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Coronavirus: Health Protection (Coronavirus, Restrictions) (No.2) (England) Regulations 2020

Updated: 22 January 2021; 22 June 2022|Legal Guidance

Summary

The Health Protection (Coronavirus, Restrictions) (No.2) (England) Regulations 2020 , ("The No,2 Regulations”), apply to England only.

This guidance is a summary of the main provisions of  the No,2 Regulations, incorporating key amendments introduced by other Regulations. This  guidance does not contain all provisions nor reflect all amendments introduced by all the Amendment Regulations. It is intended to guide prosecutors through the general structure of the No,2 Regulations. Prosecutors are therefore reminded to refer to www.legislation.gov.uk, using the timeline on the website to determine which provisions were in force at the time of an alleged breach.

This guidance incorporates the main amendments introduced by:

Effective dates

Effective dates for the No.2 Regulations

The No.2 Regulations come into force at 00.01 am on 4 July 2020 for the purpose of revoking regulations 5, 6, 7 and 7A of, and paragraphs 1, 2, 5-11, 13-20 and 23B and 23C and 23E to Schedule 2 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 . They come into force at 06.00 am on 4 July 2020 for the purpose of revoking Regulations 1,3,4,8 to12 and paragraphs 3, 4 and 23A of Schedule 2 to those Regulations. (R.1). The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020apply from 13.00 on 26 March 2020 until 3 July 2020 (subject to the above).

This means that the restrictions relevant to opening bars, including bars in hotels and members’ clubs, public houses and social clubs under the previous Regulations remain in force until 06.00 on 4 July.  All other restrictions are revoked at 00.01. The restrictions on businesses detailed in Schedule 2 to the No.2 Regulations are effective from that time.

Regulations 4 and 5 do not apply to the areas which form the “protected area” in The Health Protection (Coronavirus, Restrictions) (Leicester) Regulations 2020(R. 1 (4)) during the currency of those Regulations.The No.2 Regulations will not apply in whole or in part to areas which are subject to a direction issued by a local authority under The Health Protection (Coronavirus, Restrictions) (No.3) (England) Regulations 2020 ,while that direction is in force. Government guidance on the No.3 Regulations is available here.

Prosecutors are also reminded to check whether specific Regulations are effective for a particular area at the time of an alleged breach.  The list of Coronavirus Regulations is available here.  An individual may engage in conduct some of which breaches national Regulations, and some constitutes a breach of Regulations relevant to specific areas. If the conduct is different, both breaches should be charged.

Effective dates for the (No.2) Amendment Regulations

Amendments effective from 11 July 2020

The Amendment No.2 Regulations come into force from 11 July 2020 for the purposes of amending R. 4(2)(b) and paragraph 12 of Schedule 2.

In summary, outdoor swimming pools and outdoor facilities at water parks can open. Indoor swimming pools can still only open for elite sports persons.

Amendments effective from 13 July 2020

From 13 July 2020 Schedule 2 is amended so that the businesses and services listed in paragraphs 5-10 can open / resume. The list includes nail bars and salons; tanning booths and salons; spas and beauty salons; massage parlours; tattoo parlours and body and skin piercing services.

Effective dates for the (No.2) (Amendment) (No.2) Regulations

From 25 July Schedule 2 is amended so that the businesses and services listed in paragraphs 12, 14 and 15 can open. This means the following can open: - indoor swimming pools, including indoor facilities at water parks, indoor fitness and dance studios and indoor gyms and sports courts and facilities. They also correct some minor errors.

Effective dates for the (No.2) (Amendment) (No.3) Regulations

From 15 August R. 4(2) is amended to omit sub paragraph (b). Sub paragraph (b) allowed premises listed in Schedule 2 to open for the training of elite sportspersons, including indoor fitness studios including gyms, sports courts and indoor and outdoor swimming pools, and other indoor leisure centres.  As these premises are now open to the public the exception in sub-paragraph (b) is no longer required.

Schedule 2 is amended from 15 August so that the businesses and services listed in paragraphs 4, 11, 13, 16 and 17 can open.  This means the following can open:

  • Casinos;
  • Indoor skating rinks;
  • Indoor play areas including soft play areas;
  • Bowling alleys; and 
  • Conference centres and exhibition halls.

Effective dates for The Health Protection (Coronavirus) (Restrictions on Holding of Gatherings and Amendment) (England) Regulations 2020

The amendments introduced by these Regulations are effective from 28 August 2020. In summary the amendments include:

  • restrictions relating to the holding of gatherings both inside and outside, of more than 30 people (new R. 5A and R. 5B).
  • New offences of contravening, without reasonable excuse, any of the restrictions in R. 5A or R 5B (R.8(1)).
  • The introduction of the offence of contravening the restrictions relating to organising or facilitating a restricted gathering (R. 8(1)).
  • An authorised person can issue a fixed penalty notice of £10,000 to any person aged 18 or over reasonably believed to have contravened R. 5A or R. 5B.

The Effective dates for the (No.2) (Amendment) (No.4) Regulations

The amendments introduced by these Regulations are effective from 12.01 a.m. on 14 September 2020. In summary the amendments meant that people may not participate in social gatherings, in any place, in groups of more than 6, unless they are members of the same household, two linked households, or exceptions apply.

The (No.5) Regulations – effective from 05.00 on 24 September 2020 and 28 September 2020.

These Regulations come into force at 05.00 on 24 September 2020 save for the amendments to R. 5(3)(f); (g); (h) and the removal of R. 5 (5B) and R. 5 (5C) which come into force on 28 September 2020

The Regulations amend R. 4 by introducing restrictions on the opening times (to between 05.00 and 22.00of restricted businesses listed in a new Schedule 3. These businesses include pubs and restaurants. They also restrict the services of businesses serving food and drink for consumption on these premises. These restrictions do not apply to motorway service stations.

The Regulations also amend R. 5(3) by limiting the number of people who can attend specified events such as weddings to 15 (previously 30).

Levels of fine are also increased and a new scale is introduced for breaches of R. 4A and R. 4B.

The Health Protection (Coronavirus, Restrictions) (Obligations of Undertakings) (England) (Amendment) Regulations 2020 introduce a new R. 9 (6A) from 28 September 2020 so that breaches under these and other Regulations are taken into account in calculating how many fixed penalty notices have been issued.

