Coronavirus – can I be arrested and prosecuted for breaking the new restrictions?

02 April 2020

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (the Regulations) came into force at 1:00pm on 26 March 2020. 

These emergency Regulations create a number of criminal offences during the ‘emergency period’ and provide the police with a range powers in regard to enforcement. The ‘emergency period’ is indefinite at this stage and is due for review every 21 days starting on 16 April 2020.

These offences and powers have been created due to the “serious and imminent threat to public health” that the coronavirus poses; they seek to reduce the spread of the coronavirus in order to protect the NHS and save lives.

The restrictions 

The below is a summary of the key restrictions, which if breached, can amount to an offence:

Regulation 6 – restricts a person from leaving the place where they are living "without reasonable excuse".
In terms of what constitutes a ‘reasonable excuse’, Regulation 6 (2) defines extensively a number of reasonable excuses and these include the need to leave to obtain basic necessities (i.e. food and medication), take exercise, seek medical assistance, attend Court or to satisfy bail conditions. 

It should be recognised that the Regulations do not provide an exhaustive list of what amounts to a 'reasonable excuse'. 

Regulation 7 – restricts a person from participating in gatherings of two or more in a public place.

There are a number of limited exceptions to this rule which include where those gathered live in the same household, the gathering is essential for work purposes and to attend a funeral.

In addition, where it is ‘reasonably necessary’, gatherings of two or more people are lawful to facilitate a house move, provide care to vulnerable person, to provide emergency assistance and to participate in legal proceedings or fulfil a legal obligation. 

There is no definition of what is “reasonably necessary” and it will be the Courts to decide this on a case by case basis.

Offences, enforcement and penalties

Regulation 8 provides for enforcement of the above restrictions. The police can take any action which is “necessary” to enforce the restrictions.

Specifically, if a person is found to be outside their home without reasonable excuse, the police have the power to use ‘reasonable force’ in order to make that person return to their home. 

In addition, there is a liability on those with responsibility for children (under 18’s) to ensure those children are complying with the restrictions. 

Regulation 9 creates the above offences and Regulation 10 deals with fixed penalty notices.
There will be a fixed penalty scheme in place whereby those who commit their first offence under these Regulations will be dealt with by a fine of £60.00. If that person then goes onto commit further offences under these Regulations, the fixed penalty will double with each subsequent offence up to a maximum of £960.00.

If the fixed penalty is paid within 28 days that person cannot be convicted of the offence which means they will not have a criminal record as a result of their actions. If you would like further guidance on the consequences of a conviction, please read our article.

However, if the fixed penalty is not paid within 28 days, the police can charge a person for the offence and the Crown Prosecution Service may bring proceedings against a person for that offence. In addition, the offer of a fixed penalty is discretionary and not guaranteed and proceedings may be brought without the option of a fixed penalty. 

If that is the case, upon conviction in the Magistrates’ Court, that person will be liable to receive an unlimited fine; although that fine will have to be reasonable and proportionate to the offence committed and the financial means of that person. 

The Courts powers for sentence are limited to a financial penalty for offences under these Regulations. Practically, this means that the Court cannot impose a community order or custodial sentence upon conviction.

In extreme cases, the police have the power of arrest for those who persistently refuse to comply with the Regulations. 

This power will only be exercised when it is proportionate and necessary to so and the Home Office have said that in the first instance the “police will always apply their common sense and discretion”; we are yet to fully see what that “common sense and discretion” looks like in practice

As the police and the CPS begin to exercise their powers, it is vitally important that you are aware of your rights and should you find yourself in a position where you are facing enforcement action, please contact the author, Liam Green.

We understand that these are unprecedented and challenging times and now more than ever you may need specialist criminal or regulatory support; please contact Liam Green or a member of the Regulatory and Corporate Defence Team who will be happy to assist you.

For guidance on how the Regulations impact businesses please read our other article.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at April 2020.