸ save when “reasonably necessary…to take exercise outside”.¹⁹ Although Government guidance stated that “exercise” “should be limited to once per day, and you should not travel outside your local area”, this was not incorporated within the regulations (and thus the guidance lacked the force of law) and there was no legal definition of “local area”.²⁰ Two women, who were fined £200 each when they drove five miles for a walk, had their fixed penalties withdrawn.²¹ In those circumstances, and given the actual law that applied, the final outcome was inevitable.

3. Public confidence in the law and law enforcement

A defence of “reasonable excuse” usually gives rise to few problems in practice (e.g. legislation relating to offensive weapons and firearms). This may be because few persons have offensive weapons with them in public places and thus, making a judgment on the merits of a given case, is relatively straightforward. By contrast, the COVID-19 legislation imposed obligations on millions of people to desist from doing much that they would normally do (or even be expected to do).²² Accordingly, those who construed the ‘rules’ restrictively were often ready to accuse others of ‘breaking’ them when, in fact, the legal position was unclear. Sometimes public reaction to a perceived breach, ‘boiled over’. At a time when national travelling restrictions were in place, it was reported that the Prime Minister’s then Chief Adviser (Dominic Cummings) travelled from London to Durham having gone to work at Downing Street (after his wife became ill with COVID-19 symptoms) rather than isolating at home for 14 days. It was reported further that, whilst staying away from his home in London, the Adviser made a journey to Barnard Castle. The Director of Public Prosecutions (DPP) decided not to refer the case to the police for investigation of a potential breach the regulations²³ and/or a potential offence of public nuisance, contrary to common law. A member of the public unsuccessfully sought the permission of the Administrative Court to challenge that decision by way of judicial review (R (on the application of) Redston v DPP²⁴). The judgment focused on the question of whether or not the DPP had power to refer (or even to ‘nudge’) a case to the police for investigation. The Court concluded that the DPP had no such power because “such power or discretion would run counter to the distinction between investigative responsibility and prosecutorial responsibility which is so clearly expressed in the [Prosecution of Offences Act 1985]”. The Court considered that even a ‘nudge’ would represent “an impermissible trespass over the investigation/prosecution boundary” (per Lady Justice Carr DBE).

4. Miscarriages of justice

In May 2021, the Crown Prosecution Service published its ‘review findings’ for prosecutions under the Coronavirus Act 2020 and the Health Protection Regulations between 26 March 2020 and 31 March 2021.²⁵ Of 1,821 finalised cases, 549 cases were identified by prosecutors as having been incorrectly charged and these were either withdrawn or set aside. Most cases (1,551) were brought under the Regulations. The majority of those cases (82%: 1,272) had been correctly charged. Of the 270 cases charged under the Coronavirus Act 2020, all had been incorrectly charged and thus failed. The UK Parliamentary Joint Committee on Human Rights remarked that:

It is astonishing that the Coronavirus Act is still being misunderstood and wrongly applied by police to such an extent that every single criminal charge brought under the Act has been brought incorrectly. While the coronavirus Regulations have changed frequently, the Act has not, and there is no reason for such mistakes to continue.²⁶

III. The Impact of COVID-19 on Traditional UK Doctrines and Processes – the Example of Open Justice

Some COVID-19 restrictions threatened to compromise certain well-established doctrines, practices and processes that are the essence of the UK constitution. Many aspects of UK democracy are enshrined in law and they may also be supported or circumscribed by the criminal law. Quite apart from legal rules pertaining to freedom of expression²⁷ and the right to protest, there are (for example) rules that oblige certain meetings to be held (for example, certain company meetings).²⁸

The criminal courts operate under the principle of ‘open justice’. Except in rare situations, criminal proceedings are conducted in open court. Typically, all the participants will be physically present in the courtroom. Members of the public and the press may occupy a dedicated part of the courtroom to observe the proceedings. Ensuring that proceedings are compliant with the ECHR/the Human Rights Act 1998²⁹ is of paramount importance. Accordingly, the Coronavirus Act 2020 made extensive provision for conducting criminal proceedings in ways that would respect public health whilst maintaining the traditional concepts of open justice and due process. As a recent report stressed:

[Fairness] in criminal proceedings can be undermined if new technologies are deployed in ways that do not take into account the specific needs of the defence in the digital era.³⁰

Some statutory COVID-19 measures (see, for example, 1 and 2 below) have extended or modified pre-existing procedures for conducting criminal proceedings whilst ‘achieving best evidence’³¹ in those proceedings.