The Health Protection (Coronavirus, Local COVID-19 Alert Level) Regulations 2020 effective 14 October 2020

These Regulations all come into force on 14 October 2020. They form a new three Tier system, whereby every area of England will be subject to restrictions, depending on which Tier that Area is placed in. Every Area will by default be a Tier 1 Area (where the local COVID-19 alert level is assessed as being medium), unless they are excluded from the Tier 1 Area, by being identified as a Tier 2 Area (high alert level) or a Tier 3 Area (very high alert level).

R.4 an R.5 are revoked from 14 October 2020.  From that date restrictions on gatherings and businesses/ services are found in one of the Tier Regulations.

The Regulations

Summary

The Regulations provide powers to a relevant person to:

  • Require the closure of premises and businesses specified in Schedule 2; (R.4)
  • Restrict gatherings of more than 30 people; (R.5)

They also give the Secretary of State the power to issue a direction to restrict access to a specified public outdoor space (R 6).

For the purposes of enforcement, relevant person is (R. 7(9) (b)) a constable; police community support officers; a person designated by the Secretary of State, or, for the purposes of enforcement of a requirement under R.4 only (R. 7(10)), a person designated by a local authority.

Compliance with the Regulations can be enforced (R. 7) by the issuing of a prohibition notice (in respect of premises); through directions, or removing individuals from a gathering or a restricted area.

Failure to comply with a requirement, a prohibition notice, direction or reasonable instruction is a summary offence, punishable by an unlimited fine and subject to a 6 month statutory time limit for the institution of proceedings. In the first instance, a fixed penalty notice can be issued to by an authorised person (R. 9 (13)) to a person aged 18 or over who they reasonably believe have committed an offence under the Regulations.

Regulation 2 – Revocation and Saving

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 and the related Amendment Regulations are revoked save for R. 2. A breach of a requirement or restriction in those Regulations is an offence which can be prosecuted at any time before the expiry of the statutory time limit, provided the breach was committed before the repeal date (R. 2(2)).   Please see the separate guidance on the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020

Regulation 3 - The Emergency Period and the review of need for restrictions

The Regulations apply during the ‘emergency period’ which commences when the Regulations come into force and end in relation to a restriction or requirement on the date and time specified in a direction published by the Secretary of State.

The restrictions and requirements imposed by the Regulations must be reviewed every 28 days. The first review is on 31 July 2020.

Amendments to Regulation 3 from 14 October 2020

From 14 October 2020 the Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium) (England) Regulations 2020 revoke R3.

Regulation 4 - Requirement to close business or premises during the emergency period

During the emergency period R. 4(1) requires a person carrying on a business or providing as service listed in Schedule 2 must close and cease to provide that service during the emergency period (R. 4(1)).

R.4(1) is subject to the following exceptions:-

  • Schedule 2 business premises can be used to host blood donation sessions (R. 4(2)(a)).
  • Facilities for training by elite sportspersons including indoor fitness studios, gyms, sports courts, indoor or outdoor swimming pools and other indoor leisure centres (R. 4(2)(b)). R. 4(2)(b) is omitted from 15 August 2020), and indoor fitness and dance studios for use by professional dancers and choreographers can open (R. 4(2)(c)).
  • If the Schedule 2 business which is required to close forms part of a larger business which can open, a person responsible for the business complies with the requirement to close by only closing the Schedule 2 prohibited business; (R. 4(4))
  • 4(1) does not prevent a person responsible for carrying on a business or providing a service listed in Schedule 2 from:
    • Carrying on a business offering goods for sale or hire:
  • In a shop which is separate from the premises used for the closed business; or
  • By making deliveries or otherwise providing services in response to orders received:
  • Through a website, or otherwise by on-line communication;
  • By telephone, including orders by text message, or
  • By post (R. 4(5)).
    • Operating a café or restaurant if the café or restaurant is separate from the premises used for the closed business. (R.4 (5)(b)). A shop, café or restaurant is separate from premises used for a closed business if it is in a self-contained unit, and it is possible for a member of the public to enter it from a place outside those premises (R.4(6)).

A prohibition notice (R. 7(2)) can be used to enforce business closures/ cessation of the provision of services if:-

  • a relevant person (R. 7 (9));
  • reasonably believes a person is contravening a requirement in R.4; and
  • it is necessary and proportionate to prevent the continued contravention of that requirement (R. 7(2)).

Amendments to Regulation 4 from 11 July 2020

Paragraph 4(2)(b) is amended to remove reference to outdoor swimming pools. This means that indoor fitness studios, gyms, sports courts, indoor swimming pools and indoor leisure centres can only open as a facility for training elite sportspersons. Previously outdoor swimming pools could only open for this purpose too.

Amendments to R.4 from 25 July 2020

R.4 (2)(b) is amended to remove reference to “indoor fitness studios to other”. This means that indoor fitness studios, gyms, sports courts and indoor swimming pools can open to the public. Indoor leisure centres can open for training elite sports persons.   

R.4 (2)(c) is removed so indoor fitness and dance studios can now open to the public.

A prohibition notice (R. 7(2)) can be used to enforce business closures/ cessation of the provision of services if:-

  • a relevant person (R. 7 (9));
  • reasonably believes a person is contravening a requirement in R.4; and
  • it is necessary and proportionate to prevent the continued contravention of that requirement (R. 7(2)).

