James Bevan: ‘10-year prison sentences for breaching COVID-19 entry requirements into the United Kingdom’? Governmental Decree is undermining the Rule of Law.

The Secretary of State for Health, Matt Hancock, announced in Parliament on Tuesday 9th February that those returning from ‘red list’ countries who fail to disclose that fact could receive a 10-year prison sentence following conviction (see The Telegraph).

Mr Hancock stated that charges would be brought under the Forgery and Counterfeiting Act 1981 (see Section 1 and Section 6). It is therefore apparent that the government is of the view that the 1981 Act already captures such behaviour.

Mr Hancock’s statement in Parliament has received great criticism. The most notable dissent comes from the former Supreme Court Justice, Lord Sumption, who noted that “ten years is the maximum sentence for threats to kill, non-fatal poisoning or indecent assault” (see The Telegraph).  It is worth noting that other offences which carry a maximum 10-year term are possession of firearms and indecency with children under the age of 14. Among offences which carry a maximum 7-year term are child sex offences and incest, while causing death by careless driving attracts a maximum term of 5 years.

Mr Hancock said to Parliament that MPs would not be given a vote on the new regime as the relevant law already exists. A whole debate could arise as to whether lying or concealing information on a passenger locator form could amount to forgery, and consideration of R v JT may assist those who are interested. However, let us assume for the purposes of this exercise that legality is no issue and assess a further issue – would issuing a 10-year prison sentence breach Articles 3 and 5 of the ECHR?

It is worth addressing the sensational hyperbole of the Health Secretary’s statement and noting at the outset that sentencing would occur within already well-developed principles for forgery. The 10-year term for forgery is not mandatory and it is the maximum sentence, attracted only by the most serious and egregious acts of forgery. Moreover, the provisions contained within Part 12 of the Criminal Justice Act 2003, and in particular section 143, would trigger an assessment into the seriousness of the circumstances of the offending – the level of culpability and harm would be the most important determinative factors in considering the type of sentence or the length of any term of imprisonment, if indeed a custodial sentence is applied at all.

In order to impose a custodial sentence, the trial judge or Magistrates would need to satisfy themselves that the circumstances meet the custody threshold. Section 152 of the 2003 Act provides that a custodial sentence must not be imposed unless the circumstances of the offending are so serious that neither a fine alone nor a community sentence can be justified for the offence. Consideration of R v Kefford may assist those who are interested in further exploring sentencing principles. It is therefore difficult to see how concealing or lying about the countries one has visited, even in the most serious of examples within that ambit, could attract anything more than a suspended sentence which is months in length, rather than years. Moreover, section 1 of the 1981 Act is an either way offence, meaning that there is a general presumption in favour of a summary trial, and it will only therefore be sent to the Crown Court for trial on indictment in serious cases and where the Magistrates lack the sentencing powers to impose a sentence which is appropriate for the circumstances of the offending. Otherwise, it will be disposed of in the Magistrates’ court and section 78(1) Powers of Criminal Courts (Sentencing) Act 2000 will operate, where the maximum sentence which can be imposed is 6 months.   

A case might be suitable for trial on indictment where there are particularly aggravating factors indicated in the offending, such as if the defendant knew they were infected with coronavirus, and/or they caused others to be infected in the UK, and/or that infection contributed toward the serious illness or death of another person in the UK. Even in that case, forgery may not be the appropriate charge. However, it may be very difficult for the prosecution to demonstrate an unbroken chain of causation. Otherwise, the Magistrates are likely to retain jurisdiction where the law does not permit a sentence anywhere close to 10 years.  

If then the case is dealt with at the Crown Court on indictment, could a 10-year sentence or anything close to that amount to a breach of the convicted person’s Article 3 and 5 rights, in particular to be free from degrading punishment and not be denied liberty without procedure on the basis of law?

