Coronavirus: Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021

• Introduction
• ​Overview of Regulations and Amendments
• ​​​Part 1 - Introductory
• Part 2 - Step Restrictions
• Part 3 – Restrictions on leaving the United Kingdom
• Part 4 – Disapplication of restrictions and requirements
• Part 5 - Enforcement
• Schedule 1 – Step 1
• Schedule 2 – Step 2
• Schedule 3 – Step 3
• Schedule 4 – Step 1 area, Step 2 area and Step 3 area
• Schedule 5 – Reasonable excuses to travel outside the UK
• Schedule 6 – Persons exempt from restrictions on leaving the UK & the requirement to have a travel declaration form
• Schedule 7 – Consequential amendments
• Schedule 8 – Other amendments to subordinate legislation relating to coronavirus
• Charging Practice
• ECHR proportionality – statutory defences
• Government Guidelines and the Regulations

THESE REGULATIONS WERE REVOKED AT 11.55PM ON 18 JULY 2021

​​

Introduction

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

​Overview of Regulations and Amendments

The Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 (Steps Regulations) came into force on ​29 March 2021, at the end of the third national lockdown in England, and apply in England only. The Regulations provide a framework for the easing of the lockdown restrictions, via the three Step Areas; Step 1 being the most severe restrictions, and Step 3 the least severe. The intention is to keep all locations in England within the same Step and set of restrictions, starting with Step 1, then moving all locations at the same time from Step 1 to Step 2, and then to Step 3. Prosecutors should ensure their charging decisions reflect the Regulations in force in a particular Step area at the time the alleged breach was committed.

The Step Regulations revoke the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020, which implemented the second and third lockdowns, apart from R.13 and Schedule 6 (prosecutions) and R.17 and Schedule 5 (consequential amendments and savings provisions). The All Tiers Regulations also continue in force in relation to any offence committed under those Regulations before 29 March 2021 – R.23(4).

The Step Regulations impose restrictions on gatherings and businesses in England. The restrictions on businesses include the closure of certain businesses, and restrictions on the service of food and drink for consumption on the premises of a business. The Regulations also impose restrictions on leaving the United Kingdom without a reasonable excuse (regulation 8). Schedule 5 lists a number of reasonable excuses for travel outside the United Kingdom, and Schedule 6 lists those people who are exempt from the restrictions on travel outside the United Kingdom.

Every part of England will be subject to restrictions, depending on which Step area is operative at any given time. The restrictions for each Step area are set out as follows:

• Step 1 restrictions are set out in Schedule 1 and apply to the Step 1 area, set out in Sch 4 Pt 1.
• Step 2 restrictions are set out in Schedule 2 and apply to the Step 2 area, set out in Sch 4, Part 2.
• Step 3 restrictions are set out in Schedule 3 and apply to the Step 3 area, set out in Sch 4, Part 3.

​Under Part 6 of the Regulations, the Secretary of State must review the need for the restrictions imposed by the Regulations by 12th April 2021 and at least once every 35 days from that date. The Regulations expire on 30 June 2021.

The Steps Regulations have been amended as follows:

• On 12 April 2021 the Health Protection (Coronavirus, Restrictions) (Steps and Local Authority Enforcement Powers) (England) (Amendment) Regulations 2021 came into force. The amendments moved all of England from the Step 1 area to the Step 2 area, so that the restrictions set out in Schedule 2 apply. They also make minor amendments to the definition of “linked household” in R.3, amend paragraph 9 of Schedule 2 to clarify that customers may enter premises serving alcohol to pay for their food and drink, and paragraph 12 of that Schedule to clarify which facilities may remain open in campsites, caravan parks and self-contained holiday accommodation.
• On 17 May the Health Protection (Coronavirus, Restrictions) (Steps and Other Provisions) (England) (Amendment) Regulations 2021 came into force. They amended the Steps Regulations to move England from the Step 2 area to the Step 3 area, so that the restrictions set out in Schedule 3 apply. These Amendment Regulations also: removed the restrictions on leaving the United Kingdom; increased the number of people who are able to attend a parent and child group, or a support group; removed the limits on the number of people who may attend a funeral; permitted gatherings necessary to enable a student to move to another household for the purposes of a vacation before 30th June 2021; and amended the restriction on organising a large gathering outdoors so that it only applies when there are more than 50 people in the gathering.

