Police Law Blog European Decisions Statutory Materials

The quickly mutating Coronavirus legislation – drafting anomalies and police powers

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 at reg 6(1) create a prohibition against leaving one’s home without reasonable excuse rather than being outside one’s home without reasonable excuse. Not only is that narrower than many people had thought, it shapes the powers of a police constable to direct or remove people to their home, which depends upon the constable considering that they have breached reg 6(1). Furthermore, in criminal proceedings for a breach, it may be that the burden of establishing of the defence of reasonable excuse is on a defendant in Scotland but on the prosecution in the other three home nations.

It started at 6.50 am on 10 February 2020, when the Secretary of State for Health, Matt Hancock, made the Health Protection (Coronavirus) Regulations 2020 which largely dealt with the assessment, screening and quarantine of infected people. These regulations lasted 6 weeks.

Then on Thursday 19 March 2020, the Coronavirus Bill was published. It was to become law in just 7 days.

On Friday 20 March, the Prime Minister asked bars and restaurants to close that evening and not to reopen.

At 2pm on 21 March, the Health Secretary made the Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 which put the Prime Minister’s request to close bars and restaurants etc. onto a statutory footing. Similar regulations were made in the other 3 nations. Those regulations lasted 5 days.

At 8pm on Monday 23 March 2020, the Prime Minister announced the nationwide ‘lockdown’. It took 3 days before this lockdown was put on any legal footing in the UK.

The Coronavirus Act 2020 became law on Thursday 26 March, revoking the Health Protection (Coronavirus) Regulations 2020.

At 1pm on the same day, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 were made. They remain in force. They revoked the Business Closure Regulations of 5 days before. Similar (but not identical) regulations were made in the other 3 nations.

One would have thought it best to ensure that the various Coronavirus Restrictions Regulations in each part of the UK were identical so far as was possible. But they contain some odd differences. The Welsh Regulations are the only ones to refer to leaving the place you live for exercise only once a day, leading citizens outside Wales to think that they are therefore entitled to exercise more often without breaking the law, as long as they act sensibly and keep to proper social distancing.

The Scottish Regulations make clear, by Reg 8(4) that the “reasonable excuse” defence must be proved by the person accused of leaving home without reasonable excuse.

The English and Welsh Regulations are silent on the burden of proof and it is suggested that, although the defendant will need to adduce sufficient evidence to put the defence in play (which may be as little as the fact that they were dressed in running gear, armed with shopping bags or a shopping list etc.), it will be for the prosecution to prove an absence of reasonable excuse for leaving the place where a defendant is living.

For example, in Law v Stephens [1971] RTR 358, the appellant was charged with an offence contrary to s.3 of the Road Safety Act 1967 (now s.7(8) of the Road Traffic Act 1988), which provided that “A person who, without reasonable excuse, fails to provide a specimen for a laboratory test in pursuance of a requirement imposed under this section shall be guilty of an offence …”. Lord Parker LCJ (with whom Widgery LJ (as he then was) and Bean J agreed) held that:-

“… it is a question of law in the first instance whether something put forward is capable of being a reasonable excuse; if it is capable of being one, then it becomes a matter of fact and degree as to whether or not it amounts to a reasonable excuse, and the burden of course then is on the prosecution to negative it.”

The Coronavirus Restrictions Regulations in each of the 4 nations criminalise leaving the place where one is living without reasonable excuse and gathering in public places in groups of more than 2 people from different households, save where essential for work, to attend a funeral or where reasonably necessary to provide care, move house, render emergency help or to comply with a legal obligation.

They say nothing whatsoever about those who leave the place where they are living with a reasonable excuse, but who then remain outside for other reasons. Examples would be those who go out for a run but see one friend and decide to spend the afternoon in the sun on a park bench, appropriately spaced. What law is contravened by the weak-willed who start out with good intentions?

There is a further complication. Reg 8(3) of the English Regulations provides:

“Where a relevant person considers that a person is outside the place where they are living in contravention of regulation 6(1), 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.”

