Emergency "Lockdown" Laws - A Reference Guide for Criminal Lawyers in England during the COVID-19 Pandemic - Carmelite Chambers
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Emergency "Lockdown" Laws A Reference Guide for Criminal Lawyers in England during the COVID-19 Pandemic Ashley Hendron and Felicity Gerry QC First Edition – 15 t h May 2020
Contents
Table of Contents
CONTENTS ............................................................................................................................................................................. 2
INTRODUCTION ................................................................................................................................................................... 3
SUMMARY OF THE UK LEGAL STRUCTURE FOR PUBLIC HEALTH EMERGENCIES ............................................ 5
THE PUBLIC HEALTH (CONTROL OF DISEASE) ACT 1984 ........................................................................................... 8
THE CIVIL CONTINGENCIES ACT 2004 ........................................................................................................................... 12
THE CORONAVIRUS ACT 2020 ........................................................................................................................................... 16
CORONAVIRUS ACT 2020, OFFENCES .............................................................................................................................. 25
RESTRICTIVE REGULATIONS “A MOVABLE FEAST” ................................................................................................... 35
REASONABLE EXCUSE DEFENCE ................................................................................................................................... 48
AIRPORTS AND SEA PORTS ................................................................................................................................................ 52
INFECTING ANOTHER WITH COVID 19 ......................................................................................................................... 55
THE COURTS, SENTENCING, AND BAIL ........................................................................................................................ 58
PRISONS ................................................................................................................................................................................. 65
HUMAN RIGHTS LAW .......................................................................................................................................................... 68
MILITARY ASSISTANCE....................................................................................................................................................... 75
REFERENCES ........................................................................................................................................................................ 79
ABOUT THE AUTHORS ....................................................................................................................................................... 83
2
Introduction
This is the first edition of our COVID-19 reference guide (RG)for criminal lawyers in England during
the COVID-19 pandemic. 1 Whilst we recognise the dual jurisdictional of England and Wales, the specific
0F
focus is on England as the responses for Wales to the COVID-19 pandemic have differed. What follows
is a summary of the fast-moving legal and human rights developments since the 26th March 2020. It is
designed as a starting point for criminal lawyers in England seeking further information about the scope
and nature of government powers during times of public emergency and potential disorder. This RG
does not contain all the criminal law on public health or public order but provides a survey of some of
the primary legislative instruments relevant to the current circumstances.
The focus of this RG is on powers across the United Kingdom together with those specific to English
public order and law enforcement powers that may be used (or have been used already) in response to
the global viral pandemic of COVID-19. There are distinct provisions for each of the different parts of
the UK.
We have added some more in-depth analysis of the applicable criminal law, as well as some guidance on
relevant human rights principles to help lawyers consider the proportionality of government responses.
We note that there are ongoing challenges 2 to the lawfulness and proportionality of some of the legislative
1F
and regulatory responses and have provided links to relevant discussions.
The rule of law is fundamental to a civilized society. It is even more important during times of widespread
uncertainty or panic. In times of emergency government conduct can resemble rule of power. By
providing this resource, the authors hope to assist criminal lawyers in England to keep check on the fair,
reasoned, and just application of emergency powers.
These powers provide governmental agencies with the special authority they need to maintain public
safety in extraordinary times. However, some of these legal powers – which are by their very definition
‘extraordinary’ – have been introduced without publicly available scrutiny, decisions have been taken
without advance public scrutiny and in the context of criminal law, over policing 3 and legal errors have
2F
already led to a review of all emergency cases by the Crown Prosecution Service 4. We have also considered
3F
1 Inspired by and some content and phraseology taken from the QRG in Victoria, Australia <
https://www.lexisnexis.com.au/__data/assets/pdf_file/0016/324007/COVID19_QRG_CLNV_issue_20_2.pdf>. C
2 https://wedlakebell.com/legal-challenge-over-lawfulness-of-government-lockdown-launched-by-entrepreneur/ 1st May 2020
3 Examples have included an Officer threatening a fixed penalty notice to the owner of a bakery who marked on the pavement a safe
distance for customers to queue to order food using chalk. https://www.dailymail.co.uk/news/article-8159177/Police-forces-accused-
overzealousness-follow-dog-walkers.html
On the 3rd May 2020, the Mirror reported that more than 9,000 fines had been imposed in England and Wales in 4 weeks. They
calculated that his amounted to one every five minutes. https://www.mirror.co.uk/news/politics/fines-breaching-lockdown-could-
double-21965612
4 https://www.thetimes.co.uk/article/cps-will-review-every-charge-under-coronavirus-law-0l37rsg8f 2nd May 2020
3
the expectation that policies may change to clear backlogs of cases and to reduce prison and youth
detention centre (YDC) intake.
If emergency powers are disproportionate or misused, they have the potential to erode public confidence,
over-criminalise the public and diminish democratic freedoms which are otherwise taken for granted. It
is especially important in times of emergency that government and law enforcement authorities remain
conscious of their legal limits. This is so that persons in the UK are left to be as free as possible whilst
still allowing the government to perform its important functions of maintenance of public health and
public order.
Each legislative instrument which follows is hyper-linked and briefly summarised. Within each summary
some (but not all) of the relevant coercive powers and criminal offences are identified. 5 4F
During the time of the preparation of this guide, there have been two separate sets of further Regulations
to those originally “locking down” the United Kingdom. These fast moving changes demonstrate the
emergency nature of the Government’s response but also lay the way for difficulties in the enforcement
of the same. Following the latest amendments, police sources suggested that they had become (in parts)
“unenforceable. 6”5F
5
There is also a step by step guide here https://insights.doughtystreet.co.uk/post/102g6tz/guide-to-coronavirus-offences-help-for-
the-public-police-and-lawyers
6 https://www.thetimes.co.uk/article/we-cant-enforce-relaxed-lockdown-say-police-chiefs-zlw3qhn72 11th May 2020.