Amendments to R. 4 from 24 September 2020

Restrictions on opening hours of businesses and services

The amendments introduce restrictions on certain restricted businesses and serviced, which are listed in a new Schedule 3: see below

A new R. 4A states that :

  1. A person responsible for carrying on a restricted business or providing a restricted service (P) (Schedule 3 business or service) must not carry on that business or provide that service during the emergency period between the hours of 22.00 and 05.00, subject to paragraphs (2) (3) and (4).
    The exemptions under sub-paragraphs (2) (3) and (4) are:
  2. Paragraph (1) does not prevent P selling food and drink for consumption off the premises between the hours of 22.00 and 05.00:
    1. by making deliveries in response to orders received;
      1. through a website, or otherwise by on-line communication;
      2. by telephone, including orders by text message; or
      3. by post; or
    2. to a purchaser who collects the food and drink in a vehicle, and to whom the food or drink is passed without the purchaser or any other person leaving the vehicle.
  3. Where Ps restricted business or restricted service is a cinema, theatre or concert hall paragraph (1) does not prevent P carrying on that business or service at or after 22.00 for the purpose of concluding the performance which started before 22.00.
  4. Paragraph (1) does not prevent P carrying on a restricted business or providing a restricted service located in a motorway service area between the hours of 22.00 and 05.00.
  5. If a restricted business or restricted service (Business A) forms part of a larger business (Business B) the person responsible for carrying on business B complies with the requirement in paragraph (1) if that person does not carry on business A between the hours of 22.00 and 05.00, other than as provided in paragraphs (2), (3) or (4).

Restrictions on service of food and drink for consumption on the premises

A New R. 4B states that;

  1. Subject to the restriction on opening hours in R. 4A(1) during the emergency period, a person responsible for carrying on a business or providing a service listed in Part 1 of Schedule 3 which serves alcohol for consumption on the premises may sell food and drink for consumption on the premises only if:
    1. the food and drink is ordered by, and served to, a customer who is seated on the premises; and
    2. the person takes all reasonable steps to ensure that the customer remains seated whilst consuming the food and drink on the premises.
  2. Subject to the restriction on opening hours in R. 4A(1), during the emergency period, a person responsible for carrying on a business or providing a service listed in Part 1 of Schedule 3 which does not serve alcohol for consumption on the premises may sell food and drink for consumption on the premises only if the person takes all reasonable steps to ensure that the customer remains seated whilst consuming the food or drink on the premises.
  3. For the purposes of paragraphs (1) and (2) an area adjacent to the premises of the business where seating is made available for customers of the business (whether or not by the business) or which customers of the business habitually use for consuming food or drink served by the business is to be treated as part of the premises of that business.
  4. if a business or service listed in Part 1 of Schedule 3 (business A) forms part of a larger business (Business B) the person responsible for carrying on business B complies with the requirement in paragraph (1) or (2) if that person complies with the requirement in relation to business A.
  5. In this regulation alcohol has the same meaning given in section 191 of the Licensing Act 2003.

Summary

Restrictions on opening hours of businesses and services

R. 4A means that a relevant business, as defined by Parts 1 and 2 of a new Schedule 3 must close that business or service between 22.00 and 05.00, subject to the limited exemptions at R4A(2)-(4)..

For example, this does not prevent P from making deliveries of food and drink for consumption off the premises, provided it is ordered by telephone; website; post etc. or if the purchaser collects the food and drink in a vehicle and it is passed to the purchaser without anyone leaving the vehicle.

A cinema, theatre or concert hall can remain open after 22.00 to conclude a performance which started before 22.00.

The restrictions in opening hours in R. 4A(1) do not apply to motorway services.

If a restricted business forms part of a larger non-restricted business. P can carry on operating the non-restricted business between 22.00 and 05.00.

Restrictions on service of food and drink for consumption on the premises

R.4B means that subject to complying with R. 4A:

Part 1, Schedule 3 businesses and services (pubs, bars, restaurants, cafes etc)

  • May sell food or drink for consumption on the premises only if all reasonable steps are taken to ensure that the customer remains seated whilst consuming the food or drink on the premises
  • Additionally, if they serve alcohol for consumption on the premises, the customer must be seated when they order and are served the food and drink.

Amendments to R. 4 from 14 October 2020

From 14 October 2020 the Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium) (England) Regulations 2020 revoke:

  • R. 4
  • R. 4A
  • R. 4B

Regulation 4 is revoked from 14 October 2020. This means restrictions on businesses/ services are now found in one of the Tier Regulations.

Regulation 5 - Restrictions on Gatherings

R.5 (1) prohibits gatherings of more than 30 people during the emergency period

  • in a private dwelling, including a houseboat;
  • on a vessel other than a houseboat or a vessel used for public transport (R. 5(1)(b)(ii)); or
  • on land which is a public outdoor place which is not (R. 5(1)(b)(iii)):-
    • Operated by a business, a charitable, benevolent or philanthropic institution or a public body as a visitor attraction; (R. 5(2))
    • Part of premises used for the operation of a business, charitable, benevolent or philanthropic institution or a public body; (R. 5(2)
  • Indoors where the gathering would be classed as a rave for the purposes of the Criminal Justice and Public Order Act 1994, s.63if it was held outdoors (R. 5(4)).

R.5 (3) is a non-exhaustive list of exceptions to the restriction on gatherings of more than 30 people (the exceptions apply to all such gatherings save for indoor raves under R.5(4)). The list includes:

  • 5(3)(a), in the case of a gatherings described in R. 5(1)(b)(ii) and R. 5(1)(b)(iii)
    • The gathering has been organised by a business, a charitable, benevolent or philanthropic institution, a public body or a political body (R. 5(3)(a)(i));
    • The person responsible for organising the gathering has carried out a risk assessment which would satisfy the requirements of R.3 of the Management of Health and Safety at Work Regulations 1999, whether or not the gathering organiser is subject to those regulations (R. 5(3)(a)(ii)); and
    • The gathering organiser has taken all reasonable measures to limit the risk of transmission of the coronavirus, taking into account the risk assessment carried out in R. 5(3)(a)(ii). What is reasonable has to take into account government guidance relevant to the gathering in question (R. 5(5)).
  • The person concerned is an elite sportsperson, the coach of an elite sportsperson or a parent of a child elite sportsperson, and the gathering is necessary for training or competition (R. 5(3)(b)).
  • The gathering is reasonably necessary (R. 5(3)(c):-
    • For work purposes or for the provision of voluntary or charitable services;
    • For the purposes of education or training;
    • For the purpose of childcare provided by a person registered under Part 3 of the Childcare Act 2006, or as part of supervised activities provided for children;
    • To provide emergency assistance;
    • To enable one or more persons in the gathering to avoid injury or illness or escape a risk of harm.
  • The person concerned is fulfilling a legal obligation (R. 5(3)(d)).