It is tempting to consider the doctrine of gross disproportionality in the kind sentencing the Secretary of State has spoken about in relation to forgery. Gross disproportionality is based upon the understanding that a sentence should be of a length and type which fits the offending. Strasbourg has been willing to consider this concept. Harkins and Edwards v United Kingdom (1992) and Rrapo v Albania (2012) recognises the concept of gross disproportionality as containing a vital aspect of human dignity and providing that grossly disproportionate sentences can breach Art.3. However, jurisprudence indicates that Strasbourg will only intervene in the most serious of cases, such as those involving whole-life sentences and extradition, and the jurisprudence tends to focus on how general sentencing provisions in whole life sentences apply to the specific circumstances of a case. Those who are interested in considering this further may be interested in Vinter v United Kingdom (2013).

If a 10-year sentence was imposed following a conviction of forgery in circumstances where the convict had lied on the passenger locator form, then would it be unlawful and on what grounds? The starting point for any appeal on sentence would be to consider the sentencing guidelines. There are no specific guidelines for forgery, however the court would likely consider similar offences of dishonesty where guidelines do exist and previous sentences for forgery. Under the circumstances of lying on a passenger locator form, it would be very difficult to see how the custody threshold would be met under the sentencing guidelines as the circumstances just do not equate to other offences of dishonesty, or indeed previous sentences for that level of forgery, which attract custodial sentences. If a sentence of that nature was imposed, then it would very likely mean that the trial judge departed from the general principles of sentencing under the guidelines and the Criminal Justice Act 2003. It would likely give rise to a deprivation of liberty without procedure based on law and breach Article 5 as the sentencing court had departed from the Criminal Justice Act 2003. This would present a breach of section 6 of the Human Rights Act 1998 by the trial judge or lower court as the Article 5 rights was breached. There would then exist strong grounds for the Court of Appeal to alter the sentence as it was manifestly excessive and/or wrong in principle. The provisions therefore already exist within legislation and jurisprudence to safeguard against a sentence of that length.

In consideration of Article 3, Strasbourg jurisprudence is very reluctant to expand the doctrine of gross disproportionality to include smaller sentences and the doctrine appears only to apply to whole-life sentences. “Manifestly excessive” in UK sentencing rubric does not therefore necessarily amount to “grossly disproportionate” for the purposes of Strasbourg jurisprudence. The most related Strasbourg principle which comes to mind following the statement of the Secretary of State is indeed gross disproportionality. Gross disproportionality then engages Article 3. However, if gross disproportionality is not operative in these circumstances, which I am arguing it is not, then by extension neither is Article 3. It does not therefore appear operative here and it is difficult to see under what present circumstances it could conceivably arise. The offence is one of forgery which can legitimately attract a 10-year sentence in appropriate cases, and not an offence of lying on a passenger locator form which then attracts a 10-year mandatory sentence. No one will ever be sentenced for that because the offence doesn’t exist. With that distinguished, it is therefore not appropriate to consider if a 10-year sentence for forgery is grossly disproportionate as it would be much too hypothetical and would depend entirely upon how that would apply to the specific circumstances of a hypothetical case. Consideration of Vinter shows that gross disproportionality more concerns itself with a sentence that does not afford the convict an opportunity to atone or reform and with protecting society. An assessment of whether a sentence is proportionate aims to strike a balance between those two. The Secretary of State describes circumstances where the maximum sentence is 10 years and where other principles of sentencing will apply. Those other principles are key because they will operate to form a far smaller sentence than the 10-year maximum. That in turn operates to afford the convict the opportunity of reform and balances the need to protect the public. However, if the term of imprisonment was fixed at 10 years for those circumstances, then Article 3 gross disproportionality would operate because it is difficult to see how a mandatory 10-year sentence under those circumstances could afford the convict the opportunity to reform and atone.

It is therefore grossly misleading for the government to tell the public that you could go to prison for 10 years for lying or concealing on the passenger locator form. To impose a 10-year sentence in these circumstances the government would therefore have to require Parliament to make new law or attempt to make it itself through delegated legislation. If it did make such legislation, then Vinter would indicate there are grounds giving rise to an anticipatory breach of Article 3 gross disproportionality. 

The remarks of Mr Hancock had the effect of achieving maximum shock factor, presumably as a deterrent to anyone considering lying on their forms. His remarks gave the impression that an individual who does so will go to prison for 10 years. This is a gross over-exaggeration of the punishment the law allows to be imposed under those circumstances and the general impression the government has sought to achieve has no realistic basis in law and it is therefore a misappropriation of penal policy.