4
Summary of the UK Legal Structure for Public
Health Emergencies
• These emergency measures have been described as “almost certainly the most severe restrictions of liberty
ever imposed”. 7
• The Coronavirus Act 2020 was passed 8 by the Westminster Parliament and creates “measures
adopted for England, Wales, Scotland and Northern Ireland. The Act applies throughout the United Kingdom,
but certain parts distinguish between England, Wales, Scotland and Northern Ireland (see for instance Schedule
21, containing Part 2 for England, Part 3 for Scotland, Part 4 for Wales, and Part 5 for Northern Ireland).
Different regulations have also been adopted for each of the four parts of the United Kingdom”. 9
• Section 85 of the Coronavirus Act (hereafter “CA”) defines “Minister of the Crown” as “the holder of
an office in Her Majesty’s Government in the United Kingdom”. The Laws do not restrict the powers to a
single Government department 10.
• The Act and associated Regulations empower 11 Government Ministers 12 , Police Forces,
Immigration officers, Public Health officials and local authorities to “implement and enforce these new
measures” 13 . This includes the devolved institutions in Scotland, Wales and Northern Ireland 14
7 Paragraph 1 of Blackstone Chambers guide to “Coronavirus and Civil Liberties”, 6th April 2020.
8 Section 87(1) of the CA 2020 – commencement “on the day on which this Act was passed” – 25th March 2020
9 Paragraph 2 of “A guide for Police Forces in England”, 5 Essex Court guide to Coronavirus
10 The Secretary of State for Health and Social care is the Rt Hon Matt Hancock MP and he has signed the relevant Regulations issued
by the Government.
11 Section 87(11) “A Minister of the Crown may by Regulations make transitional, transitory or saving provision in connection with the coming into force
of any provision of this Act, subject as follows” [to do with Devolution issues]
12 Section 88 (7) defines a “relevant national authority” means “a Minister of the Crown”
13 Paragraph 4 of “A guide for Police Forces in England”, 5 Essex Court guide to Coronavirus
14 The Regulations for England and Wales were issued under the Public Health Act 1984. The Northern Irish Regulations were made
under the Public Health Act (Northern Ireland) 1967. The Scottish Regulations in schedule 19 of the CA 2020.
5
.The duration of the CA 2020 is 2 years 15 with limited powers of extension 16. The duration of
the most relevant Regulations is 6 months. 17
• There are a number of unusual features of the Emergency Legislation passed. The first is that
the detailed provisions in the CA 2020, do not regulate the “social distancing” measures which
are the focus of this analysis. Between the Regulations for the different UK regions there are
differences as to restrictions 18 imposed . The second is that the detailed provisions of the Civil
Contingencies Act 2004 have not been relied upon for this specific emergency.
• Questions have been raised in the short time since these restrictions were commenced as to the
basis of the Emergency Powers, particularly since they are in place for such a significant length
of time 19 . Under the statutory emergency procedure, “the Regulations were issued at 1pm and placed
before Parliament at 2.30pm. As a consequence, the Coronavirus Restrictions Regulations received no
parliamentary scrutiny” 20. An identical process was followed for the second version of the “Stay at
Home” Regulations 21. Notwithstanding the return of Parliament through “virtual sittings” the
latest version were passed using the same emergency provisions.
• There have also been serious questions raised arising from apparent differences between the
Government guidance as to “reasonable excuse” and the detail of the relevant Regulations 22 .
An example of the confusion between the guidance and the Regulations was the arrest,
detention, prosecution and conviction of a person under the wrong Regulations for an offence
which did not exist 23. Following publicity, the matter was subsequently listed at the relevant
15 Section 89 of the CA 2020. This means without any extension, the Act expires on the 26th March 2022
16 Section 90 of the CA 2020 defines the extension period “not be later than the end of the period of 6 months beginning with the time when the
provision would otherwise have expired”. This would be the 26th September 2022
17 Regulation 12 (1) of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, [SI 2020/350] in force from
1pm on 26th March 2020. These were issued under the 1984 Act and not CA 2020.
18 Paragraphs 29-30 and useful table of the Blackstones Chambers guide “Coronavirus and Civil Liberties in the UK” – 6th April 2020
19 Paragraphs 31-33 of the Blackstone Chambers Guide to “Coronavirus and Civil Liberties in the UK”, 06.04.2020. See also page 9 of
article “Pardonable in the heat of Crisis – but we must urgently return to the rule of Law” – Lord Sandhurst QC and Anthony Speaight QC,
Society of Conservative Lawyers, April 2020.
20 Ibid. page 1
21 The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 [SI 2020/447]
22 This has led to the publication by the National Police Chief’s Council, College of Policing of “What constitutes a reasonable excuse to leave
the place where you live” based upon advice they received from the Crown Prosecution Service, (circa 17.04.2020)
23 Paragraph 10 of the Blackstone Chambers Guide to “Coronavirus and Civil Liberties in the UK”
6Magistrates ’ Court and the conviction to be set aside. 24 Another case involved a person
prosecuted in England under Welsh law 25. These cases tend to suggest there are levels of over
policing or policing confusion which require greater scrutiny. It is not yet known if the CPS
review will refer cases where convictions should be quashed or whether the government will set
up a fund to compensate those wrongly detained.
• The “stay at home” restriction on Liberty Regulations were amended less than a month after
being brought into force and increased the scope for offences by widening the restrictive nature
of these unprecedented Regulations.
• The latest Regulations increase the level of financial penalty for the fixed penalty notices.
However in many other ways there has been a “loosening” of the lockdown Regulations and the
Government Guidance.
24 https://www.independent.co.uk/news/uk/home-news/coronavirus-lockdown-police-fine-easter-human-rights-a9459206.html
25 https://nation.cymru/news/oxford-is-not-in-wales-teenager-wrongly-convicted-in-england-under-wales-coronavirus-legislation/
7The Public Health (Control of disease) Act 1984
Key Points
• The following is a helpful analysis 26 of the legal basis for the Regulation 6 restriction on liberty
“stay at home” provisions issued under the 1984 Act: 27
• “The legal basis for the English and Welsh Regulations is the 1984 Act. Under section 45C(1) of
the 1984 Act, the appropriate Minister is empowered to make regulations for the purpose of
protecting against, controlling or providing a public health response to the incidence or spread of
infection in England and Wales:
• 3) Regulations under subsection (1) may in particular include provision –
c) imposing or enabling the imposition of restrictions or requirements on or in relation to
persons, things or premises in the event of, or in response to, a threat to public health .
