Coronavirus: Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 effective from 13.00 on 26 March 2020 – 3 July 2020

Updated: 03 July 2020|Legal Guidance

Summary

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“The Regulations”) came into force at 13.00 on 26 March 2020 and are effective until 00.01 on 4 July 2020 for the majority of restrictions. The restrictions relating to the opening of bars, including bars in hotels and members’ clubs, public houses and social clubs remain in force until 06.00 on 4 July. The Health Protection (Coronavirus, Restrictions) (No.2) (England) Regulations 2020 apply from 00.01 on 4 July 2020, subject to the provisions relating to the opening of bars.

The Regulations apply to England only

The Regulations have been amended by:-

Effective dates

The Regulations should be considered for all breaches from 13.00 on 26 March until 11.00 on 22 April 2020.

All reviews of breaches committed between 11.00 on 22 April 2020 to 23.59 on 12 May 2020 should take into account the Amendment Regulations.

All reviews of breaches committed from 13 May – 31 May 2020 should take into account the Amendment (No.2) Regulations

All reviews of breaches committed from 1 June should also take into account the Amendment (No.3) Regulations.

All reviews of breaches committed from 13 June 2020 should also take into account the Amendment (No.4) Regulations.

The Regulations

A breach of a requirement or restriction in the Regulations will be an offence which can be prosecuted at any time before the expiry of the statutory time limit, provided the breach was committed before the repeal date. (R.3 (4)A)

The Regulations provide powers to a relevant person to:

  • Require the closure of premises and businesses; (R.4)
  • Restrict certain business activities; (R.5)
  • Restrict movement (R 6); and
  • Restrict gatherings (R.7)

A ‘relevant person’ is defined as a constable, a police community support officer (PCSO) or a person designated by the Secretary of state for the purposes of the regulation.

The Regulations apply during the ‘emergency period’ which commences upon the introduction of the Regulations until a date to be specified by the Secretary of State. The need for such restrictions and requirements had to be reviewed once every 21 days between 26 March 2020 and 31 May 2020.  R. 3(2) is amended from 1 June so that the Regulations have to be reviewed by the Secretary of State at least every 28 days, instead of every 21 days.

Compliance with the Regulations can be enforced by the issuing of a prohibition notice (in respect of premises) or a direction and removal of persons to their home (in respect of restriction of movements) by reasonable force if necessary and proportionate or by directing the dispersal of gatherings of 3 or more people (R.8).  From 1 June R.8 is amended so an authorised person can take enforcement action including where an individual is staying overnight at a place other than the place where they are living; and where an authorised person considers a number of people have gathered in breach of R.7

Failure to comply with a requirement, a prohibition notice or direction is a criminal offence, punishable by a fine (R.9). These are summary offences and prosecutors are reminded of the 6 month statutory time limit which applies to the institution of proceedings. In the first instance, a fixed penalty notice can be issued to any person who has committed an offence under the Regulations, provided they reasonably believe the person is over the age of 18. From 22 April “over the age of 18” is replaced with “aged 18 or over”. 

Powers relating to closure of premises and businesses

The Regulations provide a requirement for the closure of specified businesses in which food and drinks are sold for consumption on its premises (though allowing for selling of the same to be consumed off premises). The relevant businesses are listed in Part 1 of Schedule 2 and include restaurants, cafes, bars and public houses (R.4 (1)).

Businesses outlined in Part 2 of Schedule 2 must cease to carry on business during the relevant period (R.4(4)). Those businesses include cinemas, nightclubs, spas, indoor fitness studios, playgrounds etc. (See the full list here) From 22 April 2020 Part 2 of Schedule 2 is amended so that outdoor swimming pools (paragraph 20) are required to cease to carry on business; livestock markets (paragraph 21) and livestock auctions (paragraph 23) are exempted from having to cease to carry on business.  From 13 May 2020 Schedule 2, Part 2 Paragraph 20 is amended so that after “Playgrounds,” “indoor” is inserted so that indoor sports courts must remain closed. Part 3 of Schedule 2 is also amended so that garden centres (paragraph 43) and outdoor sports courts (paragraph 44) are excluded from the requirement to cease to carry on business.  From 1 June 2020 a new R.4(5)(c) means that facilities for training elite athletes including indoor fitness studios, gyms, sports courts, indoor or outdoor swimming pools or other indoor leisure centres can open.  From 1 June 2020 a new R. R.1(3)(aa) defines an elite athlete as an (i) individual who derives a living from competing in a sport; (ii) a senior representative nominated by a relevant sporting body; (iii) a member of a senior training squad for a relevant sporting body; or aged 16 or above and on an elite development pathway. A new R. 1(4) further defines an elite development pathway; a relevant sporting body and a senior representative in the context of R. 1(3)(aa). 

