The coronavirus epidemic has changed the legal landscape of the country – and the individual’s relationship with the state –  beyond recognition in a matter of days. This blog post considers the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, enacted on Thursday 26 March 2020 to give legal effect to the ‘lockdown’ announced by the Prime Minister on Monday 23 March 2020. It should be read alongside separate posts, which will address key provisions in the Coronavirus Act 2020 affecting potentially infected persons, organisers of events and gatherings, and owners of premises. 

The Regulations were made under the Public Health (Control of Disease) Act 1984, which empowers the appropriate Minister to make regulations to prevent, protect against, control or provide a public health response to the incidence or spread of infection or contamination in England and Wales. Their purpose is ‘to enable a number of public health measures to be taken for the purpose of reducing the public health risks posed by the incidence and spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2)’.

The measures taken include unprecedented restrictions and requirements upon individuals, gatherings, businesses and other organisations, the breach of which constitute criminal offences punishable by on the spot fixed penalties or unlimited fines upon summary conviction. They are accompanied by new enforcement powers for the police and other state agents.

The new measures apply only during the ‘emergency period’, which started when the Regulations came into force at 1pm on 26 March 2020 and will continue, in respect of a particular restriction or requirement, until the Secretary of State terminates the requirement or restriction, which he must do as soon as the restriction or requirement is no longer necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection in England with the coronavirus. The need for restrictions and requirements must be reviewed every 21 days and the Regulations will expire, in any event, six months after their coming into force.

What are the new requirements and restrictions affecting businesses, premises and other organisations?

Regulations 4 and 5 include requirements for:

• The closure of drinking establishments including bars, pubs and nightclubs, and food and drink venues for consumption on site (excluding hospitals, schools, care homes, homeless services and prison canteens, armed forces canteens and workplace canteens where no practical alternative is possible).
• The closure of entertainment venues including cinemas, theatres, night clubs, bingo halls, concert halls, museums and galleries, casinos, betting shops, spas, nail, beauty, hair salons and barbers, massage parlours, tattoo and piercing parlours, skating rinks, indoor fitness studios, gyms, swimming pools, bowling alleys, amusement arcades or soft play areas or other indoor leisure centre facilities, funfairs, playgrounds, sports courts and outdoor gyms, outdoor markets (except for stalls selling food), car  showrooms, and auction houses.
• Businesses offering goods for sale or for hire in a shop, or providing library services to cease to do so except in response to orders received through a website, or otherwise by on-line communication, by telephone, including orders by text message, or by post; to close any premises not required to carry on the business or provide its service in accordance with the permitted exceptions; and to cease to admit any person to its premises who is not required to carry on its business or provide its service in accordance with the exceptions.
• The closure of businesses providing holiday accommodation, whether in a hotel, hostel, bed and breakfast accommodation, holiday apartment, home, cottage or bungalow, campsite, caravan park or boarding house, other than in limited circumstances (see below).
• The closure of places of worship except for funerals, to broadcast an act of worship, whether over the internet or as part of a radio or television broadcast, or to provide essential voluntary services or urgent public support services (including the provision of food banks or other support for the homeless or vulnerable people, blood donation sessions or support in an emergency).
• The closure of community centres except where they are used to provide essential voluntary activities or urgent public support services (including the provision of food banks or other support for the homeless or vulnerable people, blood donation sessions or support in an emergency).
• The closure of crematoriums or burial grounds to members of the public, except for funerals or burials.

In each of the cases above, the obligation to close / cease etc falls upon the person responsible for carrying on the business or the premises or providing the service. This ‘includes the owner, proprietor, and manager of that business’. Where a business (“business A”) forms part of a larger business (“business B”), the person responsible for carrying on business B complies with the requirement to close or cease offering services if it closes down business A.

What is still permitted?

There are a number of exceptions to the restrictions and requirements, in addition to those specified above. For example:

• A business may provide a service for collection or delivery of food for consumption off the premises.
• Food or drink sold by a hotel or other accommodation as part of room service is not to be treated as being sold for consumption on its premises.
• Cinemas, theatres, bingo halls, concert halls, museums and galleries may be used to broadcast a performance to people outside the premises, whether over the internet or as part of a radio or television broadcast, and any suitable premises listed in Schedule 2 to the Regulations may be used to host blood donation sessions.
• The following businesses may continue to offer goods for sale and for hire, in a shop: food retailers, including food markets, supermarkets, convenience stores and corner shops; off licences and licensed shops selling alcohol (including breweries); pharmacies (including non-dispensing pharmacies) and chemists; newsagents; homeware, building supplies and hardware stores; petrol stations; car repair and MOT services; bicycle shops; taxi or vehicle hire businesses; banks, building societies, credit unions, shot term loan providers and cash points; post offices; funeral directors; laundrettes and dry cleaners; dental services, opticians, audiology services, chiropody, chiropractors, osteopaths and other medical or health services, including services relating to mental health; veterinary surgeons and pet shops; agricultural supplies shop; storage and distribution facilities, including delivery drop off or collection points, where the facilities are in the premises of a business included in this Part; car parks; public toilets.
• Businesses providing holiday accommodation may continue: to provide accommodation for any person who is unable to return to their main residence, uses that accommodation as their main residence, needs accommodation while moving house, needs accommodation to attend a funeral; to provide accommodation or support services for the homeless; to host blood donation sessions; or for any purpose requested by the Secretary of State or a local authority.