• 4) The restrictions or requirements mentioned in subsection (3)(c) include in particular–
(a) a requirement that a child is to be kept away from school,
(b) a prohibition or restriction relating to the holding of an event or gathering,
(c) a restriction or requirement relating to the handling, transport, burial or cremation of dead bodies or the
handling, transport or disposal of human remains, and
(d) a special restriction or requirement
• Subsection 3(c) is the legal basis for each of the restrictions in the English and Welsh Regulations. It clearly
provides authority for the restriction on gatherings (regulation 7 of the English Regulations). It also provides
authority for the closure of businesses in regulations 4 and 5. More problematic, however, is the vires for
confinement to home and for the power for a “relevant person” to use force to remove a person to their home.
• The authority for these powers derives from the reference to subsection 3(d) (“special restriction
or requirement”). These are restrictions or requirements that can, under the 1984 Act, be
26 Paragraphs 31-34, Blackstone Chambers guide to “Coronavirus and Civil Liberties in the UK”, 6th April 2020
27 https://www.legislation.gov.uk/ukpga/1984/22
8imposed by a magistrate under section 45G(2). This subsection provides a list of special
restrictions, ranging from requiring a person to submit to a medical examination or be kept in
quarantine to a requirement that a person answer questions or abstain from working or trading.
The only restriction in the list in section 45G(2) which could justify home confinement is
the following:
• (j) that P be subject to restrictions on where P goes or with whom P has contact;”
• “There is, to put it mildly, a significant question mark over whether section 45G(2)(j) can bear the weight that is
placed upon it by the English and Welsh Regulations”.
• The 4 reasons identified 28 can be described as follows:
o The 2020 Regulations purport to authorise conduct which would otherwise constitute
torts of false imprisonment and trespass to the person at Common law;
o In order for primary legislation to authorise conduct that would otherwise constitute a
trespass or common law imprisonment, this must be sanctioned by express words or
necessary implication in statute,
o Section 45G(2)(j) does not expressly or by necessary implication authorise physical
confinement,
o The 1984 Act expressly prohibits certain physical restrictions being imposed by the
Secretary of State and instead requiring a Magistrate, upon being satisfied that the person
is or may be infected.
• Other recent analysis 29 of the 1984 Act raises the question as to whom these special restrictions
apply [“P”]. The conclusion of that analysis is that until the matter is challenged or clarified “we
are all [P]”:
• “Reg 6 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 concerns the imposition
of restrictions on persons and so the relevant provision is s.45G(2), which provides:-
28Paragraphs 35-38 of Blackstone Chambers guide to “Coronavirus and Civil Liberties in the UK” 6th April 2020
29UK Police Law Blog, “the lawfulness of the Coronavirus Restrictions Legislation imposing ‘lockdown’ Dijen Basu QC, Serjeants Inn Chambers,
23rd April 2020, http://ukpolicelawblog.com/index.php/coronavirus/255-the-lawfulness-of-the-coronavirus-restrictions-legislation-
imposing-lockdown
9“The order may impose on or in relation to P one or more of the following restrictions or requirements—
(a) that P submit to medical examination;
(b) that P be removed to a hospital or other suitable establishment;
(c) that P be detained in a hospital or other suitable establishment;
(d) that P be kept in isolation or quarantine;
(e) that P be disinfected or decontaminated;
(f) that P wear protective clothing;
(g) that P provide information or answer questions about P's health or other circumstances;
(h) that P's health be monitored and the results reported;
(i) that P attend training or advice sessions on how to reduce the risk of infecting or contaminating others;
(j) that P be subject to restrictions on where P goes or with whom P has contact;
(k) that P abstain from working or trading.” [emphasis added]
But who is ‘P’? You find that out from s.45G(1), without which (2) cannot properly be understood:-
“(1) A justice of the peace may make an order under subsection (2) in relation to a person (“P”) if the justice is
satisfied that—
(a) P is or may be infected or contaminated,
(b) the infection or contamination is one which presents or could present significant harm to human health,
(c) there is a risk that P might infect or contaminate others, and
(d) it is necessary to make the order in order to remove or reduce that risk.”
Remember: per s.45C(6) “a ‘special restriction or requirement’ means a restriction or requirement which can be
imposed by a justice of the peace by virtue of section 45G(2)…”.
A justice of the peace may only impose a restriction on a person, P, who may be infected or contaminated, where
there is a risk that s/he might infect or contaminate others and where it is necessary to do so in order to remove or
reduce that risk”.
• It is suggested that it would have been possible to restrict the relevant Regulations issued under
the 1984 Act to apply to “who is or may be infected or contaminated by the Coronavirus…where there is a
risk that they might infect or contaminate others”. This would have meant the enactment of the self-
isolation guidance. However, such a restriction could have been of very limited effect and “very
hard to enforce in practice” 30. The additional difficulty identified of more Restrictive Regulation
applicability lies with those infected but asymptomatic.
30 Ibid.
1011
The Civil Contingencies Act 2004
Key Points
• This is not set out in detail because it is not the key legislation 31 relied upon in this Emergency.
• However, the extract of the article 32 below sets out some of the features of the Law, enacted at
an earlier time when the UK was not facing a pending Emergency.
• “The Civil Contingencies Act 2004 (‘CCA’) represents a legal landmark. It updated and consolidated laws which
enabled public authorities to prepare for, and respond effectively to, emergencies, replacing the Emergency Powers
Act 1920 with a more comprehensive and consensual design. While it was motivated by domestic and global crises,
it was not enacted in haste but benefited from a prolonged consultation period led by a special parliamentary joint
committee. The final draft systematically furnished the executive with all conceivable powers, yet contained vital legal
and parliamentary oversight to avert disproportionate action. The CCA addressed the widest range of possible
eventualities: terrorist attacks, protests, environmental events – and human and animal disease pandemics. In other
words, there already existed legislation designed to tackle the circumstances of coronavirus which indubitably qualifies
as an emergency. Yet, rather than utilise this framework, the government has resorted to fresh legislation in the
Coronavirus Act 2020. Why?