A gathering is defined in R. 5(6) as when two or more people are present together in the same place in order to engage in any form of social interaction with each other, or to undertake any other activity with each other.

For the purposes of the Regulations a place is indoors if it would be considered to be enclosed or substantially enclosed for the purposes of section 2 of the Health Act 2006, under the Smoke Free (Premises and Enforcement) Regulations 2006 (R. 5(6)(b)).

A private dwelling includes any garden, yard, passage, stair, outhouse or other appurtenance of the dwelling, but does not include:-

  • accommodation in a hotel, hostel, campsite, caravan park, members club, boarding house or bed and breakfast;
  • care homes within the meaning of section 3 of the Care Standards Act 2000;
  • children’s homes within the meaning of section 1 of the Care Standards Act 2000;
  • Residential Family Centres within the meaning of section 4 of the Care Standards Act 2000;
  • Educational accommodation (including halls or residence for those attending higher education or further education and accommodation at boarding schools R. 5(7)(a));
  • Accommodation intended for use by the army, navy or air force;
  • Criminal justice accommodation (including prisons; young offenders’ institutions, secure training centres, approved accommodation and bail hostels (R. 5(7)(b)).

A relevant person can enforce the restrictions on gatherings in R. 5 by:-

  • Directing the gathering to disperse; (R. 7(3)(a))
  • Directing any person in the gathering to return to the place where they are living; (R. 7(3)(b))
  • Remove any person from the gathering; (R.7(3)(c), using reasonable force if necessary (R. 7(5)).

Where a child is in a gathering in contravention of R.5 and is accompanied by an individual with responsibility for them, the relevant person may

  • Direct that individual to take the child to the place where the child is living; and
  • The individual must, so far as reasonably practicable, ensure the child complies with any direction or instruction given(R. 7(6)).

Where a relevant person has reasonable grounds to believe that a child is repeatedly failing to comply with the restrictions in R. 5 the relevant person may direct any individual who has responsibility for the child to secure, so far as reasonably practicable, that the child complies with that restriction (R. 7(7)).

A relevant person exercising powers under R. 7 (3), (6), and (7)

  • Must consider it necessary and proportionate to secure compliance with R.5; (R. 7(8));
  • May give the person concerned any reasonable instruction they consider necessary (R. 7(9)).

Amendments to Regulation 5 from 28 August 2020

The Health Protection (Restrictions on Holding of Gatherings and Amendment) (England) Regulations 2020 amend Regulation 5 by:

  • changing the heading from “Restrictions on Gatherings” to “Restrictions on participation in Gatherings”
  • R. 5(6) is amended to include reference to the new Regulations 5A and 5B;
  • New restrictions are introduced by the new R. 5A and R. 5B. In summary there are now restrictions on organising or facilitating large indoor gatherings (of more than 30 people) and organising and facilitating other gatherings (of more than 30 people) unless the gatherings meet specified conditions.
  • Contravening any restriction in R.5A or R. 5B without reasonable excuse is a criminal offence (R. 8(1)).
  • An authorised person can issue a fixed penalty notice of £10,000 to any person aged 18 or over for a contravention of R. 5A or R 5B.

R.5 A provides that no person may hold or be involved in holding a section 63 type gathering which

  • consists of more than 30 persons
  • takes place indoors, and
  • would be of a kind mentioned in section 63(1) of the Criminal Justice and Public Order Act 1994 if it took place in the open air, such as a rave or other unlicensed music event.

NB: a person is not involved in the holding of a section 63 gathering if their only involvement in the gathering is attendance at the gathering

R. 5B provides that no person may hold or be involved in the holding of a gathering, which is not a s.63 type gathering:

  • of more than 30 people;
  • in a private dwelling or houseboat;
  • on a vessel, other than a houseboat or a vessel used for public transport; or
  • on public outdoor land (this is heavily qualified). Examples may include beaches, the street, parks etc. Public outdoor land is land used as a public outdoor place but not if it is operated by a business; a charitable, benevolent or philanthropic institution or a public body as a visitor attraction or part of premises used for the operation of a business, charitable, benevolent or philanthropic institution or a public body. Unless the conditions in R. 5B(4) are met.

A fixed penalty notice of £10,000 can be issued by an authorised person to an individual, aged 18 or over, reasonably believed to have contravened any restriction in R. 5A or R. 5B.

Amendments to Regulation 5 from 12.01 a.m. on 14 September 2020

In summary indoor and outdoor gatherings of more than six people are prohibited unless an exception applies.

R. 5(1) and R. 5(2) are substituted with new Regulations 5(1) and (2) as follows:

R. 5(1) states that during the emergency period, no person may participate in a gathering which consists of more than six people unless:

  1. all the people in the gathering are from the same household, or are members of two households which are linked households in relation to each other,
  2. the gathering is one to which paragraph (2) or (2A) applies and the person concerned participates in the gathering alone or as a member of a qualifying group, or
  3. paragraph (3) applies.

R.5(2) is an exception to the prohibition in R. 5(1). It applies to a gathering if it takes place on or at premises, other than a private dwelling, which are—

  1. operated by a business, a charitable, benevolent or philanthropic institution or a public body, or
  2. part of premises used for the operation of a business, a charitable, benevolent or philanthropic institution or a public body.

R.5 (2A) is another exception to the prohibition in R. 5(1). It applies to a gathering if it takes place in a public outdoor space which does not fall within paragraph (2)(a) or (b) and-

  1. the gathering has been organised by a business, a charitable, benevolent or philanthropic institution, a public body, or a political body, and
  2. the gathering organiser complies with paragraph (5G) (see below).

(2B) For the purposes of paragraph 5 (1)(b) a qualifying group is a group of people participating in that gathering which-

  1. consists of no more than six persons, or
  2. consists of only persons who are members of the same household, or who are members of two households which are linked households in relation to each other;

A person participates in a gathering as a member of a qualifying group only if they are part of a qualifying group and, whilst participating in the gathering, they do not:

  1. become a member of any other group of persons participating in the gathering (whether or not that group is a “qualifying group”), or
  2. otherwise mingle with any person who is participating in the gathering but is not a member of the same qualifying group as them.

