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Coronavirus: Local Coronavirus Regulations Tier 3

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

The Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High (England) Restrictions Regulations 2020 came into force on 14 October 2020 and apply in England only.

This guidance is a summary of the main provisions of the original 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 Regulations. Prosecutors are therefore reminded to refer to www.legislation.gov.uk, using the timeline on the website here to determine which provisions were in force at the time of an alleged breach.

The Regulations

The Regulations form part of 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).

This guidance refers to the relevant Regulations as the Tier 1 Regulations, the Tier 2 Regulations and the Tier 3 Regulations. Separate guidance has been issued for the Tier 1 and Tier 2 Regulations

These Regulations impose restrictions on gatherings and businesses in the areas specified in Schedule 2, where the COVID-19 alert level is assessed as being very high, and on gatherings elsewhere by people living in the specified areas. The restrictions on businesses in the specified areas consist of limitations on the sale of alcohol for consumption on the premises, the imposition of restricted hours for certain businesses and closure of certain businesses in the specified areas.

The restrictions will cease to have effect in relation to a particular area 28 days from the date on which the restrictions came into force in that area, unless the Secretary of State directs otherwise. If such a direction is issues, the restrictions will continue to in effect for a further 28 days.

The need for any of the restrictions in these Regulations must be reviewed by the Secretary of State every 28 days.

The Regulations expire at the end of the period of 6 months beginning with the day on which they came into force (R. 9).

These Regulations have been amended by adding to the list of areas required to comply with the Tier 3 restrictions. Prosecutors are reminded to refer to the timeline for the Regulations to determine which version was in force at the relevant time.

These Regulations were revoked on 5 November 2020 by The Health Protection (Coronavirus, Restrictions) (England) (No.4) Regulations 2020 which impose national restrictions on movement; gatherings and businesses.

Part 2 – Tier 3 Restrictions

Regulation 3

The Regulations impose restrictions on gatherings and businesses in the Tier 3 areas listed in Schedule 2.

The Tier 3 restrictions are set out in Schedule 1

Part 3 – Enforcement

Regulation 4 – Enforcement of restrictions and requirements

A relevant person (a constable; PCSO; subject to paragraph 10, a person designated by the local authority; or a person designated by the Secretary of State for the purposes of this Regulation (Paragraph 4(9)) can take such action as is necessary to enforce a Tier 3 restriction (Paragraph 4(1)).

A prohibition notice can be given if the relevant person reasonably believes that:

  • The person is contravening a Tier 3 restriction imposed by Part 2 of Schedule 1 (closure and restrictions on businesses); and
  • it is necessary and proportionate to prevent the person from continuing to contravene the restriction. (R. 4 (2)).

Where a relevant person considers that a number of people are gathered in contravention of a Tier 3 restriction imposed by Paragraph 1 or 2 of Schedule 1 the relevant person may;

  • Direct the gathering to disperse;
  • Direct any person in the gathering to return to the place where they are living;
  • Use reasonable force, if necessary (R. 4(4)) to remove any person from the gathering (R. 4(3)).

If the person in the gathering is a child (paragraph 4(5) accompanied by an individual who has responsibility for the child:

  • A relevant person may direct the 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 the direction or instruction given by the relevant person. (R. 4 (5)).

Where a relevant person has reasonable grounds to believe that a child is repeatedly contravening a restriction in paragraphs 1 or 2 of Schedule 1, the relevant person may direct an individual who has responsibility for the child to ensure, so far as reasonably practicable, that the child complies with the restriction. (R. 4 (6)).

A relevant person exercising powers under R. 4 (3); 4(5) and 4(6):

  • Must consider that it is a necessary and proportionate means of securing compliance with the Tier 3 restriction imposed by Paragraph 1 or 2 of Schedule 1 (R. 4(7)).
  • Can give the person concerned reasonable instructions the relevant person considers to be necessary.(R. 4 (8)).

