Introduction

In what circumstances may a person be detained on grounds of a risk public health to be screened, assessed, and otherwise controlled? What factors render such detention compatible with the right to liberty under Article 5 of the European Convention on Human Rights (‘ECHR’)?  The final part of this post discusses that question.

The Coronavirus Act 2020 (‘the 2020 Act’), section 51 and Schedule 21, provides wide powers to control potentially infectious persons, see my blog post The Coronavirus Act 2020: Powers of Control for Immigration Officers, Constables, and Public Health Officials, for Screening and Assessment, and Powers to Control Movement, Activity, and Human Contact. When does a power exercised under the 2020 Act amount to a deprivation of liberty? Are the provisions of that Act foreseeable and precise so that they may be said to be lawful? Is a justification for the interference with liberty made out on the facts of a given case? What less severe measures ought to be taken first? These and other questions will govern whether the exercise of a power is compatible with Article 5 ECHR.

The Coronavirus Act 2020

Declaration of Risks of Coronavirus and the Transmission Control Period

 Where the Secretary of State makes a Declaration of the Risks of Coronavirus in England (separate provision is made for each home nation), he is declaring that he is of the view that the incidence or transmission of coronavirus constitutes a serious and imminent threat to public health in England, and the powers thereby enabled will be an effective means of delaying or preventing significant further transmission of the virus.

While a Declaration is in effect, there is a Transmission Control Period during which certain powers may be exercised. These relate to the control of persons (1) to procure screening and assessment, (2) then at the place for screening and assessment, and (3) then after screening and assessment.

Screening and Assessment

‘Screening’ means assessing the extent to which a person has been exposed to coronavirus; determining whether the person is infected or contaminated with coronavirus; and assessing the person’s symptoms and state of health. ‘Assessment’ means assessment of the measures that it would be appropriate to take in relation to the person to mitigate the risk that the person might infect or contaminate others with coronavirus.

General Powers

Powers are conferred on public health officers (officers designated by the Secretary of State for any or all purposes, note nothing is said about whether they must be medically qualified; and registered public health consultants so designated); constables; and immigration officers. Critically, a person exercising a power conferred must have regard to any relevant guidance issued by the Secretary of State and any advice given by a public health officer in relation to any particular case.

A public health officer, constable or immigration officer may give reasonable instructions to a person in connection with a direction given to that person under a power conferred, or when removing the person to or keeping the person at a place under a power conferred. Where a public health officer, constable or immigration officer gives a reasonable instruction to a person, the officer or constable must inform that person of the reason for the instruction, and that it is an offence to fail to comply with it.

A power conferred to remove a person to a place includes a power to keep the person for a reasonable period pending their removal. A constable or immigration officer may use reasonable force, if necessary, in the exercise of a power conferred.

Potentially Infectious Persons

A key problem with the use detention powers contained in Schedule 21 lies in the scope of the class of persons subject to its provisions: potentially infections persons. Is the law foreseeable and precise in this regard for Article 5 ECHR purposes? A person is potentially infectious if she is, or may be, infected or contaminated with coronavirus, and there is a risk that she person might infect or contaminate others with coronavirus; or she has been in an infected area within the 14 days preceding that time. How are these matters to be judged for the purposes of exercising a power to control and thereafter to detain? The statute offers no further assistance. The guidance issued by the Secretary of State to persons exercising powers will need careful consideration in an individual case.

Powers Prior to Screening and Assessment

Powers of compulsion abound prior to screening and assessment. Where a public health officer has reasonable grounds to suspect a person is potentially infectious he may direct a person to go to a suitable place for screening and assessment; remove a person there; or request a constable to remove  the person there (the constable may then do so without more). Constables and immigration officer are given similar powers to direct or remove  a person for screening and assessment where they have reasonable grounds to suspect a person is potentially infectious

Thus, the bar to remove a person (i.e. by compulsion) for screening and assessment is set low (reasonable grounds to suspect a person is potentially infectious). That said, schedule 21 of the 2020 Act requires a person exercising a power to consider its exercise necessary and proportionate in the interests of the person, for the protection of other people, or for the maintenance of public health. In an individual case, much will turn on the whether there was a sufficient basis so to hold.

Powers at a Screening and Assessment Place

A public health officer who has reasonable grounds to suspect a person is potentially infectious may require a person to remain at a suitable place for screening and assessment for a period not exceeding 48 hours (2 days) and the requirement may be enforced. This amounts to detention. There is no requirement for judicial authorisation for detaining a person in this way. Further, there is no provision specifying less severe measures that ought to be attempted prior to enforcement.

