The powers in the Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 allow a constable to “take such action as is necessary to enforce a premises closure or restriction”. The powers in the Coronavirus Act 2020, schedule 22 (formerly schedule 21 in the Bill) are to enforce a restriction or prohibition on gatherings or events and to close and restrict access to premises during a public health response period. Again, it will allow a constable to “take such action as is necessary to enforce such a restriction, prohibition or closure”. But what does the phrase, “take such action as is necessary to enforce…” mean?
While the owner of premises and organisers of gatherings will commit an offence by contravening the Regulations or the new Act (for which they can be arrested if necessary and appropriate), those merely attending (e.g. those eating in a restaurant or drinking in a pub or turning up to a protest, football kickabout, street party or flash mob) commit no offence, unless one is created by still further emergency regulations. Therefore they cannot be arrested, unless they obstruct police in the execution of their duties.
The main ways in which the police enforce the law are by detecting and investigating crime, apprehending and prosecuting offenders and by preventing crime. Most legislation aimed at the police gives officers specific powers to assist with these functions, e.g. to search premises or persons, detain, arrest, enter premises to arrest, obtain fingerprints or take custody photographs et cetera. The legislation then usually attaches to these an ancillary power to use reasonable force.
The power stated in the Bill, of a constable to take “such action as is necessary” appears to be a very wide power – permitting any action other than arrest, for which a constable already has a statutory power in PACE. These words appear in some other statutes – but mostly in relation to enforcement powers in relation to ships. It appears, at first blush, that the Bill permits a constable to do anything so long as it is necessary. That would appear to include entry to premises, use of force, possibly even temporary seizure of items and very short term detention – as discussed below.
In these circumstances, for any interference with a person’s Article 8 right to respect for their private rights etc. to be lawful, it must be necessary in a democratic society in the interests of public safety and the protection of health. If it passes this test, it will also pass the threshold for interference with property rights protected by Article 1 of the First Protocol.
Interference with a person’s Article 8 rights is “necessary in a democratic society if it answers to a “pressing social need”, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are relevant and sufficient” (see e.g. paragraph 109 of Catt v The United Kingdom [2019] ECHR 43514/15).
What is necessary and proportionate to the public health aim being pursued in the present coronavirus emergency must, therefore, be assessed in context and will change depending upon the situation. It is likely that where a police constable wanted to disperse a gathering or close premises, they would first request people to leave. If that failed, they would issue an instruction. If that failed, they would inform people that they may use force to disperse/remove them. If that failed, the constable(s) may consider it necessary to use force.
Such use of force might be necessary, therefore, where people fail to comply with a constable’s clear instruction. It is likely to be unnecessary where people are prepared to comply. Flexibility and tact may be required. People present at an unlawful gathering or unlawfully run premises or business present a real risk of harm to the health of the population at large, but far from an immediate one. So a constable should start with persuasion and then move up the scale of action as is necessary, using force as a last resort where the circumstances demand it. Force is more likely to be justified where it is the minimum necessary, where all else has failed and where the gathering is larger scale or repeated or the breach is flagrant and serious and is encouraging others to flout the restrictions.
No specific power of arrest or detention of the ‘mere attender’ is granted. Formal arrest, or anything more than transitory detention of mere attenders in order to close premises or disperse gatherings or groups, may risk being in breach of the common law and of Article 5.
The concept of being able to “take such action as is necessary to enforce…” is potentially very broad. We wait to see what are the directions that the Secretary of State will make with respect to “events or gatherings of a specified description” and what guidance will be issued by the Secretary of State. The power appears to be sufficiently broad as potentially to enable a constable to take action against persons who cause or contribute to a situation whilst not being directly responsible for it. For instance, where a take-away outlet’s serving food causes or contributes to people congregating outside it, possibly sitting on street furniture outside the outlet’s control, a constable may consider it necessary to do the least of the following, which is likely to be effective in restoring social distancing:
- To ask people to stop congregating;
- To instruct people to stop congregating;
- If that fails, require the premises to post a member of staff outside to ask people not to congregate;
- If that fails, to ask the premises stop serving;
- If that fails, to instruct the premises to stop serving;
- If that fails, to seize the chairs inside the premises to stop people sitting inside it;
- If that fails by people continuing to use street furniture immediately outside, to threaten to remove the persons from behind the serving counter;
- Alternatively, to demand production of the keys of the premises;
- To close the premises temporarily;
- To take away the keys to stop the premises re-opening;
- If there are continued breaches, to board up the premises.
On first thoughts, it would seem that the police are permitted to take preventative action to achieve the prohibition on gatherings so long as that action is not deliberately punitive in intention, although it may have that effect. Such actions also remain under the supervisory jurisdiction of the High Court by way of an (urgent) application for judicial review.
The government has floated the possibility of fines ranging from £30 to £1,000 being imposed on individuals, e.g. by means of fixed penalty notices. That might be an alternative to the drastic action (beyond instructions) set out above but would require legislation criminalising those who merely attend. Even fixed penalty notices would require the creation of additional requirements and offences in relation to the provision of names and addresses.