At 11.55pm on 20 June 2021 the Health Protection (Coronavirus, Restrictions) (Steps and Other Provisions) (England) (Amendment) (No. 2) Regulations 2021 came into force. They removed most limits on the numbers who may attend a wedding or civil partnership, a reception for a wedding or civil partnership, or a commemorative event following a person’s death; and they amended the power of disapplication of the Secretary of State in R9. At 11.55pm on 18 July 2021 the Health Protection (Coronavirus, Restrictions) (Steps etc.) (England) (Revocation and Amendment) Regulations 2021 revoked the Steps Regulations, ending the lockdown restrictions in England. They also revoked a number of other Coronavirus Regulations.

​​​Part 1 - Introductory

Regulation 2 - Interpretation

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

Regulation 3 - Linked households

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

Regulation 4 - Linked childcare households

Subject to the conditions in R.4, 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 5 - Permitted organised gatherings

Organised gatherings are permitted under the Regulations under specific conditions, which relate to gatherings on or at premises relating to a business, a charitable, benevolent or philanthropic institution, or a public body; or gatherings in a public outdoor place organised by one of these institutions or a political body; and the organiser takes the required precautions, which are set out in R.6.

​Regulation 6 - Required precautions

R.6 sets out the required precautions that the organiser or manager of a permitted organised gathering must take.

​Part 2 - Step Restrictions

Regulation 7 - Step restrictions

R.7 explains that the Step 1, 2 and 3 restrictions apply to the respective areas, in accordance with Schedules 1, 2 and 3 respectively.

​Part 3 – Restrictions on leaving the United Kingdom

Regulation 8 - Restrictions on leaving the United Kingdom

No person may, without a reasonable excuse:

• leave England to travel to a destination outside the UK; or
• travel to, or be present at, an embarkation point for the purpose of travelling from there to a destination outside the UK.

Schedule 5 contains a non-exhaustive list of reasonable excuses.

A person (“P”) who is travelling to, or present at, an embarkation point for the purpose of travelling from there directly or indirectly to a destination outside the UK must have with them a completed travel declaration form, containing the stated information. A person travelling with and responsible for a child, or a person who lacks capacity to fill out a travel form, must also fill out the form on behalf of that child / person.

Schedule 6 contains a list of persons who are exempt from the restrictions on leaving the UK and the requirement to have a travel declaration form.

Amendments to Regulation 8 from 17 May 2021

The Health Protection (Coronavirus, Restrictions) (Steps and Other Provisions) (England) (Amendment) Regulations 2021 omitted R8, thereby removing the restrictions on leaving the United Kingdom from 17 May 2021.

​Part 4 – Disapplication of restrictions and requirements

Regulation 9 - Disapplication by the Secretary of State

The Secretary of State may by direction disapply any relevant restriction or requirement in relation to specified premises, a specified event or a specified gathering, for the purposes of a research programme to evidence the potential transmission of coronavirus in controlled environments.

​Part 5 - Enforcement

Regulation 10 - Enforcement of restrictions and requirements

A relevant person can take such action as is necessary to enforce a Step 1, 2 or 3 restriction; or a restriction or requirement in R.8 (leaving the UK). The actions include giving prohibition notices and issuing directions. The action depends on the nature of the alleged breach.

Amendments to Regulation 10 from 17 May 2021

The Health Protection (Coronavirus, Restrictions) (Steps and Other Provisions) (England) (Amendment) Regulations 2021 omitted the paragraphs in relation to enforcement of R8 (leaving the UK), as the restrictions on leaving the UK were lifted on 17 May 2021.

