BCL’s Ellen Peart, Daniel Jackson and Kate Chanter review the new regulations concerning the restrictions imposed during the Coronavirus Lockdown and their enforcement.

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (a ‘statutory instrument’) came into force at 1pm on 26 March 2020, having been laid before Parliament under section 45R of the Public Health (Control of Disease) Act 1984.

According to the Home Secretary, Priti Patel, the new public health regulations have been introduced with the justification to protect the public and keep people safe in this unprecedented public health emergency. However, it might be said that the regulations have created a regime with the most draconian restrictions on people’s rights of movement, gathering and conduct of business.

Restrictions

Regulation 6 (restrictions on movement) specifies that during the emergency period (which starts from the above date/time), ‘no person may leave the place where they are living without reasonable excuse’, which includes the need –

• 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, including from any business (listed in Part 3 of Schedule 2);
• to take exercise either alone or with other members of their household;
• to seek medical assistance, including to access any of the services referred to in paragraph 37 or 38 of Schedule 2;
• to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006, to a vulnerable person, or to provide emergency assistance;
• to donate blood;
• 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;
• 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;
• to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings;
• 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);
• 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;
• in the case of a minister of religion or worship leader, to go to their place of worship;
• to move house where reasonably necessary;
• to avoid injury or illness or to escape a risk of harm.

For the purposes of the above, the place where a person is living includes the premises where they live together with any garden, yard, passage, stair, garage, outhouse or other extension of such premises.

Of note is the absence of the ability to exercise away from where someone lives being limited to ‘once a day’ – we assume because it was considered that such a prohibition would be practically impossible to police, albeit one still has to satisfy the element of ‘reasonable excuse’.

Regulation 7 concerns restrictions on gatherings: During the emergency period, no person may participate in a gathering in a public place of more than two people except –

(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.

Enforcement

Where a relevant person (a constable, a police community support officer and/or other designated person for the purposes of this regulation), in accordance with Regulation 8, considers that a person is in contravention of regulation 6, the relevant person may –

(a) direct that person to return to the place where they are living, or

(b) remove that person to the place where they are living (using reasonable force, if necessary).

The enforcement regulations also reference children who are outside the place where they are living without reasonable excuse and the requirements that fall to those with responsibility for the child.

Where a relevant person considers that three or more people are gathered together in contravention of Regulation 7, the relevant person may –

(a) direct the gathering to disperse;

(b) direct any person in the gathering to return to the place where they are living;

(c) remove any person in the gathering to the place where they are living.

Offence

Anyone who breaches a requirement in Regulation 6 commits an offence. Anyone who breaches a requirement in Regulations 7 and 8, without reasonable excuse, also commits an offence. It is also an offence not to comply with the requirements in Regulations 4 (requirement to close premises and businesses during the emergency) and 5 (further restrictions and closures during the emergency period). The offences under these regulations are summary only and punishable by a fine.

Disposal options

It is anticipated that police officers will ask people they suspect of breaching the rules to return home. The police can turn to tougher sanctions, such as arrest, for those unwilling to comply, where other approaches have not been successful.

The College of Policing claims that the police will adopt a four-phase approach:

• Engage – officers will initially encourage voluntary compliance.

• Explain – officers will stress the risks to public health and to the NHS. Educate people about the risks and the wider social factors.

• Encourage – officers will seek compliance and emphasise the benefits to the NHS by staying at home, how this can save lives and reduce risk for more vulnerable people in society.

• Enforce – officers will direct individuals to return to the place where they live. This may include providing reasonable instruction of the route by which the person is required to return. Officers may also remove that person to the place where they live, using reasonable force where it is a necessary and proportionate means of ensuring compliance.

It is reported by the College of Policing that officers will make sensible decisions, employ their judgement and continue to use other powers, but that ‘enforcement will be a last resort’.

The police officers in England now have the power to issue £60 fines for breaches of the Coronavirus lockdown rules, which will be reduced to £30 if paid within 14 days. Officers are able to issue greater fines for further offending – fines can be doubled for each additional offence. Fixed penalty notices can (the word used in Regulation 10 is ‘may’) be issued if the relevant person reasonably believes that an offence under these regulations has been committed and the person concerned is over the age of 18.

As with other fixed penalty notices and penalty notices for disorder (PNDs), persons who fail to pay a fixed penalty notice under the regulations could be prosecuted, with magistrates’ able to impose unlimited fines.

The success of social distancing and remaining at home has, prior to the Prime Minister’s announcement of a ‘lockdown’ and to some extent prior to the enforcement provisions being passed, largely been dependent on individuals choosing to comply; a moral duty on everyone to collectively ‘do the right thing’. Now, the moral duty has become a legal one and it is not only prohibited but will potentially become a criminal offence to leave one’s home in the absence of a reasonable excuse. The police will play a crucial role in the enforcement of Regulation 6 and whilst voluntary engagement remains at the top of the agenda, commentary from forces including Northumbria Police indicates that the public should be under no illusion that the powers of enforcement will be used where necessary. It will remain to be seen whether the volume of fixed penalty notices issued and/or arrests varies between forces and whether the engagement with and encouragement of those breaching the rules will be enough to ensure compliance in the majority of cases.

No doubt the powers under the regulations and guidance issued will be welcome to police forces across the nation. Following the Prime Minister’s announcement of a lockdown, uncertainty was voiced by Ken Marsh, the Chairman of the Metropolitan Police, as to how the police could enforce the measures. The police in certain areas of the country nonetheless took to dispersing large groups of people gathering at parks and, in some reported instances, groups in excess of 20 meeting for a barbecue. Whilst the risk of a financial penalty and/or a criminal record may give rise to increased compliance with the ‘lockdown’, limits on police resources will place a ceiling on the level of actual enforcement.

Reviews

The ‘emergency period’ ends in relation to a restriction or requirement imposed by the regulations on a date/time specified in a direction published by the Secretary of State terminating the requirement or restriction. The necessity for the aforementioned is to be reviewed at least every 21 days and a direction published regarding termination, if considered no longer necessary by the Secretary of State. There is to be a review on 16 April 2020. Any continued enforcement of the regulations past the cessation of the public health emergency potentially fall to be challenged and quashed by the courts, on the basis that they are ultra-vires.