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Coronavirus: The Health Protection (Coronavius, Restrictions) (All Tiers) (England) Regulations 2020

Updated: 08 March 2021; 23 March 2021; 9 May 2022|Legal Guidance

Introduction

This guidance summarises the main provisions in the Regulations. It is intended to assist prosecutors in navigating the structure of the Regulations. It is not intended to be a comprehensive guide to all aspects of the legislation. Prosecutors are therefore reminded to refer to the legislation when making charging decisions relating to Coronavirus Regulations, and to use the timeline, if applicable, to determine which provisions were in force at the time of an alleged breach.

Overview of Regulations and Amendments​

​The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (All Tiers Regulations) came into force on ​2 December 2020, at the end of the second national lockdown in England, and apply in England only. The All Tiers Regulations will be amended to move areas between the different Tiers.  Prosecutors should ensure their charging decisions reflect the Regulations in force in a particular area at the time the alleged breach was committed.

The All Tiers Regulations revoke the Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020, which implemented the second lockdown, apart from R.24-26 (consequential amendments, revocations and transitional provisions). The No.4 Regulations also continue in force in relation to any offence committed under those Regulations before 2 December 2020. ​

The All Tiers Regulations have been amended. The main amendment Regulations include:

The Health Protection (Coronavirus) (Wearing of Face Coverings in a Relevant Place and Restrictions: All Tiers) (England) (Amendment) Regulations 2021 which came into force on 8 March 2021. These Regulations introduce a number of amendments e.g. to R. 3; R. 13 and Schedule 3A including: , permitting outdoor recreation, gatherings related to electoral activities, to introduce a requirement to declare the reason for leaving or being outside the place where a person is living, when that person is travelling outside the United Kingdom (Schedule 3A Part 1A and Schedule 4A), and to make other minor amendments.

The All Tiers Regulations are distinct from the 3 Tier Regulations that came into force in October 2020 and were revoked in November 2020. Every area of England will be subject to restrictions, depending on which Tier that area is placed in. The restrictions for each Tier / area are set out as follows:

  • Tier 1 restrictions are set out in Schedule 1 and apply to all of England other than specified Tier 2 or 3 areas.
  • Tier 2 restrictions are set out in Schedule 2 and apply to the Tier 2 area, which is specified in Schedule 4, Part 1.
  • Tier 3 restrictions are set out in Schedule 3 and apply to the Tier 3 area, which is specified in Schedule 4, Part 2.
  • From 07:00 on 20 December 2020 Tier 4 restrictions are introduced as set out in Schedule 3A and apply to the Tier 4 areas specified in Schedule 4 Part 3. Schedule 3A is amended from 6 January 2021 to put England into lockdown.​

The Secretary of State (SoS) must review the need for restrictions every 28 days, with the first review on 30 December. The SoS must also review whether each area that is part of Tier 2 or Tier 3 should continue to be part of that area at least once every 14 days, the first review was on 16 December 2020.

The Regulations expire on 31 March 2021 (R. 15(1))

Part 1 - Introductory

Regulation 2 - Interpretation

R.2 has an extensive list of definitions of terms used in the Regulations

Regulation 3 - Linked households

Regulation 3 defines the existing concept of a linked household (‘support bubble’), setting out how these can be formed and changed.

Regulation 4 - Linked Christmas households (R. 4 is removed from 20 January 2021)

R.4 permits a “linked Christmas household” during the Christmas period, which is defined in R.2 as 25 December.

Regulation 5 - Linked childcare households

Subject to the conditions in R.5, a household with at least one child aged 13 or under may link with another household for the purposes of that second household providing informal childcare.

Regulation 6 - Permitted organised gatherings

Organised gatherings are permitted under the Regulations under specific conditions, which relate to gatherings on or at premises relating to a business, a charitable, benevolent or philanthropic institution, or a public body; or gatherings in a public outdoor place organised by one of these institutions or a political body and the organiser takes the required precautions, which are set out in R.7.

