Coronavirus: Health Protection (Coronavirus, International Travel) (England) Regulations 2020

• Summary
• The Regulation
  • Regulation 2 - Interpretation
  • Regulation 3 - Requirement to provide passenger information
  • Regulation 4 - Requirement to self-isolate
  • Summary of exceptions to the requirement in Regulation 3 and Regulation 4
  • Regulation 5 - Enforcement of requirement to Self-Isolate
  • Regulation 6 - Offences and Penalties
  • Regulation 7 - Fixed Penalty Notices
  • Regulation 9 - Power to use and disclose information
  • Regulation 10 - Self-Incrimination
  • Regulation 11 - Review and Expiry of Regulations
• Schedules
• Charging Practice

These Regulations were revoked on 17th May 2021.

Summary of the Regulations and Amendments

The Health Protection (Coronavirus, International Travel) (England) Regulations 2020 ("The International Travel Regulations") came into force on 8 June 2020 and apply to England only.

The Regulations clarify that anyone arriving in England or after 8 June 2020 has to comply with the International Travel Regulations.

The Regulations will be amended by adding and removing:

• countries and territories to / from the Schedule A1 list of exempt countries and territories; and
• Individuals to / from the list of those exempt from complying with the Regulations by reason of their employment;

in order to prevent the spread of infection or contamination from the coronavirus or coronavirus disease. There have also been other consequential amendments.​

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.

This guidance incorporates the main amendments introduced by:

• The Health Protection (International Travel and Public Health Information) (England) (Amendment) Regulations 2020 (“The International Travel Amendment Regulations”).
  The amendments to R. 2; R. 4 (1)(a) and (b); R. 4(3)(a) and R. 4(7)(a) and the inclusion of a new Schedule A1 (list of exempt countries and territories) are effective from 10 July 2020. All other amendments are effective from 7 July. In summary this means that amendments to the list of individuals who are exempt from complying with the Regulations by reason of their employment are effective from 7 July but any exemptions based on the country an individual is travelling from are effective from 10 July 2020.

• The Health Protection (Coronavirus, International Travel and Public Health Information) (England) (Amendment) (No. 2) Regulations 2020. The amendments covered in this guidance came into force on 14 December 2020.
  The main amendments to note are: the requirement to self-isolate in R. 4(1)(b) will apply to people who have, within the 10 days (rather than 14) prior to their arrival in England, departed from or transited through a non-exempt country or territory; the requirement in R. 3 to provide specified information on a Passenger Locator form is amended to reflect this reduced time period; and the period of time that a person must self-isolate under R. 4(7)(a) is also reduced, from the end of the 14th to the end of the 10th day after the day on which they last departed from or transited through a non-exempt country or territory.
• Prosecutors should note the impact of changes introduced by The Health Protection (Coronavirus, Pre-Departure Testing and Operator Liability) (England) Regulations 2021. Part 1 of these Regulations amends the Health Protection (Coronavirus, International Travel) (England) Regulations 2020 (S.I. 2020/568) to introduce a requirement for persons travelling to England from outside “the open borders area” to possess a notification of a negative coronavirus test upon arrival in England or, if travelling on a shuttle service through the Channel Tunnel, upon presenting at immigration control at the Channel Tunnel shuttle terminal area in France. These provisions come into force at 04.00 on 15 January 2021. Breach of this requirement without a reasonable excuse is an offence, which may be dealt with by way of a Fixed Penalty Notice or prosecution. The CPS is a prosecutor for these and other offences under the International Travel Regulations.
• Prosecutors should note the impact of The Health Protection (Coronavirus, International Travel)(England)(Amendment) (No.7) Regulations 2021 which come into force at 04.00 on 15 February 2021. The main changes introduced by these Regulations include the requirement that individuals travelling from specified countries (listed in Schedule B1) must have to have a “managed self-isolation package” (under Schedule B1A) and individuals arriving in England in the circumstances described in R. 3B are required to have booked, paid for and subsequently to undertake mandatory testing. Where there is a failure to take the mandatory test, there is a requirement to self-isolate under Schedule 2C, which also sets out the consequences of the test results.
• On 17 May 2021 the Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021 revoked and replaced the 2020 Regulations: see R26(b) of the 2021 Regulations. For offences from 4am on 17 May 2021, reference should be made to the 2021 Regulations and CPS guidance on the Coronavirus International Travel Regulations 2021.

Summary of the main provisions of the Regulations

Regulation 2 - Interpretation

The International Travel Amendment Regulations amend R. 2(1) from 10 July 2020 to introduce exempt and non-exempt countries. An “exempt country or territory” is one specified in Schedule A1 and “non-exempt country or territory” means any other country or territory outside the common travel area”

This Regulation also explains what is meant by “departing and transiting” for the purposes of determining where and individual has travelled from.

