Coronavirus: New Legal Powers to Detain ‘Potentially Infectious’ People

Coronavirus: New Legal Powers to Detain ‘Potentially Infectious’ People

The New Powers in Context

The proposed new powers to detain people suspected of having Covid-19 in the UK’s Coronavirus Bill have been called unprecedented, but in fact that is not quite true. Since long before the current crisis there have been statutory powers[1] to protect public health, including for ministers to make various regulations[2], and for magistrates to make various orders on the application of local authorities, including to keep people in quarantine in some circumstances[3].

Under the former power, the Health Secretary Matt Hancock made the Coronavirus Regulations, specifically aimed at the current situation, but applying only to England, on 10 February 2020[4] (which are still in force at the time of writing). Now, Parliament is debating a new set of powers[5] that will replace those Regulations, extend to the whole of the UK, and work in tandem with the existing statutory powers of the magistrates.

 

When Do the Powers Apply?

Both the Regulations and the proposed new Bill create powers in relation to people who (a) are or may be infected, where there is a risk they might infect others, or (b) have been in an ‘infected area’ (outside the UK) within the last 14 days; the Bill refers to people in either category as ‘potentially infectious’[6].

In England[7], the powers are activated when the Secretary of State makes a declaration that the virus is a serious and imminent threat, and that the powers will be an effective means of delaying or preventing significant further transmission; they will then cease to apply when that declaration is revoked (and the period between the two is called the ‘transmission control period’ in the Bill)[8].

 

Who Can Exercise Them?

Who, then, will exercise these powers, and what will they allow them to do? With respect to the first question (again, in England), the Bill defines a ‘public health officer’ to include a registered public health consultant or other officer designated by the Secretary of State[9]. (This is a broader category of people than under the Regulations, which apply to public health consultants and the Secretary of State him- or herself.) It then goes on to grant powers to such people, and to constables and to immigration officers, to enable the ‘screening and assessment’ of potentially infectious people, and to impose requirements and restrictions on people after such screening or assessment.

 

Step One: Direction/Removal

The first step is to identify and refer people for screening and assessment, in a process that closely and uncomfortably parallels arrest for a criminal offence. The Bill says that where a public health officer has ‘reasonable grounds to suspect’ that a person is potentially infectious, they may (a) direct the person to go immediately to a place ‘suitable for screening and assessment’, (b) remove the person to such a place, or (c) request a constable to do so.[10]

By way of safeguards, there is also a precondition that the public health officer can only exercise these powers where they consider it ‘necessary and proportionate to do so’ (a) in that person’s interests, (b) for the protection of other people, or (c) for the maintenance of public health. They must also inform the person of the reason for directing or removing them, and that it is an offence to fail to comply (without a ‘reasonable excuse’) or to abscond[11]. The powers also extend to constables and immigration officers, though the Bill says they must first consult a public health official, to the extent that it is practicable to do so. [12]

 

Step Two: Screening and Assessment

The ‘requirement to stay’

Once the potentially infected person is at a ‘suitable’ place, a public health officer (not necessarily the same one that referred them there, though they should still have ‘reasonable grounds to suspect’ the person is potentially infectious) will be able to require them to remain there for screening and assessment purposes for up to 48 hours. The same safeguards apply as for direction and removal, and in addition the person must be told of the maximum period they may be required to stay. The requirement can be enforced by a public health officer or a constable who is keeping the person there.[13]

 

The requirement to be screened and assessed

A public health officer (again, not necessarily the same one, though they should still have ‘reasonable grounds…’) can also (a) require the person to be ‘screened’ and ‘assessed’, and (b) impose ‘other requirements’ on them in connection with their screening and assessment.[14] The same precondition (‘necessary and appropriate…’) applies as for detention/removal, although oddly, there are no equivalent requirements to explain reasons, or to warn that unreasonable failure to comply would be an offence.