Regulation 5 - Offences and Penalties

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

  • contravenes a Tier 3 restriction;
  • contravenes a requirement imposed, or a direction given under R.4;
  • fails to comply with a reasonable instruction or a prohibition notice given by a relevant person under R.4;
  • obstructs any person carrying out a function under these Regulations (including any person who is a relevant person for the purposes of R.4). (R. 5(1)).

An offence under the Regulations is summary only, punishable with an unlimited fine (R. 5(2)).

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. 5(3)).

R.5(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 6 – Fixed Penalty Notices

An authorised person (R. 6(16)) can issue a fixed penalty notice to anyone the authorised person reasonably believes:

  • has committed an offence under these Regulations;
  • is aged 18 or over (R. 6(1)).  

The level of the fine in the fixed penalty notice varies according to whether it is a first or subsequent breach (R. 6(6)).   The Regulations also stipulate what breaches of other Regulations do, and do not count for these purposes (R. 6(7); R 6(8); R 6(11)).

Schedule 1 Tier 3 Restrictions

Part 1– Restrictions on gatherings

Paragraph 1 – participation in gatherings indoors

No person may participate in a gathering in the Tier 3 area which consists of 2 or more people and takes place in a private dwelling or any indoor space (para. 1(1)).

No person living in a Tier 3 area may participate in a gathering outside that area which consists of 2 or more people and takes place in a private dwelling or any indoor space (para.1(2)).

The restrictions in paragraphs 1(1) and 1(2) are subject to exceptions in paragraphs 4 and 5.

Paragraph 2 – participation in gatherings outdoors

No person may participate in a gathering in a Tier 3 area which either

  • takes place outdoors in a place which satisfies the conditions in Paragraph 2(4) and consists of more than 6 people; or
  • takes place in any other outdoor place and consists of two or more people (Paragraph 2(1)).

No person living in a Tier 3 area may participate in a gathering outside that area which either

  • takes place outdoors in a place which satisfies the conditions in Paragraph 2(4) and consists of more than 6 people; or
  • takes place in any other outdoor place and consists of two or more people. (Paragraph 2(2)).

The restrictions in Paragraphs 2(1) and 2(2) are subject to exceptions in paragraphs 4 and 6.

The conditions in paragraph 2(4) are as follows:

It is a public outdoor space and:

  • No payment is required by any member of the public to access that place,

or

  • the place falls within one of the following categories—
    • outdoor sports grounds or sports facilities;
    • botanical gardens;
    • gardens or grounds of a castle, stately home or historic

But a place does not satisfy the conditions in sub-paragraph (4) if it is a fairground or funfair.

Paragraph 3 – organisation or facilitation of gatherings

No person may hold, or be involved in the holding of, a relevant gathering (as defined in paragraphs 3(4) and 3(5)) in a Tier 3 area.

A relevant gathering is either one which:

  • Consists of more than 30 people
  • Takes place indoors and
  • Would be a gathering of the kind mentioned in s.63(1) of the Criminal Justice and Public order Act 1994 (a rave) if it took place in the open air (paragraph 2(4)); (paragraph 3(4))

or

It does not fall within paragraph 3(4) and

  • Consists of more than 30 people and takes place in a private dwelling; on a vessel or on land which satisfies the condition in sub paragraph (6). And
  • Is not a gathering in relation to which any of the exceptions in paragraphs 4, 5 or 6 apply (Paragraph 3(5), subject to exceptions in Paragraph 3(8)).

Land satisfies the conditions in this sub paragraph (6) if it is a public outdoor

place which is not:

  • Operated by a business or a charitable, benevolent or philanthropic institution, or
  • Part of premises used for the operation of a business, a charitable, benevolent or philanthropic institution or a public body.

For the purposes of paragraph 3(1) a person who only participates in a gathering by attending it is not to be taken as being involved in the holding of the gathering (para 3 (2)).

