Coronavirus: National restrictions on movement, gatherings and businesses (No.4 Regs), effective from 5 November 2020

• Summary
• Part 1 - Introduction (Regulations 1 - 4)
• Part 2 - Restrictions on Leaving Home (Regulations 5 and 6)
• Part 3 - Restrictions on Gatherings (Regulations 7 - 14)
  • Regulation 7
  • Regulation 8 - Participation in indoor gatherings
  • Regulation 9 - Participation in outdoor gatherings
  • Regulation 10 - Organisation or Facilitation of gatherings
  • Regulation 11 - Exceptions in relation to gatherings
  • Regulation 12 - Linked Households
  • Regulation 13 - Linked Childcare Households
  • Regulation 14 - The required precautions
• Part 4 - Closure of and restrictions on businesses
  • Regulation 15 - Hospitality Restrictions - Restrictions on the service of food and drink for consumption on the premises
  • Regulation 16 - Requirement to close premises and businesses
  • Regulation 17 - Exceptions to the requirements in Regulations 15 and 16
  • Regulation 18 - Further restrictions and closures
• Part 5 - Enforcement
  • Regulation 19 - Enforcement of restrictions and requirements
  • Summary of Enforcement Action
  • Regulation 20 - Offences and Penalties
  • Regulation 21 - Fixed Penalty Notices
  • Regulation 24 - Consequential amendments
  • Regulation 25 - Revocations
• Charging Practice
• ECHR proportionality – statutory defences
• Government Guidelines and the Regulations

Summary

The Health Protection (Coronavirus, Restrictions) (England) (No.4) Regulations 2020 introduce national restrictions on:

• Movement (R.5);
• Gatherings (R. 8).

The Regulations also impose restrictions on businesses, require specified businesses to close and services to cease (R. 15 and R. 16).

The Regulations come into force on 5 November 2020 (R. 1) and expire at the end of 28 days beginning with the day on which they came into force. (R. 23)

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 to determine which provisions were in force at the time of an alleged breach.

Part 1 – Introduction (Regulations 1-4)

The Regulations come into force on 5 November and apply to England only. (R. 1)

Regulations 2, 3 and 4 are interpretation sections. They include the meaning of a child – which is a person under the age of 18 (R. 2); "elite sports persons" (R. 3); and vulnerable person and disability (R. 4).

Part 2 – Restrictions on Leaving Home (Regulations 5 and 6)

No person may leave or be outside of the place where they are living, (which includes any garden, yard, passage, stair, garage, outhouse or other appurtenance to such premises), without a reasonable excuse (R. 5). This does not apply to a homeless person.

R. 6 is a non-exhaustive list of exceptions to the restriction in R. 5. This list includes where a person leaves or is outside of the place where they are living because it is reasonably necessary:

• Exception 1 – for certain purposes including:
  • To visit a public outdoor space for the purposes of open air recreation:
    • alone,
    • with one or more members of their household, their linked household or their linked childcare household;
    • where exercise is being taken as part of providing informal childcare for a child aged 13 or under;
    • with one other person who is not a member of their household or linked household.
  • To take exercise outside (similar conditions apply as to those for open air recreation above).

In determining whether a person complies with the limits regarding open air recreation and exercise outside, no account is taken of

• any carer or child below the age of 5;
• or a carer for a person with a disability who needs continuous care (provided there are no more than two people present in the capacity of carer).
  • To visit a member of a linked household.
  • To buy goods or obtain services for certain persons, from specific businesses and services; and to collect food, drink and goods ordered from a business, as permitted.
  • To attend a place of worship
  • To undertake activities connected with buying or renting properties etc.

• Exception 2 – This covers a number of purposes, which include:
  • For work, voluntary services, education and training; providing care or emergency assistance; to access critical public services such as social services; and to access food banks.
  • to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings

• Exception 4 – medical need

• Other Exceptions – there are 13 exceptions in all, and other exceptions include:
  • Elite athletes; death bed visits; funerals; marriages and civil partnerships; child access and contact; attending vets; returning home from holiday; and prison visits.