• Part 2 of the CCA, ‘Emergency Powers’, is most relevant for present discussion. Section 19 defines an ‘emergency’
as including ‘an event or situation which threatens serious damage to human welfare in the United Kingdom or in
a Part or region’. Calamities such as pandemic influenza were expressly considered during debates. That occurrence
qualifies as threatening ‘human welfare only if it involves, causes, or may cause’ one or more of a series of outcomes.
At least three of the items on the list that follows arises from coronavirus: ‘loss of human life’; ‘human illness or
injury’; and ‘disruption of services relating to health’. Furthermore, other threats to ‘human welfare’ within section
19 are also relevant: ‘disruption of a supply of money, food, water, energy or fuel’, and ‘disruption of facilities for
transport’.
• Under section 20, a government Minister can issue ‘emergency regulations’ if ‘satisfied’ that an ‘event or situation’
fulfils the requirements in section 19. Section 21 iterates that the issuance of such regulations requires an emergency
to be taking place, or to be about to occur, and that it is necessary ‘to make provision for the purposes of preventing,
controlling or mitigating an aspect or effect of the emergency’. Existing legislation must be unsuitable, or at least
there must be doubts about its effectiveness.
31https://www.legislation.gov.uk/ukpga/2004/36/contents
32Law Gazette Article “Why did government not use the Civil Contingencies Act 2004?” on the 2nd April 2020. Andrew Blick and Clive Walker.
https://www.lawgazette.co.uk/legal-updates/why-did-government-not-use-the-civil-contingencies-act/5103742.article
12• Under section 22, ‘emergency regulations’ can ‘make provision of any kind that could be made by Act of Parliament
or by the exercise of the Royal Prerogative’. The list of possible uses – which itself is not exhaustive – is sweeping.
The limitations on the regulations, other than that they be necessary for the purposes of dealing with the emergency,
are that: they must be proportionate; they must specify their territorial scope; they cannot prevent industrial (strike)
action or enforce military service; they can create no more than a limited range of criminal offences and possible
punishments; and that they cannot amend Part 2 or the Human Rights Act 1998. The CCA also requires that
the emergency regulations are not permitted to ‘alter procedure in relation to criminal proceedings’ (section 23(4)(d)).
This latter limitation might offer one reason for the government choosing to avoid the CCA. The Coronavirus Act
2020 (section 53 and Schedule 23) allows video links in Court proceedings, including in criminal cases. But this
obstacle to the use of the CCA was never mentioned in the parliamentary debates and surely could have been
overcome by separate primary legislation.”
• The authors of the article chime with the observations of the Society of Conservative Lawyers 33
that the solution is for Parliament:
“parliament must reassert its role as the prime guardian of constitutional principle and must repair the
legislative foundations by taking the CCA’s sound footings to heart”
• In recent analysis 34, the explanation from the Government was considered:
• “On Thursday 19th March, Jacob Rees-Mogg MP, Leader of the House of Commons, gave this explanation:-
“Unfortunately, the Civil Contingencies Act would not have worked in these circumstances, because the
problem was known about early enough for it not to qualify as an emergency under the
terms of that Act. The legal experts say that if we can introduce emergency legislation, we should do so rather than
using the Civil Contingencies Act, because if we have time to introduce emergency legislation, we obviously knew
about it long enough in advance for the Act not to apply. That is why that Act could not be used.” [emphasis
added]
33
“Pardonable in the heat of Crisis – but we must urgently return to the rule of Law “ Lord Sandhurst QC and Anthony Speaight QC, Society of
Conservative Lawyers, April 2020 “
“In view of the magnitude of the interference with the basic liberty to move around the country it is not too much to ask that as soon as Parliament resumes the
Government should introduce primary legislation embodying the limitations on movement which it considers necessary, or empowering a minister to make
regulations doing so. That opportunity also should be taken to address the unsatisfactory position as to the role of the police, to which we now turn.” (page 6
Ibid.)”
It is noteworthy that this observation was made prior to the further Regulations issued on the 22nd April 2020 and 13th May 2020.
34
UK Police Law Blog, “The lawfulness of the Coronavirus Restrictions Legislation imposing ‘lockdown’, Dijen Basu QC, Serjeants’ Inn Chambers, 23rd April 2020 ,
http://ukpolicelawblog.com/index.php/coronavirus/255-the-lawfulness-of-the-coronavirus-restrictions-legislation-imposing-lockdown
13• There may, with great respect to the Minister, have been some loss of signal between the message conveyed to him
by “the legal experts” and that relayed by him to the House. The deadly, once in a century, global Coronavirus
pandemic most certainly does “qualify as an emergency under the Act”. The 2004 Act would have been
the ideal vehicle through which to introduce a sudden, unforeshadowed, nationwide
‘lockdown’ (see s.20) and it would have avoided the above questions of legality. It would
also have mandated Parliamentary scrutiny, even if Parliament were prorogued or adjourned (see s.27
and s.28). Indeed, emergency regulations could have created an offence punishable by up to 3 months’
imprisonment (see ss.21(4)(c) & 22(2)(i)(i)). The current restrictions are only punishable by a fine.
• It is, however, highly doubtful that new emergency regulations under the 2004 Act could retrospectively criminalise
that which was purportedly criminalised by Reg 6 of the Health Protection (Coronavirus, Restrictions) (England)
Regulations 2020, if those Regulations were unlawful, and/or render lawful any restrictions imposed on
movement, any penalties imposed for leaving one’s home, any removals by police officers of people to their homes,
etc. The national and devolved administrations have thrown all of their eggs into one basket.”
