On 26th March 2020, the passing of the Health Protection (Coronavirus, Restrictions) (Wales) Regulations 2020 introduced significant curbs on the ordinary daily lives of Welsh citizens. This regulation was updated on 22nd April 2020, but many still feel the law and the way it is being enforced by police is confusing at best.
Given complaints and queries from individuals wondering what they are allowed or not allowed to do, I thought I would put together a short guide to help clarify what the law in Wales now says.
For the duration of the emergency period, under reg 8(1) (as amended), “no person may leave the place where they are living or remain away from that place without reasonable excuse”. The place where a person is living includes premises where they live together with any garden, yard, passage, stair, garage, outhouse or other appurtenance of such premises (reg 8(3)). So as long as you remain in or on your own premises, you are allowed to visit your own garden or shed.
The requirement not to “remain away from” the place you are living was added on 22nd April 2020. This seems to clarify that as soon as you no longer have any reasonable excuses to be away, you must return home. This also means it would be unlawful to stay overnight at a place in which you are not “living” without reasonable excuse.
A non-exhaustive list of possible reasonable excuses is set out in reg 8(2) which includes (but is not limited to) the following needs:
(a) to obtain supplies from any business or service listed in Part 4 of Schedule 1 [mostly commercial suppliers] including—
(i) food and medical supplies for those in the same household (including animals in the household) or for vulnerable persons;
(ii) supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person;
(aa) to obtain money from or deposit money with [financial institutions or post offices];
(b) to take exercise, no more than once a day (or more frequently if this is needed because of a particular health condition or disability), either—
(ii) with other members of the person’s household, or
(iii) with the person’s carer;
(c) to seek medical assistance… or accessing veterinary services;
(d) to provide care or assistance, including relevant personal care… to a vulnerable person, or to provide emergency assistance to any person;
(e) to donate blood;
(f) to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably practicable for that person to work, or to provide those services, from the place where they are living;
(g) to attend a funeral—
(i) as a person responsible for arranging the funeral,
(ii) if invited by a person responsible for arranging the funeral, or
(iii) as the carer of a person attending;
(ga) to visit a cemetery, burial ground or garden of remembrance to pay respects to a deceased person;
(h) to meet a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings;
(i) to access critical public services, including—
(i) childcare or educational facilities (where these are still available to a child in relation to whom the person is the parent, or has parental responsibility for, or has care of;
(ii) social services;
(iii) services provided by the Department for Work and Pensions;
(iv) services provided to victims (such as victims of crime or domestic violence);
(j) in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children, and for the purposes of this paragraph, “parent” includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child;
(k) in the case of a minister of religion or worship leader, to go to their place of worship;
(l) to move house where the move cannot be postponed;
(m) to avoid injury or illness or to escape a risk of harm.
It must be remembered that this is a non-exhaustive list of possible reasonable excuses – there are some valid excuses that may fall outside of this list.
Further, for the duration of the emergency period, under reg 8(5) no person may participate in a gathering in a public place of more than two people, subject to a number of exceptions which include:
(a) where all the persons in the gathering are members of the same household,
(b) where the gathering is essential for work purposes,
(c) to attend a funeral, or
(d) where necessary—
(i) to facilitate a house move,
(ii) to provide care or assistance to a vulnerable person…
(iii) to provide emergency assistance [to any person], or
(iv) to participate in legal proceedings, or fulfil a legal obligation.
This is still subject to the requirement in reg 8(1) above not to leave home without a reasonable excuse and is designed to ensure that the coronavirus does not spread at unnecessary public gatherings. This means two or more people cannot simply meet in public without a reasonable excuse.
Under reg 12(1), a person who leaves the place where they are living or participates in a public gathering without reasonable excuse will be committing a criminal offence.
The Regulations grant certain powers to the authorities to deal with people who breach the restrictions. These can be exercised by police constables, police community support officers, or other persons designated by the Welsh Ministers only. The Regulations make it clear that they can only exercise these powers if they consider it is necessary and proportionate to do so (reg 10(6)).
If a person is stopped and is found to have left their home without being able to give a reasonable excuse, then officers have the power to direct that they return to the place they are living, or use reasonable force if necessary to take them home (reg 10(2) and (3)). They may also direct gatherings to disperse (reg 10(7)).
Failure to comply with any of the above directions or obstructing an officer from enforcing the regulations, without reasonable excuse, will be a criminal offence (reg 12(2) and (3)).
For any of the above offences an authorised person (police constables, PCSOs, and persons designated by the Welsh Ministers) may issue a Fixed Penalty Notice (‘FPN’) instead of charging and prosecuting (reg 13). Persons designated by the local authority do have some powers under the regs, but they do not have the power to issue FPNs for leaving or remaining outside the home without reasonable excuse.
