COVID-19 – Now is not the time for businesses to be complacent

On 31 March 2020, the Crown Prosecution Service (CPS) and National Police Chiefs' Council (NPCC) issued guidance(1) on how investigators and prosecutors are proposing to tackle the issuing of new criminal proceedings during 'an unprecedented crisis for the Criminal Justice System in the UK.

Neither the Crown, nor Magistrates Courts are operating 'business as usual' due to the Covid-19 crisis and the requirements of social distancing. The Courts have been quick to adapt to conducting remote hearings, where possible, by way of video link or telephone conference, but these technologies, while welcome, are not always conducive to an efficient trial process. In light of technological limitations, and the very real prospect of an already congested criminal justice system being clogged up further, the CPS and NPCC have identified the following three categories of criminal cases:

1. immediate;
2. high priority; and
3. other cases.

Immediate

There are two broad categories of offending which fall into the Immediate category. Those where a remand in custody is sought following the charging decision, and those cases which are a 'Covid-19 related offence', whether or not a custodial remand is sought. There is no definition of a 'Covid-19 related offence', however, examples given under this heading include assaults on emergency workers, 'Covid-19 dishonesty offences against vulnerable victims' and 'other Covid-19 related offending e.g. fraud'. The rationale given for these offences inclusion in the Immediate category is protection of vulnerable victims and deterrence of future offending. 

Where a prospective Immediate category offence is under consideration, the CPS will advise pre-charge, taking into account the offence proposed to be charged, the risks posed by the offender, and the risk to the victim or the public.

Where an Immediate category offence is charged, the defendant will be placed before the next available Court.

High Priority Cases

Where a custodial remand is not sought, but the offending is serious and bail conditions are required for the protection of the public or for the prevention of further offending, the CPS will prioritise the making of charging decisions, with a long court bail date of 28 days for anticipated guilty pleas (GAP) and 56 days for anticipated not guilty pleas (NGAP).

Other cases

These are cases which are lower priority during the Covid-19 crisis and fall into two broad categories: lengthy and complex ongoing investigations and cases of a less serious nature. In relation to ongoing investigations, particularly those of complex fraud under the prevue of either the SFO or HMRC, the guidance advocates the delaying of the commencement of proceedings until a wider listing plan is in place; potentially involving the creation of a virtual specialist fraud court established to manage such cases.

Anecdotally, it has been reported that HMRC have been contacting taxpayers under enquiry to advise that, due to the current lockdown, HMRC are not requesting further information, nor pressing for responses to enquiries already underway.

While to some, this news may be welcome, when combined with the prosecutors' focus on charging Covid-19 offending (specifically Covid-19 fraud and dishonesty offending) and the recent comments of Jim Harra, HMRC's Chief Executive, regarding the potential for the abuse of the Coronavirus protection package announced by Chancellor Rishi Sunak² and the greater powers provided to HMRC under section 76 of the Coronavirus Act 2020³, HMRC's 'reprieve' starts to  resemble a temporary re-deploying of resources.

Businesses may wish to take advantage of this temporary reprieve by:

1. ensuring that they are well prepared to respond to any resumed HMRC's enquiries once HMRC recommence their normal activities, as it is unlikely that HMRC will look favourably on requests for extensions of time once the Covid-19 crisis is over; and
2. ensuring that they have properly documented policies, procedures and risk assessments in place concerning the accessing of any part of the Coronavirus protection package.

¹ Coronavirus: Interim CPS Charging Protocol between the National Police Chiefs' Council and Crown Prosecution Service – protocol

² See here for more information

³ HMRC are to have such functions as the Treasury may direct in relation to coronavirus or coronavirus disease.