• A different perspective was recently advanced by the Association of Conservative Lawyers 35.
Developing on their earlier article 36, they provided clear warning to the UK Government that in
their view, the Regulations are ultra vires and invited the Government to use Regulations under
the 2004 Act before resolving the “lockdown” using primary legislation including the issue
retrospectivity:
1. “Provision of a sound legal basis for the Regulations. This cannot be found in the 1984 Act as it stands.
2. The legal basis must provide for all the nations of the United Kingdom.
3. Absent good reason, the Regulations should be consistent across the United Kingdom.
4. The Regulations must be proportionate, precise and predictable in their scope and application
There should be adequate provision for Parliamentary oversight and for the extraordinary powers under the Regulations
lasting as long as needed, but no longer. Provision should be made to deal with the period prior to the sound legal basis
being given for the Regulations.
35“Pardonable in the heat of crisis – building a solid foundation for action” Benet Brandreth QC and Lord Sandhurst QC, 16th April 2020
36“Pardonable in the heat of crisis – but we must urgently return to the Rule of Law” Anthony Speaight QC and Lord Sandhurst QC, 8th April
2020
14• An alternative view to these identified problems is provided by Sir Stephen Laws 37. He accepted
there are provisions of the 1984 Act which distinguish between certain powers however he
concludes:
“It is equally likely that it was also intended that the generality of the power in section 45C(1) should be
construed as wide enough to capture the direct imposition on the public of general obligations the precise nature of
which had not been specifically foreseen when the power was enacted
In those circumstances, the real question seems to me to be whether the exclusion in section 45D(3) demonstrates a
clear enough intention by Parliament that the power to make general provision to deal with unforeseen eventualities
in a public health crisis should exclude the imposition of a general requirement for people to keep themselves at
home. It seems to me that the better view is that it does not. The thrust of the limitations on the power should be
seen as directed at the possibility that an official might be given the power to tell people what to do”
• Similarly, in considering any challenge to the Regulations passed under the 1984 Act, he
accepted that the way in which they are imposed “will depend on on the street judgements” 38 by those
enforcing them. He concluded that the way in which those “on the street judgements” would be
exercised would have to be exercised in a way in which was consistent with section 6 of the
Human Rights Act 1998.
• Later in the same article, Sir Stephen Laws identified a potential unfairness to the Police in
shifting the entire risk of Human Rights Challenge “away from the legislation and down to the
operational level” 39
37 “Legislating for the relaxation of the lockdown” Sir Stephen Laws, Policy Exchange 8th May 2020
https://policyexchange.org.uk/publication/legislating-for-the-relaxation-of-the-lockdown/
38 Ibid. paragraph 26
39 Ibid. paragraph 53
15The Coronavirus Act 2020
Key Points
• The following 40 is a useful overview:
• “The Act 41 is extensive, running to 348 pages, much of which amends pre-existing legislation. It touches upon a
wide range of issues, including:
a) the registration of health professionals and social workers (ss.2-7);
(b) emergency volunteers (ss.8-9);
(c) mental health and mental capacity (s.10);
(d) health service indemnification (ss.11-13);
(e) the registration of deaths and still-births (ss.18-21);
(f) powers to require and restrict the disclosure of information relating to food supply (ss.25-29);
(g) the suspension of the requirement to hold a jury inquest under certain conditions (ss.30-32);
(h) educational institutions and childcare premises (s.37); (i) sick pay and pensions (ss.39-47); and
(j) residential tenancies and eviction (s.81)”.
• In addition to the above;
-Suspension of port operations and associated offences (s50 and schedule 20)
-Powers in relation to events, gathering and premises and associated offences (s52 and schedule
22)
-Expansion of the use of video and audio links in criminal proceedings (s53-56 and schedule 23)
and new offences
• The authors suggest 42 “Most relevant to police forces are the provisions which provide for powers in relation to
potentially infectious persons (s.51 and Schedule 21).
• The powers under CA 2020 confers powers on Public Health Officers, Constables and
Immigration Officials. There is a distinction between powers used by Public Health Officials
who can have support of Constables and Immigration officers and those powers exercisable by
Constables and Immigration Officers who are required to consult with Public Health Officials
(where practicable).
40 Paragraph 9 of the 5 Essex Court chambers guide “A guide for Police forces in England and Wales”
41 http://www.legislation.gov.uk/ukpga/2020/7/contents/enacted/data.htm
42 Paragraph 10 ibid.
16• The powers are only operational during a “transmission control period”. The Health secretary may 43
make a declaration if he is of the view that:
(a) The incidence or transmission of coronavirus constitutes a serious and imminent threat to
public health in England; and
(b) The powers conferred by Schedule 21 will be an effective means of delaying or preventing
significant further transmission of coronavirus in England.
• The CA 2020 revoked 44 earlier Regulations 45 but provided that any declarations as to infected
areas or a “transmission control period” would be regarded 46 as if made under CA 2020, Schedule 21.
On the 10th February 2020, the Health Secretary made a declaration under the earlier
Regulations, satisfying the above requirements, “as a result, the ‘transmission control period’ commenced
as soon as the Act entered into force” 47.
• The term “potentially infectious” is defined 48 as:
(a) the person is, or may be, infected or contaminated with coronavirus, and there is a risk that the person might
infect or contaminate others with coronavirus, or
(b) the person has been in an infected area within the 14 days preceding that time.
(2) For the purposes of this paragraph, “infected area” means any country, territory or other area outside the
United Kingdom which the Secretary of State has declared as a country, territory or area—
(a) where there is known or thought to be sustained human-to-human transmission of coronavirus, or
(b) from which there is a high risk that coronavirus will be transmitted to the United Kingdom.
• There are 3 categories of powers:
(i) The power 49 to direct or remove potentially infectious persons to a suitable place for
screening and assessment (paragraphs 6 and 7)
43 Paragraphs 18-20 of 5 Essex Court chambers guide “A guide for Police forces in England and Wales” Paragraph 4(2) of Schedule 21
provides that the Health Secretary must revoke the declaration if he ceases to be of the view that these conditions are met.