​Regulation 11 - Offences and Penalties

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

• contravenes a Step 1, 2 or 3 restriction;
• contravenes a restriction or requirement in R.8;
• contravenes a requirement imposed, or a direction given, under R.10;
• fails to comply with a reasonable instruction or a prohibition notice given by a relevant person under R.10;
• obstructs any person carrying out a function under these Regulations (including any person who is a relevant person for the purposes of R.10);
• intentionally or recklessly provides false or misleading information on a travel declaration form, except for reasons of national security.

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

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

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

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

R.11(7) confirms a power of arrest applies to an offence under the Regulations as if the reasons in subsection (5) of section 24 of PACE included:

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

Amendments to Regulation 11 from 17 May 2021

The Health Protection (Coronavirus, Restrictions) (Steps and Other Provisions) (England) (Amendment) Regulations 2021 omitted the paragraphs containing offences in relation to R8 (leaving the UK), as the restrictions on leaving the UK were lifted on 17 May 2021.

​Regulation 12 - Fixed Penalty Notices

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

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

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

​Regulations 13 – 17 - Amount of fixed penalty

The level of the fine in the fixed penalty notice is set out for:

• Travel offences – R.13
• Large gathering offences – R.14
• Organised gathering offences – R.15
• Business restriction offences – R.16
• General offences – R.17

The level of fine varies according to whether it is a first or subsequent breach and the nature of the breach. The Regulations also stipulate what breaches do and do not count for these purposes.

Amendments to Regulation 13 from 17 May 2021

The Health Protection (Coronavirus, Restrictions) (Steps and Other Provisions) (England) (Amendment) Regulations 2021 omitted R13 (fixed penalties for travel offences), as the restrictions on leaving the UK were lifted on 17 May 2021.

​Schedule 1 – Step 1

Part 1 - Restrictions on gatherings

Paragraph 1 - participation in gatherings indoors

No person may participate in a gathering in the Step 1 area which consists of 2 or more people and takes place indoors, unless an exception in paragraph 4 or 5 applies.

Paragraph 2 - participation in gatherings outdoors

No person may participate in a gathering in the Step 1 area which consists of more than 6 people and takes place outdoors, unless an exception in paragraph 4 or 6 applies.

Paragraph 3 - organisation or facilitation of gatherings

No person may hold, or be involved in the holding of, a relevant gathering in a Step1 area, as defined in this paragraph.

Paragraph 4 – general exceptions

Paragraph 4 is a list of exceptions to the restrictions on gatherings referred to in Paragraphs 1, 2 and 3(5)(c). References to the gathering organiser or manager taking the required precautions refer to the precautions stated in R.6.

​Paragraph 5 –exceptions to indoor gatherings

Paragraph 5 is a list of exceptions relating only to the restrictions on indoor gatherings.

Paragraph 6 –exceptions to outdoor gatherings

Paragraph 6 is a list of exceptions relating only to the restrictions on outdoor gatherings.

​Paragraph 7 – qualifying groups

Qualifying groups relates to exception 15 of the general exceptions (communal worship), as originally drafted.

​Part 2 – Closure of, and restrictions on, businesses

Paragraph 8 – requirement to close premises and businesses

This Paragraph requires a person responsible for carrying on a restricted business or providing a restricted service - see Paragraphs 13(2) and 13(5) - in a Step 1 area to cease to carry on that business or provide that service, unless an exception at paragraph 10 applies.

Where a restricted business or restricted service forms part of a larger business which is not in itself restricted, the person responsible for carrying on the larger business complies with the requirements in this Regulation by closing the restricted business or ceasing to carry on the restricted service (Paragraph 8(2)).

​Paragraph 9 – restrictions on service of food and drink for consumption on the premises

Paragraph 9 applies to the business and services listed in Paragraph 13(4).