Regulation 7 - Required precautions

R.7 sets out the required precautions that the organiser or manager of a permitted gathering must take.

Part 2 - Tier Restrictions

Regulation 8 - Tier restrictions

R.8 explains that the Tier 1, 2 and 3 restrictions apply to the respective areas, in accordance with Schedules 1, 2 and 3 respectively. 

From 07:00 on 20 December 2020 R. 8 is amended to include reference to Tier 4 restrictions and areas.

Part 3 - Enforcement

Regulation 9 - Enforcement of restrictions and requirements

A relevant person can take such action as is necessary to enforce a Tier 1, 2 or 3 restriction. The actions include giving prohibition notices and issuing directions. The action depends on the nature of the alleged breach.

Regulation 10 - Offences and Penalties

A person commits an offence if, without reasonable excuse, the person:

  • contravenes a Tier 1, 2, 3 or 4 restriction (tier 4 applies from 07:00 on 20 December 2020);
  • contravenes a requirement imposed, or a direction given under R.9;
  • fails to comply with a reasonable instruction or a prohibition notice given by a relevant person under R.9;
  • obstructs any person carrying out a function under these Regulations (including any person who is a relevant person for the purposes of R.9);
  • intentionally or recklessly provides false or misleading information on a travel declaration form (from 8 March 2021).

An offence under the Regulations is summary only, punishable with an unlimited fine.

If an offence under the Regulations committed by a body corporate is proved:

  • to have been committed with the consent or connivance of an officer of the body corporate; or
  • to be attributable to any neglect on the part of an officer

then the officer (as well as the body corporate) is guilty of the offence and liable to be prosecuted.

R.10(5) confirms a power of arrest applies to an offence under the Regulations as if the reasons included in subsection (5) of section 24 of PACE includes:

  • to maintain public health;
  • to maintain public order.

Regulation 11 - Fixed Penalty Notices

An authorised person can issue a fixed penalty notice (FPN) to anyone the authorised person reasonably believes has:

  • committed an offence under these Regulations; and
  • is aged 18 or over.

If the FPN is paid within 28 days, no proceedings may be issued.

Regulation 12 - Amount of fixed penalty

The level of the fine in the fixed penalty notice varies according to whether it is a first or subsequent breach and the nature of the breach.

The Regulations also stipulate what breaches do and do not count for these purposes.

Regulation 13A

From 8 March 2021, Regulation 13A makes provision for when information provided by a person in accordance with paragraph 2A of Schedule 3A (Tier 4 restrictions) - requirement for declaration on leaving the UK - may be used in evidence against the person.

Part 4 - Final Provisions

Regulations 14 - 17

These Regulations cover review and expiry of the Regulations; revocation of the No.4 Regulations; and consequential amendments, transitional and savings provisions relating to other Coronavirus Regulations, which are set out in Schedule 5.

Schedule 1 - Tier 1 Restrictions

Part 1 - Restrictions on gatheri​ngs

Paragraph 1 - participation in gatherings

No person may participate in a gathering in the Tier 1 area which consists of more than 6 people, unless an exception in Paragraph 3 applies.

Paragraph 2 - organisation or facilitation of gatherings

No person may hold, or be involved in the holding of, a gathering in a Tier 1 area which meets the conditions specified in the Regulations.

Paragraph 3 - Exception​s

Paragraph 3 is a list of exceptions to the restrictions on gatherings referred to in Paragraphs 1 and 2(5)(c). References to the gathering organiser or manager taking the required precautions refer to the precautions stated in R.7.

Part 2 - Closure of businesses

Paragraph 5 - Requirement to close premises and businesses

This Regulation requires a person responsible for carrying on a restricted business or providing a restricted service in a Tier 1 area to cease to carry on that business or provide that service, unless an exception in paragraph 7 applies.

Paragraph 6 - Restricted businesses and services

This paragraph lists all of the restricted businesses and services.

