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UK fights Covid-19 prosecution backlogs with ‘Nightingale Courts’

The Covid-19 outbreak presented “an unprecedented crisis” for the criminal justice system in the UK – coming as it did when there was already a mounting backlog of complex criminal cases in England and Wales.

With increasing levels of Covid-19 fraud, the UK’s National Crime Agency issued a report in May 2020 providing observations from the UK Financial Intelligence Unit. Although perhaps light on details at that early time in the Covid-19 response, the report explained that there had indeed been an increase in furlough fraud activity, frauds involving the supply of PPE, and suspicions around funds being sent to high-risk jurisdictions. At the end of May, the relevant tax prosecutor, HMRC, reported having received almost 1,900 reports from the public of alleged furlough fraud.

Prosecution of fraud with the closure of the courts for jury trials, the Criminal Prosecution Service introduced an Interim Charging Protocol as part of its Covid-19 response in March 2020. The Protocol states that Covid-19-related offending regarding fraud may qualify for immediate charging even in times of limited court capacity but also recognized that other serious fraud cases by their complex nature are likely to “clog up” the court system. With that in mind, complex fraud cases could be transferred directly to the Crown Court, and proceedings start fully when court availability improved, meaning that now, of course, with most Crown courts re-opened, complex cases can, in theory, start moving again.

The Serious Fraud Office has also emphasized that it will continue to investigate suspected fraud, bribery, and corruption, adapting ways of working where necessary. In this regard, staff at the SFO have been able to work remotely to continue to follow active lines of inquiry in open investigations, as well as looking into allegations and referrals at the pre-investigation stage. In addition, SFO director Lisa Osofsky recently said that she is keen to take on cases where people have been harmed by Covid-19 related fraud, and successfully concluded a new DPA during the lockdown with G4S Care and Justice Services (UK) Ltd.

Since all new jury trial were suspended on March 23, various groups including Her Majesty’s Courts and Tribunals Service and a Jury Trials Working Group have been working to find ways of holding trials safely, including by using a second courtroom, linked by closed-circuit TV, to enable reporters and others to watch proceedings.

With these precaution, starting August 24, jury trials will have resumed in 66 of 77 Crown Courts. In addition, in an unprecedented step to deal with backlogs, ten “Nightingale Courts” (including town halls and former Magistrates’ Courts) have now been opened to support the courts and tribunals and provide increased capacity. These venues are being used on a temporary basis to hear, among other things, non-custodial crime cases to free up room in Magistrates and Crown courts, ensuring that the wheels of justice keep turning in the UK.


Sam Tate, pictured above left, is a partner at RPC LLP. Georgia Durham, above right, is a Trainee Solicitor at RPC LLP. 

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