Rachel Morris inspects the legal basis for the prosecution of the Government’s fatal failures during the pandemic
A workplace manager, by failing to ensure a safe work environment, can be prosecuted for gross negligence manslaughter if they cause the death of a person to whom a duty of care was owed. An organisation can be prosecuted for corporate manslaughter if its activities amounted to a gross breach of duty of care causing death. The outcome of criminal prosecution can include fines and prison sentences.
Yet, change the context to one in which the government causes death, and what are the consequences, if any?
One of every 342 people in the UK – almost 200,000 – have died of COVID-19, at a minimum. Meanwhile, 2.8% of the population, one in every 37, were estimated to be experiencing Long COVID symptoms of varying severity by April 2022.
Compare this to Japan, which has suffered 31,046 COVID deaths to date. Its population is nearly double that of the UK, with a density of 341 per square kilometre compared to our 281.
Thailand has a very similar population to the UK. It has a lower density of 137 overall, but similar density in its cities, where half the population resides. COVID fatalities there total 30,506.
What accounts for these stark differences between broadly similar populations? Culture, in part. Asian people of all ages have worn masks for years to protect themselves and others, with no complaints, histrionics or paranoia. It could be argued that many lives would have been saved in Europe and north America had masks been normalised rather than politicised.
But messaging around such things is connected to politics and political leadership. In a pandemic, people look to those leading them, who can change or suspend culturally-led behaviours.
An article in Nature about the Japanese response to the pandemic found that studies and communication were key to convincing and empowering citizens to protect themselves and each other, with culture playing only one part. For all countries that kept fatalities relatively low, it wasn’t about which measures were taken per se but that institutional attention was paid to the need for them.
The Oxford Coronavirus Government Response Tracker project calculates a composite measure of nine responses – the Stringency Index – with metrics ranging from public information campaigns to school and workplace closures and international travel controls. The higher the score, the stricter the response.
The UK has been consistently low on this index recently – not because the measures taken are less stringent, but because none are taken at all. There is no public health messaging any more – either about Coronavirus or the emerging Monkeypox. The Government never mentions the pandemic now, except when a minister tweets that the it is 'over’ or uses it as an excuse for economic crises.
The Government's handling of the Coronavirus crisis cannot reasonably be blamed on the opposition.
The UK’s positive responses included lockdowns reducing transmission, financial support for vulnerable employees and employers, praise for frontline workers, and the much-vaunted vaccine roll-out often referred to when the Prime Minister is seeking to save his own skin.
But the negatives are numerous: Boris Johnson missing the first five Cabinet Office Briefing Rooms (COBRA) meetings about the pandemic; the 2016 Cygnus pandemic study mostly ignored; flights from China not banned; COVID-positive people sent from hospitals into care homes; the Prime Minister boasting of shaking hands with everyone in a hospital; the ignoring of World Health Organisation recommendations to test and trace the population; the adherence to ‘herd immunity’ advice; locking down too late, on multiple occasions.
There was also the abandoning of community testing; mass gatherings at sporting events; a lack of adequate personal protective equipment (PPE) and ventilators; cronyism and corruption around the awarding of contracts with poor outcomes; a lack of coordination between nations; millions of pounds wasted on Nightingale hospitals; people left with no financial support; ‘Eat Out to Help Out’ launching more COVID cases; non-mandatory masking; the overlooking of asymptomatic and airborne transmission; neither testing at nor closing airports; expensive and laissez-faire quarantine arrangements; an ineffective test and trace app; no ventilation in schools; ignoring Long COVID; ‘Partygate’ and its cover-up; and Dominic Cummings' Barnard Castle eye test.
An Imminent Inquiry
If we focus on just two of the many failings – the lack of adequate PPE for healthcare workers, some of whom had to wear bin bags and thousands of whom died of COVID; and sending people back to care homes without testing, protections or mitigations – would either be enough to attract legal consequences for decision-makers?
In April 2020, consultant urologist Abdul Mabud Chowdhury died of the virus aged 53, five days after he had warned the Prime Minister via Facebook about a lack of “appropriate PPE and remedies”. Nurse John Alagos also died in 2020, aged 23. His mother claimed that he was not given adequate protective clothing while working with COVID patients on 12-hour shifts.
The Corporate Manslaughter Act 2007 makes companies and organisations liable and guilty of manslaughter in the event of serious management failures resulting in grossly negligent breach of a duty of care. Section 11(1) states that government bodies can be prosecuted for corporate manslaughter, contrary to a usual rule that ‘crown bodies’ cannot be prosecuted for criminal offences. The Department of Health and Social Care and NHS trusts are covered by section 11(1).
In April, the High Court found that Government policies on discharging patients from hospital to care homes were unlawful because they failed to take into account the risk from non-symptomatic transmission. Former Health and Social Care Secretary Matt Hancock had claimed that his department threw a “protective ring” around care homes. The High Court disagreed.
However, both Hancock and Boris Johnson blamed any failings on the now-disbanded Public Health England – and there have been no consequences for either.
The ruling stated that “the Government’s failure to protect... and positive steps taken by the Government which introduced COVID-19 infection into care homes, represent one of the most egregious and devastating policy failures in the modern era”.
Could this, or the avoidable deaths of healthcare workers, not meet the requirements of a Corporate Manslaughter Act prosecution?
Yet, sections three to seven specify exceptions for liability in public emergencies, exempting “decisions of a public authority in relation to issues of public policy (such as the allocation of public resources)”.
The draft terms of reference for the COVID-19 Inquiry include examining the protection of the vulnerable and PPE provision. While it will simply produce ‘lessons learned’, its findings could provide substance for grieving families who seek to pursue the prosecution of failures by public bodies.
The Government deflected criticism of its handling of the pandemic throughout the with calls for ‘unity in crisis’. It is likely to avail itself of the public emergency exemption at every opportunity.
Meanwhile, the third COVID wave in six months surges across the country, largely unremarked upon, with no mitigations or free testing.
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