What do these various terms mean? ‘Screening’, firstly, means (a) assessing the extent to which the person has been exposed to the virus, (b) determining whether they are infected or contaminated with it, and (c) assessing their symptoms and state of health. This then enables the ‘assessment’ of ‘the measures that it would be appropriate to take… to mitigate the risk that the person might infect or contaminate others’.[15]

What could the requirement to be screened and assessed entail in practice? The Bill gives (non-exhaustive) examples of providing a biological sample, allowing a healthcare professional to take such a sample ‘by appropriate means’, answering ‘appropriate questions’, and providing ‘information about their health or other relevant matters (including their travel history and other individuals with whom they may have had contact)’. [16]

 

Other requirements

With respect to the ‘other requirements’ the public health official could impose on the person for screening and assessment purposes, again, the Bill gives non-exhaustive examples, including to produce any documents that may assist in their assessment, and to provide their contact details.[17]

The Bill also gives public health officers powers, where consider it appropriate for the purposes of screening or assessing the person (and, again, have ‘reasonable grounds…’), to direct them, remove them or request a constable to remove them to another such place (if, presumably, the first place does not have the facilities needed). The same safeguards apply as for the original direction/removal, and the screening and assessment step (along with the 48-hour time limit) starts again. [18]

 

Powers of constables and immigration officers

The Bill also gives constables and immigration officers powers to keep potentially infected people at a ‘suitable’ place until a public health officer can attend to exercise the powers set out above (if they have ‘reasonable grounds…’). There are time limits (24 hours for a constable, 3 hours for an immigration officer), which can be extended (by a further 24 or 9 hours respectively) with the consent of more senior officers, the same safeguards apply as for direction/removal, and the constable or immigration officer must first consult a public health officer to the extent that it is practicable. [19]

 

Step Three: After Screening/Assessment

When does the third step apply?

The third step applies (a) after a person has been screened, and the screening either (i) has confirmed that the person is infected or contaminated with the virus or (ii) was inconclusive, or (b) they have been assessed by a public health official, who has reasonable grounds to suspect that they are potentially infectious. In other words, a person who has been screened and found definitively negative, or who has been assessed and found not to be potentially infectious, should not be subject to any powers in this step. [20]

 

Further requirements and restrictions

Those unlucky enough to remain in the process at this step can then be made subject by a public health officer to any requirement or restriction, subject to the same safeguards as for detention/removal[21]. A public health officer (not necessarily the same one) can also vary or revoke any requirement or restriction[22].

What do ‘requirements’ and ‘restrictions’ mean in this context? Again, the Bill provides non-exhaustive lists. ‘Requirements’ can include to provide information or contact details, or to go to a specified place for further screening and assessment. They can also include ‘requirements to remain’ at a specified place, ‘in isolation from others’ or otherwise, for a specified period[23] – though before imposing a requirement of this kind the officer must first ‘have regard’ to the person’s ‘wellbeing and personal circumstances’[24]. ‘Restrictions’ can be for a specified period on a person’s movements or travel (within or outside the UK), activities (including their work or business activities), or contact with other people (either specific people, or generally)[25].

 

Time limits, reconsideration, and reviews

By way of safeguards, the Bill also imposes a 14-day limit on the period specified in any restriction, or any requirement to remain, although this can be extended if a public health officer (not necessarily the same one) reasonably suspects the person will be potentially infectious when the first period ends, and considers that the precondition applies. [26] The further period is also limited to 14 days, except where the requirement is to remain at a specified place in isolation from others[27].

The Bill also obliges a public health officer to assess the person within 48 hours of the restriction or requirement being imposed, reconsider whether the precondition (‘necessary and proportionate…’) applies, and then revoke the requirement or restriction, specify a different period (not exceeding 14 days), or substitute a different requirement or restriction[28]. If they revoke, the Secretary of State can then re-impose it if satisfied that the person is potentially infectious (though, oddly, with no explicit precondition that this be ‘necessary and proportionate…’)[29].

