The legal basis of the lockdown

We are (hopefully) all familiar with the UK Government's advice concerning COVID-19 social distancing.  Where there is perhaps less clarity is what is expressly prohibited and permitted by law.

On 26 March 2020, in the Government implemented emergency legislation, namely the Health Protection (Coronavirus Regulations) 2020 “the Regulations”.  Due the urgency of the situation, the statutory instrument was introduced without a draft being put before, or approved by, parliament.  The Government was able to do this pursuant to the powers conferred on it by sections 45C, 45F and 45P  by the Public Health (Control of Disease) Act 1984.

The Regulations enable a number of enforceable measures to be implemented in order to reduce the risk of the coronavirus to public health.

The COVID-19 situation is fast-moving and the Regulations are likely to be amended, revoked or superseded at some point in the not too distant future.  They are subject to review every 21 days, with the first review to be carried out by 16 April 2020.  If you are in any doubt as to your legal obligations you should seek legal advice.  Moreover, it is important to remember that the Regulations set out the legal position.  It does not necessarily follow that it is prudent to engage in activity that is risky, but not expressly prohibited.  It goes without saying that everyone should follow the Government's advice in order to best protect their health and the health of others.

The key restrictions on movement are set out in regulation 6, which states "During the emergency period, no person may leave the place where they are living without reasonable excuse".   Non-exhaustive examples of what "reasonable excuse" include the need to:-

• obtain basic necessities (food, medicine and money for those in the same household and vulnerable people*)
• exercise either alone or with other members of their household
• seek medical assistance
• provide care to vulnerable individuals or provide emergency assistance
• donate blood
• travel for the purposes of work (whether paid or voluntary) where it is not reasonable for that person to work from home
• attend a funeral of a member of the household or close family member (but not friend, unless there are no other mourners)
• fulfil a legal obligation, including to attend court, comply with bail conditions and participate in legal proceedings
• access critical public services, including childcare or educational facilities (where these are still available to a particular child), social services, DWP services and services provided to victims
• continuing existing custody/contact arrangements where a child's parents do not live together
• in the case of a worship leader, to go to their place of worship
• move house where reasonably necessary
• avoid injury or illness or to escape a risk of harm

*A 'vulnerable person' is defined as any person aged 70 or older, any person who has an underlying health condition (a non-exhaustive list is provided in Schedule 1 of the Regulations) or any person who is pregnant.

Regulation 8(3) allows a police officer or a police community support officer to direct that an individual in contravention of regulation 6 return home, or to take them home.  Regulation 8(4) permits reasonable force for this purpose.  Regulations 8(5)-(7) contain provisions in relation to children and allows the police/community support officers to direct that those with custody/parental responsibility of children to, so far as reasonably practicable, ensure the child complies with regulation 6.

Regulation 7 prohibits gatherings of more than two people in a public place, except where they are all members of the same household, it is essential for work purposes, it is a funeral, it is reasonably necessary to facilitate a house move, it is to provide care/assistance to a vulnerable person, to provide emergency assistance or to participate in legal proceedings/fulfil a legal obligation.

Regulation 4 requires business operators to close restaurants, cafes, canteens, bars and pubs.  Cafes within hospitals, schools, care homes and prisons are permitted to stay open, as are services that provide food to the homeless.  Food delivery services from restaurants/cafes are permitted to continue, provided that no food is sold onsite.   Hotel room service is permitted.  Business operators are also required to close cinemas, theatres, night clubs, bingo halls, concert halls, museums and galleries, casinos, betting shops, spas, nail/beauty salons, barbers/hair dressers, massage parlours, tattoo/piercing parlours, skating rinks, indoor fitness studios, gyms, swimming pools, bowling alleys, amusement arcades, funfairs, playgrounds, sports courts, outdoor markets (save food markets), car showrooms, auction houses, soft play areas and leisure centres/facilities.

Regulation 5 requires business operators who offers goods for sale or hire in a shop to refrain from doing so, save for delivering orders taken online, by telephone or post.  Various businesses are excluded from this provision: Food retailers (including convenience stores), off-licences, pharmacies, newsagents, homeware/hardware stores, petrol stations, car repair/MOT services, bicycle shops, taxi/hire businesses, banks, building societies, post offices, funeral directors, laundrettes/dry cleaners, various specified healthcare providers (including dentists, opticians, osteopaths and those providing mental health services), vets and agricultural supplies shops.