1. Live audio and live video links

Provisions enacted under the Criminal Justice Act (CJA) 2003 (for example, the provision of “live links”³² in criminal proceedings: section 51) were modified so that a person (other than a member of a jury³³) “may, if the court so directs, take part in eligible criminal proceedings through (a) a live audio link, or (b) a live video link”.³⁴ Such proceedings included a summary trial or a trial on indictment, and an appeal to the Court of Appeal (Criminal Division).³⁵ A "live audio link" meant a “live telephone link or other arrangement” which enabled a participant to hear and to be heard by every other person “taking part in the proceedings who are not in the same location”.³⁶ Similarly, a “live video link” meant “a live television link or other arrangement” which enabled a participant and “all other persons taking part in the proceedings” to see and hear that person.³⁷ The court could not give an audio/video live-link direction unless the court was satisfied that it was “in the interests of justice” for the person concerned to take part in the proceedings in that way and the parties to the proceedings had been given the opportunity to make representations.³⁸ Where the defendant was under 18 years of age (or the court decided to continue to deal with the case as if the defendant had not attained that age) the “youth offending team” had to be given the opportunity to make representations before proceeding by way of a live link.³⁹

A live-link direction could only be given once the court had considered “all the circumstances of the case”⁴⁰ including (but not limited to) the factors set out in modified s.51(7), CJA 2003.⁴¹ Section 51(4B) and schd. 3A, CJA 2003, placed some limitations and prohibitions on the use of live links.⁴² When evidence was given by live link, it was open to the judge to give the jury (if there was one) “such direction as he thinks necessary to ensure that the jury gives the same weight to the evidence as if it had been given by the witness in the courtroom or other place where the proceedings are held.”⁴³

Powers under the Crime and Disorder Act 1998 were also modified by the Coronavirus Act 2020⁴⁴ to encompass preliminary hearings, sentencing and enforcement hearings⁴⁵ so that such hearings could be conducted by way of an audio or video live link if it was in the interests of justice to do so.⁴⁶

2. Conducting and managing remote hearings

As a result of the statutory modifications mentioned above, remote court hearings emerged in two forms. The first was an all-virtual hearing, and the second was a hybrid hearing. Different judges adopted slightly different practices. Some judges were located away from a court centre when conducting (for example) a preliminary hearing, but other judges attended the centre in person. As for the former, it must be remembered that some judges were especially vulnerable to contracting COVID-19 and thus they required a degree of ‘shielding’. The hybrid version involved key participants attending court premises (typically, defendants, advocates, judges, and jurors (if any)) but evidence might be given by live link. In some cases, the advocates were required to ‘self-isolate’ (having tested positive for COVID-19) but they were able to participate via a live link.

Conducting contested trials on indictment (with a jury) under strict COVID-19 conditions (‘lockdown’) was often a challenging experience, especially in cases involving two or more defendants charged jointly. Courts (and their equipment) were not designed with a pandemic in mind. Participants had to be kept ‘socially distanced’ from each other, and this included the lawyers, jurors, and defendants. Some court ‘docks’ were not of sufficient size to seat two or more defendants in a ‘socially distanced’ way (e.g. 2 metres apart) and thus a trial might require two courts to conduct it. Each court had to be equipped with audio and video live links to ensure that each participant was in sight and hearing of each other (except where a witness had been granted ‘special measures’ that entitled him or her to give evidence out of sight of one or more persons or class of persons). The two courts had to be in communication with each other and be in a position to receive and to transmit video and audio data to other locations (e.g. where a witness was located).

