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Coronavirus: Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020

|Legal Guidance

Revocation

THESE REGULATIONS HAVE BEEN REVOKED

At 11.55pm on 18 July 2021 the Health Protection (Coronavirus, Restrictions) (Steps etc.) (England) (Revocation and Amendment) Regulations 2021 revoked these Regulations, ending the lockdown restrictions in England.

Summary of Regulations and Amendments

The Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020 came into force on 15 June 2020 and apply to England only.

This guidance is a summary of the main provisions of the original Regulations, incorporating key amendments introduced by other Regulations. This guidance does not contain all provisions nor reflect all amendments introduced by all the Amendment Regulations. It is intended to guide prosecutors through the general structure of the Regulations. Prosecutors are therefore reminded to refer to www.legislation.gov.uk, using the timeline on the website to determine which provisions were in force at the time of an alleged breach..

This guidance incorporates the main amendments introduced by:

The Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020, (“The Regulations”), require members of the public to wear face coverings whilst using public transport (such as buses, trains, aircraft, the London Underground, water taxis and trams) in England to protect against the risks to public health arising from coronavirus, except in certain limited cases.

Amendments effective from 28 August 2020

The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) Regulations 2020 which came into force on 28 August 2020, introduce a new R. 7A. This changes how the amount specified in the FPN is calculated if there has been a previous breach of either The Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020 or The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020.

Amendments effective from 23 September 2020

The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment)(No.2) Regulations 2020 require members of the public to wear face coverings in a “taxi and private hire vehicle” while a public transport service is being provided (R.2).

The Regulations

The regulations apply in England only. This includes:

  • In English airspace, to a person who is on board an aircraft which took off from, or is to land at, a place in England;
  • In English territorial sea, to a person who is on board a vessel which is not an excluded vessel. An excluded vessel is one which departed from a place other than a place in England and is to dock in a place other than a place in England.

The Regulations do not apply to anyone who started a journey before 15 June 2020 (R. 1(4)).

Regulation 3 – requirement to wear a face covering when on public transport

No-one may use public transport service without wearing a face covering unless they have a reasonable excuse or are exempt (R. 3(1)).

For the purpose of the Regulations a face covering is defined as a covering of any type which covers a persons’ nose and mouth (R. 2(1)).

A public transport service means any service for the carriage of passengers from place to place which is available to the general public (whether or not for payment, whether or not all of the places connected by the service are in England and whether or not there are breaks in the journey) (R. 2(2)). It does not include:

  • a school transport service (R. 2 (2)(a) and R. 2(3));
  • a taxi or private hire vehicle service (R. 2(2)(a) and R. 2(3));
  • any service provided by means of a cruise ship.

From 23 September 2020 The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment)(No.2) Regulations 2020 amend R. 2 so that “a taxi or private hire vehicle service” is no longer excluded from the definition of a public transport service. This means that a member of the public has to wear a face covering while boarding or in a taxi or private hire vehicle and the public transport service is being provided.

A person is using a public transport service at any time when they are:

  • on board (whether or not for the purposes of travel); or
  • are boarding any vehicle by means of which a public transport service is provided (R. 3(2)).

From 23 September 2020 R. 3(2) is amended so that a person is using a public transport service at any time when they are;

  • boarding any vehicle by means of which a public transport service is being provided; or
  • (whether or not for the purpose of travel) on board any vehicle by means of which a public transport service is being provided.

The impact of the insertion of “being” into R.3(2)(a) and (b) is to make it clear that the requirement to wear a face mask only applies where a public transport service is being provided.