During the further period (that is, after an extension), a public health officer must review the requirement or restriction at least once every 24 hours[30]. If on such a review they consider that the person is no longer potentially infectious, the requirement or restriction must be revoked; if they consider that the precondition is no longer met, they may substitute a different requirement or restriction.[31]

 

Enforcement

With respect to enforcement, the Bill goes on to say that a requirement to remain may be enforced by a constable or public health officer removing the person to the place or keeping them there, or if they abscond, by a constable taking them into custody and returning them there (or to another place a public health officer specifies).[32]

 

Appeals

Importantly, the Bill provides for a right of appeal for anyone subject to a requirement or restriction in this step (or any variation or extension of it) to a magistrates’ court, which may then confirm, modify or quash the requirement or restriction (or variation or extension).[33]

 

Offences

The Bill creates a number of offences, including failing (without reasonable excuse) to comply with a restriction or requirement, absconding (or attempting to abscond) from detention or isolation, providing false information, and obstructing (without reasonable excuse) a person exercising one of these powers. All are punishable with fines (up to ‘level three’ – currently £1,000) rather than imprisonment. [34]

 

The Powers in the Coronavirus Regulations, and How They Differ from the Bill

Detention for screening and assessment

The Regulations structure the powers in a different way to the Bill, starting with a power for the Secretary of State or a registered public health consultant (not, as in the Bill, the broader category of ‘public health officer’), to detain a person for the purposes of screening and assessment, for up to 48 hours or until the screening and assessment has been done, whichever is later (a power that effectively straddles the first two steps described above). [35] The person may also be required to move to a suitable place[36].

By way of safeguards, as soon as the detention starts, the person must be notified of the fact of their detention, the powers under which they are detained, the reason for it, the ‘next steps that may be taken and by whom’, the obligation to keep the need for detention under review, the penalties for relevant offences (see below), and the right to appeal to a magistrates’ court (the Regulations say ‘where applicable’, though it is not clear where it would not be)[37] (these are much broader safeguards than in the Bill). The Secretary of State is also obliged to review the continuation of a person’s detention if it lasts for more than 14 days, and thereafter to review it at least once every 24 hours (similarly to the Bill)[38].

 

Preconditions for these and other powers

Although the categories of people who can be affected are similar to those in the Bill, rather than ‘reasonable grounds to suspect’, the powers granted to the Secretary of State and registered public health consultants in the Regulations require that the person exercising them (a) has ‘reasonable grounds to believe’ that the person is or may be infected or contaminated with the virus, and (b) ‘considers that there is a risk’ that they might infect or contaminate others. They must also consider them necessary (‘for the purposes of removing or reducing’ the risk that they will infect or contaminate others) and proportionate to what is sought to be achieved (similar to the precondition applied to various powers in the Bill).

 

Initial detention by constables

Where a constable (unlike in the Bill, there are no such powers for immigration officers) has ‘reasonable grounds to suspect’ (a) that a person is or may be infected or contaminated with the virus, (b) that there is a risk they might infect or contaminate others, and (c) that it is necessary to direct, remove or detain them in their interests, for the protection of others or for the maintenance of public safety, they may either: (a) direct them to go immediately to ‘a hospital or other suitable place’ for the purposes of screening, assessment and the imposition of any restrictions or requirements; (b) remove them there for the purposes of imposing restrictions or requirements; or (c) if they are already at such a place, keep them there or move them to another one for the purposes of imposing restrictions or requirements.[39] The Regulations empower constables to use reasonable force and – in a provision that, significantly, seems to be absent from the Bill – ‘to enter any place’ to exercise these powers.[40]

By way of safeguards, the Regulations oblige a constable to consult and have regard to the views of a registered public health consultant before exercising the powers or as soon as reasonably practicable afterwards, and to have due regard to any guidance issued by Public Health England.[41]

The period for which the person can be detained by a constable comprises an ‘initial period’ of 24 hours from the time they arrive at the ‘suitable place’ (or, if they arrived voluntarily, from the time the power was exercised to keep them there), plus an ‘authorised extended period’ of a further 24 hours. The latter applies where a constable or registered public health consultant considers it necessary because it is not reasonably practicable for the imposition of restrictions or requirements under the general power to be completed before the end of the initial period.[42]

 

Requirements and restrictions, post-assessment (including detention and isolation): general

The Regulations then provide general powers for the Secretary of State or a registered public health consultant to impose one or more screening requirements (similar to step two above, though excluding the ‘requirement to stay’[43]), to carry out an assessment, and then (post-assessment, equivalent to step three above) to impose any restriction or requirement on or in relation to the person, for the purposes of removing or reducing the risk that they will infect or contaminate others. This broad latter power is expressed to include the imposition of ‘special restrictions or requirements’ that can be imposed by magistrates under their existing statutory powers.[44]