A person so detained must be informed of the reason for the requirement, the maximum period they may be required to remain, and that it is an offence to fail to comply. While at the place the public health office may impose requirements for screening and assessment, including in respect of taking biological samples, answering questions, providing information, and producing documents.

A public health official may direct, remove, or require a constable to remove a person to another suitable place for screening and assessment. Where he does so, the powers available arise afresh, and a person may be required to remain at this other place for a further 48 hours.

Constables and immigration officers have connected powers in support of public health officers. Where they have reasonable grounds to suspect a person is potentially infectious, they may keep them at the place until a public health officer can screening and assess the person.  A constable may keep a person for 24 hours; an immigration officer for 3 hours. Where it is not reasonably practicable for a public health officer to exercise screening and assessment functions before that period ends, a constable may extend the period for 24 hours and an immigration officer may do so for 9 hours. To extend a constable needs authorisation from a superintendent or above, an immigration officer from a chief immigration officer or above. Only where practicable to do so must a constable or an immigration officer consult a public health officer before exercising these powers. Absent such consultation, it will be a matter for their consideration alone.

A constable or an immigration officer keeping a person must consider it necessary and proportionate in the interests of the person, for the protection of other people, or for the maintenance of public health. In an individual case, much will turn on the whether there was a sufficient basis so to hold.

Powers Exercisable after Assessment

After screening and assessment, the bar for public health officers to exercise powers is set very low: either the screening confirmed that the person is infected or contaminated with coronavirus, or the screening was inconclusive; or a person has been assessed by a public health officer and the officer has reasonable grounds to suspect that the person is potentially infectious. Thus, even where the results are inconclusive, or perhaps even where negative but the person is assessed as potentially infectious, certain powers become available. This is problematic given the need for the law to be foreseeable and precise in order to be compatible with Article 5 ECHR. By what criteria and upon evidence may a person with an inconclusive test or a negative test be assessed as potentially infectious?

To impose requirements and restrictions a public health officer must consider them necessary and proportionate in the interests of the person, for the protection of other people, or for the maintenance of public health. In an individual case, much will turn on the whether there was a sufficient basis so to hold.

The requirements that may be imposed extend to providing information and contact details, to comply with further screening and assessment requirements, and to remain as a specified place (which need not be a place for screening and assessment) for a specified period, or to remain at a specified place in isolation  from others for a specified period. In addition, a person may be made subject to restrictions for a specified period on movement or travel, activities, and contact with others. Further, the person so controlled must be informed of the reason for the restriction or requirement and that it is an offence not to comply. In deciding whether to impose such a requirement the public health officer must have regard to a person’s wellbeing and personal circumstances.

Where a person is required to remain at a specified place for a specified period or to remain at a specified place in isolation from others for a specified period the requirement may be enforced by a constable or public health officer removing the person to the place; by a constable or public health officer keeping the person at the place; or if the person absconds, by a constable taking the person into custody and returning them to that place or another place a public health officer may specify.

The requirements to remain at a specified place and to remain in isolation are capable of amounting to a deprivation of liberty. Where isolation is not imposed, there is still nonetheless an involuntary placement but there may be a debate about whether the requirements imposed in a particular case are a deprivation of liberty and so unlawful or merely a lawful restriction of liberty. Where isolation is imposed, the case that the requirement to remain at a specified placed is a deprivation of liberty brooks less dissent.

The initial period of any restriction or requirement imposed may not exceed 14 days. Within 48 hours of imposition, the restriction or requirement must be re-assessed and a public health officer must consider whether it remains necessary and proportionate to the prescribed aims. It may be revoked or substituted. Where revoked, it may be later re-imposed by the Secretary of State where he considers a person is potentially infectious.

Where a public health officer reasonably suspects a person will be potentially infectious at the end of the period and considers the restriction or requirement still necessary and proportionate to the prescribed aims, it may be extended for a further specified period. As regards time limits, except in the case of a requirement to remain in isolation, the further period specified under may not exceed 14 days. A person required to remain in isolation is liable to kept for a longer period,

Where the period to which a requirement to remain or restriction relates is extended, a public health officer must review the requirement or restriction at least once in every period of 24 hours, and where a person is no longer potentially infectious, the requirement or restriction must be revoked. It the public health officer does not decide that the person is no longer potentially infectious but considers that the requirement to remain or the restriction is no longer necessary and proportionate to the prescribed aims, the public health officer may substitute a different requirement or restriction.