The term mingle is not defined in the Regulations so should be given its ordinary meaning. This includes to move among people and talk to them, especially at a social event; to combine or make one thing combine with another.

The list of exceptions to R. 5(1) in R. 5(3) is amended as follows:

  • Sub paragraph (a) is removed.
  • Sub paragraph (c) is amended to include (vi) to provide care or assistance to a vulnerable person, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006, and (vii) for the purposes of arrangements for access to, and contact between, parents and children where the children do not live in the same household as their parents or one of their parents,”;

The following sub paragraphs are added to R. 5(3)(d)

  • (e) the gathering is of a support group,
  • (f) the gathering consists of no more than 30 persons and-
    • (i) it is for the purposes of the solemnisation of a marriage, formation of a civil partnership or conversion of a civil partnership
    • (ii) it takes place on religious premises or premises which are approved for the purposes of the Marriage Act 1949(b) or the Civil Partnership Act 2004 and
    • (iii) the manager complies with paragraph (5G),
  • (g) the gathering is a significant event gathering and—
    • (i) it consists of no more than 30 persons,
    • (ii) it takes place—
      • (aa) at premises (other than a private dwelling) which are operated by a business, a charitable, benevolent or philanthropic institution or a public body,
      • (bb) at premises (other than a private dwelling) which are part of premises used for the operation of a business, a charitable, benevolent or philanthropic institution or a public body, or
      • (cc) in a public outdoor space which does not fall within paragraph (aa) or (bb), and
    • (iii) the manager, in the case of gathering taking place at premises mentioned in paragraph (ii)(aa) or (bb), or the gathering organiser, in any other case, complies with paragraph (5G),
  • (h) the gathering is a wedding reception, reception following the formation of a civil partnership or reception following the conversion of civil partnership to a marriage and:
    • (i) it consists of no more than 30 persons,
    • (ii) it takes place in premises other than a private dwelling, and
    • (iii) the gathering organiser complies with paragraph (5G) (see below),
  • the gathering is for the purposes of protest and-
    • (i) it has been organised by a business, a charitable, benevolent or philanthropic institution, a public body, or a political body, and
    • (ii) the gathering organiser complies with paragraph (5G),
  • (j) the gathering is a sports gathering and the person concerned is taking part in that gathering,
  • (k) the gathering takes place in criminal justice accommodation,
  • (l) the gathering takes place outdoors (whether or not in a public outdoor space), and-
    • (i) it is for the purpose of a relevant outdoor activity, and
    • (ii) the gathering organiser complies with paragraph (5G), or
  • (m) the person concerned is attending a person giving birth (“M”), at M’s request.

R.5(4)(a) is amended so that 30 is changed to 6 (this section had essentially prohibited indoor gatherings of more than 30 people of a type which would be a s.63 Criminal Justice and Public order Act 1994 gathering if held on land in the open air – from 14 September these gatherings cannot involve more than 6 people).

R.5(5) is removed. It dealt with the assessment of whether all reasonable measures had been taken by the organiser of a gathering to limit the spread of coronavirus in R. 5(3)(a)(iii). 

A new R. 5 (5) (A) – 5(G).  These paragraphs define the following:

  • R. 5 (5) (A) - “Support group” for the purposes of R. 5(3)(e);
  • R. 5 (5) (B) – “significant event gathering” for the purposes of R. 5((3)g);
  • R. 5 (5) (D) - a “sports gathering” for the purposes of R. 5(3)(j);
  • R. 5 (5) (E) – “relevant premises” for the purposes of R. 5D
  • R. 5 (5) (F) – “relevant outdooractivity” for the purposes of R. 5(3)(1)
  • R. 5 (5) (G) – the terms “the gathering organiser” or “manager” has to comply with.

A new R. 5(8) defines “the gathering organiser” as the person responsible for organising a gathering and “the manager” as the person responsible for the management of the premises on which a gathering takes place.

R.5(ZA) is inserted after R. 5. This paragraph defines a “linked household” as one:

  1. Where a household comprises one adult, or one adult and one or more personswho were under the age of 18 on 12th June 2020 (“the first household”), the adult may choose to be linked with one other household (“the second household”), provided that-
    1. neither the first household nor the second household are linked with any other household for the purposes of these Regulations or any of the Regulations mentioned in regulation 1(4), and
    2. all the adult members of the second household agree.
  2. There is no limit on the number of adults or children which may be in the second household.
  3. The first and second households are “linked households” in relation to each other.
  4. The first and second households cease to be linked households if neither household satisfies the condition in the opening words of paragraph (1).
  5. Once the first and second households have ceased being linked households, neither the first household nor the second household may be linked with any other household.

R. 5A(2)(a) was inserted by the The Health Protection (Coronavirus) (Restrictions on Holding of Gatherings and Amendment) (England) Regulations 2020. It deals with the restriction on organisation or facilitation of certain large indoor gatherings. No person may hold or be involved in the holding of a section 63 type gathering. The new R. 5A(2)(a) amends the definition of a “section 63 type gathering” to one which

  • consists of more than thirty persons,
  • takes place indoors, and
  • would be a gathering of a kind mentioned in section 63(1) of the Criminal Justice and Public Order Act 1994(a) if it took place on land in the open air.

R. 5B which was inserted by the The Health Protection (Coronavirus) (Restrictions on Holding of Gatherings and Amendment) (England) Regulations 2020 and deals with Restrictions on organisation or facilitation of other gatherings is amended so that:

  • R. 5B(4) and R. 5B(5) are removed
  • Reference to houseboats is removed from R. 5B(2)(ii) and the reference to “as a visitor attraction” is removed from R. 5B(3)(a).
  • A new R. 5B(3)(A) now defines an excepted gathering for the purposes of R. 5B(2)(d) as one where all the people in the gathering are from the same household or are members of two households which are linked in relation to each other; or where paragraph (2), (2A) or (3) of regulation 5 applies to the gathering.

Amendments to R. 5 from 05.00 on 24 September 2020 and 28 September 2020

These amendments come into force at 05.00 on 24 September 2020 save for the amendments to R. 5(3)(f); (g); (h) and the removal of R. 5 (5B) and R. 5 (5C) which come into force on 28 September 2020

The rule of 6 introduced on 14 September still applies (R. 5 (1)). Exceptions to that restriction are listed in R. 5(3). The list of exceptions is amended from 24 September to restrict the number of people gathering as follows:

R. 5(3)(e) is amended so the gathering of a support group must consist of no more than 15 people and take place on premises other than in a private dwelling.

