COVID - 19 : Trinity Criminal, Regulatory & Licensing Barrister Examines Health Protection Regulations

Trinity CriminalRegulatory  and Licensing barrister, David Comb, examines the implications of the recently introduced The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020:

The current lockdown in public life, adopted in response to the Covid-19 pandemic, has given birth to The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. This set of new laws came into force at 1 pm on 26th March 2020, underpinning with criminal sanction restrictions on commercial activity and personal liberty.

The regulations have been made on the authority of Matt Hancock, the Secretary of State for Education. They have not been laid before Parliament or subject to legislative scrutiny. Instead, Covid-19 has been designated by the Secretary of State as an “emergency” in accordance with the Public Health (Control of Diseases) Act 1984, which delegates the power to make regulations. These are subject to review every 21 days (regulation 3(2)), albeit that review is also conducted by the Secretary of State. There is however, a sunset clause, limiting the duration of the laws to a maximum of 6 months (regulation 12(1)).

Restrictions on Commercial Activity and Enforcement

Regulations 4 and 5, together with Schedule 2, provide for restrictions on commercial activity. Businesses are effectively divided into four categories. The first category is cafes, bars and pubs. These are restricted from making on premises sales of food or drink (regulations 4(1) to (3) and Schedule 2 Part 1). Secondly, there is a list of businesses which must close (regulation 4(4)). Thirdly, there is a list of businesses that are permitted to remain open. Fourthly, those businesses not otherwise named are permitted to trade, but only by means of internet, telephone and post (regulation 5(1)).

Contravention of Regulation 4 or 5 is a criminal offence, triable summarily and punishable by fine (regulation 9). Enforcement may be undertaken by police but is likely in practice to be undertaken mostly by local authorities designated by the Secretary of State (regulation 8 (12)(a)(iii). Prior to prosecution, the appropriate person may issue either an enforcement notice or a fixed penalty. 

It is a defence to any offence under the regulations to have a reasonable excuse (regulation 9(1)). This will be highly fact sensitive and no doubt overshadowed to some degree by the prevailing climate of public opinion. Issues may also arise as to the identification of properly responsible defendants. The regulations apply to a person responsible for running a business and this is defined as including (but not necessarily limited to) an owner, proprietor or manager (regulation 1(3)(b)). Liability may be joint and several as between corporate entities and their officers.

Under regulation 6 it is an offence for a “person to leave the place where they are living” “without reasonable excuse”. Regulation 6(2) specifies various activities that will automatically be included within the definition of reasonable excuse. The eye of criminal practitioners will no doubt be drawn to the saving exception in regulation 6(2)(h) for ‘legal obligations’. The regulations do not provide a defence to a charge of failing to attend court. It may also be observed that the saving in relation to exercise is not so narrowly drawn as the Prime Minister’s briefing suggested. Any reference to a single daily allowance of exercise is omitted from the regulations. Another interesting lacuna in the regulations is that homeless persons are exempt from prosecution (regulation 6(4)). It will be interesting to observe if courts are more prepared to find an excuse reasonable, in the case of personal liberty as opposed to economic activity. There is no doubt that fundamental rights such as the right to private and family life are engaged by these regulations, which will have to be applied in a manner that achieves proportionality.

Enforcement of regulation 6 by a relevant person (the police) may be done either by ‘directing’ that person to the place where they live or ‘removing’ them there (regulation 8(3)). The latter power is no doubt capable of giving rise to controversy and places a great burden of responsibility on the police. No doubt the chief means of enforcing the restriction is expected to be by issuing fixed penalty notices, £60 for a first-time offence and doubling each time thereafter to a maximum of £960 (for a fifteenth offence) (regulation 10). These notices will include a similar clause to a parking ticket, being subject to a 50% reduction of paid within 14 days.

In response to the escalating coronavirus crisis, David, other barristers in Chambers' Criminal and Regulatory teams and staff are committed to providing as much assistance as possible, including urgent advice, online resources and other support, during these challenging and unprecedented times, as such Trinity have a dedicated section of the website focused on COVID-19. Please do not hesitate to get in touch for help.

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