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Coronavirus – Regulations affecting Hospitality from 18 September 2020

Updated: 18 July 2021|Legal Guidance

Revocation

THESE REGULATIONS HAVE BEEN REVOKED

At 11.55pm on 18 July 2021 the Health Protection (Coronavirus, Restrictions) (Steps etc.) (England) (Revocation and Amendment) Regulations 2021 revoked these Regulations, ending the lockdown restrictions in England.

Summary

Th​e Health Protection (Coronavirus, Restrictions) (Obligations of Hospitality Undertakings) (England) Regulations 2020 came into force on 18 September 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 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 (Coronavirus, Restrictions) (Obligations of Undertakings) (England) (Amendment) Regulations 2020which came into force on 28 September 2020 The amendments include changing the title of the Regulations to “The Health Protection (Coronavirus, Restrictions) (Obligations of Undertakings) (England) Regulations 2020”. They have also been amended by:

The Secretary of State must review the need for the requirements imposed by these Regulations before the end of the period of six months beginning with the day on which they come into force (R. 6).

These Regulations expire at the end of the period of 364 days beginning with the day on which they come into force. This does not affect the validity of the prosecution for any breach committed before they expire (R. 7).

Prosecutors are reminded to read the full text of the Regulations for the detail relevant to issues in individual cases. This guidance is intended to summarise and highlight the main provisions only.

The Regulations

Regulation 1 Amendments to Regulation 1 from 28 September 2020

The main changes to R. 1 include removing reference to hospitality and also explaining that “face coverings” and “relevant area” have the same meaning as in is The Health Protection (Coronavirus, Restrictions) (Wearing of Face Coverings in Relevant Place)(England) Regulations 2020; and that “responsible person” means a person responsible for carrying on a business in a relevant area”

A new R. 1A(1) now requires a person who operates or occupies relevant premises to take all reasonable measures, during the emergency period to ensure that;

(a) no bookings are accepted for a group of more than six persons unless one of the exemptions in regulation 5 of the Principal Regulations applies;

(b) no persons are admitted to the premises in a group of more than six, unless one of the exemptions in regulation 5 of the Principal Regulations applies;

(c) no person joins another group or otherwise acts in a way which would contravene the Principal Regulations.

R1A(2) defines “relevant premises”, which has the same meaning as in the Health Protection (Coronavirus, Collection of Contact Details etc and Related Requirements) Regulations 2020.

Amendments to Regulation 1 from 30 September 2020

A new paragraph (1) (3) (cb) is included in R. 1 as follows:

the “NENW Regulations” means the Health Protection (Coronavirus, Restrictions) (North East and North West of England) Regulations 2020; and

the following paragraphs are also added to R. 1(3)

“(g) 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;

(h) premises are located in an area which is part of the protected area for the purpose of the NENW Regulations if any part of the premises are located in that area.

R. 1A is amended as follows:

- in paragraph (1), after “premises”, the first time it occurs, insert “in an area which is not part of the protected area for the purposes of the NENW Regulations”;

- after paragraph (1) the following is inserted

“(1A) A person who operates or occupies relevant premises in the protected area for the purposes of the NENW Regulations must, during the emergency period, take all reasonable measures to ensure that—

  1. no bookings are accepted:
    1. for a group of more than six, where the group is to be located outdoors, unless one of the exceptions in regulation 5 of the Principal Regulations applies;
    2. for a group of two or more persons to be located indoors at the premises unless one of the exceptions in regulation 6A or 6B of the NENW Regulations applies;
  2. no persons are admitted to the premises in:
    1. a group of more than six, where the group is to be located outdoors, unless one of the exceptions in regulation 5 of the Principal Regulations applies, or
    2. a group of two or more persons, where the group is to be located indoors, unless one of the exceptions in regulation 6A or 6B of the NENW Regulations applies;
  3. no person joins another group or otherwise acts in a way which would contravene the NENW Regulations.”