R. 5(3)(f) restricts the number of people who can attend the solemnisation of a marriage; formation of a civil partnership etc to no more than 15 and extends the requirement to comply with R. 5G to the gathering organiser, and not just the manager.

R. 5(3)(g) the reference to “a significant event gathering” is removed and replaced with “for the purposes of attending a funeral”.

R. 5(3)(h) which deals with receptions following a marriage; civil partnership or conversion of civil partnership to marriage etc is amended so the gathering can consist of no more than 15 people (previously 30).

The reference to “sports” gathering in R. 5(3)(i) is replaced with “outdoor sports gathering or permitted indoor sports gathering”.

R.5. (5B) and R.5 (5C) are removed. R.5 (5B) defined a “significant event gathering” – this term is now removed from R. 5(3)(g) and R. 5C defined “belief”.

R. 5 (5D) defined a sports gathering. It now defines an “outdoor sports gathering” for the purposes of R. 5(3)(j). Reference to “relevant premises” is removed from sub paragraph (ii) so the reference is restricted to “outdoors”. The exception to the rule of 6 now only applies to outdoor sports gatherings or permitted indoor sports gathering.

A new R. 5(5D)(aa) defines a permitted indoor sports gathering for the purposes of R. 5 (3)(j) as:

  • A gathering which is organised for the purposes of allowing persons who have a disability and who are not elite sportspersons to take part in any sport or other fitnesss related activity and
    1. which is organised by a business, a charitable, benevolent or philanthropic institution or a public body;
    2. which takes place indoors on relevant premises, and
    3. the manager of the relevant premises complies with paragraph 5G

In R. 5 (5D) (b) the reference to sports gathering is replaced with “an outdoor sports gathering or a permitted indoor sports gathering”.

R. 5(5E) is replaced with the following:

  • “For the purposes of R. 5(5D)
    1. relevant premises means premises other than a private dwelling
      1. which are operated by a business, a charitable, benevolent or philanthropic institution or a public body, or
      2. which are part of premises used for the operation of a business, a charitable, benevolent or philanthropic institution or public body”.
    2. a person has a disability if:
      1. they have a physical or mental impairment (R. 3-5of the Equality Act 2020 (Disability) (Regulations ) 2020 apply), and
      2. the impairment has a substantial and long term adverse effect on their ability to carry out normal day to day activities.

In R. 5(9) the reference to Public Health is replaced with Health Protection.

Amendments to R. 5 from 14 October 2020

The Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium) (England) Regulations 2020 revoke:

  • R. 5
  • R. 5ZA
  • R. 5A
  • R. 5B

Regulation 5 is revoked from 14 October. This means that restrictions on gatherings are found in one of the Tier Regulations from 14 October 2020.

Regulation 6 – Power to restrict access to a specific public outdoor space

Note that the 3 Tier Regulations did not revoke R6, so R6 continued to apply post 14 October 2020. 

The Secretary of State can issue a direction restricting public access to a specified public outdoor place, or public outdoor places of a specified description (R. 6(1)). A direction can be issued if it is a proportionate means of responding to a serious and imminent threat to public health and if it is necessary to prevent, protect against, control or provide a public health response to the incidence or the spread of the coronavirus infection in England (R. 6(1)).

The Secretary of State must review the need for a restriction every 7 days (R. 6(7)).

R.6(10) requires that anyone who owns or is responsible for any part of the restricted area must take reasonable steps to restrict public access to that part of the restricted area.

No person may enter or remain in the restricted area in contravention of the restrictions in the direction without reasonable excuse (R. 6(11)).

R.6 (12) is a non-exhaustive list of reasonable excuses for entering or remaining in the restricted area. It includes:

  • the person is the owner or occupier of land or premises contained in the restricted area;
  • the person needs to enter the restricted area to access the place where they are living, or to leave that place;
  • the person needs to enter or remain in the restricted area
    • to avoid injury or illness or to escape a risk of harm;
    • to continue existing arrangements for access to, and contact between, parents and children where the children do not live in the same household as their parents, or one of their parents.
  • the person needs to enter the restricted area to fulfil a legal obligation;
  • It is reasonably necessary for a person to enter the restricted area:-
    • For work purposes or for the provision of voluntary or charitable serviced;
    • To facilitate a house move;
    • To provide care or assistance to a vulnerable person (see definition in R.1 and Schedule 1) including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 of the Safeguarding of Vulnerable Groups Act 2006;
    • To provide emergency assistance.

Regulation 7 - Enforcement

Enforcement of breach of the restrictions in R. 6 is through:-

  • A direction to leave the restricted area immediately (R. 7(4)(a));
  • Removal of the person from the restricted area (R. 7(4)(b)), using reasonable force if necessary (R. 7(5)).

Where a child is in a restricted area in contravention of R.6(11) and is accompanied by an individual with responsibility for them, the relevant person may

  • Direct that individual to take the child to the place where the child is living; and
  • The individual must, so far as reasonably practicable, ensure the child complies with any direction or instruction given. (R. 7 (6)).

Where a relevant person has reasonable grounds to believe that a child is repeatedly failing to comply with the restrictions in R. 6(11) the relevant person may direct any individual who has responsibility for the child to secure, so far as reasonably practicable, that the child complies with that restriction (R. 7(7)).

Regulation 7 is substantially amended by the Tier 1 Regulations from 14 October 2020. From this date the R7 enforcement provisions relate to R6 requirements only (access to a specific public outdoor space). Prosecutors are advised to use the timeline for the Regulations accessed here.

Regulation 8 - Offences

The regulations create the following criminal offences:-

  1. Contravention of a requirement in regulation 4, 5, or 6 (10), 6(11) or 7, without a reasonable excuse; R. 8 (1)
  2. Obstruction, without reasonable excuse, of a person carrying out a function under the regulations; R. 8 (2)
  3. Contravention of a direction given under R.7, or failure to comply with a reasonable instruction or a prohibition notice given to a relevant person under R. 7 without reasonable excuse – R. 8(3).