A person on whom a requirement or restriction is imposed may appeal against it (or against any variation of it or any extension of the period to which it relates) to a magistrates’ court. On an appeal the court may confirm the requirement or restriction (or variation or extension),with or without modification, or quash the requirement or restriction (or variation or extension). It is in this forum that the lawfulness of a restriction or requirement may first fall to be tested, though it is possible that the High Court may grant permission to proceed where an application for judicial review of a decision calls into question aspects of the statutory scheme  (as opposed to factors specific to the individual decision), or in cases where there is urgency and an appeal to a magistrates’ court does not provide an effective remedy.

Criminal Offences

A range of criminal offences provide the sanction for non-compliance with restrictions or requirements. Among other things,  a person commits an offence if the person: (1) fails without reasonable excuse to comply with any direction, reasonable instruction, requirement, or restriction given to or imposed on the person; (2) absconds or attempts to abscond while being removed to or kept at a place; or (3)  obstructs a person who is exercising or attempting to exercise a power.  A person guilty of an offence is liable on summary conviction to a fine not exceeding level 3 on the standard scale. By such sanctions are the restrictions and requirements enforced

 Article 5 ECHR

 As material, Article 5(1) ECHR provides:

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

…

(e)  the lawful detention of persons for the prevention of the spreading of infectious

diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

…

As can be seen, it may not be a breach of Article 5 ECHR to deprive a person of their liberty to prevent the spread of an infectious disease. Where a restriction of requirement imposed amounts to a deprivation of liberty, the questions as to whether the detention was lawful and free from arbitrariness then arise.

The law must be foreseeable in its application to be lawful and so it must be sufficiently accessible and precise. As already noted, the 2020 Act presents difficulties in this regard. Not only is the definition of potentially infectious drawn in broad terms, it also falls to be applied by persons who may lack medical qualifications or expertise. In addition, to remove a person to a place for screening and assessment requires the public health officer, constable or immigration officer merely to have reasonable grounds to suspect that a person is potentially infectious. Thereafter, on the same basis a public health officer may keep a person at a place for 48 hours (without judicial sanction) and a constable or immigration officers has further powers to keep a person there until a public health officer is able to screen and assess. After screening and assessment, a public health officer may impose a requirement to remain at a place, and to do so in isolation, even where the tests for infection or contamination with coronavirus are inconclusive, or where following an screening that could be negative there remain reasonable grounds to suspect the person is potentially infectious. Absent specific guidance to those empowered as to how to exercise these powers, it is hard to see how they can be held to be precise so as to be foreseeable and thereby lawful. Further, given the wide range of symptoms and behaviours that may be rise to grounds for suspicion, there is wide scope for exercises of judgment of varying quality by those empowered.

As regards the requirement for the law and its application to be free from arbitrariness, the 2020 Act does not specify the less severe measures that are to be tried first before a decision that deprives a person of liberty is taken; guidance is needed. In any event, the question of whether less severe measures have been tried in an individual case will determine whether an individual deprivation of liberty is compatible with Article 5 ECHR. And, of course, in addition, any deprivation of liberty must be necessary.

Where the ground for deprivation of liberty is for the prevention of the spreading of infectious diseases, the case law of the European Court of Human Rights offers only slight assistance. Enhorn v Sweden (Application No. 56529/00), 25 January 2005, concerning a man with HIV, is the leading case. There the Court held that:

44. Taking the above principles into account, the Court finds that the essential criteria when assessing the “lawfulness” of the detention of a person “for the prevention of the spreading of infectious diseases” are whether the spreading of the infectious disease is dangerous to public health or safety, and whether detention of the person infected is the last resort in order to prevent the spreading of the disease, because less severe measures have been considered and found to be insufficient to safeguard the public interest. When these criteria are no longer fulfilled, the basis for the deprivation of liberty ceases to exist.

The spreading of the disease must represent a danger to public health or safety. Clearly coronavirus does that. However, Enhorn concerned a person who was infected, not merely a potentially infectious person. Further, where the question is whether or not there are reasonable grounds for suspecting a person is potentially infectious, there is more scope for holding that a particular decision to detain is not justified on the evidence. That said, where a disease such as coronavirus may be spread unintentionally, and where there is evidence of spread among the population, the justification for taking a precautionary approach may be more readily made out than in case of a person with HIV who had no record of deliberately infecting sexual partners. Whatever view is taken, there is a requirement for less severe measures to be applied first prior to a decision to detain. Thus, when assessing the compatibility of a decision to detain with Article 5 ECHR, much will depend on how the powers are exercised in practice.