The maxim that ignorance of the law is no excuse is well known and imposes an obligation on the citizen to have an understanding of what the law is and how it can restrict their behaviour. The reasonableness of this maxim assumes that the law is ascertainable and that its interpretation is clear. There is a debate as to the extent of which the legislation recently enacted to deal with the Coronavirus epidemic satisfies these basic tests.
The Coronavirus Act 2020 came into force on the 26th March 2020. It is a weighty document, running into 348 pages. The Act states that is to last for 2 years although there are also provisions for varying this. The provisions which have attracted the most controversy are not to be found in the Act itself, but in regulations made under the Act, principally The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. As the title suggests, these restrictions apply only to England. Curiously, separate regulations have been imposed by other devolved Parliaments. Even more curious is the fact that although the regulations are similar they are not, in fact, the same across the United Kingdom.
It is pursuant to these regulations that the Government has exercised its powers to effectively bring normal life to a halt with the restrictions on movement, business activities and the closure of premises. Businesses that provide food for consumption off the premises are allowed to continue but effectively most other businesses have been closed. As everybody has come to know, this includes restaurants, cafés, bars, hotels, pubs, cinemas, theatres, museums, gyms, playgrounds, churches etc.
In England the regulations stipulate that a person may not leave the place where they are living without a “reasonable excuse”. The regulations then go on to identify 13 examples of what could be considered a reasonable excuse. These include obtaining basic necessities, including food and medical supplies, to take exercise, to seek medical assistance and to provide care to a vulnerable person. The full list is set out in Regulation 6 of the regulations. It is important to note that the list is not an exhaustive one. A “reasonable excuse” can be anything considered to be a “reasonable excuse” in all the circumstances prevailing at the time, even though these circumstances do not appear in the regulations. This can give rise to uncertainty in interpretation and has generated a lot of controversy since the regulations were implemented.
Daily announcements by Ministers of State do not amount to declarations of the law, and there have been occasions when these statements have been seen to step outside the regulations. For example, there have been statements that people should only leave their house when it is “essential” to do so. This is not what the regulations say. Curiously, the Prime Minister’s address to the nation on the 23rd March referred to only “four reasons why you should leave your home”. Again, this is not legally correct. You can leave your home at any time if you have a reasonable excuse to do so.
If you decide to leave your home for exercise there is no limit under the regulations as to the amount of times you can do this in any one day. Curiously, the Welsh regulations say that exercise is to be for “no more than once a day”. As to why this should apply in Wales is hard to understand.
For the citizens of the Isle of Man, the regulations stipulate “only one form of exercise per day”, whereas the citizens of England are being entitled to cycle to the local park, perform exercise in the park and repeat the exercise (if they want to) as many times as they like.
There can be a debate as to what “to take exercise” means. It can be something which can be done alone, or with members of your household. Some Local Authorities were recently seen deploying officials on the Thames footpath telling people not to jog or ride their bike. It is by no means clear where the authority for this restriction comes from.
The regulation stipulating that an excuse includes the need to “obtain basic necessities, including food” throws up other uncertainties. One man’s luxury can be another’s “basic necessity”. How is this to be defined? The Cambridgeshire Police recently tweeted that they visited a Tesco shop on patrol and noted that the “non- essential isles were empty”, as if to suggest that people could only go to the shop for essential items. In fairness, after protests from the public, the Cambridgeshire Police apologised for this tweet by an “over exuberant officer”, accepting that it is not for the police to monitor what people are buying. If a shop is allowed to be open under the regulations they are free to sell whatever is in stock, as are their customers free to purchase. It was reported in The Times that the Chief Constable of Northamptonshire told a Press conference that they are only a few days away from rifling through people’s shopping to check whether they are buying “basic necessities”. What view might a police man take of your purchase of Jaffa cakes? Whatever this may be it is not a power that the police have.
It has become necessary for Downing Street to issue a statement warning the police against “heavy handed” tactics and to exercise restraint. In the face of complaints of heavy handedness for the proposed use of drones and road blocks, guidance issued to the police at the end of March by the College of Policing suggested the same. However, this did not stop a police officer in Manchester some ten days later from threatening to arrest and pepper spray a man delivering food to his elderly parents, an activity which appears to be specifically covered by the regulations “providing care and assistance……. to a vulnerable person”, if not also a reasonable excuse on its merits. A police spokesman was later to apologise stating that “our initial review shows that the incident was not dealt with in the professional way we would expect”. The spokesman might also have conceded that the action of the officer may very well have been unlawful.
It may very well assist everybody if police officers were trained to pay specific attention to the details of the regulations. In fairness to the police uncertainty of interpretation is not helpful for them. What, however, should be clear is that uncertainty should not per se limit the powers of the citizen or increase the powers of the police.
In the midst of this uncertainty, enforcement continues. By the 9th April the police forces in England and Wales had issued 1,084 fines for breaches of the regulations. The number of arrests is unclear. One prosecution did attract publicity when a woman was arrested at Newcastle Central Station for refusing to tell police why she needed to travel. She was then charged under the regulations, appeared in Court and fined £660. It took a tide of informed opinion in the media to point out that the prosecution was misconceived and the conviction wrong in law. British Transport Police agreed that they would apply to have the conviction set aside, the hapless defendant seemingly being unaware of her rights. The Deputy Chief Constable of British Transport Police, Adrian Hanstock, was reported as saying “there will be understandable concern that our interpretation of this new legislation has resulted in an ineffective prosecution”. He might also have added the words that the prosecution was clearly unlawful.
It has always been the law in this country that you can do anything that is not specifically prohibited by the law, and we have taken pride in this fundamental freedom which is the envy of so many other jurisdictions around the world. One hopes that the concerns and anxieties that have been generated by the current epidemic will not in any way dilute the fundamental freedoms that are so precious to us all.
Senior Partner, Edwards Duthie Shamash
Edwards Duthie Shamash Solicitors based in London. We are able to provide expert legal advice and assistance over a number of areas of law the full details of which can be obtained on this website.
Continue reading: [Coronavirus and the law – part 2]