From 28 August 2020 The Health Protection (Restrictions on Holding of Gatherings and Amendment) (England) Regulations 2020 amend R. 8(1) so that it is also an offence to contravene, without reasonable excuse, any restriction in R. 5A or R. 5B.

It should be noted that the police also have the power to arrest where such an offence has been committed (R. 8 (7)).

In general, we expect that enforcement of the regulations will be through the issuance of a prohibition notice (for businesses) or by directions (in respect of gatherings).  These may be issued to encourage compliance with the regulations or may be issued where an authorised person ‘believes’ that there has been a breach. However, this does not stop an authorised person from treating a breach as an offence without first issuing a prohibition notice or giving a direction.

Amendments to R.8 from 24 September 2020

R. 8 (1) is amended so that it is now an offence to contravene a requirement in R.4A (restrictions on opening hours of businesses and services) and R.4B (restrictions on service of food and drink for consumption on the premises), without a reasonable excuse.

Amendments to R.8 from 14 October 2020

R. 8 is amended to remove reference to R. 4; 4A; 4B; 5; 5A and 5B. R. 8(3) is amended to remove reference to “or prohibition notice”, These types of offences are covered by the 3 Tiers Regulations from 14 October 2020.

Regulation 9 - Fixed Penalty Notices

Where an authorised person reasonably believes that an offence has been committed by an offender over the age of 18 they may issue a fixed penalty notice (FPN).

A FPN provides an offender with the opportunity to discharge any liability for the offence by paying a fine. If an offender accepts a FPN but does not comply with its terms, then after 28 days criminal proceedings can be instituted by the police. In proceedings instituted following a failure to comply with an FPN a signed certificate confirming the failure to pay a FPN by the specified date is automatically admissible in evidence of the facts stated and can be used to prove that there is no bar on the proceedings.

An individual does not have to accept a FPN and if they do not do so the police can issue criminal proceedings for the offence instead.

It should be noted that FPNs are not automatic. The police can take the decision that the offence is so serious that they can charge straightaway e.g. where there have been multiple offences.

Please refer to the Regulations for specific details of the scale of the FPN fines which vary depending on whether the breach is a first or subsequent breach (R. 9 (6) – R. 9(8)). Note that any FPNs issued for breaches of the previous Regulations (the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020) are relevant for these purposes, as are any breaches of the Health Protection (Coronavirus, Restrictions) (Leicester) Regulations 2020 – R. 9(9).

Amendments to Regulation 9 from 28 August 2020

From 28 August 2020 The Health Protection (Restrictions on Holding of Gatherings and Amendment) (England) Regulations 2020 amend R. 9(6) by specifying that where a notice is issued in respect of an offence of contravening, without reasonable excuse, a restriction in R. 5A or R. 5B the amount specified in the FPN must be £10,000.

Amendments to Regulation 9 from 24 September 2020

R. 9 is amended to include a new R. 9 (6)(za). Where a fixed penalty notice is issued for contravening a restriction, without reasonable excuse, in R.4A or R4B the level of fine will be £1000 for the first penalty notice; £2000 for the second penalty notice; £4000 for a third penalty notice and £10,000 for a fourth and subsequent breach.

The level of fine for breaches of other restrictions in these Regulations is increased so that the first breach is now £200 (£100 if paid within 14 days); increasing to a maximum of £6,400 (R. 9(8)).

R. 9 (8A) is amended to refer to R. 4A, 4B, 5A or 5B.

R. 9(14) is also amended to include reference to R. 4A and R. 4B. A local authority may designate a person for the purpose of this Regulation to issue a fixed penalty notice where the alleged offence relates to breach of a requirement in R. 4, R. 4A and R. 4B or obstruction under R. 8(2) of a person carrying out a function under R. 7

Amendments to Regulation 9 from 28 September 2020

From 28 September 2020 a new R.9 (6A) is introduced so that in determining how many fixed penalty notices a person has received in accordance with R. 9 (6) (za), fixed penalty notices issued under the following Regulations are taken into account:

  1. Health Protection (Coronavirus, Collection of Contact Details etc and Related Requirements) Regulations 2020; and
  2. the Health Protection (Coronavirus, Restrictions) (Obligations of Undertakings) (England) Regulations 2020.

Amendments to Regulation 9 from 14 Octobter 2020

The 3 Tier Regulations, which came into force on 14 October 2020, amend R.9 by adding to the list of Regulations which have to be taken into account when determining whether is breach is a first or subsequent breach. Please refer to the amended Regulations for full details of the amendments here.

Amendments to Schedule 2 from 11 July 2020

Paragraph 12 is amended so that outdoor swimming pools can open. Indoor swimming pools, including indoor facilities at water parks must remain closed, unless used by elite sportspersons.

Amendments to Schedule 2 from 13 July 2020

Schedule 2 is amended so that the businesses and services listed in paragrahs 5-10 can open / resume. The list includes nail bars and salons; tanning booths and salons; spas and beauty salons; massage parlours; tattoo parlours and body and skin piercing services.

Amendments to Schedule 2 from 25 July 2020

Schedule 2 is amended so the businesses and services listed in paragraphs 12, 14 and 15 can open. This includes indoor and outdoor swimming pools and water parks (para.12); indoor fitness and dance studios (para.14) and indoor gyms and sports courts and facilities (para.15).

Amendments to Schedule 2 from 15 August 2020

Schedule 2 is amended so that the businesses and services listed in paragraphs 4, 11, 13, 16 and 17 can open. This includes casinos (para. 4), indoor skating rinks (para. 11), indoor play areas including soft play areas (para. 13), bowling alleys (para. 16) and conference centres and exhibition halls (para. 17).

Amendments to Schedule 2 from 14 October 2020

Schedule 2 is revoked by the Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium) (England) Regulations 2020.