Paragraph 7 - Exceptions to the requirement to close premises and businesses

Paragraph 7 includes a number of exceptions to the requirement to close businesses / cease to provide services

Part 3 - Other restrictions on businesses

Paragraph 8 - Restrictions on opening h​ours of businesses and services

Part 3 businesses and services are listed in paragraph 11.

Subject to the exceptions in paragraph 9, a person responsible for carrying on a restricted business or providing a restricted service (P) in a Tier 1 area must not:

  • Accept, between 22:00 and 05:00, orders for food or drink for consumption on the premises;
  • Carry on that business or provide that service between 23.00 and 05.00.

Paragraph 9 - Exceptions to paragraph 8 requirements

Paragraph 9 lists the exceptions to the requirements in Paragraph 8

Paragraph 10 - Restrictions on service of food and drink for consumption on the premises

  • Sub-paragraph (1) provides that a restricted business or service in the Tier 1 area that falls within paragraph 11(2) (e.g. restaurants, cafes, bars, pubs, social clubs, casinos) and which serves alcohol for consumption on the premises may sell food or drink for consumption on the premises subject to specified conditions.

Sub-paragraph (2) provides that such restricted businesses or services that do not serve alcohol for consumption on the premises may sell food or 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.

If a business or service falling with paragraph 11(2) (“business A” - restaurants, cafes etc.) forms part of a larger business (“business B”) then exceptions also exist in relation to the carrying on business B.

Paragraph 11 - Restricted businesses and services for purposes of Part 3 of this Schedule

Paragraph 11 lists all of the restricted businesses and services that apply for Part 3 of the schedule, divided into sub-paragraph (2) and (3) entities.

Prosecutors should refer to paragraph 11 for the full list and to identify what provisions were in force at the time of an alleged breach.

Schedule 2 - Tier 2 Restrictions

Part 1 - Restrictions on gatherings

Paragraph 1 - participation in gatherings indoors

Paragraph 1 prohibits:

  • an indoor gathering in the Tier 2 area of two or more people
  • a person living in the Tier 2 area from participating in an indoor gathering of two or more people outside the Tier 2 area unless an exception in paragraph 4 or 5 applies.

Paragraph 2 - Participation in gatherings outdoors

Paragraph 2 prohibits:

  • an outdoor gathering in the Tier 2 area of more than 6 people
  • a person living in the Tier 2 area from participating in an outdoor gathering of more than 6 people outside the Tier 2 area unless an exception in paragraph 4 or 6 applies.

Paragraph 3 - Organisation or Facilitation of Gatherings

No person may hold, or be involved in the holding of, a gathering in a Tier 2 area which meets the conditions detailed in Paragraph 3.

Paragraph 4 - General Exceptions in relation to gatherings

Paragraph 4 is a list of exceptions to the prohibitions in paragraphs 1, 2 and 3.

Prosecutors should refer to the Regulations for detail of any particular exception.

Paragraph 5 – Exceptions in relation to indoor gatherings

Paragraph 5 lists three exceptions in relation to indoor gatherings, which are subject to the identified conditions.

Paragraph 6 - Exceptions in relation to outdoor gatherings

Paragraph 6 lists the exceptions in relation to outdoor gatherings. The exceptions are subject to conditions.

Paragraph 7 - Qualifying groups

In summary, qualifying groups relate to exception 2 of the general exceptions, “permitted organised gatherings”.

The definition of a qualifying group is dependent on whether the gathering is indoors or outdoors.

Part 2 - Closure of businesses

Paragraph 8 - Requirement to close premises and businesses

This Regulation requires a person responsible for carrying on a restricted business or providing a restricted service in a Tier 2 area to cease to carry on that business or provide that service, unless an exception at paragraph 10 applies. Paragraph 9 lists the restricted businesses and services.

Where a restricted business or restricted service forms part of a larger business which is not in itself restricted, the person responsible for carrying on the larger business complies with the requirements in this Regulation by closing the restricted business or ceasing to carry on the restricted service.

Paragraph 9 - Restricted businesses and services

This paragraph lists all of the restricted businesses and services.