Subject to the exceptions in paragraphs 10 and 11 (see below), a person responsible for carrying on a restricted businesses or providing a restricted service in the Step 1 area must:

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

There are further provisions relating to restricted businesses and services at motorway service areas, airports, maritime ports and the international rail terminal.

​Paragraph 10 – Exceptions to paragraphs 8 and 9

This paragraph sets out a number of exceptions to the closure of, and restrictions on, businesses and services in paragraphs 8 and 9.

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

​Paragraph 11 – Exceptions to Paragraph 9

Paragraph 9(1) does not prevent a person responsible for carrying on a restricted business, or providing a restricted service, of a kind specified in paragraph 13(4) from doing certain specified activities, which are subject to the stated conditions.

​Paragraph 12 – Closure of holiday accommodation

Subject to the exceptions in Paragraphs 12(2) and (3), Paragraph 12(1) requires the closure of the identified holiday accommodation businesses in the Step 1 area.

​Paragraph 13 – Restricted businesses and services for the purpose of Part 2 of Schedule 1

This paragraph identifies the restricted businesses and restricted services for the purposes of paragraphs 8 and 9.

It is anticipated that the list of restricted businesses and services will be amended as the lockdown is eased. Prosecutors are therefore reminded to use the timeline on the legislation.gov website to ensure they refer to the version of the regulations in force at the time of an alleged breach.

​Paragraph 14 – Further restrictions on businesses

A person responsible for carrying on a business in a Step 1 area of offering goods for sale or hire in a shop, or providing library services, other than a business listed in paragraph 15, must cease to carry on that business or provide that service subject to the exceptions listed in paragraph 14.

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

​Paragraph 15 – Businesses allowed to remain open in the Step 1 area

Paragraph 15 lists the businesses which are allowed to remain open in the Step 1 area. Prosecutors should refer to Paragraph 15 of the Regulations for the full list.

​Schedule 2 – Step 2

Part 1 - Restrictions on gatherings

Paragraph 1 – participation in gatherings indoors

No person may participate in a gathering in the Step 2 area which consists of 2 or more people and takes place indoors, unless an exception in paragraph 4 or 5 applies.

​Paragraph 2 – participation in gatherings outdoors

No person may participate in a gathering in the Step 2 area which consists of more than 6 people and takes place outdoors, unless an exception in paragraph 4 or 6 applies.

​Paragraph 3 - organisation or facilitation of gatherings

No person may hold, or be involved in the holding of, a relevant gathering in a Step 2 area, as defined in this paragraph.

​Paragraph 4 – general exceptions

Paragraph 4 is a list of exceptions to the restrictions on gatherings referred to in Paragraphs 1, 2 and 3(5)(c). References to the gathering organiser or manager taking the required precautions refer to the precautions stated in R.6.

​Paragraph 5 – exceptions to indoor gatherings

Paragraph 5 is a list of exceptions relating only to the restrictions on indoor gatherings.

​Paragraph 6 – exceptions to outdoor gatherings

Paragraph 6 is a list of exceptions relating only to the restrictions on outdoor gatherings.

​Paragraph 7 – qualifying groups

Qualifying groups relates to exception 16 of the general exceptions (communal worship) and exception 2 of the outdoor gatherings exceptions (permitted organised gatherings), as originally drafted.

​Part 2 – Closure of, and restrictions on, businesses

Paragraph 8 – requirement to close premises and businesses

This Paragraph requires a person responsible for carrying on a restricted business or providing a restricted service - see Paragraphs 13(2) and 13(5) - in a Step 2 area to cease to carry on that business or provide that service, unless an exception at paragraph 10 applies.

Where a restricted business or restricted service forms part of a larger business which is not in itself restricted, the person responsible for carrying on the larger business complies with the requirements in this Regulation by closing the restricted business or ceasing to carry on the restricted service (Paragraph 8(2)).

​Paragraph 9 – restrictions on service of food and drink for consumption on the premises

Paragraph 9 applies to the business and services listed in Paragraph 13(4).