What are the new restrictions on individuals’ movement?

Regulation 6 provides that during the emergency period, no person (other than a homeless person) may leave the place where they are living without reasonable excuse.

A reasonable excuse includes the need –

1. 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;
2. to take exercise either alone or with other members of their household;
3. to seek medical assistance, including to access any of their services referred to in paragraph 37 or 38 of Schedule 2;
4. 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;
5. to donate blood;
6. 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;
7. 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;
8. to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings;
9. 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 for 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);
10. 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 (including non-biological parents with parental responsibility) and children;
11. in the case of a minister of religion or worship leader, to go to their place of worship;
12. to move house where reasonably necessary;
13. to avoid injury or illness or to escape risk of harm.

What are the new restrictions on gatherings?

Regulation 7 provides that during the emergency period, no person may participate in a gathering in a public place of more than two people except –

1. where all the persons in the gathering are members of the same household,
2. where the gathering is essential for work purposes,
3. to attend a funeral,
4. 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 and consequences for breach

A ‘relevant person’ (i.e. a constable, a police community support officer, a person designated by a local authority or a person designated by the Secretary of State), may, where necessary and proportionate to ensure compliance with or prevent continued contravention of the Regulations:

• Take such action as is necessary to enforce the requirements in respect of those carrying on businesses and the restrictions upon gatherings.
• Give a prohibition notice to a person carrying on a business if she believes that the person is contravening a requirement in regulation 4 or 5.
• Direct a person outside the place where they are living in contravention of regulation 6(1) to return to the place where they are living, or remove that person to the place where they are living, using reasonable force, if necessary.
• Give similar directions, in respect of children, to those with responsibility for them.
• Where she has reasonable grounds to believe that a child is repeatedly failing to comply with the restriction in regulation 6(1), direct any individual who has responsibility for the child to secure, so far as reasonably practicable, that the child complies with that restriction.
• Direct groups of three or more people gathered together in contravention of regulation 7 to disperse, direct any person in the gathering to return to the place where they are living and remove any person in the gathering to the place where they are living, using reasonable force, if necessary.
• Give any reasonable instructions they consider to be necessary to those they are directing, removing.

Regulation 9 creates the following criminal offences:

• contravention, without reasonable excuse, of requirements laid out in the Regulations;
• obstruction, without reasonable excuse, of any person carrying out a function under the Regulations; and
• contravention, without reasonable excuse, directions, reasonable instructions and prohibition notices given by a relevant person under regulation 8.

If an offence is committed by a body corporate is proved to have been committed with the consent or connivance of an officer of the body, or to be attributable to any neglect on the part of such an officer, the officer (as well as the body corporate) is guilty of the offence and liable to be prosecuted and proceeded against and punished accordingly.

Government guidance published on the gov.uk website states that in England, Environmental Health and Trading Standards officers will monitor compliance with the regulations, with police support provided if appropriate.

The police can arrest anyone reasonably suspected of involvement in any of these offences where an arrest is necessary to maintain public health or to maintain public order, in addition to the usual grounds for arrest set out in section 24 of the Police and Criminal Evidence Act 1984. The offences can be prosecuted in the magistrates’ court and are punishable by an unlimited fine.

However, the Regulations also provide that an ‘authorised person’ (i.e. a constable, a police community support officer, a person designated by the Secretary of State or a person designated by the relevant local authority) may issue a fixed penalty notice (FPN) to anyone over the age of 18 that the authorised person reasonably believes to have committed an offence under the Regulations. Where a person is given an FPN, no proceedings may be taken for the offence for 28 days and the person may not be convicted of the offence if the penalty is paid to the local authority in whose area the offence is committed within that time.

The fixed penalty for a first penalty notice under the Regulations is £30 if paid within 14 days, £60 otherwise. The penalty in respect of a second FPN received is £120 and for third and subsequent FPNs the penalty is double the amount specified in the last FPN received by the person up to a maximum of £960. It may be possible to challenge FPNs informally in writing or, if charged with an offence under the Regulations, by facing magistrate’s court trial.

The new measures impose previously unthinkable encroachments upon individuals’ and business’ freedom of movement, association and expression, freedom to worship and conduct business but, generally speaking, appear to have a high level of public support, given the public health emergency and increasing death toll caused by the coronavirus. Sensible, lawful and proportionate enforcement will be essential and government guidance relating to social distancing envisages that the police will act with discretion and common sense in applying the measures.

However, reports over the first week of the Regulations’ operation suggest police forces up and down the country have been unlawfully issuing FPNs for conduct which is not criminal, and even ‘shaming’ members of the public by publishing photographs taken using police drones. This is perhaps not surprising, given the differences between the requirements under the Regulations on the one hand, and the Prime Minister’s televised instructions and government guidance on social distancing on the other, and has prompted the National Police Chief’s Counsel to issue updated guidance to police officers.

Over-zealous and unlawful enforcement is likely to be counter-productive to the fight against the coronavirus, resulting in a loss of public confidence and additional work (and contact) for the police, local authorities, the CPS and the courts as those unlawfully given FPNs or prohibition notices seek to challenge them and those wrongfully prosecuted seek to defend themselves.This article is commentary only and should not be treated as legal advice. 

‘Policing the Corona State Diary’, a collaboration between Netpol and Undercover Research Group, contains regular updates on policing during the lockdown.

If you would like to discuss any of the issues above with our criminal law solicitors, please do not hesitate to get in touch.