Schedule 3 - introduced on 24 September 2020

Schedule 3 is a list of businesses subject to restrictions for the purposes of R. 4A and R4B. The Schedule is as follows:

  1. Restaurants including restaurants and dining rooms in hotels and members’ clubs
  2. Businesses, other than businesses listed in sub-paragraph (2), providing food and drink prepared on the premises for immediate consumption off the premises
    the businesses are:
    (a) supermarkets;
    (b) convenience stores, corner shops and newsagents;
    (c) pharmacists and chemists;
    (d) petrol stations.
  3. Cafes, including workplace canteens (subject to sub- paragraph(2), but not including:
    (a) Cafes or canteens at a hospital, care home or school;
    (b)Canteens at a prison or an establishment intended for use for naval, military or air force purposes or for the purposes of the Department of the Secretary of State responsible for defence;
    (c)Services providing food or drink to the homeless
    3 (2) Workplace canteens may remain open where there is no practical alternative for staff at the workplace to obtain food.
  4. Bars, including bars in hotels and members’ clubs.
  5. Public houses.
  6. Social clubs.
  7. Casinos.

Part 2

  1. Bowling alleys.
  2. Cinemas.
  3. Theatres.
  4. Amusement arcades or other indoor leisure centres or facilities.
  5. Funfairs (indoor or outdoors), theme parks and adventure parks and activities.
  6. Bingo halls.
  7. Concert halls.

Amendments to Schedule 3 from 14 October 2020

Schedule 3 is revoked by the Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium) (England) Regulations 2020.

Charging Practice

These offences are summary only and, in line with the Directors Guidance on Charging, can be charged by the Police. Prosecutors are reminded that the issuing of criminal proceedings is likely to have been a matter of last resort.

Offences under the Coronavirus Regulations are not governed by the 6 month time limit (from the offence date) set out in section 127(1) of the Magistrates' Courts. The Regulations are made under the Public Health (Control of Disease) Act 1984 and section 64A of this Act states that the time limit for proceedings is:

  • before the end of the period of 6 months beginning with the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to the prosecutor's knowledge; and
  • within 3 years of the date of the commission of the offence.

Since offences under the Coronavirus Regulations are usually charged by the police, in most cases the police officer will be “the prosecutor” for the purposes of this statutory time limit provision. It should be noted that:

  • Where an offence is charged 6 months or more after the date of the breach, the police officer who makes the charging decision should produce a certificate to state the date on which evidence which they think is sufficient to justify the proceedings came to their knowledge.
  • The relevant date will depend on the review process operated by the particular police force. For instance, in cases where a FPN is issued, the relevant date could be any of the following: the date of breach; the date when the FPN was issued; the date after the expiry of the 28 day period for payment of a FPN; or later, when an evidential review for charging purposes is completed.
  • In cases where the CPS charges an offence under the Coronavirus Regulations, such as where it is linked to other offences referred to the CPS for a charging decision (and it is considered appropriate to charge the Coronavirus offence), if the case is charged 6 months or more after the date of the breach, the CPS prosecutor should produce the certificate.

The court in the case of DPP v Woodward [2017] EWHC 1008 (Admin); 181 J.P. 405 reviewed the main authorities on this point and summarised the key propositions. It stated that the relevant date is the date upon which the prosecutor considers that, upon the available evidence it is in the public interest to prosecute the particular individual, and not merely whether there is a prima facie case. However, the decision could not be avoided or delayed by sitting on information.

When deciding whether a prosecution is in the public interest, prosecutors should consider Paragraphs 4.9 – 4.14 of the Code for Crown Prosecutors, so as to identify and determine the relevant public interest factors tending for and against prosecution.

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.

When breaches of The Regulations are committed at the same time as other offences prosecutors should consider the totality of the offending. In circumstances where the breach of the Regulations is not likely to attract a separate penalty then no additional offence should be charged.   The fact that the circumstances of the offence also involved behaviour which was in breach of the Regulations should be referred to in the case summary so that it is treated as part of the overall circumstances of the offending for sentencing purposes. Prosecutors are reminded that offences under the Regulations cannot be sent to the Crown Court.

ECHR proportionality – statutory defences

Where an offence provision provides a defence of “reasonable excuse” (or that a defendant was acting reasonably or with lawful excuse), ECHR Convention rights may be engaged, depending on the nature of the offence. In Leigh & Ors v The Commissioner of Police of the Metropolis [2022] EWHC 527 (Admin) (11 March 2022) the Divisional Court held that the decisions of the MPS in relation to a proposed vigil prompted by the murder of Sarah Everard were legally flawed in that they did not give proper effect to the “reasonable excuse” provision in The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (All Tiers Regulations). 

In order to read the Tier 4 restrictions on gatherings for the purposes of a protest compatibly with Articles 10 and 11, it was necessary for the MPS to conduct a case-specific proportionality assessment. The court indicated that the relevant principles to be applied when conducting the proportionality assessment in relation to the Tier 4 restrictions included (see [70 & 78]): (i) the deterioration in the public health picture that led to the Tier 4 Regulations (or any other Regulations in force at the time); (ii) the legislative decision that the exceptions for protest contained in Schedules 1 to 3 of the All Tiers Regulations should not apply to Schedule 3A and Tier 4 areas (or that it should apply in other versions of the Regulations); (iii) the importance of the subject-matter, and how close it was to the core of the protected right; (iv) the numbers that took part; (v) the importance of the precise location; (vi) the existence or otherwise of a robust risk assessment; (vii) the nature of any precautions taken by the protesters; (viii) the likelihood of assembly taking place in any event; and (ix) the potential effects on the rights of others. The court also indicated that significant weight should be given to factors (i) and (ii) in particular, as they inform the risk to public health: see [80].

Prosecutors should be alert to the need to consider Convention rights when assessing any reasonable / lawful excuse defence provided by the Regulations, even where the activity (such as a protest) that contravenes the particular restriction is not included in any list of statutory exceptions to the restriction in question. However, the absence of the activity from a list of exceptions may be considered as relevant to the proportionality assessment. 

Government Guidelines and the Regulations

Where Government guidelines or advice suggest that the public should or should not act in specific ways, failure to comply with such guidelines or advice is not an offence unless it is specifically covered by the Regulations.

The Code for Crown Prosecutors

The Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions that sets out the general principles Crown Prosecutors should follow when they make decisions on cases.

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Prosecution guidance

This guidance assists our prosecutors when they are making decisions about cases. It is regularly updated to reflect changes in law and practice.

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