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“Potentially Infectious persons” Schedule 21 Coronavirus Act 2020

Charles Hannaford

The first published case of a conviction under the new laws in relation to an individual refusing to provide their name, address or reason for travel, was incorrectly prosecuted under Schedule 21 Coronavirus Act 2020 resulting in a fine of £660 in addition to a £66 victim surcharge and £85 costs. In short, the Coronavirus Act 2020 does not provide enforcement powers in relation to travel restrictions.

Two key legislative articles were brought into force to provide new powers in the wake of the Coronavirus. These are:

1. Coronavirus Act 2020 (CA 2020) 25th March 2020

2. Health Protection (Coronavirus, Restrictions) (England) Regulations 2020

(HPCR Reg 2020) 26th March 2020.

The HPCR Reg 2020 provides Police Officers with the power to enforce travel restrictions in the absence a ‘reasonable excuse’. Legal professionals have criticised the inconsistent and overreaching enforcement by some Police forces, and the disparity between the governments guidance and powers conferred by the regulations themselves. An issue explored in a recent chambers blog post here.

The CA 2020 provides a broad range of administrative and restrictive powers including powers to Public Health Officers (PHO) Police Officers (PO) and Immigration Officers (IMO) to direct or remove ‘potentially infectious’ persons to be tested for the virus and further restrictions on those persons following testing.

Schedule 21 Coronavirus Act 2020

Schedule 21 is comprised of five parts with an Overview (Part 1) followed by powers in England (Part 2), Scotland (Part 3), Wales (Part 4) and Northern Ireland (Part 5). The Powers are repeated within each respective part save for amended numbering. This article will refer to the sections within Part 2.

Declaration of invoking powers

The Powers under Schedule 21 are invoked following a declaration by the Secretary of State that the “the incidence or transmission of coronavirus constitutes a serious and imminent threat to public health” (Schedule 21 (1)(4)). As soon as the Secretary of State ceases to hold the view above, they must revoke the declaration.

There is no limit in the number of times they may make a declaration. However, each time a declaration is made or revoked, the Secretary of State must before doing so “consult the Chief Medical Officer or any of the Deputy Chief Medical Officers of the Department of Health and Social Care” (Schedule 21 (1)(5)). The same requirements apply in the respective parts of Schedule 21.

Direction or Removal of the ‘potentially infectious’ (Schedule 21 s6 & s7 CA 2020)

Section 23 CA 2020 creates five new offences which carry the maximum penalty of a level three fine (£1000). This article looks at the new enforcement powers given to PHO, PO and IMO to direct or remove ‘potentially infectious’ persons to specific locations for assessment and screening.

Section 6 confers the power to PHO whilst Section 7 confers the power to PO and IMO. Both sections contain identical subsections in relation to this power and so I will address them here collectively. Save for one exception that I will make clear below.

‘Potentially infectious’ (a) person is or may be infected or contaminated with coronavirus and there is a risk they may infect or contaminate others or (b) a person has been in an infected area within the last 14 days.

‘Assessment’ is assessment of appropriate measures that would mitigate the risk that the person might infect or contaminate others.

‘Screening’ (a) assessing the extent of a person’s exposure to coronavirus (b) determining whether a person is contaminated or infected with coronavirus (c) assessing a person’s symptoms and state of health.

Grounds (6(1) & 6(3))

In order to exercise the power Officers must:

1. ‘Have reasonable grounds to suspect a person is potentially infectious’ AND,

2. Consider that it is it is ‘necessary and proportionate to do so’

(a) In the interests of the person,

(b) For the protection of other people, or

(c) For the maintenance of public health.

The act places and additional requirement on IMO and PO “that they must, before exercising the powers conferred by this paragraph, consult a public health officer to the extent that it is practicable to do so” (Sch 21 s.7(5) CA 2020)

Offence of non-compliance

Both sections create an offence of non-compliance at subsection (4) which is additionally repeated at Sch 21 Section 23 (a) and (c).

In order for an offence of non-compliance to be established, Officer’s must have informed the person of the reason for their ‘direction’ or ‘removal’ and that it is an offence to:

(i) fail without reasonable excuse to comply with the direction, or

(ii) where a person is removed, abscond.

Defence ‘reasonable grounds’

There must be reasonable grounds to suspect that the person is or may be infected or has been in an infected area in the last 14 days before the Officer can exercise their power.

Defence “failure to inform”

The offence under subsection (4) can only be made out if the Officer has informed the person of the reasons for exercising their power and that they will be committing an offence if they do not comply.

Defence “suitability”

The act does not contain a definition of a suitable place for screening or assessment. Unfortunately the explanatory notes do not expand on the definition either. It is not clear how such locations are classified and what criteria is considered when choosing a particular ‘suitable place’ to direct a person. The obvious inference is that the location would need to have the facilities to conduct a screening and assessment, which could in the circumstances mean a church hall.

Issues may arise between Officers and their interpretation of what is a suitable location, or the necessary equipment, staffing levels and facilities required to be classified as suitable. In addition, oversubscription at a location may reduce its ability to limit any potential exposure of the virus affecting its suitability for the further intake of persons.

Defence “practicable to consult PHO”

In relation PO and IMO, in circumstances where they did not consult a PHO, it may be argued that it was practicable in the particular circumstances to have done so prior to exercising their powers.

Defence “reasonable excuse”

Finally, the defence of reasonable excuse is available in relation to failing to comply with a direction to a suitable place for screening or assessment. This would likely include issues such as transport difficulties, court orders with exclusion conditions and caring obligations of vulnerable and isolated persons.

Further reading

- Restrictions on your movement – Know your rights (30th March 2020)

- Hate Crime in the time of Coronavirus (30th March 2020)

Charles Hannaford is a pupil barrister at chambers specialising in Crime and Children Act matters.

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