Paragraph 10 - Exceptions to the requirement to close premises and businesses

There are a number of exceptions to the requirement to close businesses / cease to provide services which are listed and described in paragraph 10.

Part 3 - Other restrictions on businesses

Paragraph 11 - Restrictions on opening hours of businesses and services

Part 3 businesses and services are listed in paragraph 15

Subject to the exceptions in paragraph 12, a person responsible for carrying on a restricted business or providing a restricted service (P) in a Tier 2 area must not carry on the business between specified hours, or must not carry on that business subject to specified conditions.

Paragraph 12 - Exceptions to paragraph 11 requirements

Paragraph 12 lists the exceptions to the Paragraph 11 requirement.

Paragraph 13 - Restrictions on service of food and drink for consumption on the premises

Sub-paragraph (1) provides that a restricted business or service in the Tier 2 area that falls within paragraph 15(2) and which serves alcohol for consumption on the premises may sell food or drink for consumption on the premises subject to specified conditions.

Sub-paragraph (2) provides that such restricted businesses or services that do not serve alcohol for consumption on the premises may sell food or drink for consumption on the premises if specified conditions are met.

There are specific conditions for businesses or services falling with paragraph 15(2) (“business A”), which form part of larger businesses that are specific entertainment venues (“business B”).

Paragraph 14 - Requirement to close businesses selling alcohol for consumption on the premises

Pubs, bars and other businesses providing alcohol for consumption on the premises must close, unless specified conditions are met.

There are a number of exceptions to the paragraph 14 requirement

Paragraph 15 - Restricted businesses and services for the purposes of Part 3 of this Schedule

Paragraph 15 lists all of the restricted businesses and services that apply for Part 3 of the schedule, divided into sub-paragraph (2) and (3) entities.

Prosecutors should refer to paragraph 15 for the full list and to identify which provisions were in force at the time of an alleged breach.

Schedule 3 - Tier 3 Restrictions

Part 1 - Restrictions on gatherings

Paragraph 1 - Participation in gatherings in private dwellings and other indoor spaces

Paragraph 1 prohibits:

  • A gathering in a private dwelling or any indoor space in the Tier 3 area of two or more people
  • a person living in the Tier 3 area from participating in a gathering in a private dwelling or any indoor space of two or more people outside the Tier 3 area unless an exception in paragraph 4 or 5 applies.

Paragraph 2 - Participation in gatherings outdoors

Paragraph 2(1) prohibits participation in an outdoor gathering in the Tier 3 area of more than 6 people which is in a public outdoor place other than a fairground or a funfair and specified conditions are met.  It also prohibits participation in a gathering in the Tier 3 area any other outdoor place and consists of two or more people.

Paragraph 2(2) prohibits a person living in the Tier 3 area from participating in a gathering outside that area which meets specified conditions.

Note that these prohibitions do not apply if any of the exceptions set out in paragraph 4 or 6 applies.

Paragraph 3 - Organisation or Facilitation of Gatherings

No person may hold, or be involved in the holding of, a gathering in a Tier 3 area which meets specified conditions.

Paragraph 4 - General Exce​​ptions in relation to ​gatherings

Paragraph 4 is a list of exceptions to the prohibitions in paragraphs 1, 2 and 3. These broadly mirror the exceptions in relation to Tier 1 and Tier 2 restrictions (see above) however there are differences.

Prosecutors should refer to the Regulations for details of any particular exception.

Paragraph 5 - Exceptions in relation to indoor gatherings and certain outdoor gatherings

Paragraph 5 lists the limited exceptions to the restrictions on indoor gatherings and certain outdoor gatherings.  The exceptions depend on whether the gathering is an indoor or an outdoor gathering.

Paragraph 6 - Exceptions in relation to outdoor gatherings

Paragraph 6 lists limited exceptions to outdoor gatherings which are subject to the conditions specified.

Paragraph 7 - Qualifying groups

Qualifying groups relate to exception 2 of the general exceptions, “permitted organised gatherings”.