Part 3 - Restrictions on Gatherings (Regulations 7 – 14

Regulation 7

Regulation 7 is a general interpretation section for the purposes of Part 3. It includes definitions of e.g. a gathering and a public outdoor space.

A gathering takes place when two or more persons 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.

Regulation 8 - Participation in indoor gatherings

R. 8 prohibits an indoor gathering of two or more people unless an exception in R. 11 applies.

Regulation 9 - Participation in outdoor gatherings

R. 9 prohibits a person from participating in an outdoor gathering;

• of more than two people in a public outdoor place or;
• two or more people in any other outdoor place (including any outdoor part of a private dwelling, which would include private gardens)

In determining whether there is a gathering or two or more people for the purposes of R. 8 and R. 9 no account is taken of;

• any child below the age of 5;
• or a carer for a person with a disability who needs continuous care (provided there are no more than two people present in that capacity).

R. 11 lists the exceptions to the prohibition in R. 9.​

Regulation 10 - Organisation or Facilitation of Gatherings

No person may hold or be involved in the holding of a gathering defined in:

• R. 10(4) (e.g. an illegal rave of more than 30 people which take place indoors); or
• R. 10(5) (consists of more than 30 persons and takes place in a private dwelling, on a vessel, or in a public outdoor space which is not operated by, or part of a premises used by, a business or charity etc; and where none of the exceptions in R.11 apply).

There is also an exception at paragraph 6, which applies to gatherings on vessels and in a public outdoor space which is not operated by, or part of a premises used by, a business or charity: this applies if the person holding the gathering or the organiser is a business, charity, public or political body etc and has taken the precautions set out in R. 14 (see below - risk assessment and measures to limit Covid transmission etc).

Regulation 11 - Exceptions in relation to gatherings

There are 14 listed exceptions to the prohibitions in R. 8, R. 9 and R. 10. Note that these are the only exceptions permitted. They include:

• all the people in the gathering are part of the same household or are members or two households which are linked households in relation to each other as defined in R. 12
• gatherings reasonably necessary for certain stated purposes. These include, work, education, training, emergency assistance, providing care to a vulnerable person and moving house.
• Fulfilling legal obligations and participating in legal proceedings
• support groups
• respite care, visiting certain persons receiving treatment (householders, friends, close family), visiting care homes and hospices
• attending births and visiting certain dying persons (householders, friends, close family)
• gatherings of no more than 6 people for certain marriages and civil partnerships, subject to stated conditions
• gatherings of no more than 30 persons for funerals or 15 persons for commemorative events, subject to stated conditions
• elite sports
• child access and contact
• the gathering is for the purpose of Remembrance Sunday and Armistice Day, subject to the specified conditions.

Regulation 12 - Linked Households

Subject to the conditions in R. 12, the linked household provisions essentially permit;

• a single adult household; or
• a single adult household with children under the age of 18 on 12 June 2020.

To choose to be linked to one other  household (there is no restriction on the number of adults in that second household) so they are treated as one household for the purposes of these Regulations.​

Regulation 13 - Linked Childcare Households

Subject to the conditions in R. 13 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 14 - The required precautions

Regulation 14 defines the precautions a gathering organiser or manager is required to take for the purposes of a gathering in R. 10. They include:

• a risk assessment that would satisfy the requirements of R. 3 of the Management of Health and Safety at work Regulations 1999; and
• the organiser or manager has taken all reasonable measures to limit the risk of transmission of the coronavirus taking into account the risk assessment defined above and any guidance issued by the government which is relevant to gatherings.

Part 4 - Closure of and restrictions on businesses

Regulation 15 - Hospitality Restrictions - Restrictions on the service of food and drink for consumption on the premises

Subject to the exceptions in R. 17(1), (2) and R. 15(5) a person responsible for carrying on a business or service listed in Part 1 of the Schedule is required to close any premises or part of the premises in which food or drink is provided for consumption on the premises, including adjacent seating areas, and cease to provide food and drink for consumption on the premises. (R. 15(1) and (2))

Food or drink provided by a hotel or other accommodation as part of room service is not treated as provided for consumption on the premises. (R. 15(3))

Paragraph 5 exempts businesses or services at motorway services, and those within airports, seaports and specified international rail terminals, subject to stated conditions,

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 down the restricted business or ceasing to carry on the restricted service. R.15(6).