The following individuals listed in R. 3(3) are exempt from the requirement to wear a face covering while using a public transport service:

  • a child who is under the age of 11;
  • an employee of the operator of the relevant public transport service acting in the course of their employment;
  • any other person providing services under arrangements made with the operator of the relevant public transport service who is providing those services;
  • a constable or police community support officer acting in the course of their duty;
  • an emergency responder (other than a constable) acting in their capacity as an emergency responder;
  • a relevant official acting in the course of their employment or their duties;
  • where a person is allocated a cabin, berth or other similar accommodation, at any time when they are in that accommodation—
    • alone, or
    • only with members of their own household or a linked household;
  • where—
    • a person is permitted, or ordinarily required, to board and to remain in a vehicle when using the public transport service, and
    • the vehicle is not itself used for the provision of a public transport service, the person remains in that vehicle.

Regulation 4 – reasonable excuse for not wearing a face covering when on public transport

R. 4 includes a non-exhaustive list of what is a reasonable excuse for not wearing a face covering while using a public transport service. The list includes individuals who:

  • cannot put on, wear or remove a face covering
    • because of any physical or mental illness or impairment, or disability (within the meaning of section 6 of the Equality Act 2010(g)), or
    • without severe distress;
  • are travelling with, or providing assistance to, another person who relies on lip reading to communicate with them;
  • remove their face covering to avoid harm or injury, or the risk of harm or injury, to themselves or others;
  • are travelling to avoid injury, or to escape a risk of harm, and does not have a face covering with them;
  • remove their face covering to eat or drink where is it reasonably necessary for them to eat or drink;
  • remove their face covering to take medication;
  • are requested to remove their face covering by a relevant person.

Regulation 5 - enforcement of requirement to wear a face covering whilst travelling on public transport

Where a relevant person considers that another person is, at the time of boarding, not wearing a face covering, in contravention of R. 3, the relevant person may refuse to allow the person to board (R. 5(1)).

Where a relevant person considers that a person is not wearing a face covering in contravention of R. 3, and they consider it necessary and proportionate to ensure compliance with R.3, (R. 5(7),) the relevant person may—

  • direct that person to wear such a covering (R. 5(2)(a));
  • direct that person to disembark from the relevant vehicle (R. 5(2)(b)).

For the purposes of these Regulations a relevant person is defined as:

  • a constable;
  • a police community support officer;
  • in relation to a public transport service provided by TfL or a TfL contractor, a TfL officer;
  • in relation to a public transport service provided by any other operator—
    • the operator, or
    • any employee or agent of the operator who is authorised by the operator for the purposes of this regulation;
  • a person designated by the Secretary of State for the purposes of this regulation (R. 5(9)).

Where a person does not comply with a direction given to them by a constable under R. 5(2)(b) the constable may, if they consider it necessary and proportionate to secure compliance with the requirement in R. 3, use reasonable force to remove them from the relevant vehicle (R. 5(3) and R. 5(4) and R. 5(7)).

Where a relevant person has reasonable grounds to believe that a relevant child (a child over the age of 11: R. 5(8)) is failing to comply with R. 3, they may direct any individual who has responsibility for that child to secure, so far as reasonably practicable, that the child complies with the requirement (R. 5(5)).

An individual has responsibility for a relevant child if the individual:

  • has custody or charge of the child for the time being, or
  • has parental responsibility for the child within the meaning given in section 3 of the Children Act 1989 (R. 5(6)).

Regulation 6 – Offences and Penalties

A person commits an offence if they:

  • contravene the requirement in R. 3 (R. 6(1));
  • obstruct, without reasonable excuse, any person carrying out a function under the Regulations (R. 6(2));
  • contravene a direction given under R. 5(2) without reasonable excuse (R. 6(3)).
  •  
  • An offence under the Regulations is a summary offence punishable with an unlimited fine. R. 6(4).

Regulation 7 – Fixed Penalty Notice

For the purposes of R.7, “authorised person” means (R. 7(11)):

  • a constable;
  • a PCSO; or
  • in relation to a public transport service provided by TfL, a TfL officer; or
  • a person designated by the Secretary of State for the purposes of R. 7.

In general, we expect enforcement of the regulations will be by directions to encourage compliance with the Regulations. An FPN is not automatic. An authorised person may take the view the breach is too serious for an FPN, for example where it is repeated.