Tier 1 Regulations – Amendments to R. 1 from 14 October 2020

The Tier 1 Regulations become the Principal Regulations from 14 October 2020 (R. 1(3)), and therefore a number of consequential amendments are made to the Hospitality Regulations. These include:

  • Change to the meaning of the emergency period (R. 1(3)(c));
  • Change to the meaning of a qualifying group (R. 1(3)(d)).

Tier 2 Regulations – Amendments to R. 1 from 14 October 2020

The Tier 2 Regulations make further consequential amendments to R. 1, including:

  • Removal of references to local Regulations, which are revoked;
  • Inserting references to the Tier 2 Regulations, where they now apply.

Tier 3 Regulations – Amendments from 14 October 2020

The Tier 3 Regulations make further consequential amendment to R. 1, including the insertion of references to the Tier 3 Regulations where they now apply.

A new paragraph 1B is inserted into the Regulations – this creates further responsibilities in relation to a person who operations or occupies relevant premises in the Tier 3 area. The person is required to take all reasonable measures to ensure that:

  1. no bookings are accepted for:
    1. a group of more than six persons, where the group is to be located in a place which satisfied the conditions in paragraph 2(4) of Schedule 1 of the Tier 3 Regulations (“a relevant place”), unless one of the exceptions in paragraph 4 of that Schedule applies; or
    2. a group of two or more persons to e located in a place which is not a relevant place unless one of the exceptions in paragraph 4 of Schedule 1 to the Tier 3 Regulations applies.
  2. no persons are admitted to the premises
    1. a group of more than six persons, where the group is to be located in a relevant place, unless one of the exceptions in paragraph 4 of that Schedule applies; or
    2. a group of two or more persons to be located in a place which is not a relevant place, unless one of the exceptions in paragraphs 4 of Schedule 1 to the Tier 3 Regulations applies;
  3. no person joins another group or otherwise acts in a way which would contravene the Tier 3 Regulations.

Amendments to Regulation 1 from 07.00 on 20 December 2020

From 07:00 on 20 December 2020 Regulation 1 is amended as follows:

A new Paragraph 1(fc) states that “Tier 4 area” has the meaning given by regulation 8(4)(h) of the Principal Regulations;

Paragraph 1(h) is replaced with the following “(h) premises are located in: (i) an area which is part of the Tier 2 area if any part of the premises is located in that area and no part of the premises is located in the Tier 3 area or the Tier 4 area; (ii) an area which is part of the Tier 3 area if any part of the premises is located in the Tier 3 area and no part of the premises is located in the Tier 4 area; (iii) an area which is part of the Tier 4 area if any part of the premises is located in the Tier 4 area.

Regulation 1A is amended so that it refers to a Tier 4 area too.

New Paragraphs 1A (1C) and (1D) require people operating or occupying relevant premises in a Tier 3 or Tier 4 area to take reasonable steps to ensure compliance with the restrictions on gatherings.

A new Paragraph 1A (1C) states that a person who operates or occupies relevant premises in the Tier 3 area must, during the emergency period, take all reasonable measures to ensure that:

  • no bookings are accepted for:
    • a group of more than six persons, where the group is to be located in a place which satisfies the conditions in paragraph 2(4) of Schedule 3 to the Principal Regulations (“a relevant place”), unless one of the exceptions in paragraph 4 or 6 of that Schedule applies; or
    • a group of two or more persons to be located in a place which is not a relevant place, unless one of the exceptions in paragraph 4 to 6 of Schedule 3 to the Principal Regulations applies;
  • no persons are admitted to the premises in:
    • a group of more than six persons, where the group is to be located in a relevant place, unless one of the exceptions in paragraph 4 or 6 of Schedule 3 to the Principal Regulations applies; or
    • a group of two or more persons to be located in a place which is not a relevant place, unless one of the exceptions in paragraph 4 to 6 of Schedule 3 to the Principal Regulations applies;
  • no person joins another group or otherwise acts in a way which would contravene the Principal Regulations.