R.9(1): Subject to the exceptions in paragraphs 10 and 11 (see below), a person responsible for carrying on a restricted businesses or providing a restricted service in the Step 2 area must:

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

R.9(4): A person responsible for carrying on a restricted businesses or providing a restricted service in the Step 2 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 outdoors on the premises, and
• the person takes all reasonable steps to ensure that the customer remains seated outdoors whilst consuming the food or drink on the premises.

R.9(5): A person responsible for carrying on a restricted business, or providing a restricted service, in the Step 2 area and 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 outdoors whilst consuming the food or drink on the premises.

There are further provisions relating to restricted businesses and services at motorway service areas, airports, maritime ports and the international rail terminal.

​Paragraph 10 – Exceptions to paragraphs 8 and 9

This paragraph sets out a number of exceptions to the requirement to close, and restrictions on, businesses and services in paragraphs 8 and 9.

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

​Paragraph 11 – Exceptions to Paragraph 9

Paragraph 9(1) does not prevent a person responsible for carrying on a restricted business, or providing a restricted service, of a kind specified in paragraph 13(4) from doing certain specified activities, which are subject to the stated conditions.

Paragraph 12 – Closure of holiday accommodation

Subject to the exceptions in Paragraphs 12(2) to (5), Paragraph 12(1) requires the closure of the identified holiday accommodation businesses in the Step 2 area.

​Paragraph 13 – Restricted businesses and services for the purpose of Part 2 of Schedule 2

This paragraph identifies the restricted businesses and restricted services for the purposes of Part 2 of Schedule 2.

It is anticipated that the list of restricted businesses and services may be amended as the lockdown is eased. Prosecutors are therefore reminded to use the timeline on the legislation.gov website to ensure they refer to the version of the regulations in force at the time of an alleged breach.

​Schedule 3 – Step 3

Part 1 - Restrictions on gatherings

Paragraph 1 - participation in gatherings

No person may participate in a gathering in the Step 3 area which:

• Consists of more than 6 people and takes place indoors, unless an exception in paragraph 3 or 4 applies; or
• Consists of more than 30 people and takes place outdoors, unless an exception in paragraph 3 applies.

​Paragraph 2 - organisation or facilitation of gatherings

No person may hold, or be involved in the holding of, a relevant gathering in a Step 3 area, as defined in this paragraph.

Amendments to Paragraph 2 from 17 May 2021

The Health Protection (Coronavirus, Restrictions) (Steps and Other Provisions) (England) (Amendment) Regulations 2021 amended the definition of a relevant gathering under paragraph 2 from 17 May 2021, when England was placed into Step 3, schedule 3 restrictions.

​Paragraph 3 – general exceptions

Paragraph 3 is a list of exceptions to the restrictions on gatherings referred to in Paragraphs 1 and 2(5)(c). References to the gathering organiser or manager taking the required precautions refer to the precautions stated in R.6.

​Paragraph 4 –exceptions to indoor gatherings

Paragraph 4 is a list of exceptions relating only to the restrictions on indoor gatherings.

​Paragraph 5 – qualifying groups

Qualifying groups relates to exception 1 of the general exceptions (permitted organised gatherings), as originally drafted.

​Part 2 – Closure of, and restrictions on, businesses

Paragraph 6 – requirement to close premises and businesses

This Paragraph requires a person responsible for carrying on a restricted business or providing a restricted service - see Paragraph 9(1) - in a Step 3 area to cease to carry on that business or provide that service, unless an exception at paragraph 8 applies.

Where a restricted business or restricted service forms part of a larger business which is not in itself restricted, the person responsible for carrying on the larger business complies with the requirements in this Regulation by closing the restricted business or ceasing to carry on the restricted service (Paragraph 6(2)).

​Paragraph 7 – restrictions on service of food and drink for consumption on the premises

Paragraph 7 applies to the business and services listed in Paragraph 9(3).

