Introduction

 From 1 pm on 26 March 2020 restrictions on movement have been imposed by the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (‘the 2020 Regulations’) made under the Public Health (Control of Disease Act 1984. The 2020 Regulations expire at the end of 25 September 2020, an event that does not affect the validity of anything done before they expire.

They impose severe restrictions on personal movement (subject to exceptions) and gatherings, as well as containing measures for enforcement, fixed penalty notices, and connected criminal offences. The scope of the powers is understandable given the scale of the crisis. Given that they are so far-reaching, scrutiny of their exercise will be important; the society that is to be preserved is one that values life, well-being, and the rule of law.

The purpose of this post is to present these new powers in digestible form.

The Emergency Period

 The ‘emergency period’ started when the Regulations came into force and ends in relation to a restriction or requirement imposed on the day and at the time specified in a direction published by the Secretary of State terminating the requirement or restriction.

The Secretary of State must review the need for restrictions and requirements Regulations at least once every 21 days, with the first review being carried out by 16 April 2020.

As soon as the Secretary of State considers that any restrictions or requirements are 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, she must publish a direction terminating that restriction or requirement.

A direction published under this regulation may terminate any one or more requirement or restriction; or terminate a requirement or restriction in relation to a specified business or service or a specified description of business or service.

Definition of ‘Vulnerable Person’

 ‘Vulnerable person’ includes:

• any person aged 70 or older
• any person who is pregnant

The term also includes any person under 70 who has an underlying health condition, including but not limited to:

• Chronic (long-term) respiratory diseases, such as asthma, chronic obstructive pulmonary disease, emphysema or bronchitis
• Chronic heart disease, such as heart failure
• Chronic kidney disease
• Chronic liver disease, such as hepatitis
• Chronic neurological conditions, such as Parkinson’s disease, motor neurone disease, multiple sclerosis, a learning disability or cerebral palsy
• Diabetes
• Problems with the spleen, such as sickle cell disease or removal of the spleen
• A weakened immune system as the result of conditions such as HIV and AIDS, or medicines such as steroid tablets or chemotherapy
• Being seriously overweight, with a body mass index of 40 or above

Restrictions on Personal Movement

 During the emergency period, no person may leave the place where they are living without reasonable excuse. NB this does not apply to any person who is homeless.

A reasonable excuse includes the need 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 personsand 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 of the following businesses:

• Food retailers, including food markets, supermarkets, convenience stores and corner shops
• Off licenses 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, short 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 listed above
• Car parks
• Public toilets

A reasonable excuse to leave the place where you are living also includes the need:

• to take exercise either alone or with other members of their household
• to seek medical assistance, including to access the services of Dental services, opticians, audiology services, chiropody, chiropractors, osteopaths and other medical or health services, including services relating to mental health; and Veterinary surgeons and pet shops
• to provide care or assistance, including relevant personal care to a vulnerable person, or to provide emergency assistance
• to donate blood
• 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
• to attend a funeral of (1) a member of the person’s household, (2) a close family member, or (3) if no-one from (1) or (2) is attending, a friend
• to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings
• to access critical public services, including (1) 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 of the child); (2) social services; (3) services provided by the Department of Work and Pensions; and (4) services provided to victims (such as victims of crime)
• 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 and children, and for the purposes of this paragraph, ‘parent’ includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child
• in the case of a minister of religion or worship leader, to go to their place of worship
• to move house where reasonably necessary
• to avoid injury or illness or to escape a risk of harm

As regards the provision of care or assistance, including relevant personal careto a vulnerable person, relevant personal care is:

• physical assistance, given to a person who is in need of it by reason of age, illness or disability, in connection with eating or drinking (including the administration of parenteral nutrition); toileting (including in relation to the process of menstruation); washing or bathing; dressing; oral care; or the care of skin, hair or nails
• the prompting, together with supervision, of a person who is in need of it by reason of age, illness or disability in relation to the performance of any of the activities listed in paragraph (a) where the person is unable to make a decision in relation to performing such an activity without such prompting and supervision, or
• any form of training, instruction, advice or guidance which relates to the performance of any of the activities listed in the first bullet point above; is given to a person who is in need of it by reason of age, illness or disability; and does not fall within the second bullet point above.

The place where a person is living includes the premises where they live together with any garden, yard, passage, stair, garage, outhouse or other appurtenance of such premises.

Restrictions on Gatherings

During the emergency period, no person may participate in a gathering in a public place of more than two people except:

• where all the persons in the gathering are members of the same household
• where the gathering is essential for work purposes
• to attend a funeral
• where reasonably necessary: (1)  to facilitate a house move; (2) to provide care or assistance to a vulnerable person, including relevant personal care(see above); (3) to provide emergency assistance; or (4) to participate in legal proceedings or fulfil a legal obligation

Enforcement

 Who may enforce the restrictions?

 For the purposes of restrictions on movement and gatherings, ‘relevant person’ means:

• a constable
• a police community support officer
• a person designated by the Secretary of State

Instructions

 A relevant person exercising a power in respect of restrictions on movement and gatherings may give the person concerned any reasonable instructions they consider to be necessary.

