31 March 2020
Coronavirus and the Criminal Law
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Last week the Coronavirus Act 2020 (“the Act”) and The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the Regulations”) were passed in order to combat the spread of Covid-19. They contain among the most dramatic intrusions into civil liberties since World War II. This article explores two of these intrusions, both of which have criminal sanctions attached: restricting gatherings of three or more people, and restricting an individual from being outside without reasonable excuse.
Powers granted by the Act and the Regulations
Events and gatherings
Under Schedule 22, s.5 of the Act, the Secretary of State may for the purpose of preventing, protecting against, delaying or otherwise controlling the incidence or transmission of coronavirus, issue a direction prohibiting, or imposing requirements or restrictions in relation to the holding of an event or gathering.
At first glance, this provision seems to be concerned with formally arranged events or gatherings. For instance, under s.5(3), a direction may only have the effect of imposing prohibitions, requirements or restrictions “on the owner or occupier of premises for an event or gathering, the organiser of such an event or gathering, or any other person involved in holding such an event or gathering.” Indeed, under s.5(7), the direction does not apply to a person simply attending the event. However, an event or gathering is also defined in s.5(6) by reference to “a number of people attending the event or gathering”, or “in any other way,” thus appearing to extend the provision to all events or gatherings, whether formal or informal.
Any ambiguity surrounding the lawfulness of informal gatherings is dispelled by regulation 7 of the Regulations, which states, “[D]uring the emergency period, no person may participate in a gathering in a public place of more than two people.” This is subject to certain exceptions, including where all of the people in the gathering are members of the same household, where the gathering is essential for work purposes, to attend a funeral, to provide care or assistance to a vulnerable person, to provide emergency assistance, or to participate in legal proceedings. Subject to regulation 6, outlined below, the legislation does not prohibit gatherings of only two people. This may cater for instances in which two people randomly meet while out exercising individually or while out obtaining basic necessities. The Regulations would seem to allow for them to stop and greet one another momentarily.
Being outside without reasonable excuse
Under the Act, there is no offence relating to being outdoors without a valid reason. This is rectified by regulation 6(1) of the Regulations, which states that, during the emergency period, “no person may leave the place where they are living without reasonable excuse.” Regulation 6(2) defines a reasonable excuse as including the need to obtain basic necessities, to take exercise either alone or with members of a person’s household, to seek medical assistance, to provide care to vulnerable people, to travel to work or provide voluntary or charitable services where it is not reasonably possible for that person to do so from home, and to access childcare or social services. Notably, while the Prime Minister in his address to the nation on 23 March 2020 stated that the limited exceptions in which a person may leave their home would include one form of exercise per day, this has not been translated into law in England. The same is not true for Wales, where the commensurate regulation, regulation 8 of The Health Protection (Coronavirus, Restrictions) (Wales) Regulations 2020, provides that a reasonable excuse includes the need to take exercise “no more than once a day.” Thus, a person in England may leave the place where they are living in order to exercise several times per day.
Under regulation 9(1), a person who breaches regulation 7 without reasonable excuse (i.e. participating in a gathering or event of three or more people) or who breaches regulation 6 (i.e. being outside the place where they are living without reasonable excuse) commits an offence.
Regulation 9(5) creates a corporate offence for any corporate body found in breach of the Regulations. If an offence committed by a corporate body 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. This provision may seek to prevent a situation in which a director or manager seeks to circumvent the Regulations by creating a position or task for an employee which ostensibly could not be carried out from home, but which in reality provides artificial cover, allowing their employee to continue their day-to-day employment in the usual way.
Under regulation 8(1), a relevant person – meaning a constable, a police community support officer or a person specifically designated by the Secretary of State for the purpose of the Regulations – “may take such action as is necessary to enforce any requirement imposed by regulation 7.” This may include directing the gathering or event to disperse, directing any person in the gathering or event to return to the place where they are living, and/or removing any person in the gathering or event to the place where they are living.
Under regulation 8(3), 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 direct that person to return to the place where they are living, or remove that person to the place where they are living.
In removing a person to the place where they are living (for a breach of regulation 6 or regulation 7), a relevant person may use reasonable force, if necessary. Such a power may only be used to the extent that it is a necessary and proportionate means of ensuring compliance.
Fixed Penalty Notices
Under regulation 10(1), an authorised person may issue a Fixed Penalty Notice to anyone they believe has committed an offence under the Regulations and is over the age of 18. Such a notice offers the opportunity of discharging any liability to conviction for the offence by payment of a fixed penalty to the local authority where the offence was committed. In cases where a Fixed Penalty Notice is issued, no proceedings may be taken for the offence before the end of 28 days following the date of the notice, and the person may not be convicted of the offence if they pay the fixed penalty before the end of that period.
The amount of the Fixed Penalty Notice is £60. However, in cases where £30 is paid before the end of 14 days, that amount is sufficient to discharge the notice. However, if a person has already been subject to a prior Fixed Penalty Notice, the amount of the second notice is £120, with that amount doubling for each subsequent notice up to a maximum of £960.
