The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020
In the face of the growing COVID-19 crisis, the government followed the example of other nations and introduced unprecedented restrictions on businesses and individual liberties. The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 came into force at 1:00 p.m. on 26th March 2020. They remain in force until they are revoked by the Government, with a review to take place every 21 days. The first such review took place on 16 April 2020 and a decision was taken to extend the powers until 7 May 2020. The time that they remain in force is called ‘the emergency period’.
In light of the extension it is worth a brief reminder of what the powers, restrictions, and punishments for breach are:
Business restrictions
Restrictions differ based on the type of business. These businesses are grouped in schedules at the end of the Act, however I have set them out as clearly as I can below.
Persons found in breach of the business restrictions may be issued prohibition notices by the police which are aimed at preventing any further breach.
Breach of the restrictions or of a prohibition notice is a summary offence punishable by a (unlimited) fine. Fixed penalty notices (up to a maximum of £960) may also be issued. These are at the discretion of the police, and a suspect is not obliged to accept one if issued.
It is noteworthy that the Crown Prosecution Service has issued new guidance urging prosecutors to consider the proportionality of charging suspects in light of the pressures that the crisis is placing on the Criminal Justice System as a whole. It would seem that the preference is to deal with first time breaches out of court where possible to keep resources focussed on serious or repeat offending. Police and prosecutors will also be wary of the six month statutory time limit in which to bring proceedings and this may also contribute to a decision to deal with matters out of court.
Company officers must be aware that they can be held personally liable for offences committed by the company if they were committed with that officer’s consent, or are attributable to that officer’s negligence.
- Restaurants, cafes, bars and pubs
A person responsible for carrying on any of these kinds of business must, during the emergency period:
- close any premises, or part of the premises, in which food or drink are sold for consumption on those premises, and
- cease selling food or drink for consumption on its premises.
However, these businesses are still permitted to sell food and drink for consumption off the premises.
For the avoidance of doubt, an area adjacent to the premises of the business where seating is made available for customers of the business (whether or not by the business) is to be treated as part of the premises of that business and food and drink may not be sold for consumption in that area.
- Cinemas, Theatres, Nightclubs, Bingo halls, Concert halls, Museums and galleries, Casinos, Betting shops, Spas, Nail, beauty, hair salons and barbers, Massage parlours, Tattoo and piercing parlours, Skating rinks, Indoor fitness studios, gyms, swimming pools, bowling alleys, amusement arcades or soft play areas or other indoor leisure centres or facilities, Funfairs (whether outdoors or indoors), Playgrounds, sports courts and outdoor gyms, Outdoor markets (except for stalls selling food), Car showrooms, Auction Houses
A person responsible for carrying on any of the above business or services must cease to carry on that business or to provide that service from the premises during the emergency period.
However, broadcasts can be made from these businesses to people outside the premises, and if suitable these premises can host blood donation sessions.
- Businesses permitted to keep premises open
The following businesses are not currently obliged to close their premises:
- 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.
- 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.
- Car parks.
- Public toilets.
- All other businesses
Any business not included in the above list must cease to carry on that business or provide that service except by making deliveries or otherwise providing services in response to orders received:
- through a website, or otherwise by on-line communication,
- by telephone, including orders by text message, or
- by post;
These businesses must close any premises which are not required to carry out its business or provide its services in these ways. However if the premises is required to carry out the business or provide the service it may remain open, however businesses must be prepared to be able to demonstrate this if challenged. Failure to do so may result in a conviction and financial penalty.
Businesses must cease to admit any person to its premises who is not required to carry on its business or provide its service.
This essentially ends face-to-face contact for the majority of businesses until the emergency period is over.
An exception is made for hotels and other accommodation services, who may only remain open to provide accommodation for any person, who:
- is unable to return to their main residence;
- uses that accommodation as their main residence;
- needs accommodation while moving house;
- needs accommodation to attend a funeral;
- to provide accommodation or support services for the homeless,
- to host blood donation sessions.
Places of worship must be closed except for funerals, to broadcast an act of worship, or to provide essential voluntary services or urgent public support services (including the provision of food banks or other support for the homeless or vulnerable people, blood donation sessions or support in an emergency).
Personal restrictions
During the emergency period, no person may leave the place where they are living without reasonable excuse. A list of ‘included’ reasonable excuses has been provided, but the wording of the law does suggests that what is a ‘reasonable excuse’ is not limited to these. Other excuses may be put forward, assuming that they are reasonable in the circumstances.
Persons found in breach of the personal restrictions can be directed by a police officer or PSCO to return home, or where necessary the officer can take it further and physically take that person home using reasonable force.
Police officers and PCSOs may direct parents to ensure that their children abide by the personal restrictions.
Breach of the restrictions is a summary offence punishable by a (unlimited) fine. Fixed penalty notices (up to a maximum of £960) may also be issued. These are at the discretion of the police and a suspect is not obliged to accept one if issued.
It is noteworthy that the Crown Prosecution Service has issued new guidance urging prosecutors to consider the proportionality of charging suspects in light of the pressures that the crisis is placing on the Criminal Justice System as a whole. It would seem that the preference is to deal with first time breaches out of court where possible to keep resources focussed on serious or repeat offending. Police and prosecutors will also be wary of the six month statutory time limit in which to bring proceedings and this may also contribute to a decision to deal with matters out of court.
The list of reasonable excuses includes (but is not limited to):
- 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 persons and supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or to obtain money;
- to take exercise either alone or with other members of their household;
- to seek medical assistance, including access to dental and veterinary services;
- to provide care or assistance 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:
- a member of the person’s household,
- a close family member, or
- if no-one within sub-paragraphs (i) or (ii) are 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—
- 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);
- social services;
- services provided by the Department of Work and Pensions;
- 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;
- 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.
In addition to the list provided in the regulations, the Crown Prosecution Service has issued guidance about what behaviours are likely to be reasonable and what aren’t. This guidance has been reproduced by the College of Policing and circulated to forces nationwide. They include for example:
- Buying several days’ worth of food including luxury items and alcohol, or small amounts of staple items are both likely to be reasonable. The inference is that buying small amounts of non-staple items is not likely to be reasonable, although that is not explicitly stated and could be argued against.
- Buying tools to repair damage is likely to be reasonable, but buying tools to redecorate is not.
- Reasonable exercise includes running and walking, but the guidance also allows for stopping to rest or eat, and driving to the countryside to walk. This is a far more liberal approach to the regulations than has been seen in various police areas, perhaps most notably Derbyshire where walkers were filmed by drones and ‘shamed’ on social media.
- There is no requirement to be a key/essential worker in order to travel to work. Anyone can travel to work if it is not reasonably possible to work from home.
- Moving to a friend’s address for several days to allow a ‘cooling-off’ following arguments at home is likely to be reasonable. While the regulation listed reasons allowed a person to leave home to avoid injury or illness or to escape a risk of harm, this is a much lower threshold.
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—
- to facilitate a house move,
- to provide care or assistance to a vulnerable person,
- to provide emergency assistance, or
- to participate in legal proceedings or fulfil a legal obligation.
When dealing with gatherings, a police officer or PCSO 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.
Fines and fixed penalty notices are once again available as punishments for those who breach these restrictions.
These are uncertain times and unprecedented restrictions. If you or your business are facing action over any alleged breach, please contact us and we will seek to advise you.
Alex Chapman
Janes Solicitors
