Legal Advice for COVID-19 & Police Fines for Breaking the Coronavirus Rules
We all heard Boris Johnson’s speech and many of us think we are now well versed in what we can and cannot do during the lockdown. But what about more than one person from the same household going to the shops? What about attending Court?
We all know that we must not leave the house unless absolutely necessary and only for shopping, once for exercise, health reasons and work where we cannot work from home. But this guidance is different from the law.
The new regulations under the Coronavirus Act 2020 and the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 give the legal framework as to what constitutes an offence and many Police Forces are making mistakes when enforcing them. Some officers believe their job is to enforce the government’s guidelines when really they should only be enforcing the law.
Consider the regulations
Section 6 states that “during the emergency period, no person may leave the place where they are living without reasonable excuse”.
And a “reasonable excuse” includes:
(a) to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals) or for vulnerable persons and supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or to obtain money, including from any business listed…;
(b) to take exercise either alone or with other members of their household;
(c) to seek medical assistance…;
(d) to provide care or assistance, … to a vulnerable person, or to provide emergency assistance;
(e) to donate blood;
(f) to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living;
(g) to attend a funeral of—
(i) a member of the person’s household,
(ii) a close family member, or
(iii) if no-one within sub-paragraphs (i) or (ii) are attending, a friend;
(h) to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings;
(i) to access critical public services, including—
(i) childcare or educational facilities (where these are still available to a child in relation to whom that person is the parent, or has parental responsibility for, or care of the child);
(ii) social services;
(iii) services provided by the Department of Work and Pensions;
(iv) services provided to victims (such as victims of crime);
(j) in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children, and for the purposes of this paragraph, “parent” includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child;
(k) in the case of a minister of religion or worship leader, to go to their place of worship;
(l) to move house where reasonably necessary;
(m) to avoid injury or illness or to escape a risk of harm.
So as we can see, the law actually lists what we can and cannot leave our house for, and whether an offence has been committed will all depend on whether the purpose of the journey can be fitted into one of these categories.
Yet the confusion arises because some Police Forces are suggesting that you can only leave the house if absolutely necessary. Examples like these below are becoming very frequent.
Kingsbridge Police say it is not acceptable to drive to the beach for exercise. This may well have been part of the government guidance but it is not part of the legislation. The Police are probably sensible in telling people that they shouldn’t drive to the beach, and by no means are we saying it’s OK, but it’s not an offence if it was reasonable.
Of course – it would depend on it’s own facts – so if for example you take a 5 minute drive to the beach one could argue this was perfectly reasonable but on the other hand if you were taking a 2 hour drive to get to a beach this may well be deemed unreasonable.
And this confusion isn’t stopping here. In the next few weeks other issues are no doubt going to cause issue and as ridiculous as it sounds, Easter Eggs are going to be a talking point. Is it OK to buy Easter Eggs? Can I go to the shop to get one for my children? Can I add it to the list of weekly shopping?
Here the answer is in the above regulations – it depends what is reasonable. It could be argued that adding an Egg to your grocery list is going to cause no more harm to the public and if any Police Officer tells you that it’s not reasonable and that this isn’t a “basic necessity” then it’s a very difficult line to draw – are crisps a basic necessity?
Are we going to ban cereal or yoghurt? But if you drive to the supermarket and get nothing other than 5 Eggs it would be more difficult to argue that this is a basic necessity and a Court could easily uphold a fine. Again, it depends on the circumstances.
Another point that could cause an issue is the difference between England and Wales when it comes to exercise. The regulations in England state that it is reasonable – “to take exercise either alone or with other members of their household”. But in Wales, paragraph (b) states “to take exercise no more than once a day either alone or with other members of their household”.
The addition of the “once a day” stipulation in Wales is easy to follow for most of us, but those living close to the border could find themselves at the point of some odd enforcement , for example if you live in Wales and drive across the border to England for your second exercise of the day you may not have committed an offence in England but the minute you drive home to Wales you could be arrested and charged!
Clearly these issues are causing concern, as it has been reported in the BBC today report that a document produced by the National Police Chiefs’ Council and the College of Policing says “communities must receive a “consistent” level of service from officers as well as a “single style and tone”. It also advises police to keep an “inquisitive, questioning mindset” when finding out why people are not at home.”
But attending Court is a little clearer – it very clearly under one of the exceptions. And so attending Court to participate in legal proceedings would be a “reasonable excuse”.
You may well be stopped by the Police and issued with a fine, but that does not mean you have to accept it. You can reject any fixed penalty offer you are given by the Police simply by not paying it, and take the matter to Court.
And at Court, as long as you can prove that you were on the way to Court – for example by having a letter from the Court with a hearing date on it, or perhaps a letter from your Solicitor, you can argue that it was a “reasonable excuse” for leaving your house.
But what happens if you cannot attend? Of if you are self-isolating? Or if you are caring for a vulnerable person? Here, the answer is not as clear.
Currently Magistrates’ Courts are only dealing with “urgent matters” including overnight custody cases, bail applications, urgent warrants and matters involving vulnerable persons.
So if you have a Court date over the next few weeks it would firstly be advised that you call the Court to see whether it is actually going ahead and if it is, and you cannot attend for any reason, then you will need to ask the Court for an adjournment and explain clearly (with medical evidence if you have it) why you cannot go.
The Courts will then decide whether to put the matter back, but if they are not with the reason then they have the power to issue a warrant for your arrest.
Once the restrictions are eased it is envisaged that Court hearings will go back to normal and defendants will need to attend as usual. And then the same will apply, you must attend unless the Court have excused attendance or agreed to move the matter because you are ill or self isolating, and without these agreements if you do not attend the Court can convict you in your absence or issue a warrant for your arrest.
However one new development in the Coronavirus Act is the ability to deal with hearings remotely. It includes:
• all summary trials;
• appeals against sentence only; and
• any other applications. The Act makes provisions for oaths to be taken remotely so statutory declarations, applications to reopen proceedings, applications to suspend disqualifications, can all be dealt with remotely.
Firstly the court will have to identify a suitable case. They will then direct the prosecution, witnesses and defendants to make representations and if either party objects, then it has to be put back before the court. But if all parties agree, then it can be dealt with remotely.
The courts will give log in details to all parties and then the defence and prosecution will log in via one of the Court approved methods, such as Skype or BT Meet Me. And failure to attend remotely would have the same consequences as failure to attend a normal hearing.
No doubt, there will be confusion to begin with. Courts’ technology is often outdated and those that use it often under-trained and ill-equipped. So again, one would hope that failure to ‘attend’ a remote hearing because of technological difficulties wouldn’t lead to the Court imposing their full powers by issuing warrants.
If you have an upcoming Court hearing and aren’t sure if you should attend, or if you’ve been out and about and have been issued with a fine, click the contact link below for FREE legal advice.