Amendments to R. 4 from 15 June 2020

A new R. 4(7) means that a person responsible for carrying on a business or providing a service listed in Part 2 of Schedule 2 (“the closed business”) is not prevented from

  • carrying on a business of offering goods for sale or for hire—
    • in a shop which is separate from the premises used for the closed business; or
    • by making deliveries or otherwise providing services in response to orders receive—
      • through a website, or otherwise by on-line communication,
      • by telephone, including orders by text message, or
      • by post;
  • from operating a café or restaurant solely to sell food or drink for consumption off the premises, if the café or restaurant is separate from the premises used for the closed business.

For the purposes of the new R. 4(7) a shop, café or restaurant (“SCR”) is separate from premises used for the closed business if the SCR is in a self-contained unit, and it is possible for a member of the public to enter the SCR from a place outside those premises.”. (R.4(8))

Further restrictions on businesses are outlined in R. 5.

  • a person responsible for carrying on a business or service not listed in Part 3, who offer goods for sale or hire, or library services, to cease providing that service except where making deliveries of orders and to close such premises which are not required to carry out such deliveries [R5(1)]
  • cessation of businesses providing holiday accommodation. Exceptions apply to those who are unable to return to their main residence, those who use such accommodation as their main residence and those needing the accommodation to move house or attend a funeral. Further exceptions allow for the provision of support services for the homeless, to host blood donations or for any purpose requested by the Secretary of State. [R5(3) and (4)]. From 13 May 2020 The Amendment (No.2) Regulations insert a new Regulation 5(4)(aa) which means that the exception is extended to those who provide accommodation for any person who (i) is a worker in a critical sector listed in the document titled “Guidance for Schools, Childcare Providers, Colleges and Local Authorities in England on maintaining educational provision” published by the Cabinet Office and the Department for Education on 19th March 2020(i); and (ii) whose need for accommodation is linked to their work. From 1 June amendments to paragraph 5(4)(a) mean that premises can remain open to provide accommodation to those required to self-isolate by law (R. 5 (4)(a)(v)) and for elite athletes and those associated with them where the accommodation is needed for a competition or training (R.5(4)(a)(vi))
  • Closure of places of worship [R5(5)], exceptions are made for funerals and broadcasting an act of worship and to provide essential voluntary services or urgent public services. From I June the exceptions are extended to include opening for early years childcare provided by a person registered on the Early Years Register under Part 3 of the Childcare Act 2006 (R. 5(6)(d)).
  • Closure of community centres, save where they are providing essential voluntary activities or urgent public services [R5(7)]. From 1 June R. 5(7) is amended so that community centres can open to provide essential voluntary activities 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 (R. 5(7)(a)) or for early years childcare provided by a person registered on the Early Years Register under Part 3 of the Childcare Act 2006 (R. 5(7)(b)). 
  • Those responsible for a crematorium or burial ground must ensure it is closed to members of the public, except for funerals or burials, [R5(8)]. From 21 April the requirement to close a burial ground to members of the public is removed from R. 5 (8). R. 5 (8A) also now means that Paragraph (8) does not apply to the grounds surrounding a crematorium, including any burial ground or garden of remembrance..

Amendments to R. 5 from 13 June 2020

R. 5(6) is amended so that places of worship may be used for private prayer by individuals. Private prayer means prayer which does not form part of communal worship (R. 5(6)(e)).

Amendments to R.5 from 15 June 2020

From 15 June 2020 R. 5 (1) is amended significantly. The requirement to close businesses offering goods for sale or for hire in a shop, not listed in Schedule 2 Part 3 is removed. This means that non-essential retail (any shop or business that sells or supplies goods directly to customers) can open. Restrictions still apply to “a person providing library services”. (R.5(1)).

A library service provider can still carry on a business of offering goods for sale or for hire in a shop which is separate from the premises usually used for the provision of library services (“the library premises”); or by making deliveries in any way permitted under paragraph (1)(a); from operating a café or restaurant solely to sell food or drink for consumption off the premises if the café or restaurant is separate from the library premises. (R.5 (2)).