Where an authorised person reasonably believes that an offence has been committed under the Regulations by an offender aged 18 or over they may issue a fixed penalty notice (FPN) (R. 7(1)).

The amount of the fixed penalty must be £100 (R. 7(6)), reducing to £50 if paid within 14 days (R. 7(7)). From 24 September 2020 the levels of fine are increased so e.g. the amount of a first fixed penalty is £200, reducing to £100 if paid within 14 days. Thereafter the fines for all subsequent breaches are increased to a maximum of £6,400.

A FPN provides an offender with the opportunity to discharge any liability for the offence by paying a fine (R. 7(2)).

An offender does not have to accept an FPN. Proceedings can be issued against any offender who fails to accept an FPN or to one who fails to comply with the terms of the FPN within 28 days (R. 7(4)). A signed certificate confirming the failure to pay a FPN by the specified date is automatically admissible in evidence of the facts stated (R. 7(10)).

Amendments to Regulation 7 from 28 August 2020

The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) Regulations 2020 come into force on 28 August 2020. The Regulations introduce a new R. 7A which means that when a person is issued with a fixed penalty notice under either the Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020 or The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020, any “relevant fixed penalty notices” already issued to that person will be taken into account when determining the amount of the fixed penalty to be imposed. 

A “relevant fixed penalty notice” is a fixed penalty notice issued to a person under the “Wearing of Face Coverings on Public Transport” Regulations or the “Wearing of Face Coverings in a Relevant Place” Regulations.

Where a person has received two or more relevant fixed penalty notices before 28th August 2020, only one of those notices will be taken into account for the purposes of determining the amount of the fixed penalty to be imposed under the “Wearing of Face Coverings on Public Transport” or “Wearing of Face Coverings in a Relevant Place” Regulations after that date.

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.

Offences under the Coronavirus Regulations are not governed by the 6 month time limit (from the offence date) set out in section 127(1) of the Magistrates' Courts. The Regulations are made under the Public Health (Control of Disease) Act 1984 and section 64A of this Act states that the time limit for proceedings is: 

  • before the end of the period of 6 months beginning with the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to the prosecutor's knowledge; and
  • within 3 years of the date of the commission of the offence.

Since offences under the Coronavirus Regulations are usually charged by the police, in most cases the police officer will be “the prosecutor” for the purposes of this statutory time limit provision. It should be noted that:

Where an offence is charged 6 months or more after the date of the breach, the police officer who makes the charging decision should produce a certificate to state the date on which evidence which they think is sufficient to justify the proceedings came to their knowledge.

  • The relevant date will depend on the review process operated by the particular police force. For instance, in cases where a FPN is issued, the relevant date could be any of the following: the date of breach; the date when the FPN was issued; the date after the expiry of the 28 day period for payment of a FPN; or later, when an evidential review for charging purposes is completed.
  • In cases where the CPS charges an offence under the Coronavirus Regulations, such as where it is linked to other offences referred to the CPS for a charging decision (and it is considered appropriate to charge the Coronavirus offence), if the case is charged 6 months or more after the date of the breach, the CPS prosecutor should produce the certificate. 

The court in the case of DPP v Woodward [2017] EWHC 1008 (Admin); 181 J.P. 405 reviewed the main authorities on this point and summarised the key propositions. It stated that the relevant date is the date upon which the prosecutor considers that, upon the available evidence it is in the public interest to prosecute the particular individual, and not merely whether there is a prima facie case. However, the decision could not be avoided or delayed by sitting on information.

When deciding whether a prosecution is in the public interest, prosecutors should consider Paragraphs 4.9 – 4.14 of the Code for Crown Prosecutors, when assessing 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 Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020 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 dealt with in the Crown Court.

The Code for Crown Prosecutors

The Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions that sets out the general principles Crown Prosecutors should follow when they make decisions on cases.

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Prosecution guidance

This guidance assists our prosecutors when they are making decisions about cases. It is regularly updated to reflect changes in law and practice.

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