44 Paragraph 24(1) of Schedule 21 CA 2020
45 The Health Protection (Coronavirus) Regulations 2020 [SI 2020/129]
46 Paragraphs 24(2) and 24(3) of Schedule 21 CA 2020
47 Paragraph 23 of 5 Essex Court chambers guide “A guide for Police forces in England and Wales”
48 Paragraph 2 of Schedule 21, CA 2020
49 The relevant test is whether the Official has “reasonable grounds to suspect” that the person is “potentially infectious”. Paragraph 30 of the 5
Essex Court chambers guide “A guide for Police forces in England and Wales” states “The requirement for “reasonable grounds to suspect”
that a person is potentially infectious is identical to the wording in s.24(2) of the PACE by which a constable may arrest without warrant. Officers may
17(ii) Powers exercisable once a potentially infectious person is at a suitable place for screening
and assessment (paragraphs 8-13); and
(iii) Powers exercisable after screening and assessment (paragraphs 14-17)
CATEGORY 1: POWER TO MOVE / REMOVE
• The exercise of these powers by police constables and immigration offices is subject to the
following three conditions 50:
(a) Before directing or removing (pre assessment) they must consult a public health officer to the
extent that is practicable to do so
(b) Necessity and proportionality requires consideration of:
i. The interests of the potentially infectious person;
ii. The protection of other people, or
iii. For the maintenance of public health.
(c) The official exercising the power must inform the subject that failure without a reasonable
excuse to comply or absconding from an assessment centre are criminal offences.
• Failure without a reasonable excuse to comply with a direction to move/ remove is
punishable 51 upon summary conviction to a fine of up to £1,000.
CATEGORY 2: POWERS AT ASSESSMENT CENTRE 52 51F
• Time period (not exceeding 48 hours – Para 9)
• Requirements include taking of samples and provision of documentation and answering of
questions
• It is an offence to fail to comply without reasonable excuse with directions made under these
provisions
therefore wish to consider – by analogy – the reasonable suspicion threshold applicable to the power of arrest under s.24(2) of PACE when considering whether
the powers under paragraphs 6 and 7 of Schedule 21 are lawfully exercisable.
50 Paragraph 29 of 5 Essex Court chambers guide “A guide for Police Forces in England” and paragraph 6(3) of Schedule 21, CA 2020
51 Paragraph 23 of Schedule 21, CA 2020
52 Paragraphs 8-12 of Schedule 21, CA 2020
18CATEGORY 3: POWERS AFTER ASSESSMENT 53 52F
• Applies only in Transmission control period and where the subject is found to be infectious or
inconclusive
• A public health officer may at any time during the transmission control period impose such
requirements and restrictions on the person as the officer considers necessary and
proportionate—
(a) in the interests of the person,
(b) for the protection of other people, or
(c) for the maintenance of public health.
• Requirements under this paragraph may include requirements—
(a) to provide information to the public health officer or any specified person;
(b) to provide details by which the person may be contacted during a specified period;
(c) to go for the purposes of further screening and assessment to a specified place suitable for those
purposes and do anything that may be required under paragraph 10(1);
(d) to remain at a specified place (which may be a place suitable for screening and assessment) for a
specified period;
(e) to remain at a specified place in isolation from others for a specified period.
• Restrictions on a person under this paragraph may include restrictions, for
a specified period, on—
(a) the person’s movements or travel (within or outside the United Kingdom);
(b) the person’s activities (including their work or business activities);
(c) the person’s contact with other persons or with other specified persons.
• The duration of the above restrictions may not exceed 14 days 54 and the Public Health Official
must review the requirement within 48 hours. The original 14 day period can be extended but
the further period can be no more than 14 days.
Review of Decisions of the Public Health Official by the Government
• Where a Public Health Official reviews the requirement and revokes the requirement to remain
or the restriction, the Secretary of State has the power to review that decision and re-impose the
53 Paragraph 14 of Schedule 21, CA 2020
54 Paragraph 15 of Schedule 21, CA 2020
19requirement or restriction. The test 55 is whether the Secretary of State is satisfied the person is
“potentially infectious”.
Review of Decisions of the Public Health Official by the Individual
• Where an individual seeks to challenge a decision based upon a restriction or a requirement to
remain, they may appeal 56 to a Magistrates ’ Court. Where the individual is under the age of 18,
the right of appeal may be exercised by an individual who has responsibility for that child 57.
• The Magistrate’s Court has the power to:
(a) Confirm the requirement or restriction (or variation or extension) with or without modification,
or
(b) Quash the requirement or restriction (or variation or extension)
• The Legal Aid Agency has confirmed that such appeals to the Magistrates ’ Court are Civil
Proceedings 58 It is envisaged that such proceedings would be dealt with using the remote
hearings provisions under the Coronavirus Act 2020.
Specific provisions applicable to those under the age of 18
• There are specific provisions 59 for powers in relation to children and those responsible for
children. A child is defined as under the age of 18.
(1) An individual who has responsibility for a child must, so far as reasonably practicable, secure
that the child complies with any direction, instruction, requirement or restriction given to or
imposed on the child under this Part of this Schedule.
(2) An individual who has responsibility for a child must provide to a person exercising a power
under this Part of this Schedule such information and assistance in relation to the child as is
reasonably necessary and practicable in the circumstances.
(3) A power under this Part of this Schedule to direct or require a child to go to a place may
instead be exercised by directing or requiring an individual who has responsibility for the child to
take the child to the place.
55 Paragraph 15(4) of Schedule 21, CA 2020
56 Paragraph 17 of Schedule 21, CA 2020.
57 Paragraph 18(6) of Schedule 21, CA 2020
58 https://crimeline.co.uk/knowledge-base/funding-for-coronavirus-act-appeals/
59 Paragraph 18 of Schedule 21, CA 2020
20(4) A power under paragraph 10 or 14 may only be exercised in relation to a child in the
presence of
(a) an individual who has responsibility for the child, or
(b) if the child is not accompanied by such an individual, an adult (not being a person on whom
powers are conferred under this part of the Schedule) that the person exercising the power
considers to be appropriate, having regard to any views of the child.
