Guidance and updates for regulated legal professionals during Coronavirus pandemic
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (the Regulations), enacted on 26 March 2020, were introduced in England to provide an emergency response to the serious and imminent threat to public health which is posed by the incidence and spread of COVID-19. Other countries within the United Kingdom have their own equivalent provisions in place.
Regulation 6 sets the scope of the “stay at home” measures with which we are now all familiar – namely a restriction on leaving the place where you live "without reasonable excuse". Reasonable excuses include obtaining basic necessities – such as food and medical supplies; exercising; seeking medical assistance; providing care or assistance; and travelling for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible to do this from where you live. Additionally, Regulation 7 sets out the exceptions from the blanket restriction on participating in a gathering of more than two people in a public place. Exceptions include where all those gathering are members of the same household; where the gathering is essential for work purposes and attending a funeral.
Under Regulation 9, where someone - without reasonable excuse - contravenes a social gathering requirement under Regulation 7, or contravenes a restriction on movement requirement under Regulation 6, they will be committing an offence, punishable on summary conviction by way of a fine. However, under Regulation 10, police officers (and other types of "authorised person" stipulated in the Regulations) can, instead, issue a fixed penalty notice (FPN) – also known as a Penalty Notice for Disorder (PND) - to anyone that they reasonably believe has committed an offence under these Regulations and is over the age of 18.
This notice offers the person to whom it is issued the opportunity of discharging any liability to be convicted for the offence by paying the fixed penalty amount to the local authority, as specified in the notice. A fixed penalty amount is £60, unless it is paid within 14 days of the FPN being awarded, in which case it is £30. If the individual has already received a FPN under these Regulations, the fixed penalty will be £120. In the case of the third and any subsequent FPN(s), the fixed penalty is double the previous amount up to a maximum fixed penalty amount of £960. Importantly, those who do not pay their FPN under the Regulations could be taken to court, with magistrates able to impose unlimited fines. If they continue to refuse to comply, they will be acting unlawfully, and this could lead to being arrested, where this is deemed proportionate and necessary.
The Regulations certainly appear to give police officers and local authority officials the power to issue FPNs and enforce the lockdown measures where there is a need to do so. Nonetheless, when the Regulations were first introduced, there was perhaps understandably, some inconsistency across police forces in seeking to enforce them, as the Government had not issued any underpinning guidance. The College of Policing has since issued a briefing note for police, setting out an overview of the Regulations and what they mean. This makes very clear, in the four-phased approach to policing specifically in respect of these Regulations that the priority is policing by consent. Officers must first encourage voluntary compliance (“engagement”) by those flouting the movement and social gathering restrictions, and also seek to explain to these individuals the risks to public health and to the NHS in them behaving as they are. It is hoped that by encouraging individuals to comply by emphasising the benefits to the NHS by staying at home and how this can save lives and reduce risk for more vulnerable people in society, police officers will be able to avoid the need for taking any form of enforcement action. If enforcement action cannot be avoided, this also has a phased approach – first, directing those who do not have a reasonable excuse, to go home, using reasonable force if needed, and second using prohibition notices to stop public gatherings, or issuing a FPN to discourage further non-compliance. Ultimately, the police need to continue to take proportionate action and make sensible decisions based upon an exercise of judgement which will be dependent upon the circumstances of each individual encounter of this kind.
Recent media coverage concerned Scotland’s Chief Medical Officer resigning as a result of her breaching Scotland’s lockdown measures by travelling to her second home twice and subsequently being issued with a police warning. Key to her resignation was the concern described by First Minster Nicola Sturgeon that this error risked “detracting from and undermining confidence in the government’s public health message at this crucial time”. Whilst this is a public figure, she is also a regulated individual, who will be expected to maintain high standards and uphold public trust and confidence. If these individuals look to apply the rules differently so as to make personal exemptions bespoke to their own circumstances, why shouldn’t everyone else? And this is why regulated professionals are often singled out for non-compliance, which could lead to regulators feeling under pressure to investigate such concerns which come to their attention.
So what does this mean for SRA-regulated individuals who are issued with a FPN for non-compliance with these Regulations? Clearly each matter will need to be considered on a case-by-case basis, looking at all the circumstances in which the penalty notice for disorder has been issued. For example, to what extent did the individual fail to cooperate which led to the notice having to be issued – in other words, was it a last resort step as the individual had failed to heed a direction to head home, or was this an isolated incident or has this individual been issued with more than one PND in respect of breaching these Regulations. In order to work through whether you feel this is something you need to report to the SRA, you will need to ask yourself some key questions.