Regulation 16 - Requirement to close premises and businesses

This Regulation essentially requires a person responsible for carrying on a business or providing a service listed in Part 2 of the Schedule (R. 16(4)) to cease to carry on that business or provide that service (R. 16(1)).

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. R.16(2)

The R. 16 requirements are subject to the exceptions in R 17(6) and (8) and do not apply to any facilities provided in criminal justice accommodation (R16(3)).

Regulation 17 - Exceptions to the requirements in Regulations 15 and 16

Regulation 17 identifies a number of exceptions to the requirement to close businesses / cease to provide the services listed in Part 1 and Part 2 of the Schedule.

The exceptions include:

• A Part 1 business can sell food or drink (not alcohol) for consumption off the premises, except from between 22.00 and 05.00.  (R. 17(1))
• Food and drink, between 22.00 and 05.00,  and alcohol at any time, can be sold by a Part 1 business for consumption off the premises provided a condition in R. 17(3) (a) – (c) is met. Essentially this means this involves a delivery service; takeaways where the purchaser has pre-ordered and does not enter the premises; and a drive through takeaway.
• Paragraph 6 sets out a number of other exceptions, which include:
  • Part 1 restricted business and service premises can be used to host blood donation
  • indoor and outdoor sports facilities for training by elite sports persons.
  • Theatres and concert halls for training, rehearsals and performances without an audience for broadcasting or recording
  • Indoor gyms, leisure centres and other facilities for supervised activities for children
  • Indoor gyms, pools etc for use by schools and other education providers
• Subject to R. 15 and 18(1), R. 16(1) a person responsible for carrying on a restricted business or providing a restricted service ("the closed business") is not prevented
  • from carrying on a business for sale or hire
    • in a shop which is separate from the premises used for the closed business
    • by making deliveries in response to orders received e.g. by telephone; through a website or by post
    • to a purchaser who collects goods which have been pre-ordered e.g. by telephone; through a website or by post.
  • Operating a café or restaurant solely to sell food or drink for consumption off the premises, if the café is separate from the closed business. (R. 17(8)).

Regulation 18 - Further restrictions and closures

Part 3 of the Schedule lists the businesses which can remain open. Any business which is not listed in Part 3 offering goods for sale or for hire in a shop or providing library services is required to close unless one of the exceptions in R. 18 applies.

The exceptions include:

• Where the sale / hire / provision of library services involves:
  • making deliveries or otherwise providing services in response to orders received e.g. through a website; by telephone or by post
  • the purchaser collects goods which have been pre-ordered by e.g. telephone; via a website or by post and the purchaser does not enter the premises (R. 18(1));
• Library premises can be opened for a variety of different reasons including for support groups and education and training (R. 18(2));
• Holiday accommodation (which includes premises such as hotels; hostels; caravans; holiday apartments; cottages etc) must close (R. 18(5)) unless one of the exceptions in R. 18(6) applies. The list in R. 18(6) includes where the accommodation is provided to a person who:
  • Is unable to return to their main residence;
  • Needs the accommodation to attend a funeral;
  • Is an elite athlete
  • Needs accommodation for work or, if a child, for education purposes
  • For any purpose requested by the Secretary of State
• Places of worship must close except for uses listed in R. 18(8) and 11(18). Examples of the exceptions include broadcasts, weddings, funerals and individual prayer
• Community Centres or Halls must close except for the reasons identified in R. 8(9)), which include blood donations, food banks, education, support groups and childcare
• Crematoriums and burial grounds must remain closed to members of the public except for funerals or burials; commemorative events celebrating the life of a person who has died or to allow a person to pay respect to a member of their household; a family member or a friend. (R. 8(10)).

If a business or service which is required to close; forms part of a larger business which is not required to close, the person responsible for carrying on the larger business complies with the requirements in R. 18 if they cease to carry on the business which is required to close.