A new R. 5(6A) means that a person responsible for a place of worship can carry on a business offering goods for sale or for hire in a shop which is separate from the place or worship or by making deliveries or providing other services in response to orders received: through a website or via an on-line communication; by telephone (including text) or by post. They can also operate a café or restaurant solely to sell food or drink for consumption off the premises, if the café or restaurant is separate from the place of worship.

A new R. 5 (6B) explains that a shop, café or restaurant (SCR) is separate from a place of worship or library premises if it is in a self-contained unit and it is possible for a member of the public to enter the SCR from a place outside the place or worship or library premises.

A new R. 5 (7)(c) means that a community centre can open to host an indoor market.

R. 5(9) is amended so that it reads “If a business referred to in paragraph (2) or (3) (“business A”) forms part of a larger business (“business B”), the person responsible for carrying on business B complies with the requirement in paragraph (2) or (3) to cease to carry on its business if it ceases to carry on business A.”

Schedule 2 Part 2 – businesses that are required to cease business

From 1 June 2020 Schedule 2 Part 2 is amended so that:-

  • Paragraph 18 is amended so that indoor games; recreation and entertainment venues have to remain closed;
  • Paragraph 19 now includes theme parks; adventure parks and activities in the list of venues which have to remain closed;
  • Paragraphs 21 and 22 are deleted so that outdoor markets and car showrooms can open subject to the conditions in Part 3;
  • Paragraph 23 is amended to include the following in the list of venues that have to remain closed:-
  • 23A.Social clubs.
  • 23B.Model villages.
  • 23C.Aquariums and zoos, including safari parks.
  • 23D.Visitor attractions at farms.
  • 23E.Indoor attractions at visitor attractions such as—
    • botanical or other gardens, biomes or greenhouses;
    • heritage sites or film studios;
    • landmarks, including observation wheels or viewing platforms.

The Regulations define “indoor attraction” to mean those parts of a venue, including shops and visitor centres but not including toilets for visitors, which—

  • would be considered to be enclosed or substantially enclosed for the purposes of section 2 of the Health Act 2006 under the Smoke Free (Premises and Enforcement) Regulations 2006; and
  • are, in normal times, open for members of the public to visit for the purposes of recreation, whether or not for payment.;

Amendments to Part 2 Schedule 2 from 15 June 2020.

Paragraph 5 is amended so that drive in cinemas can open

Paragraph 10 is amended so that museums and galleries cannot open but retail galleries where the majority of art is on display for sale can open

Paragraph 12 is removed so that betting shops can open

Paragraph 23 is removed so that auction houses can open

Paragraph 23C which required aquariums and zoos including safari parks to close is removed, so they may re-open. However, a new paragraph 23C requires indoor attractions (see 23E(2)) at aquariums, zoos, safari parks, farms, wildlife centres and any place where animals are exhibited to the public as an attraction must remain closed.

Paragraph 23D removes the requirement to close visitor attractions at farms (subject to new paragraph 23C)

Paragraph 23E(2) which defines indoor attractions is amended to remove reference to shops, so that shops can now open.

Schedule 2 Part 3 – businesses that can remain open

From 13 May Part 3 of Schedule 2 was amended so that garden centres (paragraph 43) and outdoor sports courts (paragraph 44) are excluded from the requirement to cease to carry on business.

Amendments to Schedule 2 Part 3 from 1 June 2020

  • Paragraph 44 is amended to include amenities, including water sports, stables, shooting and archery venues, golf courses and driving ranges in the list of venues which can open;
  • a new paragraph 45 allows outdoor markets to open; and
  • and new paragraph 46 allows showrooms and other premises, including outdoor areas, used for the sale or hire of caravans, boats, or any vehicle which can be propelled by mechanical means to open.

Amendments to Schedule 2 Part 3 from 15 June 2020

Schedule 2 Part 3 is removed from the Regulations.

Enforcement of these closures or restrictions will be through service of a prohibition notice to the relevant person who, it is reasonably believed, is contravening the restriction and where it is necessary and proportionate to prevent the continued contravention [R.8(2)]. Failure to comply with the terms of a prohibition notice is a criminal offence.

For offences and penalties see here.

