As Hippocrates remarked at the height of the Plague of Athens in 430BC, desperate times call for desperate measures[1]. The deadly coronavirus has brought forth desperate measures almost everywhere, and the keystone of this country’s response to the crisis is the Coronavirus Act 2020. This post focusses on some key aspects of it, asking how the new offences relating to “potentially infectious” persons are defined and whether the Act as a whole is necessary.
Overview
The Act was introduced into the House of Commons on 19 March 2020; it received Royal Assent a mere six days later. In light of the speed with which the Act passed through Parliament, the range of topics that it covers, and the level of detail to which it descends, is impressive. It runs to 359 pages and contains 102 sections followed by 29 schedules. Among other things, it provides for:
- Emergency registration of health professionals;
- Compensation for emergency volunteers;
- Temporary amendments to mental health legislation;
- Health service indemnification;
- Temporary amendments to the registration of deaths and still-births;
- Temporary appointment of Judicial Commissioners;
- Extension of time limits for retaining fingerprints and DNA;
- Powers to examine food supply chains;
- Temporary closure of educational institutions and childcare facilities;
- Temporary closure of ports;
- Powers relating to “potentially infected persons”—for analysis see the next section;
- Powers to issue directions relating to events, gatherings and premises—the Act empowers the Secretary of State (i) to declare that the incidence or transmission of coronavirus constitutes a serious and imminent threat to public health in England, and (ii) to prohibit or restrict the holding of an event or gathering in England. The prohibition is limited to those involved in hosting the event or gathering; it does not apply to those who attend it. Persons who, without reasonable excuse, defy the prohibition are liable on summary conviction to a fine;
- Increased availability of live links in criminal proceedings—discussed in this recent blog post; and
- Postponement of elections for Local Councils and the Church of England.
Powers relating to “potentially infectious” persons
The powers
The powers in relation to potentially infectious persons are time-limited inasmuch as they may only be used during a “transmission control period” (‘TCP’) (Schedule 21, paragraph 4).[2] Unlike the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020 No. 350) (the “lockdown Regulations”, discussed in a previous post), the TCP now in force does not need to be reviewed every three weeks. It lasts until the Secretary of State is minded to revoke it, although much of the Act, including this part, will expire after 2 years.[3]
Powers relating to “potentially infectious” persons are conferred by section 51, read with Schedule 21. The powers are exercisable by a range of officers, including public health officers, immigration officers and constables.
Schedule 21 provides that a person is potentially infectious if the person is or may be infected or contaminated with coronavirus, and there is a risk that he or she might infect or contaminate others with it; or the person has been in an infected area within the last 14 days (paragraph 2(1)).
There are two main conditions relating to how the Schedule 21 powers may be used. First, the majority of powers may only be used in relation to a person where the officer exercising the power has reasonable grounds to suspect that the person is potentially infectious (paragraphs 6(1), 7(1), 8(1), 13(1) and 14(1)). Second, an officer may exercise the power in relation to a person only if he or she considers it is necessary and proportionate in the interests of the person, for the protection of other people, or for the maintenance of public health (paragraphs 6(3), 7(3), 8(2), 13(6) and 14(2)).
There are three types of powers. The first consists of powers to direct a person to go to a screening and assessment place. The second consists of powers which can be exercised at a screening and assessment place, including the power to require a person to undergo screening and assessment at such a place, or provide a biological sample (paragraph 10(1)(a), (2)). Public health officers may require a person to remain at the screening and assessment place for up to 48 hours; constables and immigration officers may do so for up to 24 hours and 3 hours respectively (paragraphs 9(1), 13(2) and 13(3))[4]. The third category of powers are exercisable after an assessment has taken place, and the person either (i) has tested positively or inconclusively for coronavirus or (ii) is nonetheless reasonably suspected by a health officer of being potentially infectious (paragraph 14(1)).
Under the third category of powers, health officers are granted a wide discretion to impose any requirements and restrictions that they consider meet the ‘necessary and proportionate’ test (paragraph 14(2)). They may require a person to provide information or contact details, to undergo further assessment and screening, to remain at a specified place for a specified period, or to do so in isolation from others (paragraph 14(3)). They may also restrict a person’s movements or travel (within or outside the United Kingdom), their activities (including work or business activities) or their contact with other persons or other specified persons for a specified period (paragraph 14(4)).
Before the powers may be exercised lawfully, certain procedures must be followed. Subjects must be told why the power is being exercised, the maximum amount of time they may be detained, and that it is an offence to fail to comply with a direction (paragraphs 6(4), 7(4), 9(2), 11(2), 13(7) and 14(5)).
