On Monday (23/3/20) evening the Prime Minister’s public announcement led to a “quasi-lockdown” with people being warned to remain indoors or face consequences. This led to widespread confusion as to what those consequences would be and what exceptions would apply. With the passing of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 four days later, giving full effect to the Prime Minister’s warnings, Tony Williams looks at the new powers granted to deal with those who fail to heed the warnings.
The Coronavirus Bill has now become the Coronavirus Act 2020, which introduces a number of measures aimed at curbing the spread of SARS-CoV-2 (‘coronavirus’). Betsy Hindle discusses the wide-sweeping impact of this legislation here. This legislation has been supplemented by various Statutory Instruments, including the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 which imposes significant curbs on our ordinary daily lives.
Given the number of questions raised by the Prime Minister’s announcement and what some felt was a lack of clarity about what they were now allowed or not allowed to do, I thought I would put together a short guide to clarify what the law now says.
As of today and for the duration of the emergency period, under Regulation 6(1), “no person may leave the place where they are living 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 (Regulation 6(3)). So as long as you remain in or on your own premises, you are allowed to visit your own garden or shed.
A non-exhaustive list of possible reasonable excuses is set out in Regulation 6(2) which includes (but is not limited to) the following needs:
(a) to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for vulnerable persons and supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or to obtain money…;
(b) to take exercise either alone or with other members of their household;
(c) to seek medical assistance…;
(d) to provide care or assistance, including relevant personal care… to a vulnerable person, or to provide emergency assistance;
(e) to donate blood;
(f) to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living;
(g) to attend a funeral of—
(i) a member of the person’s household,
(ii) a close family member, or
(iii) if no-one within sub-paragraphs (i) or (ii) are attending, a friend;
(h) to fulfil 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 that person is the parent, or has parental responsibility for, or care of the child);
(ii) social services;
(iii) services provided by the Department of Work and Pensions;
(iv) services provided to victims (such as victims of crime);
(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 reasonably necessary;
(m) to avoid injury or illness or to escape a risk of harm.
NO PUBLIC GATHERINGS
Further, as of today and for the duration of the emergency period, under Regulation 7 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,
(d) where reasonably necessary—
(i) to facilitate a house move,
(ii) to provide care or assistance to a vulnerable person, including relevant personal
care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of
Vulnerable Groups Act 2006,
(iii) to provide emergency assistance, or
(iv) to participate in legal proceedings or fulfil a legal obligation.
This is still subject to the requirement in Regulation 6 above not to leave home without a reasonable excuse and is clearly designed to ensure that the coronavirus does not spread through transmission at unnecessary public gatherings.
Under Regulation 9(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.
If a person is stopped and is found to have left their home without being able to give a reasonable excuse, then a relevant person has the power to direct that they return to the place they are living, or use reasonable force if necessary to return them to their home (Regulation 8(3) and (4)). Failure to comply or any obstruction of a relevant person, without reasonable excuse, will be a criminal offence (Regulation 9(2) and (3)).
Such powers can be exercised by police constables, police community support officers, or persons designated by the local authority or Secretary of State (Regulation 8(12)(a)).
All offences under this Regulation will be punishable on summary conviction by a fine, and there are provisions in the Regulations relating to the prosecution of such offences.
However, for any of the above offences an authorised person (constables, PCSOs, and persons designated by the Secretary of State) may issue a Fixed Penalty Notice instead. It is worth noting that persons designated by a local authority do not have the power to issue FPNs for offences under Regulations 6(1) and 7.
FPNs start at £60.00 (£30.00 if paid within 14 days) and subsequent FPNs could go up to a maximum of £960.00. If the amount of the Fixed Penalty Notice is paid in full and on-time, there will be no criminal conviction. If not, a prosecution and criminal conviction may ensue.
WHEN WILL THE RESTRICTIONS END?
Under Regulation 3, the “emergency period” is defined as the period during which these Regulations are in force. The Secretary of State must review the need for the restrictions and requirements imposed by these Regulations every 21 days, with the first review being carried out by 16th April 2020.
These restrictions must be lifted as soon as the Secretary of State considers 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 England with the coronavirus”.
Unfortunately there is no clear way of knowing when that will be, 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.
ANALYSIS – IS THERE ROOM FOR MANOEUVER?
The phrase “reasonable excuse” appears throughout the above Regulations and will amounts to a defence in law. The list of possible reasonable excuses given in the Regulations is not exhaustive and only provide examples of what could constitute a reasonable excuse.
On the one hand, some of the listed excuses amount to very clear cases of necessity and are easily justifiable. Providing care or emergency assistance, obtaining basic necessities, avoiding injury or illness or escaping a risk of harm all seem like perfectly reasonable excuses justifying the need to leave the building despite the current climate. On the other hand, the weight of some of the listed excuses does seem somewhat inconsistent and contradictory when compared with others. Some are arguably not “necessary” within the strict meaning of the word given the gravity of what the regulation was brought in to deal with.
It is submitted that the test of whether or not an excuse amounts to a reasonable one is not the same as raising duress of circumstance as a defence and will be a question of fact and degree in each case. However, 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 Secretary of State has imposed the restrictions because they consider them necessary to “prevent, protect against, control or provide a public health response to the incidence or spread of infection in England with the coronavirus”. This is all about public health – any excuse which flouts public health for the sake of personal convenience is unlikely to amount to a reasonable one.
It is understandable that government officials have been quite clear that leaving the house for purely social reasons will not amount to a reasonable excuse. Couples living apart have been encouraged to move in together or remain in their homes and stay apart – as such, painful though it may be, visiting your other half is unlikely to amount to a reasonable excuse either.
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 failing to observe the Regulations will have a defence in law. Although the Regulations offer some guidance, what amounts to a reasonable excuse is arguable in any given case.
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 heed these restrictions are far worse than a simple fine. At the time of writing the number of deaths attributed to coronavirus was 578, having jumped by over 100 in a day. This is real. The sooner we acknowledge that fact, the fewer lives we will put at risk.
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 remotely to entertain each other. 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 those around you, the message is clear – Stay safe and remain indoors.
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