The definition of a qualifying group is dependent on the type of gathering

Part 2 - Closure of and restrictions on businesses

Paragraph 8 - Requirement to close premises and businesses

This Regulation requires a person responsible for carrying on a restricted business or providing a restricted service in a Tier 3 area to cease to carry on that business or provide that service, unless an exception at paragraph 10 applies. Paragraph 13 lists the restricted businesses and services.

Where a restricted business or restricted service forms part of a larger business which is not in itself restricted, the person responsible for carrying on the larger business complies with the requirements in this Regulation by closing the restricted business or ceasing to carry on the restricted service.

Paragraph 9 - Restrictions on service of food and drink for consumption on the premises

Restricted businesses and services for the purpose of paragraph 9 refers to those entities listed in paragraph 13(6). Subject to the exceptions in paragraphs 10 and 11, restricted businesses and services must:

  • Close any premises, or part of the premises, in which food or drink are provided for consumption on those premises; and
  • Cease providing food or drink for consumption on its premises.

Food or drink provided by a hotel or other accommodation as part of room service is not to be treated as being provided for consumption on its premises.

Paragraph 10 - Exceptions to paragraphs 8 and 9

Paragraph 10 is a list of exceptions to the requirement and restrictions in paragraphs 8 and 9 and relate to the restricted businesses and services listed in paragraph 13(2) and 13(6).

Paragraph 11 - Exceptions to paragraph 9

Paragraph 11 lists the exceptions to the restrictions in Paragraph 9, relating to the restricted businesses and services listed at paragraph 13(6). ​

Paragraph 12 - Closure of holiday accommodation

Businesses consisting of the provision of the following holiday accommodation in the Tier 3 area must close, subject to exceptions between 24th December and 26th December 2020. There is a list of exceptions to this requirement so that the business may continue and any premises used in that business may be kept open for specified purpose. Prosecutors are reminded to refer to the legislation for the full list of exceptions.

Paragraph 13 - Restricted businesses and services for purposes of Part 2 of Schedule 3

The list of restricted businesses and services are divided into 3 groups, in sub-paragraphs (2), (6) and (7).

Prosecutors should refer to paragraph 13 for the full list.

Paragraph 14 - Restrictions on opening hours of businesses and services

This paragraph lists restricted businesses and services which must close between 23.00 and 05.00 subject to certain exceptions.

Schedule 3A – Tier 4 Restrictions 

Tier 4 restrictions were introduced at 07.00 on 20 December 2020. A number of amendments were made to Schedule 3A by The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) (Amendment) (No. 3) Regulations 2020 effective from 26 December 2020.  Schedule 3A was further amended from 6 January 2021 to put England into "national lockdown".    There have been further amendments to this Schedule. Prosecutors are therefore reminded to refer to the legislation to identify what provisions were in force at the time of an alleged breach.

Part 1 – Restrictions on Movement

Paragraph 1 – Restrictions on leaving home

​No person living in a Tier 4 area may leave or be outside of the place where they are living without a reasonable excuse (Paragraph 1). This does not apply to someone who is homeless (Paragraph 1(3)).​

​​Paragraph 2 – Exceptions: leaving home

Paragraph 2 is a non-exhaustive list of exceptions to the requirement in Para. 1.  Prosecutors are reminded to refer to the Regulations for specific details of each exception and to identify what exceptions were effective at the date of an alleged breach.

Part 1A – Declaration on Leaving the United Kingdom

From 8 March 2021 a new Paragraph 2A is included in Part 1A.  It introduces and explains the circumstances in which an individual is required to be in possession of a completed travel declaration form, which requires specific information, including a statement that P certifies that the information P provides is true (the form is available on the gov.uk website, which also gives advice on the recommended evidence to prove that the person is legally permitted to travel under the Regulations). The individuals who are not required to comply with these requirements are described in Schedule 4A.

A person responsible for a relevant individual (a child or person who lacks capacity) must also complete a travel declaration form on their behalf.