Paragraph 4 - General Exceptions in relation to gatherings in paragraphs 1 and 2

The exceptions referred to in Paragraphs 1 and 2 are as follows:

Exception 1 – same or linked households (Paragraph 4(2))

All people in the gathering;

  • Are member of the same household; or
  • Are members of two households which are linked households in relation to each other (see paragraph 7 below)

Exception 2 – permitted organised gatherings (Paragraph 4(3))

The gathering is a permitted organised gathering for the purposes of this paragraph (see paragraph 9), and the person concerned participates in the gathering alone or as a member of a qualifying group.

Exception 3 – gatherings necessary for certain purposes (Paragraph 4(4))

The gathering is reasonably necessary;

  • for work purposes or for the provision of voluntary or charitable services;
  • for the purposes of education or training;
  • for the purposes of—
    • childcare provided by a person registered under Part 3 of the Childcare Act 2006, or
    • supervised activities for children;
  • to provide emergency assistance;
  • to enable one or more persons in the gathering to avoid injury or illness or to escape a risk of harm;
  • 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;
  • 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;
  • for the purposes of arrangements for contact between siblings where they do not live in the same household and one or more of them is—
    • a child looked after by a local authority, within the meaning of section 22 of the Children Act 1989(a), or
    • a relevant child, within the meaning of section 23A of that Act;
  • for the purposes of arrangements for prospective adopters (including their household) to meet a child or children who may be placed with the prospective adopters as provided for by an adoption placement plan drawn up in accordance with the Adoption Agencies Regulations 2005 (see regulation 35(2) of those Regulations).
  • to facilitate a house move.

Exception 4 – legal obligations and proceedings (Paragraph 4(5))

The person concerned is fulfilling a legal obligation or participating in legal proceedings.

Exception 5 – criminal justice accommodation (Paragraph 4(6))

The gathering takes place in criminal justice accommodation.

Exception 6 – support groups (Paragraph 4(7))

This exception applies if:

  • The gathering is of a support group (see para 11(1))
  • Consists of not more than 15 people; and
  • Takes place on premises other than in a private dwelling.

Exception 7 – births (Paragraph 4(8))

The person concerned is attending a person giving birth (“M”) at Ms request.

Exception 8 – marriages and civil partnerships etc – Paragraph 4(9)

The gathering consists of not more than 15 people and:

  • it is for the purposes of—
    • the solemnisation of a marriage, formation of a civil partnership or conversion of a civil partnership into a marriage, in accordance with the Marriage Act 1949, the Marriage (Registrar General’s Licence) Act 1970 or the Civil Partnership Act 2004, or
    • an alternative wedding ceremony (see paragraph 11 (2)), and
  • the gathering organiser or manager takes the required precautions in relation to the gathering (see paragraph 10).

Exception 9 – funerals (Paragraph 4(10))

Exception 9 is that—

  • the gathering is for the purposes of a funeral,
  • the gathering consists of no more than 30 persons,
  • the gathering takes place at premises other than a private dwelling:
    • which are operated by a business, a charitable, benevolent or philanthropic institution or a public body,
    • which are part of premises used for the operation of a business, a charitable, benevolent or philanthropic institution or a public body, and
  • the gathering organiser or manager takes the required precautions in relation to the gathering (see para 10).

Exception 10 – commemorative event following a person’s death (Paragraph 4(11))

Exception 10 is that—

  • the gathering is for the purposes of a commemorative event to celebrate the life of a person who has died (for example, a wake or stone setting ceremony),
  • the gathering consists of no more than 15 persons,
  • the gathering takes place at premises other than a private dwelling, and
  • the gathering organiser or manager takes the required precautions in relation to the gathering (see para 10).

Exception 11 – protests (Paragraph 4(12))

Exception 11 is that the gathering is for the purposes of protest and—

  • it has been organised by a business, a charitable, benevolent or philanthropic institution, a public body or a political body, and
  • the gathering organiser takes the required precautions in relation to the gathering (see para 10).

Exception 12 – elite sports (Paragraph 4(13))

Exception 12 is that—

  • the person concerned is an elite sportsperson, the coach of an elite sportsperson or (in the case of an elite sportsperson who is a child) the parent of an elite sportsperson, and
  • the gathering is necessary for training or competition.