FORMALITY 60 59
• A direction, instruction, requirement or restriction under this Part of this Schedule may be given
or imposed orally or in writing.
• Where a requirement or restriction under paragraph 14 (Category 3 – post assessment) is given
to a person orally by a public health officer, the public health officer must as soon as practicable
thereafter give the person a notice setting it out in writing.
SPECIFIC PROVISIONS AS TO CRIMINAL OFFENCES 61
• A person commits an offence if the person—
(a) fails without reasonable excuse to comply with any direction, reasonable instruction, requirement
or restriction given to or imposed on the person under this Part of this Schedule,
(b) fails without reasonable excuse to comply with a duty under paragraph 18(1) or (2) (duties of
individuals who have responsibility for a child),
(c) absconds or attempts to abscond while being removed to or kept at a place under this Part of this
Schedule,
(d) knowingly provides false or misleading information in response to a requirement to provide
information under this Part of this Schedule or otherwise in connection with the exercise of any power
under this Part of this Schedule, or
(e) obstructs a person who is exercising or attempting to exercise a power conferred by this Part of
this Schedule.
• The maximum penalty is a fine on summary conviction of up to £1,000.
60 Paragraph 19 of Schedule 21, CA 2020
61 Paragraph 23 of Schedule 21, CA 2020
21ANCILLIARY POWERS 62 61F
• The public health officer, constable or immigration officer may give reasonable instructions to a
person in connection with Schedule 21 powers
• When reasonable instructions are given they must inform the person of the reason for the
instruction and that it is an offence not to comply
• The power to remove a person to a place includes a power to keep the person for a “reasonable
time” pending their removal
• Reasonable force may be used if necessary in the exercise of “a power conferred by this part of
the schedule”
• There is a power of entry for a Constable to “enter any place for the purpose of the exercise of a
power conferred by this Part of the Schedule”
Powers in relation to events, gathering and premises and associated offences
(s52 and schedule 22)
• Power of the secretary of state to declare a threat to public health in England due to
Coronavirus.
• The declaration is start of “Public Health Response Period”
• The Test – “events”
(1) The Secretary of State may, for the purpose of—
(a) preventing, protecting against, delaying or otherwise controlling the incidence or transmission of coronavirus, or
(b) facilitating the most appropriate deployment of medical or emergency personnel and resources,
issue a direction prohibiting, or imposing requirements or restrictions in relation to, the holding of an event or
gathering in England.
62 Paragraph 20 of Schedule 21, CA 2020
22• Power to close premises in England or impose restrictions on persons entering or remaining in them
The test:
(1) The Secretary of State may, for the purpose of—
(a) preventing, protecting against, delaying or otherwise controlling the incidence or transmission of coronavirus, or
(b) facilitating the most appropriate deployment of medical or emergency personnel and resources, issue a direction
imposing prohibitions, requirements or restrictions in relation to the entry into, departure from, or location of
persons in, premises in England.
Offences
(1) A person commits an offence if the person fails without reasonable excuse to comply with a
prohibition, requirement or restriction imposed on the person by a direction issued under this Part of this Schedule.
• (2) A person guilty of an offence under this paragraph is liable on summary conviction to a fine.
Expansion of the use of video and audio links in criminal proceedings (s53-56 and
schedule 23) and new offences
• The new provisions modify Criminal Procedure in order to allow a number of hearings to take
place remotely through the use of video or audio links. Jury Trials are expressly excluded from
these provisions. There have been discussions as to the expansion of the use of remote hearings
in other jurisdictions in Family and Civil Proceedings. The Lord Chancellor and Lord Chief
Justice have indicated they do not seek to move to Judge only trials in the Crown Court. In
contrast, the Scottish Parliament, discussed such a move but removed the proposal following
sustained opposition in Scotland.
• It is noteworthy that the second amendment to the Criminal Procedural Rules 63 has created a
duty to proceed cases using remote procedures.
• The following table sets out the position for those hearings which may or may not proceed
remotely. It does not deal with all hearings so for example, Applications to dismiss and POCA
hearings where evidence is required, are not expressly covered.
63The Criminal Procedure (Amendment No. 2) (Coronavirus) Rules 2020. The explanatory note states “Rules 3.2 and 3.9 are amended
to impose on the Court a duty to conduct hearings by live link consistent with the modified Crime and Disorder Act 1998, Criminal
Justice Act 2003 and Extradition Act 2003.
23• The following table was prepared by Her Honour Judge Lana Wood as to hearings before the
Crown Court.
