The following is part two of a two-part guest post by Clare Feikert-Ahalt, a senior foreign law specialist at the Law Library of Congress covering the United Kingdom and several other jurisdictions. Clare has written a number of posts for In Custodia Legis, including Weird Laws, or Urban Legends?; FALQs: Brexit Referendum; and The UK’s Legal Response to the London Bombings of 7/7.
Offences and Penalties for Leaving Home Without a Reasonable Excuse
As noted in part I of this blog post, the regulations on movement in England (the Regulations) created the offense of a person leaving their home during the emergency period without a “reasonable excuse,” which is punishable with a fine. The police also have the discretion to issue Fixed Penalty Notices to individuals whom they reasonably believe have committed an offense under the regulations. Fixed Penalty Notices are fines of up to £60 (approximately US$74) for first time offenders and £120 (approximately US$150) for second time offenders. The Crown Prosecution Service (CPS), the independent body responsible for prosecuting criminal cases across England, has stated that it “expect[s] that enforcement of the regulation will be through the issuance of … directions (in respect of movement and gatherings).” The charging practice of the CPS notes, however, that any cases referred to it are,
…likely to have been a matter of last resort … Given that the offences in the regulations are related to measures imposed to prevent the spread of infection throughout the UK, and potentially high incidences of serious illness and death, they should be considered serious. A prosecution will therefore likely be required in the public interest in the majority of cases.
Thus, it appears any cases referred to the CPS will likely meet the public interest test and be prosecuted.
Implementation of the Regulations
The address by Johnson and the Regulations were fairly broad in nature and, while there has generally been large scale compliance, there were a number of early reports that indicated confusion among both the public and the police over what circumstances people were permitted to leave their homes under the regulations, and what items were considered essential in stores.
After Johnson made his address there was also confusion over whether people could drive to locations in order to exercise, with hiking in countryside being a popular form of exercise across England. Some police forces were reported using drones to police areas that people were using to walk for exercise while maintaining social distancing requirements, and sending people who were driving to locations to walk back home and issuing Fixed Penalty Notices to them.
People have been stopped from purchasing items such as hot tubs, and a chief constable made a statement in a press conference that if people continued to travel for “non-essential purposes” his police force would set up road blocks to stop them. The public was also given the impression during this press conference that the chief constable would have his police officers check the contents of shopper’s carts to ensure only necessities were being purchased from stores. This position was ultimately backtracked after the Home Secretary responded that the comments were “not appropriate”, and the chief constable stated the comments were aimed at ensuring people were only making “necessary and essential journeys”.
The National Police Chief’s Council introduced guidelines, based on guidance produced by the CPS, to provide additional clarity over the Regulations. The guidelines acknowledge the confusion after the regulations entered into force:
Some public statements made soon after the adoption of the regulations suggested that members of the public could only leave their homes if “essential” to do so. However, this is not the test set out in the Regulations and there is no legal basis for a requirement in those terms to be imposed. The applicable threshold is that of ‘reasonable excuse’.
- Purchase basic food supplies, which may also include the purchase of luxury items and snacks alongside basic food supplies;
- Purchase items for home maintenance and upkeep, but not for home improvements and renovations;
- Drive to countryside to walk, as long as “far more time is spent walking than driving”;
- To rest or eat lunch during a long walk. If the rest time occurs after a short walk and for a long period of time, the guidance states this “may mean that the person is not engaged in ‘exercise’ but in fact something else”;
- Travel to work, even if the person is not an essential worker;
- Take pets to the veterinarian for treatment;
- Move to another home temporarily to cool off after an argument;
- Provide support to vulnerable people.
Police in rural areas have expressed concern that allowing people to travel to their areas to exercise could “undo efforts to prevent the spread of coronavirus in rural areas.”
On April 27, 2020, the Prime Minister made a speech stating that the peak had been flattened and that the UK was close to the point where restrictions could start to be lifted. It has been is reported that Boris Johnson will make an announcement on May 9th that the economy will be restarted and the restrictions will be eased, but there has been no information on the specifics of how this will be achieved.