Exception 13 – other sports (Paragraph 4(14))

Exception 16 is that the person concerned is taking part in an outdoor sports gathering (see para 11(3)(a)) or a permitted indoor sports gathering (see paragraph 11 (3)(b)).

Exception 14 – Remembrance Sunday (Paragraph 4(15))

Exception 14 is that—

  • the gathering takes place to commemorate Remembrance Sunday,
  • the persons attending the gathering are limited to—
    • persons there as part of their work,
    • persons providing voluntary services in connection with the event,
    • members of the armed forces,
    • veterans of the armed forces or their representatives or carers,
    • spectators who participate in the gathering alone or as a member of a qualifying group, and
  • the gathering organiser or manager takes the required precautions in relation to the gathering (see para 10)

Paragraph 5 – exceptions in relation to indoor gatherings only

Exception 1 – visiting a dying person

This exception applies where a person (P) is visiting a person whom P reasonably believes is dying (D) and P is

  • a member of Ds household;
  • a close family member of D, or
  • a friend of D.

Exception 2 – visiting a person receiving treatment

This exception applies when the person (P) is visiting a person (V) receiving treatment in a hospital or staying in a hospice or care home, or is accompanying V to a medical appointment and P is:

  • a member of the same household;
  • a close family member of V; or
  • a friend of V.

Exception 3 – informal childcare

The gathering is reasonably necessary for the purpose of informal childcare provided by a member of a household to a member of their linked childcare household (see para 8)

Paragraph 6 - exception in relation to outdoor gatherings only

This section relates only to outdoor gatherings where:

  • The gathering is for the purposes of a relevant outdoor activity (see para 11(6)) and
  • The gathering organiser takes the required precautions in relation to the gathering (see para 10).

Paragraph 7– Linked Household

For the purposes of this Part of this Schedule a “linked household” means a household that is linked with another household as follows:

Where a household comprises one adult, or one adult and one or more persons who 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”) (para 7(2).

But sub-paragraph (2) applies only if—

  • all adult members of the second household agree,
  • neither the first household nor the second household are linked with any other household for the purposes of these Regulations or any other regulations made under Part 2A of the Public Health (Control of Disease) Act 1984, and
  • neither of those households were, in the period beginning with 14th September 2020 and ending with 14th October 2020, linked with any other household for the purposes of any other regulations made under that Part (para 7(3).

Note also, sub-paragraphs (4)-(8):

  • There is no limit on the number of adults or children who may be in the second household.
  • The first and second households are “linked households” in relation to each other.
  • The first and second households cease to be linked households if neither household satisfies the condition in sub-paragraph (2).
  • Once the first and second households have ceased to be linked households, neither the first household nor the second household may be linked with any other household.
  • The references in sub-paragraph (3) to neither household being linked with any other household do not include being linked with another household only for the purposes of informal childcare in accordance with regulations made under Part 2A of the Public Health (Control of Disease) Act 1984.

Paragraph 8 – Linked Childcare Household

  • For the purposes of this Part of this Schedule, a “linked childcare household” means a household that is linked with another household for the purposes of informal childcare in accordance with this paragraph.
  • Where a household includes at least one child aged 13 or under (“the first household”), that household may link with one other household (“the second household”) for the purpose of the second household providing informal childcare to the child aged 13 or under in the first household if:
    • neither the first household nor the second household are linked with any other household for that purpose in accordance with this paragraph or a provision of any other regulations made under Part 2A of the Public Health (Control of Disease) Act 1984, and
    • all the adult members of both households agree.
  • The first household and the second household are “linked childcare households” in relation to each other.
  • The first household and the second household cease to be linked childcare households when neither household includes a child aged 13 or under.
  • Once the first household and the second household cease to be linked childcare households, neither household may be a linked childcare household with any other household.