Regulation 5(3) requires those offering any form of holiday accommodation to cease carrying on their business during the emergency period, save that accommodation may still be offered to anyone unable to use/return to their main residence or attending a funeral.  Accommodation may also be used for providing support services for the homeless and hosting blood donation sessions.

Regulation 5(5) requires that anyone responsible for a place of worship ensures that it is closed save for funerals, broadcasts of acts of worship or to provide essential services (e.g. food banks).  Similarly, regulation 5(7) provides that any person responsible for a community centre ensures that it is closed, save for where it is providing essential voluntary activities or urgent public support services.

Regulation 8(2) empowers the police, community service offers or designated council officials to serve prohibition notices for breaches of regulations 4 and 5, where it is necessary and proportionate to prevent further contraventions.

The Home Office has stated in a press release that the police should exercise their discretion and act proportionately in exercising their powers.

The offences

It is an offence to:-

• contravene regulation 6 (regulation 9(b))
• without reasonable excuse, contravene regulations 4, 5, 7 or 8 (regulation 9(a))
• obstruct, without reasonable excuse, any person carrying out a function under the Regulations (regulation 9(2))
• without reasonable excuse, contravene a direction under regulation 8 or comply with a reasonable instruction or prohibition notice (regulation 9(3))

In the event that an offence is committed by a body corporate (i.e. a company or LLP) and it is proved that this was with the connivance of an officer (i.e. director/secretary/member) or attributable to the neglect of an officer, then both the body corporate and the officer are guilty of an offence and may each be prosecuted (regulation 9(5)).

Should an individual fail to comply with the Regulations, the Police have the power to arrest them, where it is deemed proportionate and necessary (i.e to maintain public health and public order).

Sanctions, fixed penalty notices and prosecution

The above offences under regulation 9 are punishable on summary conviction by a fine.  However, a police officer or police community support officer may issue a fixed penalty notice to an adult that they reasonably believe has committed an offence under the Regulations (additionally, designated local authority officials may issue a notice for alleged breaches of regulations 4 and 5).  As with the type of fixed penalty notices motorists receive, this is not the case of the police imposing fines per se, but rather the police offering an individual the opportunity to pay a fine to avoid prosecution.  Thus, an individual who disputes liability may decline the offer and decide to contest liability in the magistrates' court.

In the first instance, the police may issue a fixed penalty notice of £60 for ‘first time offenders’ which will be lowered to £30 if paid within 14 days, and £120 for ‘second time offenders’, which will be lowered to £60 if paid within 14 days.  Third and subsequent penalty notices will double up until a maximum of £960.

If a fixed penalty notice is disputed or ignored, then the subject is liable to be summonsed to the magistrates' court.  The magistrates' courts have the power to impose a fine of up to £1,000 per offence and order that an individual convicted pay a contribution to the prosecution's legal costs.  Perhaps more importantly, a criminal conviction can carry a stigma (and a conviction under the Regulations may attract press/media interest).

What the legislation does not yet address

At present, the Regulations do not expressly address the following matters:-

• How often one can leave their home for exercise or food shopping.  Government guidance advises once a day for exercise (the Chancellor of the Duchy of Lancaster Michael Gove has suggested that 30 minutes will suffice) and ‘infrequently as possible’ for food shopping.
• Where one can exercise.  The Government advice has been "locally" and that people should not drive to beaches and beauty spots in order to exercise.

Government advice does not have legal force, but it should be remembered that regulation 6 is drafted in such a way that the starting point is that leaving your home without reasonable excuse is prohibited.  The 13 listed exceptions are all predicated on necessity.  A court may find it is unnecessary to pop to the shop for a newspaper everyday or drive two hours to go hiking in the cotswolds.  It is highly unlikely that sunbathing or picnicking will be considered a reasonable excuse for leaving home.  The Health Secretary has indicated that if the exercise exemption is abused that tighter restrictions (perhaps like those seen elsewhere in Europe) may be introduced.

The regulations also do not address:-

• The recommendation that people keep two metres apart.
• Sanitary practices such as the washing of hands and wearing of face masks.

However, at first blush, it is difficult to see how any regulations in relation to these matters could be practicably enforced.

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