The Coronavirus Act 2020: the lockdown offences

With the outbreak of COVID-19 pressing on the pressure points of global healthcare, commerce and economy, the world has been forced to adapt fast to a new way of working and living in order to slow the spread of the virus. As a result, the government introduced the following laws to restrict and control the activities of individuals and companies alike:

• The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (the Regulations); and
• The Coronavirus Act 2020 (the Act).

This legislation, underpinned by criminal sanctions, provides the government with far-reaching powers to implement measures never seen in peace time UK to respond to the current pandemic.

The objectives of the legislation are threefold:

• to give further powers to the government to slow the spread of the virus;
• to reduce the resourcing and administrative burden on public bodies; and
• to limit the impact of potential staffing shortages on the delivery of public services.

Powers under the Coronavirus Act 2020

What if I am considered an ‘infectious person’?

Under section 51 and Schedule 21 to the Act, public health officers (PHOs), constables and immigration officers (together, ‘the relevant persons’) are given certain powers when dealing with an ‘infectious or potentially infectious person’. For the purposes of the Act, a potentially infectious person is a person who may be infected and risks infecting others or has been in an infected area within 14 days preceding that time.

If a relevant person has reasonable grounds to suspect a person is potentially infectious, they can:

• direct that person to a specified space for screening and assessment;
• remove a person to a suitable place for screening and assessment; or
• request a constable to remove them to a specified place for screening and assessment.

The relevant persons must exercise these powers in proportion to the interests of the potentially infectious person, the protection of others generally and the maintenance of public health.

A PHO can direct a potentially infectious person to remain at a specified space for screening and assessment for no longer than 48 hours. A PHO can also direct that the potentially infectious person provide a biological sample.

On the other hand, a potentially infectious person can be directed to a specified space by a constable for a period no longer than 24 hours and by an immigration officer for a period no longer than three hours. These time periods can be extended with the consent of a senior ranking police or immigration officer by 24 hours and nine hours respectively.

If the outcome of the screening and assessment is positive for COVID-19 or inconclusive, a PHO is able to implement further restrictions on the infectious person including restrictions on movement, travel, activities, or contact. Nevertheless, the Act prohibits a PHO directing isolation for over 14 days.

If a potentially infectious or infected person wishes to challenge a direction of a relevant person, they can appeal to the Magistrates Court to have the direction varied or quashed.

Under Schedule 21 paragraph 23 of the Act, it is an offence for any person without reasonable excuse to not comply with the direction of a relevant person, abscond from a specified place during screening and assessment, knowingly provide false or misleading information to a relevant person or obstruct a relevant person from carrying out their duties. A person who commits an offence under this part of the Act could receive a fine.

Can I leave the house or attend events or gatherings?

Under section 52 and Schedule 22 to the Act, the Secretary of State (the SoS) may issue a direction prohibiting, or imposing requirements in relation to, the holding of an event or gathering for the purpose of:

• preventing, protecting against, delaying or otherwise controlling the incidence or transmission of coronavirus; or
• facilitating the most appropriate deployment of medical or emergency personnel and resources.

The SoS has the power to issue such directions to the owner of any premises on which an event or gathering is to take place; the organiser of an event or gathering; or any other person involved in holding such an event or gathering.

A direction under this part of the Act may, amongst other things:

• prohibit persons from leaving their homes;
• prohibit persons from attending an event or gathering; and
• impose requirements on those organising or attending any event or gathering.

This is supplemented by the Regulations which prohibit:

• any person leaving their home without reasonable excuse, which includes obtaining basic necessities, exercising or seeking medical assistance; and
• gatherings of over two persons unless those persons gathering are from the same household, the gathering is at a funeral or the gathering is essential for workplace purposes. It remains unclear what gatherings or events would be considered ‘essential’ for workplace purposes.

Under Schedule 22 paragraph 9 of the Act, it is an offence for any person without reasonable excuse to not comply with such a direction of the SoS and will be liable to a fine. According to the Regulations the fine ranges from £30 to £960, depending on the amount of times the person has committed an offence. Where an offence is committed by a company, any officer of that company (such as a director) who consented to or neglected the offence will be personally guilty and subject to a fine.

What if my company is within or connected to a food supply chain?

Under section 25 and Schedule 15 to the Act, the SoS may require information from a person who is in or closely connected to a food supply chain.

Failing to provide the requested information or supplying misleading material could lead the SoS to issue a notice of intent to impose a financial penalty on the non-complying party. Those subject to such a proposed financial penalty of the SoS have 14 days beginning the day after the date of the notice to make written representations to the SoS. Once these representations have been considered, the SoS shall issue a final notice determining whether a financial penalty should be imposed. The financial penalty is capped at 1% of the non-complying company’s qualifying turnover for its most recent complete accounting period. If the party subject to the final notice does not pay the financial penalty within 28 days of the final notice, the penalty increases by 50%.

Those subject to a final notice of the SoS may appeal to the first-tier tribunal.

How will the courts operate during lockdown?

The Act has introduced various amendments to the Criminal Justice Act 2003, the Crime Administration Act 1968 and the Crime and Disorder Act 1998, in order to promote the use of audio and video link throughout all stages of the judicial procedure.

Historically, audio and video link have only been used in certain sections of the judicial process in order to protect the defendant’s interests to a fair trial. It therefore comes as no surprise that the amendments introduced by the Act have been met with some concern from those who consider the use of video and audio links to undermine the integrity and fairness of the judicial process for defendants.

Concluding remarks

The Act and Regulations shall be enforced by constables, police community support officers and those designated by the SoS, and as we see the number of coronavirus cases rise in the UK, it may be reasonable to expect these powers being used to repeatedly reinforce the lockdown.