Powers relating to leaving main residence and gatherings without reasonable excuse

Regulation 6 – Restrictions on Movement from 13.00 on 26 March 2020 to 31 May 2020

The Regulations restrict movement and gatherings; no person may leave the place where they are living without reasonable excuse (unless they are homeless). [R. 6]. From 11.00 on 22 April 2020 R. 6 states that no person may leave or be outside of the place where they are living without reasonable excuse.  This does not change the meaning of R.6.  Instead it clarifies that a person may not remain outside the place they live without a reasonable excuse, having left with a reasonable excuse.

The following is a non-exhaustive list of what constitutes a reasonable excuse:-

  • To obtain basic necessities for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person; From 22 April 2020 R. 6(2)(a) is amended to remove the reference to “or obtain any money”. Instead a new R. 6(2)(aa) states it is a reasonable excuse to obtain money from or deposit money with any business listed in paragraphs 33 or 34 of Schedule 2.” Paragraph 33 now includes a wider range of financial organisations.  From 13 May R.6(2)(ab) is inserted so that is a reasonable excuse to collect goods which have been purchased from a business in any way permitted under regulation 5(1)(a) i.e. through a website; by phone or by post;
  • From 13 May 2020 R 6(2)(b) which referred to “to take exercise either alone or with other members of their household is replaced with “to take exercise (i) alone; (ii) with one or more members of their household, or (iii)with one member of another household;
  • From 13 May R.6(2)(ba) is inserted so that it is a reasonable excuse to visit public open space for the purposes of open air recreation to promote their physical or mental health or emotional wellbeing (i) alone, (ii) with one or more members of their household, or (iii) with one member of another household;
  • To seek medical assistance (including to access those services outlined in para 32 of Schedule 2);
  • To provide care or assistance to a vulnerable person (see below) or to provide emergency assistance;
  • To donate blood;
  • From 13 May Paragraph 6(2)(f) which relates to travel for the purposes of work or to provide voluntary or charitable services, is amended to remove reference to “travel for the purposes of”. This exception now covers not only the travel but also the work or service provided;
  • To attend a funeral (conditions specified);
  • From 22 April R. 6(2) (ga) is inserted so that it is a reasonable excuse to visit a burial ground or garden of remembrance, to pay respects to a member of the person’s household, a family member or friend;
  • To meet a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings; (Prosecutors should note that this will apply to defendants and witnesses);
  • To access critical public services;
  • To continue existing arrangements relating to shared parental access to children;
  • To go to a place of worship (in the case of a minister of religion or worship leader only);
  • To move house, where reasonably necessary (R.6(2)(l). From 13 May 2020 this is replaced with (l)       to undertake the following activities in connection with the purchase, sale, letting or rental of a property; (i) visiting estate or letting agents, developer sales offices or showrooms; (ii)viewing properties to find a property to buy or rent; (iii) preparing a property to move in; (iv) moving house; (v) visiting a property to undertake any activities required for the rental or sale of that property;
  • To avoid injury or illness or to escape a risk of harm;
  • From 13 May R.6(2)(n) is inserted so that it is a reasonable excuse to use a waste and recycling centre.

From 13 May 2020 a new R.6(5) explains “(5) For the purposes of paragraph (2)(ba), “public open space” includes (a) land laid out as a public garden or used for the purpose of public recreation; (b) land which is “open country” for the purposes of Part 5 of the National Parks and Access to the Countryside Act 1949; (c) land which is “access land” for the purposes of Part 1 of the Countryside and Rights of Way Act 2000).

A vulnerable person is defined, for the purposes of the Regulations, as a person aged 70 or over; a pregnant person or any person under 70 but with an underlying health condition (examples of such a health condition are outlined in schedule 1).