Paragraph 9 - Permitted organised gatherings and qualifying groups

A gathering is a permitted organised gathering for the purposes of this part of this Schedule if:

  • The gathering takes place on or at premises, other than a private dwelling, which are—
    • operated by a business, a charitable, benevolent or philanthropic institution or a public body, or
    • part of premises used for the operation of a business, a charitable, benevolent or philanthropic institution or a public body. (paragraph 9(2));

or

  • The gathering takes place in a public outdoor place not falling within paragraph 9(2) and
    • the gathering has been organised by a business, a charitable, benevolent or philanthropic institution, a public body or a political body, and
    • the gathering organiser takes the required precautions in relation to the gathering (see para 10) (paragraph 9(3)).

A person participates in a gathering as a member of a qualifying group if the person is a part of a qualifying group and, whilst participating in the gathering, the person does not:

  • become a member of any other group of persons participating in the gathering (whether or not that group is a qualifying group), or
  • otherwise mingle with any person who is participating in the gathering but is not a member of the same qualifying group as them (para 9(4)).

A “qualifying group” for the purpose of paragraph 9(4), in relation to a gathering, means:

  • in the application of this paragraph for the purposes of indoor gatherings, a group of people who are participating in the gathering which consists only of persons who are members of the same household, or are members of two households which are linked households in relation to each other;
  • in the application of this paragraph for the purposes of outdoor gatherings a group of people who are participating in that gathering which—
    • consists of no more than 6 persons, or
    • consists only of persons who are members of the same household, or are members of two households which are linked households in relation to each other (paragraph 9(5)).

Paragraph 10 – The required precautions

This section identifies the two requirements a gathering organiser / manager must take in relation to a gathering in this Part of Schedule 1:

  • a risk assessment which would satisfy the requirements of R.3 of the Management of Health and Safety at Work Regulations 1999; and
  • all reasonable measures to limit the risk of transmission of the coronavirus taking into account;
    • the risk assessment carried out; and
    • any guidance issued by the government which is relevant to the gathering.

Paragraph 11 provides further interpretation and paragraph 12 is a general interpretation section.

Schedule 1 Part 2 – Closure and restrictions on businesses

Paragraph 13 – Restrictions on opening hours of businesses and services

A person responsible for carrying on a restricted business or providing a restricted service (P) in a Tier 2 area must not carry on that business or provide that service between the hours of 22.00 and 05.00 (Paragraph 13(1)), subject to the exceptions in Paragraph 14.

Where a restricted business forms part of a larger business, which is not a restricted business, the person responsible for carrying on the larger business complies with paragraph 15(1) by not carrying on the restricted business, or by ceasing to provide the restricted service, between 22.00 and 05.00 (Paragraph 13(2)).

For the purposes of this part of this Schedule “restricted business” and “restricted service” mean a business or service which:

  • is of a kind specified in paragraph 19(2) (restaurants, cafes, bars, pubs, social clubs) or (3) (bowling alleys, cinemas, theatres, amusement arcades etc), or
  • is carried on from, or provided at, premises of a kind specified in paragraph 19(2) or (3).

Paragraph 14 - Exceptions to the requirement in paragraph 13(1)

Paragraph 13 (1) does not prevent P from selling food or drink for consumption off the premises between 22.00 and 05.00:

  • by making deliveries in response to orders received
    • through a website, or otherwise by on-line communication
    • by telephone, including orders by text message or
    • by post
  • to a purchaser who collects the food or drink that has been pre-ordered by a means mentioned in the paragraph above , provided the purchaser does not enter inside the premises to do so, or
  • to a purchaser who collects the food or drink in a vehicle, and to whom the food or drink is passed without the purchaser or any other person leaving the vehicle.

Where P’s restricted business or restricted service is carried on from, or provided at, a cinema, theatre or concert hall, paragraph 13(1) does not prevent P carrying on that business or providing that service at or after 22:00 hours for the purpose of concluding a performance which began before that time.

Paragraph 13(1) does not prevent P carrying on a restricted business, or providing a restricted service, of a kind specified in paragraph 19(2)(a) to (c) (restaurants and cafes) between the hours of 22:00 and 05:00 if—

  • the business or service is carried on or provided within a motorway service area, and
  • alcohol is not served between those hours in the carrying on of the business, or the provision of the service, concerned.

