The Coronavirus (“COVID-19”) pandemic poses an unprecedented challenge for the criminal justice system in England and Wales. In particular, COVID-19 is having a noticeable impact on UK enforcement agencies and their ability to progress a number of investigations. Farheen Ishtiaq, senior associate, at Fulcrum, explores the conduct of ongoing criminal investigations during the COVID-19 pandemic.

Whilst some agencies have released statements and introduced guidance on how matters will progress, others have been notably quiet. Further, law enforcement agencies have faced their own challenges with staff illnesses and self-isolation and they are under increased scrutiny to ensure that any action they take serves the public interest and that further strain is not placed on the court system, which itself is operating in new territory.

Notable changes in stance by enforcement agencies include the suspension of inquiries into taxpayers and businesses by Her Majesty’s Revenue and Customs (“HMRC”), the suspension of two investigations by the Competition and Markets Authority (“CMA”), and a change in focus by the Financial Conduct Authority (“FCA”) to what it considers to be urgent work. Other agencies, such as the Serious Fraud Office (“SFO”) have been less forthcoming about their intentions amidst the pandemic.

Certain prosecutorial and investigatory regimes have adapted quickly, including the introduction on 2 April 2020 of the Interview Protocol between the National Police Chief’s Council (“NPCC”), Crown Prosecution Service (“CPS”), The Law Society, Criminal Solicitors’ Association and the London Criminal Courts Solicitors’ Association.

Conduct of interviews

The Protocol intends to assist investigators and prosecutors in deciding whether suspects should be interviewed as part of police investigations during the pandemic and how any such interview should be conducted. The Protocol sets out the following significant features:

  • whilst an interview is a reasonable line of inquiry under the Criminal Procedure and Investigations Act 1996 (CPIA 1996), there are good public health reasons why interviews may need to be postponed or dispensed with
  • Code C of the Police and Criminal Evidence Act 1984 (PACE 1984) will still apply but it is accepted that the protocols and procedures contained within it amount to a reasonable interpretation of the law in accordance with the protection of the rights and interests of detained persons
  • legal advice for suspects should take place via video link or telephone where possible
  • where a video interview is not possible, consideration should be given the suspect and their lawyer with a written statement under caution, however this will generally only be in cases where the offence is not complex and no visual evidence needs to be presented and the intention is to seek a first account prior to bail or release under investigation; and
  • the need for an interview must follow the interim charging protocol agreed between the CPS and the police

What remains unclear, however, is the position regarding interviews by the SFO, who were notable absentees from the list of signatories of the Protocol. Given the fact that the SFO is reliant upon the police for assistance with arrests and interviews in custody, and therefore indirectly subject to the Protocol, this may not be as significant as it might seem, however.

For the SFO there is a marked difference between the considerations likely to be involved with a subject of a section 2 Criminal Justice Act 1987 (“CJA 1987”) (witness) interview (Section 2 interview) and the subject of a PACE 1984 (suspect) interview (“PACE interview”), simply because it is likely to be considered that the risks associated with conducting the latter remotely, in terms of maintaining the integrity of their investigations, are higher.

Moreover, whilst virtual witness interviews are becoming more commonplace generally, and certainly encouraged under the Protocol, the question has arisen as to whether organisations such as the SFO and FCA will consider it necessary to find a way of securely and fairly conducting remote PACE interviews given that, compared to police investigations, their investigations tend to be much longer running, and involve less common requirements for interviews upon the arrest of suspects in custody.

Initially, these organisations appear to have considered that, as a result, the postponement of PACE interviews was an acceptable consequence of the COVID–19 crisis, and from what we can see the response has been no more sophisticated than to postpone long-scheduled PACE interviews indefinitely, whilst the FCA at least appear to be adapting to progressing with witness interviews.

Given the increasing likelihood of very long-term social distancing measures, this initial response seems likely to require urgent re-evaluation in order to achieve fairness to suspects and witnesses alike, particularly in the longest running investigations, and to ensure that investigations are progressed with all necessary expedition — the lack of which has been the subject of sustained and increasingly vociferous criticism, from many quarters, including last year from the House of Lords Select Committee on the Bribery Act 2010 (“BA 2010”). It will be essential if the SFO is to honour its recent commitments to speed up fraud and bribery investigations, as recently reiterated in its Business Plan for 2020/21.