A new Paragraph 1A (1D) states that a person who operates or occupies relevant premises in the Tier 4 area must, during the emergency period, take all reasonable steps to ensure that:

  • no bookings are accepted for:
    • a group of more than two persons, where the group is to be located in a place which satisfies the conditions in paragraph 4(4) of Schedule 3A to the Principal Regulations (“a relevant place”), unless one of the exceptions in paragraph 6 or 8 of that Schedule applies; or
    • a group of two or more persons to be located in a place which is not a relevant place, unless one of the exceptions in paragraphs 6 to 8 of Schedule 3A to the Principal Regulations applies;
  • no persons are admitted to the premises in:
    • a group of more than two persons, where the group is to be located in a relevant place, unless one of the exceptions in paragraph 6 or 8 of Schedule 3A to the Principal Regulations applies; or
    • a group of two or more persons to be located in a place which is not a relevant place, unless one of the exceptions in paragraphs 6 to 8 of Schedule 3A to the Principal Regulations applies;
  • no person joins another group or otherwise acts in a way which would contravene the Principal Regulations.

Amendments to Regulation 1 from 29 March 2021

There are a number of amendments to substitute the Steps Regulations for the All Tiers Regulations.

Regulation 1A is substituted with a new Regulation 1A, which relates to booking numbers indoors and outdoors in the Steps 1, 2 and 3 areas.

Regulation 2 – Restrictions on Undertakings

The Regulations require a person responsible for carrying on a business of a public house; café; restaurant or other relevant business (one which sells food or drink for consumption on its premises) to take all reasonable measures, during the emergency period, to ensure that:

  • no bookings for a table are accepted for a group of more than six persons unless one of the exemptions in Regulation 5 (restrictions on gatherings) of the Principal Regulations applies. The Principal Regulations refer to The Health Protection (Coronavirus, Restrictions) (No.2) (England) Regulations 2020
  • no persons are admitted to the premises in a group of more than six, unless one of the exemptions in Regulation 5 of the Principal Regulations applies;
  • no person in one qualifying group mingles with any person in another qualifying group where this is not permitted under the Principal Regulations;
  • an appropriate distance is maintained between tables occupied by different qualifying groups.

R. 2(2) explains that for the purposes of this regulation an appropriate distance means a distance between tables of:

  • at least two metres; or
  • at least one metre, if:
    • there are barriers or screens between tables;
    • the tables are arranged with back to back seating, or otherwise arranged to ensure that persons sitting at one table do not face any person sitting at another table at a distance of less than two metres; or
    • other measures are taken to limit the risk of transmission of the coronavirus between people sitting at different tables;

Examples of exemptions referred to in Regulation 5 of the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (The Principal Regulations) include where all the people in the gathering are from the same household, or are members of two households which are linked households in relation to each other.

Amendments to Regulation 2 from 28 September 2020

The title for this regulation is amended to “Restrictions on hospitality undertakings” Regulation 2(1) is amended so paragraphs (a) – (c) are removed from the list of reasonable measures a person responsible for carrying on a business of a public house, café, restaurant or other relevant business must, during the emergency period take. An amended version of these measures is now included in the new Regulation 1A, with the requirement being imposed on a person who operates or occupies relevant premises rather than the person responsible for carrying on the business.

R. 2(1)(d) is amended so the reference to “different qualifying groups” now refers to “persons who are not in the same qualifying group.

New R. 2(1A) – R. 2(1E) are inserted after R. 2(1) as follows:

A person responsible for carrying on a business of a public house, café, restaurant or bar (including a bar in a hotel or a members’ club) must, during the emergency period take all reasonable measures to stop;

(a) singing on the premises by customers in groups of more than six; or

(b) dancing on the premises by customers. (R. 2(1A))

R. 2(1B) confirms that R. 2(1A)(b) does not apply in relation to dancing

(a) at a wedding ceremony or wedding reception by the couple to whom the wedding relates; or

(b) at a civil partnership ceremony or reception following a civil partnership ceremony by the couple to whom the civil partnership relates.