Restrictions on Movement from 1 June 2020

A new R.6 comes into force on 1 June 2020.  It removes the restrictions relating to leaving or being outside of the place where you are living. From 1 June R.6 means that no person may stay overnight at any place other than the place where they are living without a reasonable excuse.  R. 6(2) is a non-exhaustive list of reasonable excuses and includes:-

(a) The individual needs to stay elsewhere to attend a funeral, as—

         (i) a member of the deceased person’s household,

         (ii) a close family member of the deceased person, or

         (iii) if no-one within paragraph (i) or (ii) is attending, a friend of the deceased person;

(b) The individual is an elite athlete, a coach of an elite athlete, or (in the case of an elite athlete who is under the age of 18), a parent of the elite athlete, and needs to stay elsewhere for the purposes of training or competition;

(c) The individual needs to stay elsewhere while moving house;

(d)  it is reasonably necessary for P to stay elsewhere—

         (i)  for work purposes, or for the provision of voluntary or charitable services;

         (ii)  to provide care or assistance to a vulnerable person, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006;

         (iii) to provide emergency assistance;

         (iv) to avoid injury or illness, or to escape a risk of harm;

         (v)  to obtain medical assistance;

(e) The individual needs to stay elsewhere to fulfil a legal obligation or participate in legal proceedings;

(f) The individual is a child that does not live in the same household as their parents, or one of their parents, and the overnight stay is necessary to continue existing arrangements for access to, and contact between, parents and children;

(g) The individual is unable to return to the place where P lives, because—

         (i) it is not safe for the individual to live there,

         (ii) the individual may not lawfully travel there, or is required by law to stay in another place, or

         (iii) the place where the individual is living is not available to them for any other reason.

R.6(3) clarifies that R.6(1) does not apply to any person who is homeless and R.6(4) explains that the place where a person is living (R.6(1)) includes the premises where they live together with any garden, yard, passage, stair, garage, outhouse or other appurtenance of such premises

Restrictions on movement from 13 June 2020

R. 6 (1) is amended so that no person may from 13 June 2020, without reasonable excuse, stay overnight at any place other than the place where they are living or where their linked household is living

A new R. 2(d)(vi) means that is it now a reasonable excuse to attend a birth or make a visit permitted by R. 7(2)(g), (h) or (i)

Regulation 7 – Restrictions on Gatherings from 13.00 on 26 March 2020 to 31 May 2020

The Regulations also prohibit the gathering in a public place of more than 2 people, unless they are members of the same household, where the gathering is for essential work purposes or to attend a funeral. It also allows for such gatherings, where reasonably necessary, in order to move house, provide care or assistance to a vulnerable person, to provide emergency assistance or to participate in legal proceedings.

Restrictions on gatherings from 1 June 2020

From 1 June 2020 R.7 is replaced with a new R.7. R. 7(1) states that during the emergency period, unless R. 7(2) applies, no person may participate in a gathering in a public or private space:-

  • outdoors and consists of more than six people;
  • indoors and consists of two or more people;

R.7(2) lists the exceptions to the prohibition on gathering as follows:-

(a)   all the persons in the gathering are members of the same household;

(b)   the person is attending a funeral, as—

         (i)  a member of the deceased person’s household,

         (ii)  a close family member of the deceased person, or

         (iii)  if no-one within paragraph (i) or (ii) is attending, a friend of the deceased person;

(c)   the person concerned is an elite athlete, the coach of an elite athlete, or (in the case of an elite athlete under the age of 18), the parent of an elite athlete, and the gathering is necessary for training or competition;

(d)   the gathering is reasonably necessary—

           (i)  for work purposes, or for the provision of voluntary or charitable services;

           (ii)  to facilitate a house move;

           (iii)  to provide care or assistance to a vulnerable person, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006;

            (iv)  to provide emergency assistance;

             (v)  for the purposes of early years childcare provided by a person registered on the Early Years Register under Part 3 of the Childcare Act 2006;

             (vi)  to enable one or more persons in the gathering to avoid injury or illness or to escape a risk of harm;

             (vii)  to continue existing arrangements for access to, and contact between, parents and children where the children do not live in the same household as their parents, or one of their parents;

(e)   the person concerned is fulfilling a legal obligation or participating in legal proceedings;

(f)    the gathering takes place at an educational facility and is reasonably necessary for the purposes of education.

R. 7(3) defines a gathering and space indoors for the purposes of the Regulations as:-

(a)  subject to sub-paragraph (b), when two or more people are present together in the same place intending  to engage in social interaction with each other, or to undertake any other activity with each other;

(b)   a space is indoors if it would be considered to be enclosed or substantially enclosed for the purposes of section 2 of the Health Act 2006 under the Smoke Free (Premises and Enforcement) Regulations 2006 .