Enforcement in relation to movement

 Where a relevant person considers that a person is outside the place where they are living in contravention of the restrictions on movement the relevant person may:

• direct that person to return to the place where they are living, or
• removethat person to the place where they are living

A relevant person exercising the power to remove a person to the place where they are living, may use reasonable force, if necessary, in the exercise of the power.

A relevant person may only exercise the power as to restrictions on movement (including in respect of children, see below) if the relevant person considers that it is a necessary and proportionate means of ensuring compliance with the requirement.

 Enforcement in relation to gatherings

 A relevant person may take such action as is necessary to enforce any requirement imposed in respect of gatherings.

Where a relevant person considers that three or more people are gathered together in contravention the restrictions on gatherings, the relevant person may:

• direct the gathering to disperse
• direct any person in the gathering to return to the place where they are living
• remove any person in the gathering to the place where they are living

 A relevant person exercising the power to remove a person to the place where they are living, may use reasonable force, if necessary, in the exercise of the power.

A relevant person may only exercise the power as to restrictions on gathering (including in respect of children, see below) if the relevant person considers that it is a necessary and proportionate means of ensuring compliance with the requirement.

Children

 Where the person outside the place where they are living without reasonable excuse is a child accompanied by an individual who has responsibility for the child:

• the relevant person may direct that individual to take the child to the place where they are living, and
• that individual must, so far as reasonably practicable, ensure that the child complies with any direction or instruction given by the relevant person to the child

Where a relevant person has reasonable grounds to believe that a child is repeatedly failing to comply with a restriction, the relevant person may direct any individual who has responsibility for the child to secure, so far as reasonably practicable, that the child complies with that restriction.

An individual has responsibility for a child if the individual:

• has custody or charge of the child for the time being, or
• has parental responsibility for the child

Criminal Offences and Penalties

 A person commits an offence, who:

• without reasonable excuse contravenes a requirement (including a restriction) on gatherings, or
• contravenes a requirement (including a restriction)on movement

A person who obstructs, without reasonable excuse, any person carrying out a function in the 2020 Regulations commits an offence.

A person who, without reasonable excuse, contravenes an enforcement direction (see above), or fails to comply with a reasonable instruction or a prohibition notice given by a relevant person under enforcementpowers (see above), commits an offence.

An offence under this regulation is punishable on summary conviction by a fine.

If an offence 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.

‘Officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body corporate.

For the purposes of these offences, police powers to arrest a person without a warrant extent to situations where the constable has reasonable grounds for believing that in order to maintain public health or maintain public order it is necessary to arrest the person in question.

Proceedings for an offence under these Regulations may be brought by the Crown Prosecution Service (CPS) and any person designated by the Secretary of State

Fixed penalty notices

 Who may issue a fixed penalty notice?

 For the purposes of fixed penalty notices in relation to movement and gatherings, ‘authorised person’ means:

• a constable
• a police community support officer
• a person designated by the Secretary of State

Liability for a fixed penalty notice

 An authorised person may issue a fixed penalty notice to anyone that the authorised person reasonably believes:

• has committed an offenceunder the 2020 Regulations
• is over the age of 18

A fixed penalty notice is a notice offering the person to whom it is issued the opportunity of discharging any liability to convictionfor the offence by payment of a fixed penalty to a local authority specified in the notice.

The local authority specified in the notice must be the local authority (or as the case may be, any of the local authorities) in whose area the offence is alleged to have been committed (‘the relevant local authority’).

The effect of a fixed penalty notice

 Where a person is issued with a notice under this regulation in respect of an offence:

• no proceedings may be taken for the offence before the end of the period of 28 days following the date of the notice
• the person may not be convicted of the offence if the person pays the fixed penalty before the end of that period

The content of a fixed penalty notice

 A fixed penalty notice must:

• give reasonably detailed particulars of the circumstances alleged to constitute the offence
• state the period during which proceedings will not be taken for the offence (see above)
• specify the amount of the fixed penalty
• state the name and address of the person to whom the fixed penalty may be paid
• specify permissible methods of payment

The amount of a fixed penalty

 For the first occasion a person receives a fixed penalty notice, the amount specified under paragraph be £60. Such a fixed penalty notice must specify that if £30 is paid before the end of the period of 14 days following the date of the notice that is the amount of the fixed penalty.

However, if the person to whom a fixed penalty notice is given has already received a fixed penalty notice the amount specified as the fixed penalty is  in the case of the second fixed penalty notice received, £120; and in the case of the third and subsequent fixed penalty notice received, double the amount specified in the last fixed penalty notice received by that person, to a maximum of £960.

Paying a fixed penalty

 Whatever other method may be specified, payment of a fixed penalty may be made by pre-paying and posting to the person whose name is stated in the notice at the stated address, a letter containing the amount of the penalty (in cash or otherwise). Where such a letter is sent payment is regarded as having been made at the time at which that letter would be delivered in the ordinary course of post.

In any proceedings, a certificate (1)  that purports to be signed by or on behalf of the chief finance officer of the local authority concerned, and (2) states that the payment of a fixed penalty was, or was not, received by the date specified in the certificate; is evidence of the facts stated. A ‘chief finance officer’, in relation to a local authority, means the person with responsibility for the authority’s financial affairs.