Part 5 - Enforcement

Regulation 19 - Enforcement of restrictions and requirements

A relevant person (R. 19(11)(b)) may take such action as is necessary to enforce any restrictions imposed by these Regulations (R. 19(1)).

A relevant person exercising a power under R. 19 (3); 19(4); 19(5); 19(7) or 19 (8):

• Must consider that is it is a necessary and proportionate means of ensuring compliance with the restriction imposed by R. 5, 8 or 9; (R. 19(9))
• May issue reasonable instructions if considered necessary. (R. 19(10))

Summary of Enforcement Action

Enforcing business closures / requirement to cease to provide service (R. 19(2))

A relevant person may give a prohibition notice to a person if the relevant person reasonably believes that:

• The person is contravening a restriction in R. 15; R. 16 or R. 18
• It is necessary and proportionate to prevent the person from continuing to contravene the restriction. (R. 19(2)).

Enforcing restrictions on movement  (R. 19(3) and R. 19(4)).

A relevant person may:

• Direct a person who they consider is outside the place where they are living in contravention of R. 5(1) to return to the place where they are living. (R. 19(3))
• Direct an individual who is responsible for, and accompanying a child, who is outside the place where they are living, or staying overnight at a place other than the place where they are living in contravention of R. 5(1) to:
  • take the child to the place where the child is living; and
  • the individual must ensure so far as reasonably practicable, that the child complies with any direction or instruction given by the relevant person to the child. (R. 19(4)).

Enforcing restrictions on gatherings (R. 19(5) – R. 19(8))

Where a relevant person considers that a number of people are gathered in contravention of R.8 or R.9 then the relevant person may (R. 19(5)):

• Direct the people in the gathering to disperse;
• Direct any person in the gathering to return to the place where they are living; or
• Remove the person from the gathering (R. 19(5)(c), using reasonable force, if necessary, in exercise of the power. R. 19(6))

Where a child is in a gathering in contravention of R. 8 or R. 9 and the child is accompanied by an individual who has responsibility for them then the relevant person may: (R. 19(7))

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

Where a relevant person has reasonable grounds to believe that a child is repeatedly failing to comply with the restriction imposed by regulation 8 or 9, 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 the restriction. (R. 19(8)).

Regulation 20 - Offences and Penalties

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

• Contravene a restriction imposed under R. 5; 8; 9; 10; 15; 16 or 18;
• Contravene a requirement imposed, or a direction given, under R. 19;
• Fail to comply with a reasonable instruction or a prohibition notice given by a relevant person under R. 19; or
• Obstruct any person carrying out a function under these Regulations (including any relevant person for the purposes of R. 19). (R. 20(1)).

These offences are summary only, punishable with an unlimited fine (R. 20 (2)). There are also arrestable offences (R. 20(5)).

Regulation 21 - Fixed Penalty Notices

An authorised person may issue a fixed penalty notice to anyone that the authorised person reasonably believes (R. 21(1)):

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

R. 21 identifies the amount to be specified in a fixed penalty notice. The amount depends on the nature of the breach and whether it is a first or subsequent breach. It also identifies the breaches of other Coronavirus related Regulations relevant to the calculating the number of previous breaches.

Regulation 24 - Consequential amendments

The Regulations make a number of consequential amendments to existing Coronavirus related Regulations.

R. 1A and 2 of the Health Protection (Coronavirus Restrictions)(Obligations of Undertakings) Regulations 2020 do not apply while these Regulations are in force (these relate to restrictions on premises and hospitality).

Regulation 25 - Revocations

The 3 Tier Regulations are revoked

Schedule

Part 1 lists hospitality businesses which are subject to either a requirement to close or restrictions. These are restaurants, cafes, bars, social clubs and pubs, but a number of cafes are exempted, such as those at hospitals, courts and some workplaces.

Part 2 lists other businesses which are required to close or are subject to restrictions. These include cinemas, theatres, nightclubs, museums, casinos, spas, many indoor leisure and fitness facilities, outdoor sports centres and amenities, outdoor markets, zoos and showrooms.

Part 3 lists the businesses which are permitted to remain open. These include food retailers, off licenses, pharmacies, banks, opticians, vets and garden centres.

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.