R. 2(1C) means that a person responsible for carrying on a business of a public house, café, restaurant or bar (including a bar in a hotel or a members’ club) must, during the emergency period take all reasonable measures to ensure that no music is played on the premises which exceeds 85db(A) (A-weighted decibels – (R. 2(1E)) when measured at the source of the music,

The requirement in R. 2(1C) does not apply to any performance of live music (R. 2(1D).

A new R. 2A is inserted after R 2 which introduces requirements relating to signage and information as follows:

During the emergency period a responsible person must:

(a) display a notice providing information in paragraph 2; or

(b) take other measures to ensure that any person who enters the relevant area without wearing a face covering is given the information specified in paragraph (4) (R. 2A(1))

R. 2A (2) states the relevant information referred to in R. 2A (1)(a) is that any person present in the relevant area is required to wear a face covering under The Health Protection (Coronavirus, Restrictions) (Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 unless either an exemption applies or the individual has a reasonable excuse under those Regulations; and

R. 2A (3) requires that notice to be displayed in a conspicuous location at the relevant area.

R. 2A (4) explains the information which must be given to the person under R. 2A(1) is that they are required to wear a face covering unless an exemption applies or the person has a reasonable excuse for not wearing a face covering.

A new R. 2B prohibits a responsible person from preventing or seeking to prevent, any relevant person from wearing face covering while the person is in a relevant area during the emergency period. (R. 2B(1)). A relevant person is a person required to wear a face covering under R. 3(1) of the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place)(England) Regulations 2020 while present in the relevant area.

Amendments to R. 2 from 30 September 2020

2(1A) is amended as follows:

In regulation 2(1A), for paragraph (a), substitute—

“(a) singing on the premises by customers—

(i) in groups of more than six, where the premises are located in an area which is not part of the protected area for the purposes of the NENW Regulations, unless one of the exceptions in regulation 5 of the Principal Regulations applies, or

(ii) where the premises are located in an area which is a protected area for the purposes of the NENW Regulations—

(aa) in groups of more than six, where the group is located outdoors, unless one of the exceptions in regulation 5 of the Principal Regulations applies, or

(bb) in groups of two or more persons, where the group is located indoors, unless one of the exemptions in regulation 6B or 6C of the NENW Regulations applies; or”.

Tier 1 Regulations – Amendments to R. 2 from 14 October 2020

From 14 October 2020 reference to R. 2(1A) – R. 2(1E) are removed from R. 2 (they were inserted on 28 September and are described above).

Amendments from 29 March 2021

A new R.2AA is inserted after R.2A. This states that the restrictions and requirements in regulations 1A, 2(1) and 2A do not apply in relation to any premises for which they are disapplied in a direction made by the Secretary of State under regulation 9 of the Principal Regulations.

Regulation 3 – Offences and penalties

Contravention of a requirement in R. 2, without a reasonable excuse, is a summary offence punishable with an unlimited fine.

If an offence under this Regulation is proved to have been committed with the consent or connivance or is in any way attributable to the neglect of an officer of a body corporate, then the officer, as well as the body corporate, is guilty of an offence and liable to prosecution.

An “officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body corporate.

A power of arrest applies in relation to an offence under this Regulation (R. 3(5)).

Amendment to R. 3 from 28 September 2020

The amendments to R. 3 reflect the additional responsibilities and requirements introduced to the Regulations on 28 September. It is now an offence, without reasonable excuse, to contravene a requirement in R. 1A; R.2; R. 2A and R. 2B.

Regulation 4 – Fixed Penalty Notices

Under R. 4 an authorised person may issue a fixed penalty notice (FPN) to anyone they reasonably believe has committed and offence under the Regulations and is 18 or over (R. 4(1)).