If the government were serious about imposing a 10-year sentence for lying on passenger locator forms, then it would require Parliament to create a specific offence through law. It is not likely able to achieve that and therefore its remaining option to enforce travel restrictions falls to a policy of hyperbole, undermining the trust and confidence the public have in the rule of law and our penal system.

This latest announcement is arguably part of a wider pattern during the coronavirus pandemic, where there is a disparity between what the government wants and what the law provides for. The General public might interpret the comments made by the government as indicating that certain actions they carry out will lead to particular consequences imposed by law, even when that is not true. We are now in a state where the general public are unable to differentiate between what the government demands and what the law requires.

In the first lockdown the Prime Minister ‘gave the British people a very clear instruction’ that we must not leave our homes without reasonable excuse or face arrest, three days before the law had even been made and taken effect. Unlawful arrests and prosecutions were then occurred under the Restrictions Regulations and Coronavirus Act 2020, following confusion by the police, brought about by announcements and guidance (see The Guardian). Time and again the government has made headline-grabbing announcements about what we can and cannot do and how we will be punished, which either don’t carry the weight of law or are an over exaggeration of the law, and we have also seen convoluted guidance which gives the impression that it is law when it is not.

The government has adopted a very risky strategy to impose its desires upon the country, via a mixture of law, announcement and guidance. The latter two of which I believe are illegitimate in this context as it purports to carry the authority of law. And that is not all too fruitless for them as using guidance means it is harder to challenge and receive judicial remedy. In R (on the application of Dolan and others) v SoS’ for Health and Education, we see the effect of guidance on an individual’s ability to uphold their convention rights. A particularly interesting part of this case dealt with school closures and the article 14 right not to be denied an education. The appellants were denied permission under this part of the appeal seemingly on the grounds that guidance did not amount to law (see paragraphs 27 and 113 of the Judgment). The government therefore knows that it is far harder to challenge guidance. If on the other hand the government had closed schools through law, then Dolan’s art.14 argument could have gained more traction to the detriment of the government. On the other hand, we could easily see a scenario which could lead to a ruling that an instruction to do something may nonetheless be unlawful because it lacked a legal basis. In the UK we have not seen a judicial review of the arrests which occurred in that time, as charges were dropped by the police and Crown Prosecution Service, but we can look to New Zealand for a clue of how the courts may have decided.

Borrowdale v Director-General of Health and others concerned a judicial review of the New Zealand government’s instruction to remain indoors when the law to that effect did not in fact operate until 9 days after that announcement. The claimant succeeded in his claim to declare the rule illegal as it was not law. Section 5 of the New Zealand Bill of Rights Act deals with “justified limitations” and provides that the rights and freedoms are subject to rule of law. In their judgment, the Justices noted that “while there is no question that the requirement was a necessary, reasonable and proportionate response to the Covid-19 crises at the time, the requirement was not prescribed by law and was therefore contrary to section 5.” There exists therefore a distinction between law and guidance (and by extension announcements) which will draw potentially different judicial outcomes. The government are presumably aware of this and are seemingly employing a very purposeful strategy. Is this strategy confusing law, guidance and announcements in fact a method of restraining the effect of any challenge and accountability? If so, that is an abuse of the rule of law.

This new practice of what appears to be “government by decree” is undermining the rule of law. This latest threat to lock people up for 10 years should they conceal that they have visited Portugal is yet another example of the blurring of the lines between the rights of individuals and the instructions of the state. The gross misrepresentation by the government of what the law provides can only be a method of control without law. This is no way to govern.

James Bevan is an M.Jur. scholar at Durham University.

I extend my gratitude to Professor Michael Gordon and Professor Alison Young for their useful and welcomed comments on an earlier draft.

(Suggested citation: J. Bevan, ‘‘10-year prison sentences for breaching COVID-19 entry requirements into the United Kingdom’? Governmental Decree is undermining the Rule of Law, U.K. Const. L. Blog (24th Feb. 2021) (available at https://ukconstitutionallaw.org/))