Amendment to R. 7 - Restrictions on gatherings from 13 June 2020

R. 7(2) is amended so that the restrictions on gatherings in R. 7(1) do not apply:-

  • to members of two households which are linked households in relation to each other (R. 7(2)(a);
  • where the person concerned is attending a person giving birth (“M”) at Ms request (R. 7(2)(g)
  • where the person (P) is visiting a person they reasonably believe is dying (D) and P is
    • a member of Ds household
    • a close family member of F
    • a friend of D, or
    • where there is no-one failing in the previous paragraphs is visiting D, any other person. (R. 7(2)(h)
  • the person concerned (P) is visiting a person (V) receiving treatment in hospital or staying in a hospice or care home or is accompanying V to a medical appointment and P is
    • a member of Vs household;
    • a close family member of V; or
    • a friend of V (R. 7(2)(i).

A care home has the meaning given in Section 3 of the Care Standards Act 2000.

A new R. 7A defines linked households as follows:-

  1. Where a household comprises one adult, or one adult and one or more persons who are under the age of 18 on 12th June 2020 (“the first household”), the adult may choose to be linked with one other household (“the second household”), provided that—
    • the second household is not linked with any other household; and
    • all the adult members of the second household agree.
  2. There is no limit on the number of adults or children which may be in the second household.
  3. The first and second households are “linked households” in relation to each other.
  4. The first and second households cease to be linked households if neither household satisfies the condition in the opening words of paragraph (1).
  5. Once the first and second households have ceased being linked households, neither the first household nor the second household may be linked with any other household.

Amendments to R. 7 – Restrictions on gatherings from 15 June 2020.

A new R. 7(ca) means that the restrictions on gatherings in R. 7(1) do not apply where the person concerned is attending a drive-in cinema in a car or other vehicle, and the people in the vehicle are members of the same household, or of two households which are linked households in relation to each other.

Enforcement of Restrictions on Movement and Gatherings

Enforcement from 13.00 on 26 March 2020 to 31 May 2020

Where a relevant person considers that a person is outside the place where they live, without a reasonable excuse, they may:

  • Direct that person to return to the place where they live – this may include providing reasonable instruction of the route by which the person is required to return; and
  • Remove that person to the place where they live – using reasonable force where it is a necessary and proportionate means of ensuring compliance.
  • These directions include the ability to direct a person who is accompanying a child, to take that child to the place where they live and for that person to ensure the child complies with the direction [R. 8(5)] In addition, where there are reasonable grounds to believe that a child is repeatedly failing to comply with the restriction on leaving their home, they made direct the person with responsibility for the child to secure the child’s compliance.[R. 8.(6)]
  • In addition, in respect of gatherings of 3 or more people, they can direct the gathering to disperse; direct any person in the gathering to return to the place where they are living; or remove any person in the gathering to the place where they are living [R8(9)]
  • R.8(10) stated that “Paragraphs (4), (5), (6), (7) and (8) of this regulation apply to the exercise of a power under paragraph (9), as they apply to the exercise of a power under paragraph (3).” From 11.00 on 22 April 2020 R. 8 (10) is replaced with paragraphs 8 (10) – 8(10) (C). The new R. 8(10) clarifies that the enforcement powers in relation to an adult with responsibility for a child apply to both R. 6 and R.7 breaches.

Such directions can only be given where it is a necessary and proportionate means of ensuring compliance with the requirement.

Enforcement from 1 June 2020

From 1 June 2020 the wording in R.8 is amended to support enforcement of the new restrictions in R.6.  There is a change in terminology from “leaving or being outside of the place where an individual is living” to enforcement where an individual is “staying overnight at a place other than the place where they are living”

Offences

The regulations create criminal offences in three situations:

  1. Contravention of a requirement in regulation 4, 5, 6, 7 or 8, without a reasonable excuse – R. 9(1)
  2. Obstruction, without reasonable excuse, of a person carrying out a function under the regulations – R. 9(2)
  3. Contravention of a prohibition notice or direction or reasonable instruction given to a person under R. 8 without reasonable excuse – R. 9(3).

It should be noted that the police also have the power to arrest where such an offence has been committed (R. 9(7)).

In general, we expect that enforcement of the regulations will be through the issuance of a prohibition notice (for businesses) or by directions (in respect of movement and gatherings). These may be issued to encourage compliance with the regulations or may be issued where an authorised person ‘believes’ that there has been a breach. However, this does not stop an authorised person from treating a breach as an offence without first issuing a prohibition notice or giving a direction.

