INTRODUCTION
The Coronavirus Act 2020 (“the Act”) received royal assent on 25th March 2020, whilst The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020 No 350) came into force on 26th March 2020 (“the Regulations”). It should be noted that the Regulations apply in England only with Scotland, Wales and Northern Ireland having similar, but separate, instruments designed to protect public health. The Act represents the government’s response to the 2019 novel Coronavirus disease outbreak; it is far-reaching and covers a wide-range of matters from the emergency registration of health professionals to the registration of deaths and still-births.
In relation to the Criminal Justice System, the Act has amended existing legislation including the Crime and Disorder Act 1998, the Criminal Justice Act 2003, The Courts Act 2003 and The Mental Health Act 1983 in order to allow for greater use of telephone and video facilities. However, the provisions of greatest significance to the public at large have been the restrictions on movement enacted through the Regulations.
This article will outline (i) the new offences under the Regulations (ii) the consequences for the public and (iii) the consequences for the Criminal Justice System.
OFFENCES
Regulation 6 (1) of the Regulations prohibits a person from leaving the place in which they are living during the emergency period without a reasonable excuse. ‘Place in which they are living’ is defined to include any garden, yard, outhouse and “other appurtenances”. There is a non-exhaustive list of activities deemed to provide a reasonable excuse:
- Obtaining basic necessities including food and medical supplies for those in the same household or for vulnerable persons;
- Taking exercise alone or with members of your household;
- Seeking medical assistance;
- Proving care or assistance to a vulnerable person or to provide emergency assistance;
- Donating blood;
- Travelling for the purposes of work or to provide voluntary or charitable services but only where it is not reasonably possible for that person to work or to provide those services from the place where they are living;
- Attending a funeral (have to be a member of household, close family, friend only if none of deceased family members/household in attendance);
- Fulfilling a legal obligation, including attending court or satisfying bail conditions;
- Accessing certain critical public services;
- Children visiting parents who do not live together.
Regulation 7 prohibits the gathering of more than two people from separate households in any public place. The exceptions to this are where the gathering is necessary for work purposes, to attend a funeral, or where reasonably necessary for activities such as a house move or to participate in legal proceedings or fulfil a legal obligation.
Police constables and Police Community Support Officers (“PCSO”) have the power (Regulation 8) to direct, return or remove a person to the place in which they are living and reasonable force may be used. Additionally, gatherings can be dispersed and people can be directed or removed to the place in which they are living.
The offences created under Regulations 6, 7 and 8 are all summary-only and carry the maximum penalty on conviction of a fine (unlimited).
Significantly, Regulation 10 gives Police constables and PCSOs the power to issue fixed penalty notices (“FPN”) to anyone over the age of 18 believed to have committed an offence under the Regulations. A first FPN will be for £60 (reduced to £30 if paid within 14 days). A second FPN would be £120 and no reduction for early payment would apply. Third and subsequent breaches of the Regulations resulting in a FPN render a person liable to pay double the previous FPN up to a maximum of £960.
CONSEQUENCES FOR THE PUBLIC
There has been a phenomenal impact on how the public are now expected to live their lives, with the new legislation significantly limiting what individuals are permitted to do as part of their everyday routine. A distinction does however exist between the official guidance issued by the government, and the legislation itself. Our screens have been inundated with rules to follow, the result of which has been confusion around what we are actually allowed to do.
Businesses and consumers
The restrictions and requirements imposed on businesses are governed by Regulation 4. Those businesses that are wholly designed to provide entertainment, for example, are to cease operating entirely. The full list of businesses which must stop providing their services are provided in Schedule 2 Part 2 of the Regulations. Businesses remain permitted by Regulation 5 to carry on their services by doing so through online communications, telephones or by post.
Any business selling food or drink however must only cease to do so for the consumption of food and drink on their premises. They are still permitted to provide take-away services, as the consumption of any food/drink would be off the premises and therefore in accordance with the Regulations. If business premises are found to be open in breach of the Regulations, police have the power to issue a prohibition notice in order to force compliance.
Businesses that are permitted to stay open are listed in Schedule 2 Part 3 and include supermarkets and off-licences etc. Whilst it is a reasonable excuse to shop for “necessities”, the legislation does not prevent any business from selling non-essential items they already offer. In the days running up to Easter, there have been reports of police officers perhaps over-zealously challenging retailers on selling what they deemed to be non-essential goods such as chocolate eggs (See BBC News article here).
This goes beyond the scope of the legislation, as there are not currently any restrictions on what the shops that remain open are permitted to sell. The law therefore does not dictate what you are permitted to sell or purchase in a shop which is legally allowed to be open for business. Equally, the public are free to shop for necessities multiple times per day, as the ‘once a day’ rule is at present not legally enforceable and merely represents guidance from the government.
Exercise
With the government having issued guidance that the public should only exercise once a day, this is the rule most have adhered to. Whilst undoubtedly a positive step towards stopping the spread of Coronavirus, it is of note that you will not be breaking the law if you exercise more than once a day.