Fines on conviction
Where a Fixed Penalty Notice is not issued and a person is prosecuted for an offence under the Regulations, the offence is punishable on summary conviction (i.e. in a Magistrates Court) by a fine. There is no custodial penalty. As a result of s.85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, there is no longer any limit on the fines that may be imposed by a Magistrates’ Court. The Magistrate or District Judge can therefore impose whatever fine they see fit, once the financial means of the defendant have been assessed.
Regulation 9(7) extends a constable’s powers of arrest without warrant (found in s.24 of the Police and Criminal Evidence Act 1984). As a result, a constable may now arrest without warrant, anyone who is in the act of committing an offence under the Act or the Regulations or who is about to commit such an act, for the reasons of maintaining public health and/or maintaining public order.
Irrespective of the formal prohibitions on gatherings or on a person being outside without reasonable excuse, in reality the provisions will require substantial buy-in from the public in order to be effective. Police chiefs have already said that enforcing the lockdown would be impossible if it was solely down to officers, and that community pressure would be key. Commenting on this issue, Sir Peter Fahy, former chief constable of Greater Manchester Police, said “[T]he police in this country don’t have [the requisite] presence on the ground … police can’t achieve a degree of presence in every community.” The difficulty of achieving sufficient presence is already hampered by the fact that the police are operating with reduced numbers as officers fall ill and/or are forced to self-isolate. The police are reported to be planning to cope with absences of up to 25%, but the reality is that no strategy can provide for absolute enforcement of these provisions even with forces operating at full capacity.
Moreover, in most cases, it is likely to be impossible to prove that a person is outside otherwise than in the course of buying food or taking exercise. To the extent the provisions can be enforced, the focus is likely to be on breaking up groups of more than two people, which is where the potential for the virus to spread is most acute.
Overlap with existing legislation
Powers of Dispersal
The police already maintain powers of dispersal in certain defined situations. Section 35 of the Anti-social Behaviour, Crime and Policing Act 2014 allows a constable – with authorisation from an inspector – to direct a person who is in a public place to leave the locality and not to return for a period of up to 48 hours. Failure to comply with the direction is an offence. The power is subject to the conditions that there are reasonable grounds to suspect that the behaviour of the person in the locality has or is likely to contribute to members of the public being harassed, alarmed or distressed, and that the constable considers that giving the direction to the person is necessary for the purpose of removing or reducing that likelihood. A person may also be prosecuted for causing harassment, alarm or distress under s.5 of the Public Order Act 1986.
Conceivably, the presence in a locality of a person known to be infected with coronavirus could cause members of the public to become alarmed or distressed: this possibility is even more pronounced following recent reports of individuals deliberately coughing on vulnerable people and emergency workers, an act which could, at the very least, be charged as common assault. However, in cases where a person is simply found outside without displaying any reasonable indication of being infected with the virus, it is inconceivable that their mere presence outside could be said to cause alarm or distress in others. Thus, the Act and Regulations fill a valuable gap in the existing legislation.
Breach of the Peace
Prior to the powers granted by the Act and the Regulations, the police may potentially have sought to enforce the lockdown by acting to prevent a breach of the peace, which is defined as constituting a situation “whenever harm is actually done or is likely to be done to a person … or a person is in fear of being so harmed through an assault, an affray, a riot … or other disturbance.”
Breaching the peace is not a criminal offence and the police act under common law powers to maintain it. However, Magistrates may subsequently bind over a person to keep the peace, with resulting criminal sanctions should that person fail to comply with the order.
Were a person (whether infected or not) to act aggressively by coughing maliciously in the direction of others, then in the current climate the police could act to preserve the peace by having that person removed. However, as before, the definition of breach of the peace is insufficiently broad to apply to an individual simply being outside or congregating in a group of three or more, whether that individual was in fact infected with coronavirus or not. Thus, again the Act and Regulations fill a valuable gap.
The powers granted to the authorities under the Act and Regulations are among the most intrusive since the Emergency Powers (Defence) Act 1939, but the withdrawal of civil liberties to tackle the threat posed by coronavirus appears to enjoy broad support among the public. The Act and the Regulations fulfil a specific legislative need; the existing criminal or civil law could not have adequately addressed the current public health emergency. It is to be hoped that, given the public support for social isolation and distancing, enforcement of regulations 6 and 7 by fixed penalty notices will be rare, and prosecutions rarer still. However, this public support is contingent on trust in the government’s medical strategy. There is a risk that this trust may be eroded if the UK’s infection and mortality rates do not plateau or slow down, or if the measures are maintained despite clear signs that the medical emergency is receding.
Even in wartime, the extent of the Emergency Powers (Defence) Act 1939 was subject to heated debate, the ultimate expression of which was found in a famous dissent in defence of civil liberties by Lord Atkin in Liversidge v Anderson. While the Coronavirus Bill was in its second reading before the House of Commons, the law reform and human rights organisation JUSTICE argued that the proportionality of any emergency legislation must be viewed in relation to its intended duration and that it was imperative that emergency powers did not remain in place for longer than the emergency itself. JUSTICE was concerned by the proposed sunset clause of two years. While the two-year duration remains in the Act, it does so on the basis of parliamentary debate and a vote on its continuation taking place every six months. Hopefully by September 2020, the emergency addressed by the Act will have receded, and the intrusive measures in regulations 6 and 7 will no longer be required.
 See regulation 8(9)
  AC 206