A FPN provides an offender with the opportunity to discharge any liability for the offence by paying a fine. If an offender accepts a FPN but does not comply with its terms, then after 28 days criminal proceedings can be instituted by the police. In proceedings instituted following a failure to comply with a FPN a signed certificate confirming the failure to pay a FPN by the specified date is automatically admissible in evidence of the facts stated and can be used to prove that there is no bar on the proceedings (R. 4 (11)).

An individual does not have to accept a FPN and if they do not do so the police can issue criminal proceedings for the offence instead. The police also have discretion not to offer a FPN where the offence is so serious that it merits a prosecution or where there has been repeated offending.

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

The amount specified in the FPN should reflect the sums in R. 4 (6)-(8) and depends on whether the breach is a first, or subsequent breach.

In this Regulation an authorised person means:

  • (i) a constable;
  • (ii) a police community support officer;
  • (iii) a person designated by the Secretary of State for the purposes of this regulation;
  • (iv) a person designated by the relevant local authority for the purposes of this regulation; (R. 4 (12)).

Amendments to R. 4 from 28 September 2020

A mistake in drafting in R. 4(8)(a) is amended by changing the reference from (9) to (7).

The Regulations are also amended so that R. 4(8) refers to fixed penalty notice instead of fixed penalty notices (correcting an error in drafting). The amount of the fixed penalty notice is changed so that the penalty for a third breach remains £4000 and a new R. 4(8)(iii) means that the level of fine for a fourth or subsequent breach is increased to £10,000.

A new R. 4(8A) explains that when calculating how many fixed penalty notices a person has received, the following are taken into account:

(a) a fixed penalty notice issued for breaching a requirement in R. 4A or R. 4B of The Health Protection (Coronavirus, Restrictions)(No.2) (England) Regulations 2020

(b) a fixed penalty notice issued under the Health Protection (Coronavirus, Collection of Contact Details etc and Related Requirements)Regulations 2020.

Amendments are also made to The Health Protection (Coronavirus, Restrictions) (No.2) (England) Regulations 2020 so that breaches under these Regulations are taken into account in calculating how many fixed penalty notices have been issued.

Tier 1 Regulations – Amendments to R. 4 from 14 October 2020

The Tier 1 Regulations became the principal Regulations from 14 October 2020, and therefore make a number of consequential amendments to R. 4.

The amendments essentially add to the list of breaches which are taken into account when determining whether a breach of these Regulations is a first, or subsequent breach.

Tier 2 Regulations – Amendments to R. 4 from 14 October 2020

The Tier 2 Regulations insert a new paragraph (e) into R. 4(8A), which

means an offence under the Tier 2 Regulations is taken into account in calculating the number of breaches relevant to the level of fine.

Tier 3 Regulations – Amendments to R. 4 from 14 October 2020

The Tier 3 Regulations insert a new paragraph (f) into R. 4(8A), which means an offence under the Tier 3 Regulations is taken into account in calculating the number of breaches relevant to the level of fine.

Amendments to R. 4 from 2 December 2020

New paragraph 8A(h) is inserted, so that breaches of the Principal Regulations (i.e. the All Tiers Regulations), where the fixed penalty notice relates to a business restriction offence as defined by regulation 12(7) of those Regulations, are taken into account in calculating the number of breaches relevant to the level of fine.

Regulation 8 – Designations

R. 8 as originally drafted stated:

A person who is designated for the purposes of regulation 9(13) or 10 of the Principal Regulations is to be treated as if they were designated for the purposes of regulation 4(12)(a) or 5 as appropriate, of these Regulations.

The Tier 1 Regulations amend R. 8 from 14 October 2020 so the reference to Principal Regulations is removed and replaced with “The Health Protection (Coronavirus, Restrictions) (No.2) England) Regulations 2020 or R. 16(6) or (7).”

The reference to specific provisions in the Principal Regulations are amended to reflect the fact that the All Tiers Regulations are now the Principal Regulations. 

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.

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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