In the SRA Code of Conduct for Solicitors, RELs and RFLs (the “Code for Individuals”), the relevant provision is as follows:
Whilst the threshold for reporting is relatively low, it will all come down to whether or not you reasonably believe that your conduct is capable of amounting to a “serious breach” of the SRA’s regulatory arrangements. In essence, given this conduct will have taken place outside of professional practice, this is most likely to be a breach of Principle 2 (acting in a way which upholds public trust and confidence in the profession). Whilst you might say that in usual circumstances, being issued with a PND will not be sufficiently serious in terms of a breach, we have to bear in mind that the current benchmark is not “usual circumstances” as this is not a set of Regulations issued run-of-the-mill, but emergency provisions to deal with an unprecedented pandemic with the aim of the public joining together to fight it as best we can. With this comes extremely heightened emotions and that means that such conduct is much more likely than ever to be called out by members of the public and as a result, could bring the profession into disrepute and damage public trust and confidence in the solicitors’ profession. So on that basis and very much depending upon the circumstances in which the FPN was issued, it could be argued that this is something you should be reporting to the SRA. It would of course be helpful if the SRA were to issue guidance on this issue or an update to its COVID-19 FAQs page.
It is also worth remembering that your obligation to report doesn’t just sit within the Code for Individuals and it may be that a less cited provision within the SRA Assessment of Character and Suitability Rules is actually engaged here. This is rule 6.5 which places an ongoing obligation on you to “tell the SRA promptly about anything that raises a question as to your character and suitability, or any change to information previously disclosed to the SRA in support of your application, after it has been made. This obligation continues once you have been admitted as a solicitor, registered as an REL or an RFL, or approved as a role holder.”
Furthermore, if you are yet to be admitted to the profession but are perhaps a law student who has been issued with such a notice, if you are worried that this might hinder your future application for admission as a solicitor, you have the opportunity to apply for early assessment of your character and suitability -under rule 5.2 of the SRA Authorisation of Individuals Regulations. When it comes to considering your subsequent application for admission, it is important to note that the SRA is not bound in any way by any decision it makes as to your character and suitability to be a solicitor as a result of an early assessment. Instead, the purpose is to allow you to consider your options if you feel your conduct could jeopardise any future ambitions you have and to enable you to make informed decisions about incurring costs of study and postgraduate courses.
Clearly, these provisions could be relevant as receiving a PND in relation to a contravention of these Regulations, which have been introduced specifically in response to a “serious and imminent threat to public health which is posed by the incidence and spread of severe acute respiratory syndrome coronavirus 2 (SARSCoV-2) in England” is likely to call into question any individual’s character and suitability, let alone that of a solicitor who is obliged to act in a way which upholds public trust and confidence in the solicitors' profession.
The introduction to the rules assessing character and suitability makes clear that they are underpinned by the SRA’s role to act in the public interest. Additionally, there is reference to the SRA’s approach to taking regulatory action, as set out in the SRA Enforcement Strategy. On that note, the SRA Enforcement Strategy makes clear that it will focus its action on the most serious issues and will only take action in relation to breaches which are serious, either in isolation or because they demonstrate a persistent failure to comply or a concerning pattern of behaviour. The concept of "serious breach", whilst not a defined term will include matters which can be described as serious, or conduct which falls well short of ethical standards.
In relation to conduct outside of practice and specifically, criminal conduct, the SRA adds that it will always investigate criminal convictions or cautions but that “it is less likely to be concerned about behaviour which is at a low-level in terms of seriousness (for example, actions that result in fixed penalty notices…”). Crucially though, the SRA does not rule out taking any action in respect of such conduct and it will need to weigh up the seriousness of the offence and the circumstances in which the FPN was issued. For example, whilst a standard FPN might not routinely be of much interest to the SRA, the issuing of such a notice for failure to comply with the lockdown measures is not – based upon the police guidelines issued by the College of Policing – an immediate first step for police, and others, to take. It is very much the final stage of the four-phased approach if engagement, education and encouragement fail. So the SRA might be asking itself why a notice needed to be issued in these circumstances. Did the individual fail to cooperate, which led to the officer having no option but to issue the FPN? Additionally, as detailed above, this is not necessarily the routine issuing of a PND/FPN and to be seen to be failing to comply with Regulations - which have had to be brought into force in order to reduce the number of lives which will be lost - is inherently serious and cannot be compared in any way to the routine issuing of such notices. These are all likely to be aggravating factors which increase the seriousness of the alleged misconduct in question – and lean towards making a decision to notify the SRA. It will then be a matter for the SRA to determine in accordance with the approach it takes under the Enforcement Strategy.
Clearly there is no hard and fast rule which states that every single SRA regulated individual will need to notify the SRA that they have been issued with a FPN for contravening the emergency lockdown restrictions. But there is an argument that these penalty notices, where they have been issued fairly and consistently, are in and of themselves more serious than other types of fixed penalty notices which are more routinely issued. This goes very much to the fact that these social distancing measures have had to be put in place ultimately to save lives.
A shorter version of this blog was published in The Law Society Gazette on Monday 27 April 2020.
Jessica Clay is a Senior Associate in the Regulatory department and specialises in legal services regulation, with a focus on regulatory compliance, legal ethics, investigations and public law matters.
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