Can my company be prosecuted for breaking restrictions?

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 of 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.

The media has been quick to highlight the fact these Regulations create offences for individuals who do not follow the Government guidance in their personal life. However, consideration should also be given to the liability of businesses and those responsible for carrying on a business.

A “person responsible for carrying on a business” includes the owner, proprietor and manager of that business.

The Coronavirus restrictions

The below is a summary of the key requirements which arise in a commercial context; it is an offence to not follow the requirements in these Regulations:

• Regulation 4 (1) – applies to specific food outlets including cafes, bars and public houses along with workplace cafes (if there is no practical alternative for staff to obtain food) and creates a requirement during the emergency for the ‘person responsible’ to 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.

This means that the above outlets can only sell food on a takeaway basis.

The only exception to this is when a hotel provides food by way of room service and the above does not apply to food outlets in hospitals, care homes, schools and prisons.

• Regulation 4 (4) – in addition, a person responsible for carrying on a business or providing a service which is listed in Part 2 of Schedule 2 must cease to carry on that business or to provide that service during the emergency period. This is mandatory and there is no flexibility here – these businesses include, among others: cinemas, gyms, theatres, nightclubs, skating rinks, casinos and funfairs.

In addition, under Part 3, there are a number of businesses which are permitted to remain open during the emergency period. These businesses include, among others: food retailers, pharmacies, petrol stations, banks, vets, agricultural supply shops and car parks.

• Regulation 5 (1) – provides for additional restrictions and closures during the emergency period. If a business is not listed in Part 3 then they must also close but they may continue to sell their goods and services online, by telephone or mail. For example, a clothing retailer may continue to take internet orders and distribute their goods by way of post or courier.

In addition, the responsible person must close any additional premises which are not required to carry out the above business operations and no person who is not required to fulfil those operations are to be permitted into the premises.

• Regulation 5 (3) –  a person responsible for carrying on a business consisting of the provision of holiday accommodation, including but not limited to, a hotel, hostel and bed and breakfast, must cease to carry on that business during the emergency period.

However, there are exemptions in Regulation 5 (4) which cover situations where the occupant is unable to return to their main residence, the accommodation is their main residence or where the accommodation is needed by the occupant whilst moving house or attending a funeral.

Regulation 5 also places restrictions on places of worship, community centres and crematoriums.

Offences, enforcement and penalties

If a business is found to be operating in breach of Regulation 4 or 5 above, a Prohibition Notice will be served in accordance with Regulation 8 (2) which will inevitably require the immediate cessation of the unsafe activity; this will likely look like a forced closure of that business or further restrictions.

If a person does not comply with a Prohibition Notice (without reasonable excuse) they are personally liable for prosecution as this is an offence in itself.

In addition, where it is proved that an offence has been committed by a ‘body corporate’ (i.e. a limited company) and that offence is committed with the consent or connivance of an officer (i.e. a director or manager) of that company or there is negligence attributable to an officer, then the officer (as well as the body corporate) is guilty of the offence and liable to be prosecuted and punished accordingly.

That means there is both personal and corporate criminal liability when breaching the above Regulations.

In terms of personal liability, where an officer is not given the option of a fixed penalty then upon conviction in the Magistrates’ Court, that officer will be liable to receive an unlimited fine; however that fine will have to be reasonable and proportionate to the offence committed and the financial means of that person.

As the police and the CPS begin to exercise their powers, it is vitally important that you are aware of your rights and the ability of a business to function in these challenging social and economic times.

We understand that these are unprecedented and challenging times and now more than ever you may need specialist criminal or regulatory support. As such, if you are concerned about whether you can operate during the emergency period or are in a position where you or your business are facing enforcement action, please contact a member of the Regulatory and Corporate Defence Team who will be happy to assist you.