FPNs start at £60.00 (£30.00 if paid within 14 days). Where a person has already received an FPN at least once, any FPN will be £120.00 with no discount for paying early (reg 13(8)). This is the maximum in Wales – unlike in England, FPNs will not go up to a maximum of £960.00 for repeat offenders.
If the FPN is paid in full within 28 days, there will be no criminal conviction on that person’s record – if not, a prosecution and criminal conviction may ensue. If a person thinks they have been wrongly given an FPN, they will have to refuse to pay the fine and may need to dispute it at trial in the Magistrates’ Court.
Anyone who breaks these restrictions without reasonable excuse can be prosecuted in the Magistrates’ Court and, if convicted, will receive a fine. Only the CPS or a body designated by the Welsh Ministers may bring a prosecution for breaching the regulations (reg 14).
None of this means that everyone found to be outside in breach of the lockdown must be arrested or given a fine. As described above, the police have the power to direct a person to go home or take then home in the first instance. This should encourage officers to engage with members of the public before taking any enforcement action, which may lead to them realising you have a reasonable excuse to be where you are.
If you have a “reasonable excuse” for being outside, you will not be breaking the law. The list of possible reasonable excuses given in the Regulations is not exhaustive and only provides examples of what could constitute a reasonable excuse.
On the one hand, some of the listed excuses amount to necessity and are easily justifiable. Providing care or emergency assistance, obtaining basic necessities from commercial suppliers (rather than from friends and family), using banking services or escaping the risk of harm all seem like perfectly reasonable excuses justifying the need to leave the building despite the current climate.
On the other hand, some of the listed excuses are arguably not “necessary” within the strict meaning of the word given the gravity of the risk posed by coronavirus. This would suggest that the test of whether or not an excuse amounts to a reasonable one is not the same as showing absolute necessity or duress.
In determining what amounts to a reasonable excuse, a decision maker would need to consider the reason that the restrictions have been imposed in the first place. The Welsh Ministers have imposed the restrictions “in response to the serious and imminent threat to public health which is posed by the incidence and spread” of the coronavirus in Wales. This is all about public health – any excuse which flouts public health for the sake of personal convenience or socialising is unlikely to amount to a reasonable one.
A decision maker would also need to consider how an individual’s personal circumstances can affect whether or not they had a reasonable excuse in their case. For example, an individual may have a unique physical or mental condition which means they need to leave the house more than once a day for exercise, or they may need to collect specific goods from a particular shop some miles away. There is no “one size fits all” approach to reasonable excuses – it will be a question of fact and degree for each person in each case.
Enforcing the restrictions obviously involves interfering with a person’s human rights. Where a person is found to have left their home for a reason that is connected with their human rights, that would arguably be a “reasonable excuse” unless the authorities can show that it was necessary and proportionate to restrict that person’s rights.
Mark Pritchard explores further how the European Convention on Human Rights can affect what amounts to a reasonable excuse here.
The “emergency period” is defined as the period during which these Regulations are in force. The Welsh Ministers must review the need for the restrictions and requirements imposed by these Regulations every 21 days. The first review took place by 16th April 2020 and the restrictions were not lifted as they were still deemed necessary. The next review will have to take place by 7th May 2020.
These restrictions must be lifted as soon as the Welsh Ministers consider that restrictions are no longer necessary “to prevent, protect against, control or provide a public health response to the incidence or spread of infection in Wales with the coronavirus”.
Unfortunately there is no clear way of knowing when the Welsh Ministers will see fit to lift the restrictions, but given the draconian nature of these measures which are unprecedented in peacetime, it is comforting to know that there is an in-built requirement for frequent reviews.
The regulations are not as strict about when you can leave your home as you may have first thought. A person who has a reasonable excuse for being outside will have a defence in law. Although the Regulations offer some guidance, what amounts to a reasonable excuse is arguable in any given case.
We are able to offer advice and assistance to any person who is charged under these Regulations or is given a Fixed Penalty Notice that they want to challenge.
Having grown up in rural Wales (Anglesey) myself, I have a great deal of sympathy with those living in isolated communities who have been confined to their homes by the restrictions. It is not my intention to encourage people to think of reasons that they can use to get away with leaving their homes. The risk and potential consequences of failing to abide by the lockdown are far worse than a simple fine. At the time of writing there have been over 26,000 deaths attributed to coronavirus.
You may very well miss your friends and colleagues, but we now live in an age of technology. Try connecting with your friends through Facetime or Google Meets or Skype. Find or invent some games you can play online or remotely to entertain each other. Join an online “pub quiz”. Talk to each other. “Lockdown” doesn’t have to mean “shutdown”.
In short? Unless you have a specific reason that justifies risking your life and the lives of others, the message is clear: Stay at home, protect the NHS, save lives.
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