Aside from the impact on interviews, we have seen a reduction in the responsiveness of prosecutors in correspondence, and a clear disruption to processes such as independent counsel reviews, particularly those which had required the review to be conducted at the SFO’s premises, and the operation of the SFO’s Digital Forensics Unit. On the other hand, where there have been ongoing discussions with prosecutors these have, perhaps unsurprisingly, continued, albeit inevitably at a slower pace than pre-lockdown and by phone rather than video conference. Indeed, the fact that, on 30 April 2020, the SFO confirmed that Watchstone Plc (formerly Quindell Plc) were no longer a suspect in their four-year investigation into financial reporting irregularities suggests that important decisions and announcements will continue to be made.

Further, whilst the SFO is one of the few agencies yet to publish any guidance as to its position, there has been some speculation that a priority for the SFO will now be tackling pandemic-related frauds, such as NHS, charitable and pensions related frauds, however the SFO itself has yet to indicate how it intends to deal with its portfolio of ongoing investigations. The SFO prosecution in Unaoil, the country’s biggest ongoing corruption trial, was adjourned amid COVID-19 fears shortly following the high-profile and costly acquittals in the high-profile retrial of former Barclays executives. Judge Beddoe later announced that the is set to resume in the week commencing 11 May 2020. As the trial was suspended after the evidence was heard, it is understood that closing speeches will be heard and the jury will retire to consider its verdict. The resuming of the Unaoil trial will represent the first significant and high-profile test as to how trials can continue to proceed under the current restrictions and whether such remote trials are sustainable long-term. It is of note, however, that perhaps the most challenging aspect of any trial under these circumstances would be the presentation of evidence remotely, which was already heard in March 2020 in the Unaoil trial. With the uncertainty surrounding the future of social distancing measures and restrictions on jury trials of more than 3 days, it appears that it may be some time before another SFO trial will be conducted, whilst pre-trial hearings continue to proceed remotely. We are interested in how the trial will be conducted in principle and whether remote trials from inception to conclusion are the way of the future.

Charging decisions and public interest

The NPCC and CPS jointly published the Interim CPS Charging Protocol—COVID-19 Response, which set out how charging should be managed by the Police and the CPS under three distinct categories:

  • immediate—where the police seek a charging decision followed by remand in custody or where there is a COVID-19 related offence, whether or not custody is required. Whilst these generally related to offences against the person, there is an exception for COVID-19 related fraud cases
  • high Priority—these are serious cases that require bail conditions under the Bail Act; and
  • other cases—which fall into two broad categories—large, complex investigations that have been investigated for some time and where preparation on them can continue, and summary only offences that have statutory time limits of six months

An interesting feature of the Interim Charging Protocol which will be of interest for corporate crime lawyers is the proposal of the ‘virtual specialist fraud court’ to manage large complex investigations and to plan a longer listing plan when they are ready to come before a court.

Further, and as set out in the recent publication of the CPS Case Review Guidance Coronavirus: Interim CPS Case Review Guidance—Application of the Public Interest COVID-19 crisis response on 14 April 2020, prosecutors are now required to prioritise more serious cases, and consider the impact of the COVID-19 pandemic when considering whether the bringing of criminal charges against individuals and businesses is in the public interest. As is widely known, the Code for Crown Prosecutors (“the Code”) has a two-stage test, namely whether there is sufficient evidence for a realistic prospect of conviction and whether the prosecution is in the public interest. The Guidance therefore asks for extra consideration of the impact of the pandemic when deciding the most proportionate response in every case and asks that ‘the pressures that coronavirus is placing on the system are given special consideration during the pandemic.’

Whilst notably, the Guidance notes that the Code remains unchanged, it makes it clear that the restrictions on courts, the additional burden of COVID-19 related offences and the additional factors coming into play when assessing the public interest, will have a bearing on investigations and prosecutions going forwards.

This article was first published by Lexis®PSL on 04/05/2020.

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