The offences
The relevant offence-making provision in the Act is contained in paragraph 23 of Schedule 21. It provides that it is an offence for a person to fail without reasonable excuse to comply with any direction, reasonable instruction, requirement or restriction given to or imposed on the person. The offence is summary only and carries a fine of up to £1000. The penalty is the same in all parts of the United Kingdom except Scotland, where offenders are liable to 12 months’ imprisonment and/or a fine of £5000.
The Act provides no guidance as to what a reasonable excuse is. It is unlikely that the excuse will be reasonable where the excuse tends to undermine the overall policy of the Act. It is helpful in this regard to contrast the concept of “reasonable excuse” used in the Act with the concept of “reasonable excuse” used in the lockdown Regulations (discussed further here). Notably, the lockdown Regulations apply to all members of the public, whereas Schedule 21 applies only to potentially infectious persons. Travelling to work when it is impossible to work from home may provide a reasonable excuse under the lockdown Regulations (Reg 6(2)(f)), but it may not provide a reasonable excuse under the Act, at least in relation to potentially infections persons who have been ordered to stay at home.
By a similar logic, whether circumstances give rise to a reasonable excuse may depend on the category of power being used. The third category of powers may only be used in relation to persons who have been tested for the coronavirus without a negative result, or who have been examined by a public health officer who reasonably believes they are potentially infectious. Because such persons pose an elevated risk to public health, it is likely to be more difficult for them than others to provide a reasonable excuse. For example, if a person is a sole carer to a vulnerable adult, that may provide them with a reasonable excuse for failing to obey a direction to go immediately to a screening facility; but the position is likely to be different if that person has tested positively for the virus and fails to comply with a requirement to remain at a specified place in isolation.
Other sets of circumstances are more ambiguous. For example, would a person who has failed to comply with a requirement to remain at a screening and assessment place have a reasonable excuse if they needed to be able to work from home and were worried that they might lose their job? Or, would a person who has failed to comply with a direction to go immediately to a screening assessment place have a reasonable excuse if complying would prevent them from adhering to bail conditions, for example by causing them to fail to report to a police station at an agreed time?
One question to which answers may be found in existing case law is that of what constitutes a reasonable excuse for failure to comply with a requirement to provide a biological sample. This is arguably analogous to what constitutes a reasonable excuse for failing to provide a specimen when required to, contrary to section 7(6) of the Road Traffic Act 1988. The principles from the case law in that area might readily read across to the schedule 21 offences:
- Fear of contracting an illness in the process of providing a specimen does not amount to a reasonable excuse (DPP v Fountain [1988] Crim LR 123), however the position is different where a genuine phobia can be established (DPP v De Freitas [1992] Crim LR 894);
- Religious beliefs precluding the provision of a specimen will not amount to a reasonable excuse (R v John [1974] 1 WLR 624);
- Unwillingness to provide a specimen without seeing a solicitor first does not amount to a reasonable excuse where there is no evidence of a confused, anxious or agitated state of mind (Salter v DPP [1992] RTR 386); and
- A lack of ability to understand the warning of a possible prosecution in the event of a failure to provide a specimen has in certain circumstances, such as an inability to understand English, been held to be a reasonable excuse (Chief Constable of Avon and Somerset Constabulary v Singh [1988] RTR 107);
A further question arising from the Schedule 21 concerns the relationship between the ‘necessary and proportionate’ test and the reasonable excuse defence. The ‘necessary and proportionate’ test should lead in practice to the powers being exercised in a manner which is not overly onerous to those subjected to them. It might be that, where an official is aware of a reasonable excuse, they will decide not to exercise the power either at all or in a particular way. Nevertheless, it must constantly be borne in mind that the relevant question is not whether the exercise of power is necessary and proportionate, but whether the relevant officer considers it to be necessary and proportionate.
The interaction between the ‘necessary and proportionate’ test and the reasonable excuse defence raises a number of questions. Suppose a person disobeys an order because she believed it to be unnecessary or disproportionate, and suppose a court finds (i) that she was right to form that view, but (ii) the officer genuinely formed the contrary view—would that person have a reasonable excuse for disobeying the officer’s direction? Conversely, suppose the court finds that the officer was correct to form the view that his or her direction was necessary and proportionate—will the court be more reluctant to accept that the person subjected to the direction had a reasonable excuse to disobey? It seems likely that the more objectively necessary and proportionate a direction is, the less likely it will be reasonable to disobey it; but it remains to be seen which approach the courts will take.
Is the Act necessary?
Before this crisis began, the United Kingdom was not without emergency legislation. In 2004, Parliament enacted the Civil Contingencies Act, which applies to events or situations which threaten serious damage to human welfare in a place in the United Kingdom. The 2004 Act empowers the Prime Minister, Secretary of State or Lord Commissioner of the Treasury to make emergency regulations if satisfied (i) that an emergency is occurring or about to occur; (ii) that it is necessary to make provision for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency; and (iii) that the need for such provision is urgent.
