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Police Powers Under the 2020 Coronavirus Act by Stephen Wood QC

Tue 14th Apr 2020

A woman is arrested for loitering at a railway station and ‘prosecuted’ under the Coronavirus Act 2020. The prosecution do not oppose her appeal against conviction to the Crown Court on the basis that she had been prosecuted for an offence not known in law.

A Chief Constable gives a press conference during which he indicated that the time is coming when the police will be allowed to search people’s shopping trolleys and confiscating ‘non-essential’ items. A claim he was later made to retract via Twitter.

These are uncertain times, social media is flooded with fake news. Perhaps not since World War II has there been such importance in following the rule of law.

Head of Broadway House Chambers Criminal Team, Stephen Wood QC, tries to navigate the fakeries and rumour and explain what can, but more importantly, what cannot be done.

On 23 March 2020, in a solemn news conference, Boris Johnson instructed the public to remain in their homes in order to limit the spread of COVID-19.

The vast majority of people have complied with this instruction. However, our newspapers, television news and online new agencies carry stories every day of the so-called “COVIDIOTS” who (allegedly) flout these instructions by using the Underground or by congregating in parks or at the sea-side. Even the Chief Medical Officer for Scotland was caught out skulking off to her “second home” in Fife.

We see images of Police Officers confronting these people and seemingly instructing them to move on.

What power does a Police Officer have to do this?

On 25 March 2020, the Coronavirus Act 2020 received Royal Assent. The very next day, the Health Protection (Coronavirus, Restrictions (England) Regulations 2020 (“the HPR 2020”) also came into force.

Taken together, these provisions contain extensive powers which are intended to significantly restrict freedom of movement. The intention is that the spread of COVID-19 is limited.

Section 52 and Schedule 22 of the CA 2020, enable the Secretary of State to issue ‘declarations’ prohibiting or restricting events and gatherings and to close or impose restrictions on people entering or remaining in premises.

Any direction given in pursuance of such a declaration must be given in writing if it imposes a prohibition, or a requirement to do something or to impose a restriction on any person specified by name.

Where the direction cannot be addressed to a named individual, a direction must be published in such a manner as to bring it to the attention of persons who may be affected by it.

Further, the Secretary of State may prohibit or restrict specific, named events and gatherings or those of a specific description.  The provisions dictate that directions of this type may only be made to the owner or occupier of premises at which an event or gathering is planned to take place, on the organiser of an event or on anyone else involved in the holding of an event or gathering.

The prohibitions or restrictions regarding the entry into premises may similarly be made in relation to specified premises or premises of a specific description.

The Act creates specific offences of failing without reasonable excuse to comply with any prohibition, requirement or restriction imposed on a person.  The maximum penalty is a level 3 fine on the standard scale (currently £1,000).

In respect of those stubborn establishments which refuse to close, criminal proceedings may be commenced against anyone contravening a direction. However the practical implications of that mean that they can expect not to face Court proceedings any time soon. Practitioners will be aware that it is intended that the magistrates’ court will hear first appearances for those in custody; proceedings for those on bail are being adjourned.

However, there are now new powers at the police’s disposal.

By Regulation 6 of the HPR 2020 a person is prohibited from leaving the place in which they are “living” (this includes any “garden”, “yard” “passage”, “stair”, “garage” or “outhouse”, etc) without “reasonable excuse”.

Homeless people are exempt from Regulation 6.

A “reasonable excuse” includes:

(i)         Obtaining basic necessities including food and medical supplies for those in the same household or for vulnerable persons;

(ii)        Taking exercise alone or with members of their household;

(iii)       Seeking medical assistance;

(iv)       Providing care or assistance to a vulnerable person or to provide emergency assistance;

(v)        Donating blood;

(vi)       Traveling for the purposes of work or to provide voluntary or charitable services but only where it is not reasonably possible for that person to work or to provide those services from the place where they are living;

(vii)      Attending a funeral but only in respect of: –

(a)        a member of the same household;

(b)        a close family member; or

(c)        if no-one within either (a) or (b) is attending, a friend.

(viii)     Fulfilling a legal obligation, including attending court or satisfying bail conditions or to “participate” in legal proceedings;

(ix)       Accessing certain critical public services. These services include:

(a)        childcare or educational facilities where these are still available (i.e. at school where provision is  made to accommodate children of key workers);

(b)        Social Services;

(c)        To access services from by the DWP;

(d)       Providing services to victims (i.e. victims of crime).

(x)        Children visiting parents who do not live together. (Parent includes any person who is not a parent but has parental responsibility for or who has care of a child).

(xi)       A minister of religion or religious leader attending their place of worship;

(xii)      To move to a new house but only where reasonably necessary;

(xiii)     To avoid injury or illness or to escape risk of harm.

Regulation 7 of the HPR 2020 expressly forbids the gathering of more than two people not of the same household in any public place, subject to certain exceptions, including where such gatherings are essential for work purposes or in pursuance of one of the exceptions set out above.

Police constables and PCSOs now have the power (Regulation 8 HPR 2020) to direct a person or to remove a person to return to the place in which they are living and reasonable force may be used; (Regulation 7(4)).

Similarly, they may direct the dispersal of a gathering and direct or remove people to the place where they are living.

The Regulations create summary offences of contravening the requirements in Regulations 6, 7 or 8.  The maximum penalty on conviction is a fine.

It is an offence under Regulation 9 to obstruct (without reasonable excuse) any officer carrying out functions under these Regulations.

Regulation 10 enables police officers and PCSOs to issue fixed penalty notices (“FPN”) to anyone over the age of 18 believed to have committed an offence under the Regulations.

A first FPN will be for £60 (reduced to £30 if paid within 14 days).

A second FPN would be £120 and no reduction for early payment would apply.

Third and subsequent breaches of the Regulations resulting in a FPN render a person liable to pay double the previous FPN up to a maximum of £960.

Regulation 11 gives the Crown Prosecution Service jurisdiction to bring prosecutions under these provisions as well as “any other person designated by the Secretary of State”. At the time of writing, no other designation had been authorised so purported prosecutions but other bodies would appear to be ultra-vires.

Stephen Wood QC

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