The current pandemic has led to a flood of emergency legislation. This post deals with The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020 No. 350) made under the Public Health (Control of Disease) Act 1984, which supplement the Coronavirus Act 2020. The Regulations are, as is now trite, the strictest control on peacetime life in the modern history of the United Kingdom, and they set out the limits of the “lockdown” and how it is to be enforced. This post aims to set out how the Regulations apply to individuals, and provide some analysis of their contents.
The Regulations had to be drafted in immense haste, coming into force only 3 days after the Prime Minister’s announcement, and attempt to control behaviour in a way never attempted before. It is therefore perhaps inevitable that they contain some ambiguities and uncertainties. Given the public health purpose of the Regulations if nothing else, this post is not intended to encourage testing the boundaries of them!
Restrictions on leaving the home – Regulation 6
For the duration of the emergency period (until 26 September 2020 at the latest, reviewable every 21 days), no-one may leave ‘the place where they are living’ without a reasonable excuse. That is defined as including gardens, sheds and ‘other appurtenances’ (Reg. 6(3)) – it is unclear whether this includes communal gardens shared between occupants of a building. A lengthy, non-exhaustive, list of reasonable excuses is provided in Reg. 6(2) – and it is considerably longer than the list initially set out in the Prime Minister’s announcement of 23 March 2020. A reasonable excuse 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 [the limited category of businesses which may remain open for the sale of goods in person: Reg. 5(1)]
- To take exercise
- To seek medical assistance
- To provide care or assistance to a vulnerable person
- To donate blood
- To travel for the purposes of work or to provide voluntary services where it is not reasonably possible to do so from home
- To attend the funeral of a co-habitant or a close family member
- To fulfil a legal obligation including participating in proceedings
- To access critical public services such as childcare (where still available) or social services
- To facilitate contact between a child and people who have parental responsibility for them
- For a minister of religion only, to attend a place of worship
- To move house where reasonably necessary
- To avoid injury or illness
There is a blanket exception from this restriction for persons who are homeless (Reg. 6(4)).
The list of reasonable excuses raises a number of questions which may need to be resolved by the courts in future – considered below are a few examples based on facts reported in news stories in recent days.
The excuse that has so far seemed to cause the greatest difficulty is that leaving the house for shopping is only permitted “to obtain basic necessities, including food and medical supplies…including from any business listed in Part 3 of Schedule 2”. However, “off licences and licensed shops selling alcohol (including breweries)” are included in Part 3 of Schedule 2 to the Regulations, meaning they can remain open. Similarly, homeware stores and dry cleaners can as well. Does this mean that attending one of those premises is implicitly a reasonable excuse, even if it is not, in the normal sense of the words, for the purpose of “obtain[ing] basic necessities”? Or can citizens only make a purchase at an off-licence if it happens to be between their home and intended food shop, or is perhaps on the route of their exercise? Taking a suit to the dry cleaners is clearly not “obtaining a basic necessity” – so despite remaining open, can they now only be visited if another reasonable excuse is in play, for example preparing for a court appearance?
It seems reasonably clear that a reported crackdown on corner shops selling Easter eggs is beyond the scope of the regulations. First, a convenience store can remain open under Reg. 5(1) since it is listed in Part 3 of Schedule 2 to the Regulations, and if it is allowed to open there is no restriction on what it can sell. Second, since an Easter egg constitutes food, expressed to be one of the basic necessities, it must be a reasonable excuse to attend such a shop to purchase one. The list above does not require the contents of a food purchase to be essential in any way. Instead, Reg. 6(2)(a) seems to make it clear that all food is one of the basic necessities which one is allowed out to purchase. Were it otherwise the uncertainty caused by value judgments would make the entire scheme unworkable – if I am diabetic and need to have some chocolate around to help manage my blood sugar levels, is an Easter egg a basic necessity for me but not most people? And what if I then choose to buy a larger, luxury egg, does it then cease to be a “basic necessity” since I have gone beyond just buying the chocolate I need?
However even that interpretation does not resolve a subsequent question: if my Easter egg does count as a basic necessity, presumably I am also allowed to purchase non-essentials (such as a magazine) whilst I am in the shop – is the test whether I am principally there for the Easter egg? Or can I use the purchase of a packet of polo mints to “cover” my main purpose of buying a selection of travel magazines to plan my next holiday?
Perhaps clearer is the position in relation to interior design purchases. Homeware stores are also listed in Pt 3 of Sch 2 so can remain open, however if someone went there to consider a new sofa, then they would not be leaving the place they are living “to obtain basic necessities”, since Reg 6(2)(a) goes on to define this as including “supplies for the essential upkeep, maintenance and functioning of the household”. They would therefore seem to be in breach of the general movement restriction in Reg 6(1). Of course, as with any test of ‘reasonable excuse’, it would be a question of fact and degree for the court, the list only providing examples of where something is deemed to be reasonable. The purchase of a new sofa might be reasonable if, for example, the old one had been destroyed by fire during the emergency period. That said, in the defence of the unnecessary purchaser of the sofa, could it be argued that it is deemed to be a basic necessity simply because it can be purchased from a Part 3 Schedule 2 shop? The phrase “including from any business listed” is not entirely clear.
Illustrating this point is the case of a man who drove to collect windows he purchased on eBay, for which venture outside he was given a fixed penalty notice. Whether he in fact had a reasonable excuse would seem to depend on whether it was for the essential upkeep of his house – if the existing ones were, for example, leaking and causing serious damage as a result, perhaps he would be advised not to pay the notice and take his chances on a prosecution.