Where an authorised person reasonably believes that an offence has been committed by an offender aged 18 or over they may issue a fixed penalty notice (FPN).

A FPN provides an offender with the opportunity to discharge any liability for the offence by paying a fine. If an offender accepts a FPN but does not comply with its terms, then after 28 days criminal proceedings can be instituted by the police. In proceedings instituted following a failure to comply with an FPN a signed certificate confirming the failure to pay a FPN by the specified date is automatically admissible in evidence of the facts stated and can be used to prove that there is no bar on the proceedings.

An individual does not have to accept a FPN and if they do not do so the police can issue criminal proceedings for the offence instead. The police also have discretion not to offer a FPN where the offence is so serious that it merits a prosecution or where there has been repeated offending.

It should be noted that FPNs are not automatic. The police can take the decision that the offence is so serious that they can charge straightaway e.g. where there have been multiple offences.

From 13 May 2020 R.10 is amended to reflect increased levels of fine for first and subsequent breaches of the Regulations, including a new maximum of £3200.

Amendments to R. 9 from 13 June 2020

R. 9(2) is amended to clarify that a person who obstructs, without reasonable excuse, any person carrying out a function under these Regulations, including any person who is a relevant person for the purposes of R.8, commits an offence.

Amendments to R. 10 from 13 June 2020

R. 10(12) is amended to clarify that

The relevant local authority may only designate a person for the purposes of this regulation to issue fixed penalty notices where the alleged offence relates to the contravention of a requirement or restriction in regulation 4 or 5 or the obstruction under regulation 9(2) of a person carrying out a function under regulation 8.

Charging Practice

These offences are summary only and, in line with the Directors Guidance on Charging, can be charged by the Police. Prosecutors are reminded that the issuing of criminal proceedings is likely to have been a matter of last resort.

When deciding whether a prosecution is in the public interest, prosecutors should consider Paragraphs 4.9 – 4.14 of the Code for Crown Prosecutors, so as to identify and determine the relevant public interest factors tending for and against prosecution.

Given that the offences in the Regulations are related to measures imposed to prevent the spread of infection throughout the UK, and potentially high incidences of serious illness and death, they should be considered serious. A prosecution will therefore likely be required in the public interest in the majority of cases.

When breaches of The Regulations are committed at the same time as other offences prosecutors should consider the totality of the offending. In circumstances where the breach of the Regulations is not likely to attract a separate penalty then no additional offence should be charged.   The fact that the circumstances of the offence also involved behaviour which was in breach of the Regulations should be referred to in the case summary so that it is treated as part of the overall circumstances of the offending for sentencing purposes. Prosecutors are reminded that offences under the Regulations cannot be sent to the Crown Court.

Government Guidelines and the Regulations

Where Government guidelines or advice suggest that the public should or should not act in specific ways, failure to comply with such guidelines or advice is not an offence unless it is specifically covered by the Regulations. For example, it is not an offence:-

  • To fail to wear face coverings in shops or on public transport;(Please note the changes to the law effective from 15 June 2020 relating to the requirement to wear face coverings on public transport).
  • To fail to comply with social distancing guidelines to remain two metres (6ft) away from people outside your household.
  • For a person responsible for carrying on a business to fail to put in place measures to ensure that people in the shop / business remain 2 m apart.

Summary of new offences

Breach type

Step 1:

Is there a reasonable excuse?

Step 2:

 

Step 3:

Offence

Contravention of requirement to close business (R4)

 

1. Issue Prohibition Notice

 

2. Issue FPN OR

3. Charge

Offence committed under Reg 9.1

 

A separate offence may also have been committed by the company or an officer of the company (R9.5)

Breach of restriction on business activities (R5)

 

1. Issue prohibition notice

 

 

2. Issue FPN OR

3. Charge

Offence committed under Reg 9.1

 

Failure to comply with prohibition notice would be an offence under Reg 9.3

Breach of restriction:

-           on movement (R.6)

-           on gathering (R.7)

 

1. Give direction

 

 

2. Issue FPN OR

3. Charge

Offence committed under Reg 9.1

 

Failure to comply with a direction would be an offence under Reg 9.3

Obstruction a person carrying out a function under the Regs (R9.2)

 

1. Issue FPN

OR

2. Charge

 

Offence committed under Reg 9.2

Annex A – Schedule of changes

Please refer to The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 for full details of all amendments to the Regulations.