These powers, held by magistrates under the existing statutory powers and extended by the Regulations to the Secretary of State and registered public health consultants, are extensive and include: forcing a person to submit to medical examination; removing them to and/or detaining them at a hospital ‘or other suitable establishment’; keeping them in isolation or quarantine; disinfecting or decontaminating them; forcing them to wear protective clothing; forcing them to provide information or to answer questions about their ‘health or other circumstances’; having their health monitored and the results reported; forcing them to attend training or advice sessions on how to reduce the risk of infecting or contaminating others; placing restrictions on where they go or who they have contact with; and banning them from working or trading.[45]

The magistrates’ powers apply not only to people but also to ‘things’[46] and premises[47]. The Regulations also extend these to the Secretary of State and registered public health consultants (though they must still be imposed ‘on or in relation to’ an identified person and be necessary or proportionate to remove or reduce the risk that they will contaminate others).

By way of safeguards, the Secretary of State (though not a public health consultant, presumably because their professional obligations are considered sufficient), when the person is detained or kept in isolation, is also obliged to have due regard to that person’s well-being[48] (a slightly narrower formulation than in the Bill, which refers to the person’s ‘wellbeing and personal circumstances’). If the person is detained or isolated for more than 14 days, the Secretary of State is also obliged to review the continuation of their detention then, and thereafter at least once every 24 hours[49]. Where the person is detained or isolated under these general post-assessment powers, the same notification requirements apply as where they are detained for screening and assessment (as described above) [50].

Notably, although the magistrates’ statutory powers to detain or isolate are subject to a maximum period of 28 days[51], there is no such maximum in the Regulations.

 

‘Further restrictions and requirements’

After setting out the general power to impose requirements and restrictions, the Regulations then go on to provide more specific powers to impose and vary ‘further restrictions and requirements’ following a person’s assessment or release from detention (or isolation – see below). These comprise specific requirements (a) to provide their contact details, (b) to supply information to help assess their health, and (c), to provide a biological sample when required, as well as a very broadly worded power to require the person to comply with any other specified condition or to take any other specified measure. The last of these includes (as non-exhaustive examples) the restrictions on travel, activities and contact equivalent to those described under step three, though only for a period of up to 14 days.

By way of safeguards, the Secretary of State or a registered public health consultant must inform the person in advance of an intention to impose any of these ‘further restrictions or requirements’, and to have regard to any representations by them about their ‘suitability’[52]. Again, the Secretary of State must also have due regard to the person’s well-being[53].

Notably, the obligation to review the continuation of the person’s detention (then, and thereafter at least once every 24 hours) applies if any of these measures last for more than 14 days, although the specifically listed step three restrictions (on travel, activities and contact) cannot do so. There also appears to be no obligation to review the continuation of requirements or restrictions other than detention[54].

 

Isolation

The Regulations then impose powers for registered public health consultants (only) to isolate a person, and for the Secretary of State or a registered public health consultant to detain them while a decision on whether to isolate is made, and to impose screening requirements on a person who is isolated. (The last of these appears to ‘double up’ on the general power to impose screening requirements.) [55] Again, the Secretary of State must also have due regard to the person’s well-being[56], and review the continuation of the person’s detention if the isolation continues for more than 14 days[57], and the same notification requirements apply as for the power to detain[58].

 

Interaction with magistrates’ powers

The Regulations also extend to the Secretary of State and registered public health consultants the power (previously reserved to local authorities) to apply to the magistrates’ courts for orders under their existing statutory powers[59]. In the light of the extension of powers in the Regulations and the Bill, however, it is hard to see a role for the magistrates beyond the determination of appeals.

 

Enforcement

With respect to enforcement, similarly to the Bill, the Regulations say that detention may be enforced by a constable or public health officer removing the person to a suitable place or keeping them there, or if they abscond, by a constable taking them into custody and returning them there (or to another suitable place the Secretary of State or a public health officer specifies).[60]

 

Appeals

In contrast to the Bill, the ability of a person to appeal to the magistrates’ court applies to any restriction or requirement imposed, rather than just those under step three.[61]

 

Offences

Like the Bill, the Regulations create a number of offences, including failing (without reasonable excuse) to comply with a restriction or requirement, absconding (or attempting to abscond) from detention or isolation, providing false information, and obstructing (without reasonable excuse) a person exercising one of these powers. All are punishable with fines (up to ‘level three’ – currently £1,000) rather than imprisonment. [62]