From 15 February R. 2 also explains that a managed self-isolation package” has the meaning given in paragraph 8 of Schedule B1A”

Regulation 3 – requirement to provide passenger information

An individual who arrives in England from the countries specified in this Regulation, are required to

• provide on the Passenger Locator Form (R. 2(1)) the “passenger information” detailed in Schedule 1 (R. 3(1));
• provide on the Passenger Locator Form passenger information for any child for whom they have responsibility (R. 3(5)).

The Regulation explains

• the circumstances in which an individual is deemed to have complied with these requirements (R. 3(6) and R. 3(7)).
• The Regulations do not require individuals to provide information which is not within their possession or control (R. 3(9)) and that
• Exceptions apply in relation to specified individuals e.g. R. 3(10) and R. 3(10B).

The requirement under R. 3(3) to provide information on the Passenger Locator Form applies where a person has been outside the common travel area at any time in the period beginning with either the 10th, or 14th day before the date of their arrival in England. The time period depends on when the breach is alleged to have occurred.

Regulation 3A

Part 1 of The Health Protection (Coronavirus, Pre-Departure Testing and Operator Liability) (England) Regulations 2021 introduced R. 3A,from 04.00 on 15 January 2021. It requires persons travelling to England from outside “the open borders area” to possess a notification of a negative coronavirus test upon arrival in England or, if travelling on a shuttle service through the Channel Tunnel, upon presenting at immigration control at the Channel Tunnel shuttle terminal area in France.

Schedule 2B sets out what is a qualifying test.

Provision is made in relation to persons travelling with a child aged 11 or over.

Persons exempted from the provisions are listed at R. 3A and specified schedules.

Regulation 3B

Regulation 3B is effective from 04.00 on 15 February 2021. In summary it explains that, before arriving in England, the individuals described in this Regulation (subject to exceptions) must possess a “testing package” for a day two test (as defined in this Regulation) and a day 8 test (as defined in this Regulation). R. 2C makes further provision about the day 2 and day 8 tests.

Regulation 4 – requirement to self-isolate

Regulation 4 explains the requirement to self-isolate including e.g. when the self-isolation requirements arise; where an individual is required to self-isolate; the period of self-isolation and the exceptions to the requirement not to leave, or be outside of the place of self-isolation. The specific requirements depend on when the requirement to self -isolate arose e.g. R. 4 was amended from 04.00 on 15 February 2021 to include reference to the requirements relating to “managed self-isolation”. Prosecutors are therefore reminded to refer to the Regulations and use the timeline to determine what provisions were in force at the time of the alleged breach.

Summary of exceptions to the requirements in Regulation 3 and Regulation 4

There are a number of exceptions to the requirements in R. 3 and R. 4. The exceptions depend on when the requirement arose. The exceptions include (but are not limited to):

• An individual who falls within R. 4(1)(b) and has arrived from Scotland or Wales and is only temporarily in England for a reason which would constitute an exception under R. 4(9) is not required to self-isolate (R. 4(12)).
• The individuals listed in Schedule 2 Part 1 paragraphs 1 - 4 are not required to provide passenger information (R. 3).
• Those individuals listed in Schedule 2 Part 1, paragraphs 1(1)(a)-(k) are also not required to self-isolate (R. 4(13)(a)(i)) if the conditions in Paragraph 1(2) of that Schedule are met. If the conditions in Paragraph 1(2) are not met for those individuals then R. 4(3)(b) and (c) do not apply to them (R. 4(13)(a)(ii)).
• The individuals listed in Schedule 2 Part 2 are not required to self-isolate in accordance with R. 4
• The individuals identified in Schedule 2 Part 3 Paragraph 38 are required to comply with R. 4 with modifications. Those individuals are not required to self-isolate from any other person who is living or working on the specified farm (R. 4(13)(c) and R. 4(3)(a)(i) is modified so the address provided is the specified farm.

The exceptions depend on when the breach is alleged to have occurred. Prosecutors are therefore reminded to refer to the version of the Regulations which were in force at the time of the breach.

Regulation 5 - Enforcement of requirement to Self-Isolate

If an An “authorised person” has reasonable grounds to believe that an individual has left, or is outside of, the place where they are self-isolating in contravention of R. 4, the authorised person may take enforcement action including e.g. issuing directions and removal of the individual in the circumstances described in this Regulation.

Prosecutors should note that the powers in R. 5(1)(a) and (b) do not apply where the individual is a person described in paragraph 1 of Schedule 2

An authorised person may only exercise enforcement powers under R. 5(1); R. 5(4) or R. 5(5) if it is a necessary and proportionate means of securing compliance with R. 4. (R. 5(6)).

R. 5 has been amended since it was initially drafted e.g. from 04.00 on 15 February 2021 an authorised person can take the enforcement action described in relation to breaches of Schedule B1A or Schedule 2C.