Derbyshire Police used a drone in the Peak District National Park to spot hikers, and have posted the videos on Twitter, noting that it is “not essential travel”. The regulations do not seem to prohibit driving to exercise if “the need…to take exercise” remains the purpose for leaving home, though of course this is strongly discouraged as is any non-essential travel. Again this will be a question of fact – driving a short distance down the road to exercise in the open air may be reasonable, driving hundreds of miles to take a short stroll in a beauty spot seems unlikely to find favour with the magistrates. Despite it being Government guidance to only exercise out of doors once daily, this is not a requirement under the regulations.
It is a sad fact of the pandemic that more funerals will be required. The Coronavirus Act 2020 makes various emergency provisions for these to be managed and directed in ways that would not normally be acceptable – for example, local authorities now have the power to cremate bodies even if that is contrary to the expressed wishes of the deceased, simply with an obligation to ‘have regard to’ their religious beliefs (Sch. 28, para 13). Those provisions are outside the scope of this article. However, relevant to these offences is that it is only a reasonable excuse to leave home to attend a funeral for (i) a household member, (ii) a close family member, or (iii) if neither of the above can/will attend, a friend.
Places of worship may be opened for the purposes of funerals, broadcast worship, or services conducted by clergy alone (Regs. 5(5) and (6)), but it is to be noted that the Church of England has declined to do so, doubting in terms that the Regulations go far enough to protect participants. Crematoria and burial grounds are to be closed except for funerals (Reg. 5(8)), so it is no longer open to people – even on their daily exercise – to visit the final resting place of loved ones.
A final ambiguity, of personal interest to the present author, is that moving house is a reasonable excuse only where “reasonably necessary”. Is this a requirement that the house move can’t be avoided, for example because it is not practically possible to delay it? What if it were possible to delay for a moderate financial penalty, and this is entirely affordable for the mover? Again, these will be questions of fact for the court, but the outcome seems uncertain.
Helpfully, once that hurdle is surmounted, the Regulations make comprehensive provision for house moving, enabling the gathering of two or more people in public to facilitate it (Reg. 7(d)(ii)), and even permitting owners of temporary accommodation (hotels etc.) to rent out rooms for people who are moving house (Regs. 5(3) and (4)(a)(iii)).
Restrictions on gatherings – Regulation 7
Quite separately to the movement restriction there is a restriction on public gatherings of more than two people not living together except for essential work, funerals, or where reasonably necessary to facilitate a house move, to provide care or emergency assistance, or to participate in legal proceedings or fulfil a legal obligation.
Enforcement powers – Regulation 8
Regulation 8 allows the police or other designated officials to direct that a person complies with the requirements and restrictions set out in the Regulations if they consider they are being breached, and to use reasonable force to return someone to the place where they are living. They may also direct persons in charge of, or with parental responsibility for, a child to secure as far as reasonably practicable the child’s compliance with the Regulations. Perhaps most broadly, Reg. 8 allows the giving of “any reasonable instructions they consider to be necessary” in the course of exercising the other listed powers (Reg. 8(11)).
Offences – Regulation 9
If a direction or instruction under Reg. 8 is contravened, or if any of the other restrictions or requirements in the regulations are being breached, an offence is committed under Reg. 9(1). It is always a defence to show reasonable excuse – this is for the defendant to prove on the balance of probabilities (s. 101, Magistrates’ Courts Act 1980). It remains to be seen whether contravening a direction given under Reg. 8 because the defendant knows that the direction is mistaken in law would be a reasonable excuse for not complying with it – if, for example, a police officer directed a runner on their second run of the day to go home. Similarly, would it also be a reasonable excuse not to comply with a Reg.8(11) reasonable instruction given in the course of exercising powers under Reg. 8 if that exercise of the powers was mistaken in law? Perhaps the instruction would cease to be considered reasonable.
Reg. 9(4) provides that the offence is “punishable on summary conviction by a fine” – under s. 85(2) Legal Aid, Sentencing and Punishment of Offenders Act 2012, this means the fine is unlimited. It appears to be intended that only the CPS or someone designated by the Secretary of State can bring prosecutions for this offence (Reg. 11), but the wording is peculiar and may not have the desired effect.
As an alternative to prosecution, the police or local authority can issue a fixed penalty notice under Reg. 10. This is on a sliding scale as follows (Regs. 10(6) and (7)):
|Number of breaches||Amount of fixed penalty|
|1||£60 (reduced to £30 if paid within 14 days)|
A fixed penalty notice suspends any criminal proceedings rather than replacing them – if it is not paid within 28 days, then the police force could issue a postal charge and requisition in the usual way to bring the accused before the court. The payment mechanism for the fixed penalty notices is slightly unusual, in that either the police or a local authority can issue them, but even police penalty notices must specify the local authority (or any local authority, if there are multiple) in which the offence occurred, and direct that payment be made to them. In areas with numerous small unitary authorities this may pose a practical difficulty for the police in identifying the correct authority. It will be easier in regions which retain traditional county council structures, which are often contiguous with Constabulary boundaries.
It is to be hoped that these new offences will be rarely deployed, if the general level of compliance to the emergency rules remains high and they are in force only for a short period of time. As the Government has repeatedly said, we should all be staying at home as much as possible, whether legally required to do so or not, to prevent the spread of the novel coronavirus. Nevertheless it seems likely that some interesting decisions will need to be taken on the scope of the Regulations, once the courts have reopened to enable that to happen (at the moment, the Magistrates’ Courts are not permitted to list for hearing any criminal cases under these Regulations). The one reported criminal case for breach of the regulations so far turns out to have been mis-charged as being an offence contrary to the Coronavirus Act 2020.