A Step Too Far? Recent Applications of Emergency Legislation
April 8, 2020
By Eddison Flint
At 1pm on 26th March 2020 the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 came into force. Over the last week, the national media has seen several applications of the regulations that have proven to be controversial. The regulation providing this bone of contention is Regulation 6 relating to freedom of movement; it reads at 6(1):
“During the emergency period, no person may leave the place where they are living without reasonable excuse.”
The rest of the regulation proceeds to then give thirteen examples of activities permitted to the public. Importantly however Regulation 6(2) reads:
“For the purposes of paragraph (1), a reasonable excuse includes the need…”, it then moves to provide the thirteen examples.
The significance of this is the word “includes”. This turns the thirteen activities into a non-exhaustive list. Legally, there may be scope for other activities not listed to count as a “reasonable excuse” although given government guidance it will be interesting to see how that develops.
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Essential Travel
In England a person is entitled to “take exercise either alone or with other members of their household” (Regulation 6(2)(b)), whilst in Wales under their own version of the regulations a person is entitled to “take exercise, no more than once a day, either alone or with other members of the household”.
It is unclear as to why the regional provisions differ but it certainly has not assisted with uncertainty that the emergency legislation has brought about.
In one of the most prominent examples of their controversial application, on the 26th March, Derbyshire Police published a video on twitter showing drone footage of people out walking in the Peak District. The video claimed that this was non-essential travel and was therefore not permitted.
It was pointed out by many that there was nothing in the regulations preventing citizens from using a car to drive to a remote location to carry out their government permitted form of exercise. Lord Sumption, the former President of the Supreme Court labelled the actions of the force “disgraceful” and those akin to a “police state” in an interview this week.
Further controversy has been found in the journeying of citizens to purchase “non-essential items”. It was noted by Warrington Police on 29th March that a group had received a summons for criminal prosecution where “multiple people from the same household [were] going to the shops for non-essential items”. It is unclear whether the journey also included the purchase of essential items as well, and the effect that would have upon any prosecution. It should be noted that there is nothing in regulation 6(2)(a) that directly states that the journey to obtain “basic necessities” needs to be made alone as opposed to with a member of family.
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Penalties
Under Regulation 10 any “authorised person” has the power to issue a fixed penalty notice in order to punish the offender whilst allowing them to avoid formal criminal prosecution.
Under Regulation 11 a criminal prosecution “may be brought by the Crown Prosecution Service and any person designated by the Secretary of State.” A summary conviction for these offences ultimately carries a maximum penalty of a fine, but more importantly for many, if this route is taken, a convicted person ends up with a criminal record for something that in normal daily life would be carrying out a lawful routine.
Summary
These are unprecedented times and the fact that emergency legislation has been passed in such rushed circumstances was always going to lead to a period of uncertainty. Undoubtedly, a balance needs to be struck between the public applying common sense when they are considering leaving their homes, and the police being clear of their obligations in applying the regulations as prescribed in law, rather than seeking to enforce the government’s more onerous “guidance”.
Eddison Flint joined the criminal team at Exchange Chambers in October 2019. Prior to joining chambers, Eddison worked for a National Civil Law firm before joining the Crown Prosecution Service as a Pupil Barrister.