 

Footnotes:

[1] Public Health (Control of Disease) Act 1984, Part 2A, as inserted by the Health and Social Care Act 2008

[2] Sections 45B to 45D of the 1984 Act

[3] Sections 45G to 45O of the 1984 Act

[4] The Health Protection (Coronavirus) Regulations 2020

[5] Coronavirus Bill 2020, Schedule 20

[6] Paragraph 2 of the Schedule

[7] Part 2 of the Schedule (Paragraphs 4 to 24). There are then parallel provisions for other parts of the UK (Parts 3 to 5)

[8] Paragraph 4

[9] Paragraph 3(2)

[10] Paragraph 6(1) and (2)

[11] Paragraph 6(3) and (4)

[12] Paragraph 7

[13] Paragraphs 8 and 9

[14] Paragraph 10(1)

[15] Paragraph 3(1)

[16] Paragraph 10(2)

[17] Paragraph 10(4)

[18] Paragraphs 11 and 12

[19] Paragraph 13

[20] Paragraph 14(1)

[21] Paragraph 14(2) and (5)

[22] Paragraph 14(7)

[23] Paragraph 14(3)

[24] Paragraph 14(6)

[25] Paragraph 14(4)

[26] Paragraph 15(1) and (5)

[27] Paragraph 15(6)

[28] Paragraph 15(2) and (3)

[29] Paragraph 15(4)

[30] Paragraph 15(7)

[31] Paragraph 15(8) and (9)

[32] Paragraph 16

[33] Paragraph 17

[34] Paragraph 23

[35] Regulation 4(1) of the Coronavirus Regulations 2020

[36] Regulation 9(5)

[37] Regulation 9(6)

[38] Regulation 9(2) and (3)

[39] Regulation 14(1) and (2)

[40] Regulation 14(4) and (9)

[41] Regulation 14(5)

[42] Regulation 14(6) and (10) to (12)

[43] Regulation 6. Regulation 9(4) also provides specific powers to impose screening requirements on people who are detained for that purpose under Regulation 5, subject to requirements or restrictions under Regulation 7, or isolated under Regulation 8, although this would seem to add nothing to the general power under Regulation 6

[44] Regulation 5

[45] Section 45G(2) of the 1984 Act

[46] Section 45H(2) of the 1984 Act

[47] Section 45I(2) of the 1984 Act

[48] Regulation 9(1)

[49] Regulation 9(2) and (3)

[50] Regulation 9(6)

[51] Section 45L of the 1984 Act

[52] Regulation 7

[53] Regulation 9(1)

[54] Regulation 9(2) and (3)

[55] Regulation 8

[56] Regulation 9(1)

[57] Regulation 9(2)

[58] Regulation 9(6)

[59] Regulation 11

[60] Regulation 13

[61] Regulation 12

[62] Regulation 15

About the authors:

John Binns is a partner at BCL, specialising in business crime and proceeds of crime. Most of his cases involve an international element, and he has advised clients on appeals to the CJEU in the context of international corruption allegations and targeted financial sanctions.

Richard Reichman is a partner specialising in corporate crime, financial crime and regulatory investigations. He is recommended by The Legal 500 for his “extensive experience” and being “extremely thorough and appreciat[ing] the big picture issues”. He has experience in a broad range of regulatory offences, such as health and safety (generally following major or fatal incidents), environmental, food safety, fire safety and trading, as well as financial offences such as fraud, bribery, insider dealing and money laundering. Richard is involved in cases involving cybercrime (for example, computer-specific offences such as hacking) or a technological dimension. He has acted for victims of cybersecurity breaches and advises regarding data protection issues falling within the scope of the Information Commissioner’s Office.

Ami Amin is an associate specialising in business crime, acting for individuals under investigation for allegations of fraud, bribery, corruption and regulatory offences. She is also experienced in acting for high-net-worth individuals facing requests for extradition, challenging the retention of data by INTERPOL, dealing with the relevant UK authorities in requests for mutual legal assistance and regularly advises clients in respect of unexplained wealth orders and other provisions under POCA.

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