On Tuesday 25 January, the Metropolitan Police announced that it has opened a criminal investigation into a number of alleged events that took place in Downing Street and Whitehall during the national Coronavirus lockdowns. The investigation is to be led by its Special Inquiry Team, which has been involved in a number of high-profile and politically sensitive investigations over recent years, and it will look in to "potential breaches of the COVID-19 regulations" (the Regulations).
The Regulations attract summary-only penalties, which would typically engage a strict limitation period of six months for enforcement action - however, as set out below, the exceptional nature of the legislation relied on by Parliament to introduce the Regulations, means that the limitation period has been extended for investigations relating to these potential offences.
The COVID-19 Regulations
Following lockdown, regulations were bought into force requiring the closure of premises and businesses and the restriction on certain business activities, movements and gatherings. The Coronavirus Act 2020 and the Public Health (Control of Disease) Act 1984 (the 1984 Act) are two key pieces of primary legislation that contain emergency powers relating to Covid-19 in England and Wales.
The Regulations provide that those who committed an offence may be liable to a fixed penalty notice on summary-only conviction.
The importance of an offence being limited to summary-only conviction is, first, that the matter can only be tried in a Magistrates' Court and second, that the offence is normally subject to a strict six-month limitation period. According to section 127 (1) of the Magistrates' Courts Act 1980 (the MCA), there is a six-month time-limit from the time the offence was committed or the matter of complaint arose, for making a complaint or bringing the matter to the attention of the Magistrates' Court.
In light of the date of the alleged events, pursuant to the MCA, the usual time limit for investigating the matters for the purposes of their potential prosecution in the Magistrates' Court would have already expired, and the matter would be unable to be pursued by the police or the courts.
However, the Regulations were introduced pursuant to the 1984 Act, and importantly, section 64A of the 1984 Act provides an exception to section 127 of the MCA, which significantly extends the time period available for the police to investigate the matter.
As such, a Magistrates' Court may take the matter forward under the 1984 Act if the information is presented (or the charge is issued) within three years of the offence being committed, and within six months of the evidence (which the prosecutor thinks is sufficient to justify the proceedings) comes to the prosecutor's knowledge.
Therefore, notwithstanding the passage of time since the potential offending, the Act means that it remains possible for the Metropolitan Police to investigate the matter and potentially lay an information at a Magistrates' Court, by way of the section 64A extension.
Misconduct in a Public Office
It is theoretically possible that any breaches of the Regulations may amount to an offence of Misconduct in a Public Office. This is a common-law offence and has a maximum sentence of life imprisonment. The offence of Misconduct in a Public Office is committed when:
- a public officer acting as such;
- wilfully neglects to perform their duty and/or wilfully misconducts themselves;
- to such a degree as to amount to an abuse of the public's trust in the office holder; and
- without reasonable excuse or justification.
The threshold for misconduct for the purposes of a prosecution of this offence is very high and prosecutions of this offence remain relatively rare.