Paragraph 13(1) does not prevent P carrying on a restricted business, or providing a restricted service, of a kind specified in paragraph 19(2)(a) to (e) (restaurants, cafes, bars, pubs) between the hours of 22:00 and 05:00 if—

  • the business or service is carried on or provided within a part of—
    • any airport or maritime port, or
    • the international rail terminal area within the vicinity of Cheriton, Folkstone (as referred to in section 1(7)(b) of the Channel Tunnel Act 1987),
  • that part of the airport, maritime port or terminal area is accessible between those hours to passengers, crew or other authorised persons but not to members of the general public, and
  • alcohol is not served between those hours in the carrying on of the business, or the provision of the service, concerned.

Paragraph 13(1) does not prevent P carrying on a restricted business, or providing a restricted service, of a kind specified in paragraph 19(2)(a) to (e) (restaurants, cafes, bars, pubs) between the hours of 22:00 and 05:00 if—

  • the business or service is carried on or provided in an aircraft, train or vessel,
  • the aircraft, train or vessel is providing a public transport service (see sub-paragraph 6 for definition), and
  • alcohol is not served between those hours in the carrying on the business, or the provision of the service, concerned (subject to sub-paragraph (6)(b), which allows service of alcohol to persons seated on an aircraft).

In sub-paragraph (5)—

Where P’s restricted business or restricted service is carried on from, or provided at, a workplace canteen, paragraph 13(1) does not prevent P carrying on that business or providing that service between the hours of 22:00 and 05:00 if there is no practical alternative for staff at that workplace to obtain food or drink between those hours.

Paragraph 15 – restrictions on service of food or drink for consumption on the premises

Paragraph 15 relates to a restricted business or restricted service which is of a kind, or is carried on from, or provided at, premises of a kind, specified in paragraph 19(2) ie restaurants, cafes, bars, pubs and social clubs.

The following restrictions apply:

  • A person responsible for carrying on a restricted business, or providing a restricted service, in the Tier 3 area which serves alcohol for consumption on the premises may sell food or drink for consumption on the premises only if:
    • the food or drink is ordered by, and served to, a customer who is seated on the premises, and
    • the person takes all reasonable steps to ensure that the customer remains seated whilst consuming the food or drink on the premises.
  • A person responsible for carrying on a restricted business, or providing a restricted service in a Tier 3 area which does 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.
  • For the purposes of sub-paragraphs (1) and (2), an area adjacent to the premises of the restricted business or restricted service, where seating is made available for its customers (whether or not by the business or the provider of the service), or which its customers habitually use for consumption of food or drink served by the business or service, is to be treated as part of the premises of that business or service.
  • If a restricted business or a restricted service (“business A”) forms part of a larger business (“business B”)—
    • the requirement in sub-paragraph (1)(a) does not apply where business B is a cinema, theatre or concert hall;
    • the person responsible for carrying on business B otherwise complies with the requirement in sub-paragraph (1) or (2) if that person complies with the requirement in relation to business A.
  • Sub-paragraphs (1) and (2) are subject to the restriction on opening hours in paragraph 13.

Paragraph 16 – requirement to close businesses selling alcohol for consumption on the premises

A person responsible for carrying on a business of a public house, bar or other business involving the sale of alcohol for consumption on the premises must cease to carry on that business (para 16(1)), unless:

  • alcohol is only served for consumption on the premises as part of a table meal, and the meal is such as might be expected to be served as the main midday or main evening meal, or as a main course at either such meal (para 16(2)).

For the purposes of para 16(1):

  • alcohol sold by a hotel or other accommodation as part of room service is not to be treated as being sold for consumption on its premises;
  • 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 where customers gather to drink outside the business, is to be treated as part of the premises of that business.

A “table meal” is a meal eaten by a person seated at a table, or at a counter or other structure which serves the purposes of a table and is not used for the service of refreshments for consumption by persons not seated at a table or structure serving the purposes of a table (para 16(4)).