Part 2 – Restrictions on Gatherings

Paragraph 3 – participation in gatherings in private dwellings and other indoor spaces​

No person may participate in a gathering in the Tier 4 area in a private dwelling or other indoor space which consists of two or more people, unless any exception in Paragraph 6 and 7 applies. 

A person living in a Tier 4 area cannot participate in a Paragraph 3 gathering outside the Tier 4 area. (Paragraph 1(2)) unless any exception in Paragraph 6 or 7 applies (see below).

Paragraph 4 – participation in gatherings outdoors

Paragraph 4 prohibits a person living in the Tier 4 area from participating in a gathering inside that area or outside that area which: meets specified conditions, unless any of the exceptions set out in paragraph 6, 7 or 8 apply.

Paragraph 5 – organisation or facilitation of gatherings

No person may hold, or be involved in the holding of, a gathering in a Tier 4 area (Paragraph 5(1)) which meets the specified conditions.

​Paragraph 6 – General exceptions in relation to gatherings

​Paragraph 6 lists the exceptions to the prohibitions in paragraphs 3, 4 and 5.

Prosecutors should refer to the Regulations for specific details in relation to any particular exception.

Paragraph 7 – exceptions in relation to indoor gatherings and certain outdoor gatherings 

Paragraph 7 lists limited exceptions in relation to indoor gatherings.

Paragraph 8: Exceptions in relation to outdoor gatherings 

Paragraph 8 identifies the exception to the restrictions on outdoor gatherings.  The exception is subject to the stated conditions.

Paragraph 9 – qualifying groups

Qualifying groups relate to exception 16 of the general exceptions.

Part 3 – Closure of, and restrictions, on businesses 

Paragraph 10 – requirement to close premises and businesses

This Paragraph requires a person responsible for carrying on a restricted business (see Paragraph. 15(2) and 15(7)) or providing a restricted service (see Paragraph 15(2) or 15(7)) in a Tier 4 area to cease to carry on that business or provide that service, unless an exception at paragraph 12 applies. See paragraph 13 for a list of the restricted businesses and services. 

​Where a restricted business or restricted service forms part of a larger business which is not in itself restricted, the person responsible for carrying on the larger business complies with the requirements in this Regulation by closing the restricted business or ceasing to carry on the restricted service (Paragraph 10(2)).  

Paragraph 11 – restrictions on service of food or drink for consumption on the premises

Paragraph 11 applies to the business and services listed in Paragraph 15(6)

Subject to the exceptions in paragraphs 12 and 13 (see below), restricted businesses and services must:

  • Close any premises, or part of the premises, in which food or drink are provided for consumption on those premises; and
  • Cease providing food or drink for consumption on its premises.

This requirement is also subject to exceptions identified in paragraph 11.

Paragraph​ 12 – Exceptions to paragraphs 10 and 11

There are a number of exceptions to the requirement to close businesses / cease to provide services. These have been amended since originally drafted. so prosecutors are reminded to refer to the Regulations in force at the time of an alleged breach, using the timeline to identify the correct version of the Regulations.

Paragraph 13 – Exceptions to Paragraph 11

Paragraph 11(1) does not prevent a person responsible for carrying on a restricted business, or providing a restricted service of a kind specified in Paragraph 15(6) from certain activities, which are subject to the stated conditions.   ​

Paragraph​ 14 – Closure of holiday accommodation

Subject to the exceptions in Paragraph 14(2), Paragraph 14(1) requires the closure of the identified holiday accommodation businesses in the Tier 4 area.

Paragraph 14.(2) lists the exceptions to the requirement to close 

​Paragraph 15 – Restricted businesses and services for the purpose of Part 3 of Schedule 3A

​This Paragraph identifies the restricted businesses and restricted services for the purposes of Paragraphs 10 and 11.

The list of restricted businesses and services has been amended. Prosecutors are reminded to use the timeline on the legislation.gov website to ensure they refer to the version of the regulations in force at the time of an alleged breach.