R.7(1): A person responsible for carrying on a restricted businesses or providing a restricted service in the Step 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.

R.7(2): A person responsible for carrying on a restricted business, or providing a restricted service, in the Step 3 area and 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.

There are further provisions relating to restricted businesses and services at motorway service areas, airports, maritime ports and the international rail terminal.

​R.7(5)-(6): There are a number of listed exceptions – prosecutors should refer to the list as it applies at the time of an alleged breach.

R.7(9): The restrictions in Paragraphs (1) and (2) do not apply in relation to any premises for which they are disapplied in a direction made by the Secretary of State under R.​9.

​Paragraph 8 – Exceptions to paragraph 6(1)

This paragraph sets out a number of exceptions to the requirement in paragraph 6(1) to close a restricted business or service.

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

​Paragraph 9 – Restricted businesses and services for the purpose of Paragraphs 6 and 7

This paragraph identifies the restricted businesses and restricted services for the purposes of Paragraphs 6 and 7.

It is anticipated that the list of restricted businesses and services may be amended as the lockdown is eased. Prosecutors are therefore reminded to use the timeline on the legislation.gov website to ensure they refer to the version of the regulations in force at the time of an alleged breach.

​Schedule 4 – Step 1 area, Step 2 area and Step 3 area

Schedule 4 lists the locations which are in each Step area.

Initially, from 29 March 2021, all of  England was placed in the Step 1 area, so the restrictions set out in Schedule 1 applied. The expectation is that, as the lockdown eases, locations will be moved into the Step 2 and Step 3 areas.

Prosecutors are reminded to use the timeline on the legislation.gov website to determine which Step area a particular location was in at the time of an alleged breach. This will ensure that reference is made to the corresponding regulations for that location on the relevant date.

On 12 April 2021 the Health Protection (Coronavirus, Restrictions) (Steps and Local Authority Enforcement Powers) (England) (Amendment) Regulations 2021 moved all of England from the Step 1 area to the Step 2 area, so that the restrictions set out in Schedule 2 apply from this date.

On 17 May 2021 the Health Protection (Coronavirus, Restrictions) (Steps and Other Provisions) (England) (Amendment) Regulations 2021 moved all of England from the Step 2 area to the Step 3 area, so that the restrictions set out in Schedule 3 apply from this date.

​​Schedule 5 – Reasonable excuses to travel outside the UK

This schedule contains a non-exhaustive list of reasonable excuses to travel outside the UK, regarding the restriction imposed under R.8.

Amendments to Schedule 5 from 17 May 2021

The Health Protection (Coronavirus, Restrictions) (Steps and Other Provisions) (England) (Amendment) Regulations 2021 omitted Schedule 5, as the restrictions on leaving the UK were lifted on 17 May 2021.

​Schedule 6 – Persons exempt from restrictions on leaving the UK & the requirement to have a travel declaration form

Schedule 6 contains a list of persons who are exempt from the restrictions on leaving the UK and the requirement to have a travel declaration form.

Amendments to Schedule 6 from 17 May 2021

The Health Protection (Coronavirus, Restrictions) (Steps and Other Provisions) (England) (Amendment) Regulations 2021 omitted Schedule 6, as the restrictions on leaving the UK were lifted on 17 May 2021.

​Schedule 7 – Consequential amendments

Schedule 7 makes consequential amendments to other Cornavirus Regulations.

​Schedule 8- Other amendments to subordinate legislation relating to coronavirus

Schedule 8 makes other amendments to coronavirus subordinate legislation.

​Charging Practice

These offences are summary only and, in line with the Directors Guidance on Charging, can be charged by the Police. Prosecutors are reminded that the issuing of criminal proceedings is likely to have been a matter of last resort.