Regulation 5A:

From 04.00 on 15 February 2021 a new R.5A gives a constable, in the circumstances described, a power to enter premises to find a person who is suspected of committing an offence of contravening a requirement in paragraph 10 of Schedule B1A or to remove such a person to accommodation designated by the Secretary of State for the purposes of Schedule B1A.

Regulation 6 - Offences and Penalties

Regulation 6 describes the offences under the Regulations.

Regulation 7 - Fixed Penalty Notices

Where an authorised person (R. 7(10)) has reasonable grounds to believe that an offence has been committed under the Regulations by an offender aged 18 or over they may issue a fixed penalty notice (FPN) (R. 7(1)).

A FPN provides an offender with the opportunity to discharge any liability for the offence by paying a fine (R. 7(2)). The levels of fine are detailed in R. 7(5) and R. 7(6) and vary depending on the nature of the breach.

An offender does not have to accept an FPN. Proceedings can be issued against any offender who fails to accept an FPN or to one who fails to comply with the terms of the FPN within 28 days (R. 7(3)). A signed certificate confirming the failure to pay a FPN by the specified date is automatically admissible in evidence of the facts stated (R. 7(9)).

The level of the fine depends on the nature of the breach and whether it is a first or subsequent breach.

Regulation 9 - Power to use and disclose information

R.9 explains how information provided for the purposes of complying with the International Travel Regulations can be used.

Regulation 10 – Self-Incrimination

R.10 explains the circumstances in which the information provided for the purposes of complying with R. 3 can be used in evidence against the individual.

Regulation 11 – Review and Expiry of Regulations

Regulation 11 is amended on 7 July 2020 so the Secretary of State to review the need for the requirements imposed by the Regulations every 28 days instead of every 21 days.

Schedules

Schedule 1 – Passenger Information

Schedule 1 identifies the information which passengers are required to give.

From 14 December 2020 the time period in paragraph 2(a)(ii), relating to the address at which the person intends to stay, is reduced from 14 to 10 days.

A similar amendment is made to paragraph 2(ha), reducing the time period from when the person, prior to their arrival in England, departed from or transited through the relevant country or territory from 14 to 10 days.

Schedule A1 – exempt countries and territories

The Amendment Regulations, laid on 6 July 2020, inserted a new Schedule A1, which lists the exempt countries or territories.

This original Schedule has been amended. Prosecutors are reminded to refer to the Regulations in force at the time of an alleged breach to determine which countries and territories are included in the Schedule A1 exempt list.

Schedule B1 lists countries and territories subject to the additional measures. The additional measures are, from 04.00 on 15 February 2021, described in the new Schedule B1A. The additional measures essentially relate to the “managed self-isolation” requirements.

Schedule 2 – Part 1 – Individuals not required to comply with R. 3 and R. 4

Schedule 2 Part 1 lists those individuals who are not required to comply with R.3 and R. 4. These exceptions are subject to the conditions specified.

Schedule 2 Part 2 – individuals who are not required to comply with R. 4

Schedule 2 Part 2 lists the individuals who are not required to comply with R. 4, subject to any stated conditions. Prosecutors are reminded to use the timeline in the Regulations to identify which provisions were in force at the time of an alleged breach and to determine the period of self-isolation required under the Regulations.

Schedule 2A explains the requirements relating to testing on arrival in the UK. Schedule 2B explains the requirements relating to testing before arrival in the UK and the requirements relating to the “mandatory testing after arrival in England” are explained in Schedule 2C.

Schedule 3 – Specified competitions

Schedule 3 lists the specified competitions for the purposes of Para. 39.

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.

Where a person purports to present valid notification of a negative coronavirus test, to comply with R. 3A, but they are in possession of a forged notification prosecutors should consider the following offences:

• R. 6(1)(aa) (….a person who without reasonable excuse contravenes a requirement in regulation 3A commits an offence) e.g. by failing to comply with the conditions in Schedule 2B. However, prosecutors should note R6(1A)(a) which states that a person does not commit an offence where they contravene a requirement in R.3A, if they reasonably believed at the time of the contravention that the notification of a negative result was valid and from a qualifying test. Prosecutors are also reminded that R6(3) creates an offence where “A person … intentionally or recklessly provides false or misleading passenger information …. ” (passenger information is defined in Schedule 1). This relates to a R. 3 breach.
• Using a false instrument under s3 of the Forgery and Counterfeiting Act 1981. It may be appropriate where culpability extends beyond the R. 6(1)(aa) offence, and the available sentencing powers are insufficient;
• Fraud by false representation under s2 of the Fraud Act 2006.

In selecting the most appropriate charge, prosecutors are reminded to select the offence which provides the court with appropriate sentencing powers, taking into account the circumstances of the case; the offender and any aggravating features.

When deciding whether a prosecution is under the regulations 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 International Travel 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.