Paragraph17 – requirement to close premises and businesses

This paragraph applies to restricted businesses and restricted services, which are those of a kind, or are carried on from, or provided at, premises of a kind, specified in paragraph 19(4), for example: nightclubs, dance halls, hostess bars, casinos, indoor gyms and sports facilities – see below for the full list.  

A person carrying on a restricted business or providing a restricted service in the Tier 3 area must cease to carry on that business or provide that service (paragraph 17(1)). This requirement is subject to the exceptions in Paragraph 18 (paragraph 17 (3)) – see below.

Where the restricted business or service forms, or is provided as part of a larger business (which is not a restricted business), the person responsible for carrying on that larger business complies with paragraph 17(1) by closing down the restricted business or ceasing to provide the restricted service (paragraph 17 (2)).

Paragraph 18 – exceptions to the restrictions in paragraph 17

Paragraph 17(1) does not prevent the use of:

  • any premises used for a restricted business or service to host blood donation sessions;
  • facilities for training by elite sportspersons (para 12(10)), including indoor gyms, fitness studios and indoor sports facilities;
  • indoor fitness and dance studios by professional dancers and choreographers;
  • indoor gyms, fitness studios and indoor sports facilities for supervised activities for children, or by persons who have a disability (para 11 (4)) and who are not elite sportspersons, to take part in any sport or other fitness related activity.

Paragraph 17(1) does not prevent a person responsible for carrying on a restricted business or providing a restricted service (“the closed business”) from:

  • carrying on a business of offering goods for sale or for hire in a shop which is separate from the premises used for the closed business,
  • carrying on a business of offering goods for sale or for hire 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.

Paragraph 19 - Restricted business and services for purposes of Part 2 of this Schedule

Paragraphs 19(2), (3) and (4) list the restricted business and services for the purposes of this Part of Schedule 1.

The following businesses and services fall within paragraph 19(2):

  • restaurants, including restaurants and dining rooms in hotels or members’ clubs;
  • businesses providing food or drink prepared on the premises for immediate consumption off the premises, but not including—
    • supermarkets,
    • convenience stores, corner shops and newsagents,
    • pharmacists and chemists, or
    • petrol stations;
  • cafes, including workplace canteens, but not including—
    • cafes or canteens at a hospital, care home or school,
    • canteens at criminal justice accommodation 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, or
    • services providing food or drink to the homeless;
  • bars, including bars in hotels or members’ clubs;
  • public houses;
  • social clubs. 

The following businesses and services fall within paragraph 19(3):

  • bowling alleys;
  • cinemas;
  • theatres;
  • amusement arcades or other indoor leisure centres;
  • funfairs (indoors or outdoors), theme parks and adventure parks and activities;
  • bingo halls;
  • concert halls. 

The following businesses and services fall within paragraph 19(4):

  • nightclubs;
  • dance halls;
  • discotheques;
  • any other venue (not falling with paragraph (b) or (c)) which—
    • opens at night,
    • has a dance floor or other space for dancing by members of the public (and for these purposes members of the venue in question are to be considered members of the public), and
    • provides music, whether live or recorded, for dancing;
  • sexual entertainment venues (definition in paragraph 19(6));
  • hostess bars (definition in paragraph 19(7));
  • casinos;
  • betting shops and adult gaming centres;
  • indoor gyms, fitness and dance studios;
  • indoor sports facilities.

A business or service does not fall within sub-paragraph (4)(b), (c) or (d) if it ceases to provide music and dancing (para 19(5).

Sshedule 2 – Tier 3 areas

Schedule 2 lists the areas classed as Tier 3. This list will change, so it is important prosecutors refer to the Schedule in force at the time of an alleged contravention of the Regulations, using the timeline on the  legislation.gov.uk website to locate the relevant Regulations.

Schedule 3 - Amendments and transitional provisions

Schedule 3 makes amendments and transitional provisions to various other Coronavirus Regulations. Please refer to the legislation.gov.uk website for full details of the amendments and revocations.

Charging

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, ​when assessing 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 Tier 3 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 dealt with in 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. 

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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