The one thing everyone currently has in common, apart from avoiding the virus, is uncertainty about what we are actually allowed to do. Including to the individuals responsible for enforcing law and order, the police.
New restrictions were applied across the nation following the Prime Minster’s announcement on Monday 23rd March 2020. The message was ‘Stay At Home’ with a handful of exceptions that have caused a fair bit of confusion, in particular, your rights in relation to exercise.
It has been widely reported that Police Forces across the nation have taken an aggressive approach to individuals who have travelled by car to locations in order to exercise. A recent article in the Times suggested that Roadside checkpoints were in force in Durham and North Yorkshire including the use of Military Police. A quote was provided by a spokesperson for Big Brother Watch “It’s not at all clear what police powers are being used to do this. It’s critical we protect public health and critical we protect basic democratic norms too. Arbitrary policing will not help the country to fight this pandemic.”
New legislation March 2020
On the 25th and 26th March 2020 saw the introduction of two articles conferring additional powers to a number of Officers including Public Health Officers, Police Officers and Immigration Officers. These are the:
(HPCR Reg 2020)
2. Coronavirus Act 2020 (CA 2020)
HPCR Reg 2020 provides Police Officers in England, with powers to enforce the new restrictions on travel such as not leaving your home unless you have a reasonable excuse.
CA 2020 provides a wide range of administrative powers including the powers to direct or remove persons to be tested for the virus and further restrictions on persons following testing.
Neither of these articles provides Officers with the power to enforce road checkpoints or require a person to leave a location they have attended for exercise on the basis that Officers believe they should have chosen a spot closer to home.
Restrictions on movement
Regulation 6 of the HPCR Reg 2020 provides that ‘During the emergency period, no person may leave the place where they are living without reasonable excuse.’ A list of reasonable excuses then follows at (2) including:
(a) to obtain basic necessities and supplies for the functioning and maintenance of the household, for your household or vulnerable persons.
(b) to take exercise either alone or with other members of their household;
(c) to seek medical assistance
(d) care or assistance to a vulnerable person
(e) to donate blood;
(f) to travel for work where it isn’t possible to work from home
(g) to attend a funeral
(h) to fulfil a legal obligation
(i) to access critical public services, (childcare, education, social services etc)
There is no restriction or classification within the ‘reasonable excuse’ at Regulation 6 (2)(b) that the exercise is performed within the person's locality to their home or a restriction on driving to a location in order to exercise. Ultimately the question of reasonableness will be considered by the courts.
Where an officer believes that a person has left their home without a reasonable excuse, they may under Regulation 8 (3) HPCR Reg 2020 (a) direct them to return to where they are living or (b)remove them to where they are living (with the use of reasonable force if necessary).
Regulation 9 provides that it is an offence to have left the home without a reasonable excuse, to fail to comply with an Officers direction to return to your home, and to obstruct an officer in their enforcement of the regulations. In addition, the regulations insert ‘Public Health’ and ‘Public Order’ Into Section 24 (5) Police and Criminal Evidence Act 1984 (PACE) grounds for arrest by a constable without a warrant.
Regulation 10 provides that Offices may issue a fixed penalty notice (FPN) in the sum of £60 to persons over the age of 18 years old who they ‘reasonably believe’ have committed an offence under these regulations with a period of 28 days to pay. If paid within 14 days, the sum is reduced to £30. For second offences the FPN is £120 and the third offence double the amount of the last FPN up to £960. If the FPN is not paid within 28 day’s proceedings may be instigated by the CPS.
Police Powers and Road checks
Section 4 PACE 1984 confers the power to Officers to conduct road checks where they suspect persons within a vehicle to have committed an indictable offence. HPCR Reg 2020 Regulations 9 (4) provides the mechanisms for a summary conviction. The regulations continue by providing that the maximum fine available is £960 which would be limited to magistrate’s jurisdiction.
Section163 Road Traffic Act 1988 (RTA) provides a constable in uniform with the power to stop a vehicle or cycle and creates an offence of failing to stop. There is no requirement for Officers to satisfy other than being in uniform, as the proceeding sections of RTA provide the power to request driving documentation etc.
Once Officers have lawfully required a vehicle to stop, they may ask the driver to explain where they have travelled from and why they have chosen to attend a particular location to exercise when they could have done so closer to home. At this stage individuals are under a civic rather than legal duty to answer the Officers questions as detailed at Paragraph 1 Notes for Guidance for PACE Code A. The guidance continues that following a refusal to answer and in the absence of the Officers power to arrest or grounds to conduct a search of the vehicle they cannot be compelled to remain.
Whilst there is no legal requirement placed upon the individual to answers questions at the road checkpoint, providing an explanation that they are intending to exercise within the ambit of the regulations, would not amount to an offence or exposure to additional Police powers. Officers may suggest that the individual turns their car around and has a think about the potential impact of them attending the location but does not have the power in these circumstances to remove the individual or prevent them from exercising. The individuals have not committed an offence by driving any distance to a location to exercise under the HPCR Reg 2020.
Restrictions on gathering of more than 2 persons
However, instances where more than two persons have gathered in public, who are not part of the same household, working or otherwise exempt under Regulation 7 HPCR Reg 2020, as in the above Times article bird watching, the Police do have the power to (a) direct the gathering to disperse (b) direct any person to a place they are living (c)remove any person to a place they are living. Officers also have the power as above under Regulation 10, to issue a FPN of £60.
Common sense approach
It is critical that in the current climate individuals take all the necessary precautions they can to reduce the spread of the virus and comply with the restrictions imposed by the government to achieve this aim. However, it is concerning in any climate where there is the impression that an authority has a greater authority to control, restrict or shame individuals than the law provides. Caution should be exercised in the need for aggressive tactics where resources could be better spent in educating and informing. However, it also follows that individual’s should give proper consideration to whether need to drive great distances to exercise and the effects their journey may have on others if they needed assistance in a remote area due to breakdowns or medical emergency, that may take vital resources in this challenging time from elsewhere.
Charles Hannaford is a pupil barrister at chambers specialising in Crime and Children Act matters.