The scope of the regulations envisaged by the 2004 Act is striking. Section 22(1) provides that emergency regulations may make any provision which the person making them is satisfied is appropriate for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency in respect of which the regulations are made. In particular, section 22(2) provides that emergency regulations may be made for the purpose of, among other things:
- protecting human life, health or safety,
- treating human illness or injury,
- protecting or restoring property,
- protecting or restoring a supply of money, food, water, energy or fuel,
- protecting or restoring a system of communication,
- protecting or restoring facilities for transport,
- protecting or restoring the provision of services relating to health,
- protecting or restoring the activities of banks or other financial institutions,
- preventing, containing or reducing the contamination of land, water or air.
Section 22(3) provides that the regulations may prohibit movement to or from a specified place, prohibit travel at specified times, and create an offence of failing to comply with the regulations, a direction made under them, or obstructing a person performing a function under them.
The Civil Contingencies Act is not the only piece of emergency legislation that already gave the government relevant powers. The Public Health (Control of Diseases) Act 1984 was the statutory basis for the lockdown Regulations. This Act empowers appropriate Ministers to make regulations providing for the prevention, protection against or control of infection or contamination in England and Wales (whether from risks originating there or elsewhere). Section 45C(3)(c) provides that the regulations may impose restrictions or requirements on persons, things or premises in response to a public health threat, and subsection (4) confirms that such regulations may prohibit or restrict the holding of an event or gathering (which is reminiscent of the powers respecting the holding of events and gatherings conferred by the Coronavirus Act 2020).
Although the Government might have relied solely on the Civil Contingencies Act or the Public Health (Control of Diseases) Act, there are a number of reasons why that would have been problematic. For a start, regulations made under the Civil Contingencies Act must be ratified by Parliament within seven days of promulgation, and, in any event, expire after only 30 days. Upon expiry, they must be made anew and ratified once more. Given the incidence of coronavirus among English politicians, and the need for them to maintain their distance from one another to avoid infection—something to which the architecture of the House of Commons may not necessarily be well suited—the utilisation of the Civil Contingencies Act may have proved impractical.
Second, in relation to the Public Health (Control of Diseases) Act, the powers it confers, although wide, are distinctly slender when compared with the raft of measures included in the Coronavirus Act. Provision for the emergency registration of healthcare workers, compensation for volunteers, the postponement of elections, etc, are simply beyond its remit.
Lastly, there is something to be said for placing the powers wielded by government in response to this crisis in one place. Given the remarkable breadth of the powers that the government now commands, it is important that members of the public can identify relatively easily what those powers are and where to find them. A basic tenet of the Rule of Law is that the law be clear and accessible, so that those who are governed by it are not ambushed by its strictures[5]. The Coronavirus Act, however intricate and extensive it may be, goes some way towards meeting this concern.
Conclusion
We happen to find ourselves living in desperate times. And, as Hippocrates prescribed almost two-and-a-half millennia ago, desperate measures are needed. The measures enacted by the Government in the Act are vast and varied, and their precise metes and bounds—particularly as regards the scope of ‘reasonable excuses’ for noncompliance with directions—remain a little unclear. That is perhaps unsurprising given the speed with which the Act was drafted and enacted. It is to be hoped that the conditions restricting the exercise of the powers are applied faithfully, and that, where it is necessary to prevent the spread of the virus, potentially infectious persons follow them diligently unless a genuinely reasonable excuse is available. Perhaps the surest way of ensuring that these emergency powers last no longer than is strictly necessary is to follow them – so far as it is possible – whenever they are lawfully deployed.
[1] In fact, Hippocrates said, “for extreme diseases, extreme methods of cure, as to restriction, are most suitable.” The Romans fashioned his proscription as extremis malis extrema remedia. Today, we know his adage as desperate times call for desperate measures.
[2] The Secretary of State may make a TCP declaration if, relevantly, they are of the view that the incidence or transmission of coronavirus constitutes a serious and imminent threat to public health in England, and the powers conferred by the Act will be an effective means of delaying or preventing significant further transmission of coronavirus in England. The Secretary of State has not declared that a TCP has begun. Instead, paragraph 24(3) of Schedule 21 provides that the declaration made by the Secretary of State on 10 February 2020 under regulation 3 of the now-revoked Health Protection (Coronavirus) Regulations 2020 is to be regarded as a TCP declaration under the Act.
[3] See section 89 of the Act.
[4] Constables and immigration officers may, with the consent of a relevant officer, extend this period for a further 24 hours or 9 hours respectively if it is not reasonably practicable for a public health officer to exercise the relevant functions before the end of the original time period (see paragraphs 13(4)-(5)).
[5] On this point, note the classic article by the late Professor John Gardner, “Rationality and the Rule of Law in Offences against the Person” (1994) The Cambridge Law Journal 53(3) 502-523.
