This Update addresses new UK police enforcement powers over individuals and businesses introduced by the UK government to prevent or mitigate the spread of COVID-19. We also consider the general police powers exercisable in connection with the outbreak. Finally, we note certain human rights implications of the new legislation in the commercial context.
1. Health Protection (Coronavirus, Restrictions) (England) Regulations 2020
On 9 March 2020, Parliament approved the Health Protection (Coronavirus) Regulations 2020 introduced under section 45R of the Public Health (Control of Disease) Act 1984. Under these regulations, the police were given the power to detain anyone suspected of having COVID-19.
On 26 March 2020, these regulations were replaced with the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (the Regulations). The Regulations contain the rules relating to movement restrictions and business closures announced by the Prime Minister on 23 March 2020. The Regulations allow the police to take action necessary to enforce the new restrictions.
The restrictions apply during the “emergency period” which started on 26 March 2020, the date on which the Regulations came into force in England, Wales and Scotland, and will continue until terminated by a direction of the Secretary of State. The Secretary of State will review the need for the restrictions and other requirements imposed by the Regulations at least once every 21 days, with the first review being carried out by 16 April 2020.
1.1 Power to issue a prohibition notice (Regulation 8(2))
As part of the measures introduced by the Regulations, certain nonessential businesses such as cinemas, theatres and museums must close save for limited exceptions (e.g., radio, television or internet broadcasts). Pubs, restaurants and cafes are required to limit their business activity to takeaway services and to close any premises or parts of premises designated for food or drink consumption. Businesses selling goods must carry on their trading only through websites, telephone or post.
A constable or a police community support officer (PCSO) may issue a prohibition notice requiring compliance to a person contravening these restrictions, including a notice for closure of business. It appears from the Regulations that a notice would be addressed to a natural person who is an officer of a corporate entity or is otherwise “responsible for carrying on a business.”
1.2 Power to direct or remove a person to their place of living (Regulation 8(3)-(8))
The Regulations prescribe that individuals are allowed to leave home only if they have a “reasonable excuse.” The list of reasonable excuses includes, among other things, shopping for basic necessities, exercise, seeking medical assistance or providing care to a vulnerable person and traveling for work where it is not reasonably possible to work from home. The government has identified a number of critical workers, such as health and social care professionals, staff needed for essential financial services provision and public safety and national security personnel who can still travel to work. A person does not have to have a “critical worker” status, however; individuals whose work cannot be done from home, such as construction workers, may still travel. There is a lack of clarity around the latter category of worker.
If a police officer considers that an individual is outside of their place of living without a reasonable excuse, the officer may direct that person to return to their home or remove that person to the place where they are living, using reasonable force where necessary.
An officer may exercise these powers only where the officer concludes that it is a necessary and proportionate step toward ensuring compliance with the restriction.
A person responsible for a child can be directed to take the child to the place where they are living and to take reasonable steps to ensure the child’s compliance where a child repeatedly breaches the restrictions.
1.3 Powers with respect to gatherings (Regulation 8(9))
The Regulations, with limited exceptions such as attending a funeral or providing emergency assistance, prohibit gatherings in a public place of more than two people.
If three or more people gather in breach of the restriction, a constable or a PCSO may direct the gathering to disperse, direct any persons involved to return to their place(s) of living or remove any such persons to their place(s) of living. Reasonable force may be used where necessary.
1.4 Power to issue fixed penalty notices (Regulation 10)
The Regulations make it an offence to contradict restrictions on businesses, movement or gatherings, to fail to comply with directions or reasonable instructions of a police officer or obstruct an official carrying out a function under the Regulations without reasonable excuse. An officer (e.g., a director, manager, secretary or similar) of a body corporate will also be guilty of an offence if one of the prohibited acts has been committed with their consent or is attributable to their neglect. These offences are punishable on summary conviction by a fine.
A constable or a PCSO may issue a fixed penalty notice to any individual over 18 years old who they reasonably believe has committed an offence. The fine for a first offence is £60 (reduced to £30 if paid within 14 days) and £120 for a second. The fine doubles for each subsequent offence up to a maximum of £960. Prosecution is also an option. Payment to a local authority under a fixed penalty notice would discharge any liability to conviction and no proceedings may be commenced for the offence for 28 days following the date of the notice.
2. Coronavirus Act 2020 — Other Restrictions
The government announced on 8 March 2020, that it intended to introduce the Coronavirus Bill 2019-2021. The bill was laid before Parliament on 19 March and received Royal Assent on 26 March.
The Coronavirus Act 2020 (the Act), among other things, allows the government to impose restrictions or prohibit events or gatherings and strengthens police powers of detention.
2.1 Powers relating to potentially infectious persons (Schedule 21 of the Act)
On 10 February 2020, the Secretary of State declared that the incidence of transmission of coronavirus constitutes a serious and imminent threat to public health. Measures outlined in the Health Protection (Coronavirus) Regulations 2020 (now replaced with the Regulations and the Act) were deemed an effective means of delaying and preventing further transmission.This declaration started the “transmission control period,” which will last until the declaration is revoked. The new police powers with respect to potentially infectious persons will remain in force during the transmission control period.