Static cameras in a courtroom, which were designed to focus on (e.g. the judge), might not capture a ‘head-and-shoulders’ image of a witness or to stream an image of the dock in the neighbouring court. In an English criminal trial, the demeanour of persons (especially witnesses) is regarded – mistakenly or otherwise⁴⁷ – as a matter of considerable importance.

The use of live-link technology in court proceedings requires a stable and reliable connection that may be required to stream data for many hours. Sound and video quality is obviously important. But the live streaming and broadcasting of data must also be secure and free from interception or other misuse. Even before the pandemic, data ‘platforms’ (approved by the Ministry of Justice) were in existence (and updated) to achieve and to maintain data protection standards as well as traditional procedural requirements (for example, the unauthorised photographing or audio recording of criminal proceedings).

It has been pointed out (fairly) by Sorabji and Vaughan that “the senior judiciary relied predominately on soft law in the form of judicial guidance and protocols to manage the system”⁴⁸ (that is to say, the criminal justice system) with the aim of maintaining individual and public health whilst endeavouring to proceed with court business in accordance with substantive and procedural law).⁴⁹ Similarly, local court centres took steps to manage their premises and caseload, and they adjusted certain in-court practices to promote the health and wellbeing of court users.

However, slip-ups (hopefully exceedingly rare) did occur. In the civil case of Gubarev and Anor v Orbis Business Intelligence Ltd and Anor,⁵⁰ a ‘Zoom’ link to the live streaming of court proceedings had mistakenly been provided to (among others) certain persons connected with the claimants. The observations of Dame Victoria Sharp P (giving the judgment of the court) powerfully illustrate some of the difficulties confronting judges and practitioners when a hybrid hearing is being conducted:

50. …. whether a court hearing is a remote hearing or a hybrid hearing….or a conventional face to face hearing, it must be conducted in a way that is as close as possible to the pre-pandemic norm.

51. In normal circumstances a judge can see and hear everything that is going on in court. The judge can see who is present, and whether a witness who is giving live evidence has been present in court observing and listening to the evidence of other witnesses. The judge can see whether someone is attempting to influence, coach or intimidate a witness whilst they are giving evidence. The judge can immediately see…that a person sitting in court who is not a journalist appears to be tweeting on their mobile phone without first obtaining permission. That a judge can see and hear everything that happens in court enables the judge to maintain order, discipline and control over what is done in court, and thus to maintain the dignity and the integrity of the proceedings as a whole. This control extends to the recording of images and sounds of what goes on in court and what is then used outside court.

52. Once live streaming or any other form of live transmission takes place, however, the Court's ability to maintain control is substantially diminished, in particular where information is disseminated outside the jurisdiction, as happened in this case. The opportunity for misuse (via social media for example) is correspondingly enhanced, with the risk that public trust and confidence in the judiciary and in the justice system will be undermined. In these circumstances, it is critical that those who have the conduct of proceedings should understand the legal framework within which those proceedings are conducted, and that the Court is able to trust legal representatives to take the necessary steps to ensure that the orders made by the Courts are obeyed.

IV. The Future

There is no doubt that much has been learned by policy makers and by legal practitioners from the COVID-19 experience in the conduct of criminal proceedings. Case management hearings and uncontentious matters are ideally suited to virtual/remote hearings. However, receiving and giving evidence remotely has significant drawbacks – especially if the technology does not replicate (as close as possible) the experience of giving evidence in the normal way. Interrupted transmission, poor sound quality, or delays in transmission (between question and answer) and poor video quality, are not conducive (it is submitted) to receiving the best evidence. Gestures and facial expressions made by a witness over a video link (especially in close-up) may or may not be distracting, and those expressions may or may not be meaningful of the reliability and credibility of that witness’ testimony. Further research into evidence that is given by live link is arguably warranted. The COVID-19 experience also reinforces the correctness of Sir Robert Megarry’s statement that the criminal law “should be clear and give fair notice to an individual of the boundaries of what he may do without attracting criminal liability”.