​Time Limit

Offences under the Coronavirus Regulations are not governed by the 6 month time limit (from the offence date) set out in section 127(1) of the Magistrates’ Courts. The Regulations are made under the Public Health (Control of Disease) Act 1984 and section 64A of this Act states that the time limit for proceedings is:

• before the end of the period of 6 months beginning with the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to the prosecutor’s knowledge; and
• within 3 years of the date of the commission of the offence.

Since offences under the Coronavirus Regulations are usually charged by the police, in most cases the police officer will be "the prosecutor" for the purposes of this statutory time limit provision. It should be noted that:

• Where an offence is charged 6 months or more after the date of the breach, the police officer who makes the charging decision should produce a certificate to state the date on which evidence which they think is sufficient to justify the proceedings came to their knowledge.
• The relevant date will depend on the review process operated by the particular police force. For instance, in cases where a FPN is issued, the relevant date could be any of the following: the date of breach; the date when the FPN was issued; the date after the expiry of the 28 day period for payment of a FPN; or later, when an evidential review for charging purposes is completed.
• In cases where the CPS charges an offence under the Coronavirus Regulations, such as where it is linked to other offences referred to the CPS for a charging decision (and it is considered appropriate to charge the Coronavirus offence), if the case is charged 6 months or more after the date of the breach, the CPS prosecutor should produce the certificate.

The court in the case of DPP v Woodward [2017] EWHC 1008 (Admin); 181 J.P. 405 reviewed the main authorities on this point and summarised the key propositions. It stated that the relevant date is the date upon which the prosecutor considers that, upon the available evidence it is in the public interest to prosecute the particular individual, and not merely whether there is a prima facie case. However, the decision could not be avoided or delayed by sitting on information.

​Public interest

When deciding whether a prosecution is in the public interest, prosecutors should consider Paragraphs 4.9 - 4.14 of the Code for Crown Prosecutors so as to identify and determine the relevant public interest factors tending for and against prosecution.

Given that the offences in the Regulations are related to measures imposed to prevent the spread of infection throughout the UK, and potentially high incidences of serious illness and death, they should be considered serious. A prosecution will therefore likely be required in the public interest in the majority of cases.

​Totality of offending

When breaches of the Regulations are committed at the same time as other offences prosecutors should consider the totality of the offending. In circumstances where the breach of the Regulations is not likely to attract a separate penalty then no additional offence should be charged. The fact that the circumstances of the offence also involved behaviour which was in breach of the Regulations should be referred to in the case summary so that it is treated as part of the overall circumstances of the offending for sentencing purposes. Prosecutors are reminded that offences under the Regulations cannot be sent to the Crown Court.

​Car – Indoor place

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

• ​Regulation 2(5)(h) defines “indoors”: a place is indoors if it would be considered to be enclosed, or substantially enclosed, for the purposes of section 2 of the Health Act 2006, under the Smoke-free (Premises and Enforcement) Regulations 2006.
• Under R.2 of the 2006 Regulations, “enclosed” is defined by reference to “enclosed premises”.
• The Coronavirus Regulations are made under the Public Health (Control of Disease) Act 1984 (PHA); and the definition of “premises” in s74 PHA includes “any vehicle”.
• Note also that a vehicle is defined as “premises” in other legislative contexts: see PACE section 23 for example.

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

One of the general exceptions to gatherings (which includes indoor gatherings) is where the gathering is “reasonably necessary … for work purposes”: see Schedule 1 paragraph 4(6)(a), relating to Step 1 restrictions (as at 29 March 2021).

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

• ​Could the person have got to work any other way, avoiding any gatherin​g? For example, could they have walked or used public transport or a taxi on their own?
• Could the person afford the cost of a daily taxi to and from work?
• Is the available public transport more of a Covid risk than travelling in a car with others (for example, a packed London tube or bus, particularly if the person can only travel during rush hour)?

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

ECHR proportionality – statutory defences

Where an offence provision provides a defence of “reasonable excuse” (or that a defendant was acting reasonably or with lawful excuse), ECHR Convention rights may be engaged, depending on the nature of the offence. In Leigh & 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.​