So, if you left home with good intentions, went for a run, but then succumbed to the charms of the sun in a deserted park (perhaps with one friend), a police officer who considered that you were outside your home in contravention of Reg 6(1)(i.e. without reasonable excuse) could remove you home, using reasonable force if necessary (Reg 8(4)). That does not, of course, mean that the officer should do so: police officers will come into close contact with many more people (including colleagues) in the course of a week than will a citizen strictly observing social distancing. His removing such a citizen will create more of a coronavirus transmission risk (immediate and onward) than will the citizen’s mere presence there. It may therefore not be “a necessary and proportionate means of ensuring compliance with the requirement” (see Reg 8(8)).

But notice that Reg 8(5) (which applies where the person outside the home is a child) is subtly – but importantly – different:

“Where the person outside the place where they are living without reasonable excuse is a child accompanied by an individual who has responsibility for the child—

(a) the relevant person may direct that individual to take the child to the place where they are living, and

(b) that individual must, so far as reasonably practicable, ensure that the child complies with any direction or instruction given by the relevant person to the child”

Why is this language different – “person is outside the place where they are living in contravention of regulation 6(1)” vs “person outside the place where they are living without reasonable excuse”? Reg 8(5) is not an alternative to Reg 8(3). It is an additional power relating to the situation where “the person outside” is a child who is accompanied by their parent. But the Regulations have described this person outside (being the child accompanied by his carer) in two different ways. Reg 8(5) could – and should – simply have said, “Where the person described in paragraph (3) is a child accompanied by an individual who has responsibility for the child …”.

One may speculate that this difference, which is hard to explain other than being an error, resulted from a change in the way Reg 6(1) was originally drafted and that that Regulation originally criminalised being outside the place you are living without reasonable excuse, as opposed to leaving the place you are living without reasonable excuse. But the former form of words would catch those who start with good intentions but then remain outside, whereas the formulation as enacted does not expressly do so.

A potential absurdity may arise in this way: suppose a police officer comes upon 2 people in running gear sunbathing in a deserted park – Boris, a child, and his father, Stanley – who are both accepted by the police officer to have left their home some hours before in order to take exercise but who stopped in the park for an afternoon in the sun, appropriately distancing from others. That would mean that the officer cannot consider Stanley to be outside the place he is living in contravention of Reg 6(1), because he accepts that they both left home with a reasonable excuse (the need to take exercise with a member of their household). However, can he now go on to consider whether Boris (who left home to take exercise) is now “outside the place where they are living without reasonable excuse” so as to give Stanley (who, seemingly, is contravening no law) directions to take him home?

If the Secretary of State had wished to criminalise being outside the place where you are living without reasonable excuse, as opposed to criminalising the act of leaving without reasonable excuse, then he could easily done so. The two are very different. Instead, he chose to deal with those away from home in Reg 7, criminalising gatherings of more than 2 non-cohabitees in a public place.

There is another problem. Consider this example: members of a local gym (which has had to close, of course) now all leave their homes with the reasonable excuse of the need to take their exercise and they do so separately outdoors at the time that they used to attend the gym together before a group lunch. While they are each out running, one of their number suggests going back to a friend’s house for a big barbecue maintaining social distancing. They enter the house at separate times. A neighbour reports the barbecue to the police and an officer attends. Have the friends committed any offence? Seemingly not – even if they fail to maintain social distancing (which is to be strongly condemned), in fact. May the officer enter the premises without invitation? If they each leave separately or in pairs (so as to avoid a gathering of more than two in the public street) do they commit any offence?

The above points are important. If, in this public health emergency, what would previously have been entirely innocent and innocuous is now to be criminalised, those offences must be very clearly and consistently laid out and must be rationally connected with, and proportionate to, the public health objective being served. That objective is (1) to prevent or reduce the spread of the Coronavirus and (2) to provide a public health (including, perhaps, emergency) response to the emergency. None of the examples above (in which people act with common sense and avoid close contact with others) impinge on that objective.

Emergencies require emergency action. Emergency action is not the same as hasty action. The current emergency action requires restrictions on liberty. Any restriction on liberty which is backed by the potential of coercive law enforcement action and penalties involving having a criminal record and paying a potentially unlimited fine, must be contained in very clearly expressed legislation so that it can be applied consistently, proportionately and rationally. No citizen of a free country – including a police officer – wants to see restrictions which seem arbitrary or unfair or which differ between different parts of a united kingdom which face precisely the same threat.

It is worth noting, despite the above, that the great majority of citizens, including those who serve as police officers, are acting within the spirit of the ‘lockdown’ and are using their common sense. Much of this commodity will be required in the coming months.