​Paragraph 16 – Further restrictions on businesses

​A person responsible for carrying on a business in a Tier 4 area of offering goods for sale or hire in a shop, or providing library services, other than a business listed in paragraph 17, must cease to carry on that business or provide that service subject to the exceptions listed in paragraph 16.

Prosecutors should refer to the Regulations for full details of all the requirements and exceptions in force at the time of an alleged breach.

Paragraph 17 – businesses allowed to remain open in a Tier 4 area

​Paragraph 17 lists the premises which are allowed to remain open in a Tier 4 area.  Prosecutors should refer to Paragraph 17 of the Regulations for the full list. 

​​Schedule 4 - Tier 2 and Tier 3 areas​​​

Part 1 lists the Tier 2 areas.

Part 2 lists the Tier 3 areas​.

Part 3 lists the Tier 4 areas.​

Places within these areas are specified by reference to County and Borough Council areas.

These lists are likely to change, as places are moved from one Tier to another. Prosecutors should ensure they are referring to the Regulations in force at the time of an alleged breach.​ 

From 6 January 2021 every area in England is moved into Tier 4. The Regulations state "every area of England, apart from the territorial waters adjacent to England and the airspace above England and those territorial waters, is within the Tier 4 area"​.

Schedule 4A

Schedule 4A is introduced from 8 March 2021 and lists the individuals who are exempt from the requirement to produce a completed travel declaration form on leaving the United Kingdom (referred to in Schedule 3A Part 1A).

Schedule 5 - Consequential a​mendments and transitional and saving provisions

Part 1 contains consequential amendments to other Coronavirus Regulations.

Part 2 contains transitional and saving provisions.​

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.

Time Limits

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. 

Public Interest

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.

Totality of Offending

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.

Car – Indoor place 

Prosecutors should note that cars are considered ‘indoors’ for the purposes of an indoor gathering under the Coronavirus Regulations. Accordingly, breaches of the Regulations for a gathering in a car should be charged in relation to the restriction on indoor, not outdoor, gatherings. Taking the All Tiers Regulations as an example: 

Regulation 2(6)(f) defines “indoors”: 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.

Under R2 of the 2006 Regulations, “enclosed” is defined by reference to “enclosed premises”.  

The Coronavirus Regulations are made under the Public Health (Control of Disease) Act 1984 (PHA); and the definition of “premises” in s74 PHA includes “any vehicle”. 

Note also that a vehicle is defined as “premises” in other legislative contexts: see PACE section 23 for example.

It follows that where indoor gatherings are not permitted, or are restricted in number, this will apply to any gathering in a car. Car sharing is therefore not permitted with someone outside of your household or bubble unless there is an exempt reason: this reflects the advice given on the DfT’s current safer travel guidance (March 2021).

One of the exemptions to indoor gatherings is where the gathering is “reasonably necessary … for work purposes”: see, for example, Schedule 3A paragraph 6(4)(a), relating to tier 4 restrictions (as at 22 March 2021).  

What is considered “reasonably necessary” will depend on the circumstances of the case. For example, if someone lives in a rural area with no suitable public transport and if the only way they can get to work (if they cannot work from home) is by car sharing, this may be “reasonably necessary” for the purpose of the work exemption. However, the situation may be different for someone in a more urban area where transport links are better. The following are examples of factors that may be considered:

Could the person have got to work any other way, avoiding any gathering? For example, could they have walked or used public transport or a taxi on their own?

Could the person afford the cost of a daily taxi to and from work? 

Is the available public transport more of a Covid risk than travelling in a car with others (for example, a packed London tube or bus, particularly if the person can only travel during rush hour)? 

The test of what is reasonably necessary will also depend on the restrictions in place at the time of an alleged breach. Prosecutors are therefore reminded to refer to the timeline in the legislation on the legislation.gov.uk to identify which Regulations and provisions were in force at the relevant time.

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 v Commissioner of Police of the Metropolis [2022] EWHC 527 (Admin) 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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