A “potentially infectious person” is a person who is, or may be, infected or contaminated with COVID-19 and a risk exists of infecting or contaminating others. Alternatively, a person would be potentially infectious if they had been in an infected area in the preceding 14 days.
(a) Power to direct or remove a person to a place for screening and assessment
A constable may direct persons to a place suitable for screening and assessment of their health condition or remove them to such a place. To exercise these powers, either the constable or a public health officer must have reasonable grounds to suspect the persons of being potentially infectious.
(b) Power to keep a person at a place for screening and assessment
A constable has the power to keep persons at a place for screening and assessment for 24 hours. This period may be extended to a further 24 hours by a superintendent (or above). In addition, the police may enforce a public health officer’s direction by keeping a person at a place for screening and assessment for up to 48 hours. A public health officer, if they consider appropriate, may further request a constable to move a person to another such place.
(c) Power to enforce a quarantine
Where a person has a confirmed case of COVID-19 or if the results of such tests are inconclusive, a public health officer may impose a 14-day quarantine, which may be extended for a further 14 days. A constable has the power to enforce the requirement by removing the person to and keeping that person at the place of quarantine. If the person absconds, a constable may take them into custody and return the person to the place of quarantine.
(d) Ancillary powers
A constable may give reasonable instructions relating to a direction given to a person or removing or keeping a person at a certain place under the Act.
The police may use reasonable force and enter any place in exercising the powers given by the Act.
Powers under Schedule 21 of the Act are exercisable only where the officer considers it necessary and proportionate in the interests of the potentially infectious person, for the protection of others or for the protection of public health. Before exercising these powers, officers must consult a public health officer if it is practicable to do so.
2.2 Powers relating to events and gatherings (Schedule 22 of the Act)
Clause 52 and Schedule 22 of the Act allow the Secretary of State to issue a direction imposing prohibitions, requirements or restrictions on the holding of events or gatherings. Such direction may, among other things, contain requirements for the purpose of closing the premises in which an event or gathering were to be held, restricting entry into the premises or limiting the number of persons in the premises.
The police will have powers to enforce compliance with any such direction including the power to enter premises and use reasonable force if necessary.
2.3 Extension of time for retention of fingerprints and DNA profiles (Section 24 of the Act)
The Secretary of State may by issuing a regulation extend statutory periods for retention of biometric material taken under the Terrorism Act 2000, Counter-Terrorism Act 2008, Terrorism Prevention and Investigation Measures Act 2011 and Police and Criminal Evidence Act 1984 (PACE). These periods may be prolonged by up to six months but not so as to extend them by more than 12 months in total.
3. Police and Criminal Evidence Act 1984 (PACE)
3.1 Power to arrest without a warrant (Section 24 PACE)
A police officer may arrest a person without a warrant if the officer has reasonable grounds for suspecting that that person has committed an offence. Pursuant to section 110 of the Serious Organised Crime and Police Act 2005, this power, subject to a necessity test, applies to any offence. This would include offences under the Regulations and the Act.
Police have wide powers to arrest. An officer may arrest (i) anyone who is about to commit an offence, (ii) anyone who is in the act of committing an offence, (iii) anyone whom he has reasonable grounds for suspecting is about to commit an offence and (iv) anyone whom he has reasonable grounds for suspecting is committing an offence.
An arrest must be necessary to be lawful. The “necessity test” has been extended for offences under the Regulations (Regulation 9(7)). An arrest would now be lawful if an arresting officer has reasonable grounds for believing that it is necessary to maintain public health or public order. Under section 3(1) of the Criminal Law Act 1967, the police are empowered to use such force as is reasonable under the circumstances in effecting or assisting in the lawful arrest.
4. Human Rights Implications of the Emergency Measures
The measures introduced by the government raise a number of concerns with respect to their effect on human rights under the European Convention on Human Rights (the Convention) and the Human Rights Act 1998 (HRA). It is unlawful for public authorities to act in a way that is incompatible with the Convention (Section 6 HRA).
In particular, police powers to isolate potentially infectious persons and enforce movement restrictions may interfere with the right to liberty, as protected by Article 5 of the Convention, as well as the right to private and family life under Article 8 of the Convention. Restrictions on gatherings potentially pose a threat to the rights to freedom of expression (Article 10 of the Convention) and the rights of assembly and association (Article 11 of the Convention). For more detail on how governmental measures affect the right to peaceful enjoyment of property, a key issue for businesses, please refer to our separate Update.
Any restrictions of these rights must be legal, pursue a legitimate aim and be necessary in a democratic society, that is, be proportionate. The government identifies the emergency measures as reasonable, proportionate and based on the latest scientific evidence. With the COVID-19 situation constantly evolving and the lack of certainty around the disease, proportionality is inevitably open to question. However, the temporary nature of the restrictions, as well as their aim at protecting public health, may prove them difficult to challenge.
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