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Covid19 – The Criminalisation of Ordinary Conduct in Extraordinary Times

“Stay at home. Save lives”. The message is clear and simple, which are characteristics that make it well suited to public health messaging.

The Context

The utility and prudence of that public health message are clear. The evidence shows that social distancing works. What follows does not intend to dispute those propositions. The focus here is specifically on the criminalisation of certain conduct, as distinct from the emphatic discouragement of that same conduct.

The Concern

By appearing to equate the act of leaving home with posing a risk to the lives of others, the message risks oversimplification. Leaving one’s home is not of itself an activity which creates a risk of transmission. Rather, the act of leaving one’s home may better be looked on as a predictor of the imminent occurrence of a range of situations which create a direct risk of Coronavirus transmission. Such conduct might be taking public transport, sharing enclosed spaces, such as shops and offices, and being in close proximity with others.

The Government’s own guidance on staying at home makes it clear that the real goal of the “Stay at home” message is not stopping people from leaving their homes per se but reducing day-to-day contact with other people; the “rules” state in terms: “These measures will reduce our day to day contact with other people.

When we reduce our day-to-day contact with other people, we will reduce the spread of the infection. That is why the Government has introduced three new measures.

  1. Requiring people to stay at home, except for very limited purposes.
  2. Closing certain business and venues.
  3. Stopping all gatherings of more than two people in public.”

Thus “Stay at home” is an imprecise surrogate for “contact with other people”. As an approximation it has utility as public health tool but it becomes more problematic when it becomes the basis for legal obligations, the breach of which carry a criminal penalty. Self-evidently, one can leave one’s home without personal contact. However if personal contact is the real mischief to be addressed, then the penal restriction on leaving home is over-broad. It exposes people to criminal sanction for conduct which, if contact with other people is avoided, does not create a risk. It was, after all, the prevention or control of risk associated with contact with other people that underpins the primary legislation under which the regulations were made.

The Confusion

It is of course the case that an offence is only committed under the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 if one leaves one’s home without reasonable excuse. Citizens are left to guess at whether their excuse for undertaking an activity of daily life, which in normal times would be supremely mundane, is sufficient to spare them from criminal penalty. The inevitable consequence of requiring people to guess whether they will be committing a crime by simply leaving their home is that many people will be unnecessarily deterred from doing so, either to avoid the risk of criminal sanction or because the law informs their own sense of moral obligation. That will not be without a risk of real adverse consequences for people’s physical and mental health.

In other parts of the world, health services have deemed it necessary actively to remind people that they should still attend for clinical care for ‘ordinary’ emergencies. For many who live in confined or crowded accommodation, leaving home for a time may be the only respite from significant stress and anxiety. That includes respite which can be obtained without “contact with other people”, therefore without placing others at material risk. It is unsatisfactory that people are left with genuine doubt as to whether availing themselves of those opportunities might make them a criminal.

Government Guidance as enforceable “rules”?

The Government’s own guidance adds to the uncertainty, not least by describing itself as “Rules on staying at home”. To describe them as “rules” is misleading. They are guidance. Yet, they purport to promulgate a “rule” with respect to exercise that “You should only leave the house for …one form of exercise a day, for example a run, walk, or cycle – alone or with members of your household.” Whilst the use of the word “should” indicates this is advisory the “rules” later state:

Every citizen is instructed to comply with these new measures.

The Government is therefore ensuring the police and other relevant authorities have the powers to enforce them [the “new measures”] where people do not comply.”

And

“if the police believe that you have broken these rules… a police officer may issue you with a fixed penalty notice” [Emphasis added]

In light of those elements of the “Rules”, people may be legitimately concerned that these “rules” will, as a minimum, be used by the Police or Courts to inform assessments of whether an excuse is “reasonable”. Such an approach is not obviously precluded by the Regulations which say only that a “need…to take exercise” will be a reasonable excuse. Will a desire to take exercise suffice? Can there never be a need for a second episode of exercise in a day?

The purpose of the primary legislation under which the Regulations are made is the control of the spread of disease, and that alone. Observing social distancing in the open does not create the risk of “contact with other people[1], which is the true mischief which the Regulations seek to prevent. On that basis, the potential criminalisation of anyone for conduct which did not create a material risk of transmitting Coronavirus would be ultra vires, being beyond the ambit of the primary legislation.

Of course, a more practical solution, albeit unsatisfactory, would be for the Regulations to be applied in a manner which took account of the transmission risk associated with the activity in which someone had engaged when assessing the reasonableness of their excuse for leaving their home. Even that raises questions about how relevant evidence would be obtained. Media reports indicate that a challenge to the lawfulness of the “Rules” has been commenced. It is to be hoped that the determination of that issue will not suffer in pursuit of expedition and that the obvious utility and prudence of “stay at home” as a public health message will not cloud the assessment of a very different issue – the criminalisation of the most fundamental of liberties without a compelling rationale.

What Next?

The issues identified serve to illustrate the dangers in hastily re-purposing a valid and prudent piece of public health messaging into criminal restrictions on the most basic liberties of every member of society, without parliamentary debate or oversight. The UK moved very quickly from guidance to regulation creating criminal offences. Was that move necessary? Were these Regulations the most appropriate means of achieving the public health goal? Could there have been better legal preparedness? All of these questions will need to be addressed when the acute public health challenges have passed.

There has been welcome clarification with respect to the approach to enforcement in recent days only time will tell how this translates into action. In the meantime, it behoves us all to play our part by adhering to the Guidance issued by the relevant national public health authorities.

[1] Based on the Government’s own messaging in respect of transmissibility and the WHO guidance.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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