As news comes to light that all charges, convictions and sentences brought under the new Coronavirus Act 2020 are to be re-examined by the CPS after a spate of unlawful proceedings, scrutiny is increasing over how the Police understand the new laws, given the discrepancies that are being seen across the country as different Police forces uphold the new Regulations with varying degrees of severity.
The Coronavirus Act 2020 came into effect on 25 March as the UK ramped up its response to the pandemic. The Act provided for the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 which were brought into force the following day, triggering the so called lockdown. These Regulations, along with two sets of amendments, set out the requirements and restrictions in relation to business closures, gatherings of people and the ability of individuals to leave their homes, plus the powers given to the Police to enforce them.
The Prime Minister’s much anticipated address on 10 May did nothing to clarify the scope of the lockdown, for many only increasing their confusion. Fortunately, the skilled legal drafting of the Government Legal Service has provided much needed clarity with the latest amendment to the regulations (The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 2) Regulations 2020) which sets out new parameters of the legal extent of lockdown.
The Regulations are not permanent. The government must review them regularly and decide whether they are proportionate. Whilst these regulations relax the previous restrictions, with the introduction of higher fines it looks like the force of the lockdown remains.
This blog looks at the obligations placed on the population in relation to leaving their homes and the powers afforded to the Police to enforce them in light of the latest amendment on 13 May 2020.
Restrictions on movement
There continues to be an obligation for you to remain at home unless you have a ‘reasonable excuse’. What constitutes a reasonable excuse has been much debated as the relevant regulation, Regulation 6, only give a non-exhaustive list of suggestions. This list has however been expanded (the latest updates are highlighted in bold) and now includes the following excuses for which you may leave your house:
- Obtaining ‘basic necessities’ such as food, household or medical supplies for themselves or a vulnerable person
- Collecting goods which have been ordered online, by telephone or post
- To take exercise or visit a public open space for ‘open air recreation’ either alone, with a member of their household or with one member of another household
- To seek medical assistance
- To provide care or assistance to someone else
- To donate blood
- To work or volunteer where it is not reasonably possible to work or provide the voluntary service at home
- To attend a funeral of someone in your household, a close family member or, if no one else can attend, the funeral of a friend
- To visit a burial ground to pay respects to a family member or friend
- To fulfil a legal obligation (eg. attending court, satisfying bail conditions)
- To access a critical public service (eg. childcare, social services)
- For children living in a home without one or both of their parents, to move between households in order to continue their existing family arrangement
- A minister of religion or worship leader may go to their place of worship
- To move house where reasonably necessary and undertake various activities in connection with the purchase, sale, letting or rental of a property such as visiting estate agents, show homes, residential properties etc., or visiting a property to undertake activities required for the rental/sale of the property
- To avoid injury or illness or escape from harm
- To use waste or recycling centres
Restrictions on gatherings
Regulation 7 states that gatherings of more than two people in public places are now forbidden except where all the people gathering are living together, where gathering is essential for work purposes or for a funeral. Where reasonably necessary, groups can also gather to facilitate a house move, provide a vulnerable person with care, provide emergency assistance and participate in legal proceedings.
A Police officer (including a community support officer and anyone else designated by the government or local authority to enforce these Regulations) is entitled to direct or remove someone to their home with the use of reasonable force, if they believe that the person has left their home without a reasonable excuse and this action is a proportionate and reasonable means of ensuring that the person complies with the Regulation.
Similarly if a Police officer considers a gathering of more than 2 people to be in breach of Regulation 7, they may use reasonable force to direct the gathering to disperse and to direct or remove people back to their homes.
Offences and penalties
Failing to stay at home, without a reasonable excuse, is an offence under Regulation 9. Contravening a direction or instruction given by a Police officer in order to encourage compliance with the rules is also an offence. Under the Police and Criminal Evidence Act 1984, someone contravening these rules can be arrested if it is considered necessary to maintain public health or public order.
The fixed penalty notice, as Boris Johnson indicated, has jumped up from £60 to £100 (although this is halved if paid within 14 days). The penalty can be issued by a Police officer if they reasonably believe that someone has committed an offence under these Regulations. If an offender receives multiple penalties, the cost of the fine is double the previous one up to the value of £3,200. Individuals who do not pay the penalty can be taken to court, with magistrates able to impose unlimited fines.
The regulations in practice
Human rights activists and public law practitioners have been concerned about the Police acting outside of the powers assigned to them and infringing on individuals’ rights. In Scotland, John Scott QC, a leading human rights lawyer has been commissioned to review and scrutinise how Police Scotland are employing their new powers.
Police officers have previously cited the discrepancy between advice of senior politicians and the law itself as a source of confusion. This will no doubt be exacerbated following Boris Johnson’s announcement on Sunday 10 May. It is interesting to note that the Amendment to the Regulations that was brought in on 13 May does not change the legal backdrop of the lockdown a great deal. For example – working, where it was not reasonably possible for someone to do so from home, has never been explicitly forbidden. For this reason, some places of work such as building sites have remained open throughout the lockdown in England. The difference now comes from the shift in the government’s rhetoric, which is encouraging people to leave their homes in the hope of kick starting the economy.
It has been noted since the introduction of the Regulations, a consistent approach has not been uniformly disseminated throughout the country as reports of varying levels of enforcement have arisen. With higher fines, more reasons to leave the house and now a catalogue of erroneous legal proceedings to reflect upon, the Police’s enforcement of the regulations should be under strict scrutiny.
Although we are living through a period of emergency, it is important to keep a check on how the Police exercise their powers, particularly where there is a diverging understanding of the application of the law. Unprecedented steps are being taken by the UK Government under the umbrella of public health concerns; however state authorities must remain subject to appropriate public scrutiny, particularly where there is such potential for abuse of power risking human rights’ violations.
This blog relates to the Regulations in force in England. There are similar provisions for Scotland, Northern Ireland and Wales but they have not been addressed in this blog.
Should you have any questions about any of the issues covered in this blog, please contact any member of our public law team.
About the authors
Stephen Parkinson is Kingsley Napley's Senior Partner. Stephen is a highly experienced and versatile litigator with extensive experience in advising companies, organisations, and individuals caught up in criminal and regulatory investigations or public inquiries. His previous client list has included numerous individuals at the top of their fields, whether in business or politics.
Rosie Gibson is a trainee solicitor, currently in the Public Law team.