Type of hearing Wholly audio? Wholly video? Attendance in
Court
Preliminary hearing Yes Yes Not required
PTPH – not guilty plea Yes Yes Not required
PTPH – guilty plea No Yes Not required
Hearing to determine fitness to plead Yes Yes Not required
Newton hearing No if D is to give Yes Not required
evidence
Bail applications – uncontested Yes Yes Not required
Bail applications - contested No if D is to participate Yes Not required
CTL extensions Yes Yes Not required
Sentencing hearings No if D is to participate Yes Not required
Trial on indictment or any other trial in the No No Jury
Crown Court for an offence
Proceedings under s.4A or 5 of the Criminal No No Jury
Procedure (Insanity) Act 1964
Proceedings under Part 3 of the Mental Health No No At least one
Act 1983 64
63F participant
Proceedings under s.11 PCC(S)A 2000, No No At least one
s.81(1)(g) SCA 1981 or s.16 CJA 2003 in respect participant
of a person who has been remanded by a
Magistrates ’ Court on adjourning a case under
s.11 PCC(S)A 2000 65
64F
Hearings held after D has No No At least one
entered a plea of guilty 66
65F participant
Any hearing following conviction held for the Yes Yes Not required
purpose of making a decision about bail in
respect of the person convicted 67: s.4 Bail Act
66F
1976 doesn’t apply, or uncontested
Any hearing following conviction held for the No Yes Not required
purpose of making a decision about bail in
respect of the person convicted 68: contested
67F
and s.4 of the Bail Act 1976 does apply
Criminal appeal to Crown Court: preliminary or Yes Yes Not required
incidental proceedings
Criminal appeal to Crown Court against No Yes Not required
sentence
Criminal appeal to Crown Court against No Yes, subject to Not required, unless
conviction: summary hearing held by video the parties’ parties do not agree
agreement to wholly video
hearing
Criminal appeal to Crown Court against No No At least one
sentence: summary hearing not held by video participant
Hearing under s.155 of the Powers of Criminal No Yes Not required
Courts (Sentencing) Act 2000
Contempt of Court No Yes Not required
64 But only if the hearing doesn’t fall within Part 3A of CDA 1998
65 But only if the hearing doesn’t fall within Part 3A of CDA 1998
66 But only if the hearing doesn’t fall within Part 3A of CDA 1998
67 But only if the hearing doesn’t fall within Part 3A of CDA 1998
68 But only if the hearing doesn’t fall within Part 3A of CDA 1998
24• The following table sets out all relevant Criminal Offences created by Coronavirus Legislation 69:
Coronavirus Act 2020, Offences
Max
CJS Code Title Legislation Start Date Scope Comments
Penalty
Paragraph 6(1) The only
Operator of Summary –
and (4)(a) of offence carrying
port fail to England unlimited
Schedule 20 to custody.
CO20001 comply with a 26/03/2020 and fine or 6
the Unlikely to
Schedule 20 Wales months
Coronavirus come before the
direction custody
Act 2020. Court
Fail to comply
with direction / Paragraph
instruction / 23(1)(a) and
Summary
requirement / (2) of schedule England
CO20002 26/03/2020 – fine level
restriction 21 to the only
3
imposed under Coronavirus
schedule 21 Act 2020.
(England)
Person
Paragraphs
responsible for
18(1) and
child
fail to comply 23(1)(b), (2)
with duty under of schedule 21
England Summary –
CO20003 paragraph to the 26/03/2020
only fine level 3
18(1) of Coronavirus
Schedule Act
21 (England) 2020.
Offences
Person
relating to
responsible for Paragraphs
powers of
child fail to 18(2) and
police / public
comply with 23(1)(b), (2) Summary
England health officers /
CO20004 duty under of schedule 21 26/03/2020 – fine level
only immigration
paragraph to the 3
officers to
18(2) of Coronavirus
detain a person
Schedule 21 Act 2020.
for screening
(England)
and
69The table is provided by the authoritative www.crimeline.co.uk // https://crimeline.co.uk/coronavirus-act-2020-offences/ It does
not include the increased Fines increased by the Amendments of the 13th May 2020.
25Absconds /
assessment if
attempts to Paragraph
they have
abscond whilst 23(1)(c) and
Summary reasonable
being removed (2) of schedule England
CO20005 26/03/2020 – fine level grounds to
to or kept at a 21 to the only
3 suspect that
place under Coronavirus
the person is
schedule 21 Act 2020.
infectious
(England)
Provide false /
misleading Paragraph
information in 23(1)(d) and
Summary
response to a (2) of schedule England
CO20006 26/03/2020 – fine level
requirement to 21 to the only
3
provide info or Coronavirus
otherwise Act 2020.
(England)
Obstructs a
person Paragraph
exercising / 23(1)(d) and
Summary
attempting to (2) of schedule England
CO20007 26/03/2020 – fine level
exercise a 21 to the only
3
power under Coronavirus
schedule 21 Act 2020.
(England)
Max
CJS Code Title Legislation Start Date Scope Comments
Penalty
Offences relating
to powers of
Fail to comply police / public
with direction / Paragraph health officers /
instruction / 67(1)(a) and immigration
requirement / (2) of Summary officers to detain
Wales
CO20008 restriction schedule 21 to 26/03/2020 – fine level for screening and
only
imposed under the 3 assessment if they
Coronavirus Coronavirus have reasonable
Act 2020 – Act 2020. grounds to
Wales suspect that the
person is
infectious
Person
responsible for
Paragraphs
child fail to
62(1) and
comply with
67(1)(b), (2) Summary
duty under Wales
CO20009 of schedule 21 26/03/2020 – fine level
paragraph 62(1) only
to the 3
of Sch 21
Coronavirus
Coronavirus
Act 2020.
Act 2020 –
Wales
26Person
responsible for
Paragraphs
child fail to
62(2) and
comply with
67(1)(b), (2) Summary
duty under Wales
CO20010 of schedule 21 26/03/2020 – fine level
paragraph 62(2) only
to the 3
of Sch 21
Coronavirus
Coronavirus
Act 2020.
Act 2020 –
Wales
Absconds /
attempts to Paragraphs
abscond whilst 67(1)(c) and
being removed (2) of Summary
Wales
CO20011 to or kept at a schedule 21 to 26/03/2020 – fine level
only
place under Sch the 3
21 Coronavirus Coronavirus
Act 2020 – Act 2020.
Wales
Provide false /
misleading Paragraphs
information in 67(1)(d) and
response to a (2) of Summary
Wales
CO20012 requirement to schedule 21 to 26/03/2020 – fine level
only
provide info or the 3
otherwise – Coronavirus
Coronavirus – Act 2020.
Wales
Obstructs a
person
Paragraphs
exercising /
67(1)(e) and
attempting to
(2) of Summary
exercise a Wales
CO20013 schedule 21 to 26/03/2020 – fine level
power under only
the 3
Sch 21
Coronavirus
Coronavirus
Act 2020.
Act 2020 –
Wales
Fail without Paragraphs Offences of failing
reasonable 5(1) and 9 of to comply with
Summary
excuse to Schedule 22 to England pre-emptive
CO20014 26/03/2020 – unlimited
comply with the only directions to ban
fine
direction re Coronavirus events / close
events / Act 2020. premises
Max
CJS Code Title Legislation Start Date Scope Comments
Penalty
gatherings
(England) –
Coronavirus
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