Neither the Act nor the Regulations prescribe the amount of exercise you can take or how far you can travel for it. Gyms, leisure centres and sports fields are now closed, however outdoor exercise has few restrictions. Regulation 6 states that taking exercise is a reasonable excuse for leaving the home, and there are no limitations on how far from your home you can travel in order to do so. Regulation 7 stipulates that the public is not permitted to exercise with more than one other person outside of their household, which will likely impact the way in which sports such as football or rowing operate.
Therefore, whilst exercise has been limited by the number of participants, the public can at present legally exercise frequently throughout the day and do so at a distance from their home. Reasonableness is however encouraged when considering travelling to take exercise.
Socialising
The primary rule governing socialising comes from Regulation 7. This states that during the emergency period no person may participate in a gathering in a public place of more than two people, except where: all persons are members of the same household; a gathering is necessary for work purposes; or to attend a funeral.
If the police find that three or more people are gathered together in contravention of Regulation 7 they may:
- Direct the gathering to disperse
- Direct any person in the gathering to return to the place they are living
- Remove any person in the gathering to the place where they are living
The legislation purposefully makes it difficult for the public to socialise, and the importance of this regulation is reflected in the new powers granted to the police.
CONSEQUENCES FOR CRIMINAL JUSTICE SYSTEM
The complexion of the Criminal Justice System has also been markedly altered by the Coronavirus pandemic, gradually bringing jury trials to a halt in the Crown Court, and leaving the Magistrates’ Court covering only urgent matters and eschewing physical hearings wherever possible. The Act itself introduces somewhat limited measures with respect to the functioning of the courts, amending existing legislation to expand the use of audio or video “live links” by judges, parties, and the public. Notwithstanding, the effect of these changes has been immediately apparent, and proceedings in the Crown Court are now largely unrecognisable when compared with the position only a short time ago.
At the Magistrates’ Court level, in order to conduct priority cases whilst maintaining public health fewer court buildings have been left operating, with bail cases and those with no remand (i.e. summons, requisitions etc.) routinely adjourned for either twenty eight days or for a date to be fixed. The priority work that remains includes: all custody cases (including overnight cases, productions from prisons, and arrest warrants issued under the Extradition Act 2003); applications to extend CTLs; urgent DVPO applications; Youth cases; and, notably, public health or Coronavirus related prosecutions. The latter have not been without difficulty, with a recent conviction at North Tyneside Magistrates’ Court set aside after it was recognised the defendant was erroneously charged with a non-existent offence under the new legislation (See BBC News article here).
At the Crown Court even greater transformation has occurred, with Schedule 23 of the Act amending s. 51 of the Criminal Justice Act 2003 to allow the court to direct that the parties and judge may attend a number of hearings by video or audio link, including appeals from the Magistrates’ court and jury trials. No such direction is permissible in respect of jurors, who will remain obliged to sit in the courtroom. Schedule 24 similarly amends ss. 57A-57G (Part 3A) of the Crime and Disorder Act 1998, in doing so expanding the availability of live links to cover preliminary hearings, sentencing hearings, and enforcement hearings. The immediate consequence of these changes has been that PTPHs, mentions, bail applications, and CTL extensions are now being conducted entirely remotely, either over internet-based video conferencing software or via telephone. This new landscape brings with it its own challenges and difficulties, however evolving protocols and published guidance from Circuit leaders are beginning to streamline the conduct of these proceedings. It is perhaps reasonable to expect that lasting change will have been brought about to the Crown Court by these new provisions, at the very least in relation to minor case management hearings.
Notwithstanding the expansion of the use of audio and video links, Schedules 23 & 24 of the Act insert a number of important safeguards, limitations, and prohibitions. These limit the types of hearings that may be conducted wholly via video-link (i.e. appeals against sentence imposed in the Magistrates’ court) or wholly via audio-link (i.e. case management hearings for appeals from the Magistrates’ Court), and insert restrictions on defendants giving evidence or attending sentencing hearings wholly via audio-link. A useful table for practitioners has been prepared by HHJ Lana Wood, HHJ Jonathan Cooper and HHJ Silas Reid, which also sets out the minimum levels of court attendance and defendant participation required. See the table here.
Schedule 25 of the Act contains provisions designed to expand public participation in proceedings conducted wholly by video or audio link, conferring upon judges a discretionary power under the new s. 85A inserted into the Courts Act 2003 to direct the broadcast or recording of such proceedings. Not only must the availability and participation of the parties, their views, and the facilities at court be taken into account when considering the suitability of audio and video links, but also the key principle of open justice. In the event the discretion to direct the broadcast or recording of the proceedings is not exercised, and the remote participation of interested parties is inadequately contemplated or facilitated, then these nascent hearings will be conducted in private. The resulting risk to one of the fundamental principles of our Criminal Justice System is therefore readily visible.
Whilst the speed with which these legislative changes were implemented is to be commended, great care must be taken with their application in practice.
Article written by Joseph Carr, Saffie Jallow and Fiona Prior.
April 2020
