CHAPTER ONE – OVERVIEW OF THE CORONAVIRUS ACT AND REGULATIONS
This Chapter provides an overview of the Coronavirus Act 2020 and the corresponding English and Welsh Regulations, from a criminal law perspective. It sets out the key differences between them. It also considers what might constitute a ‘reasonable excuse’ under both the Act and the Regulations.
25 March 2020 marked just under two months since the first confirmed case of Covid-19 in the United Kingdom, two days since lockdown had officially taken hold of the country, and the day of commencement of the Coronavirus Act 2020 (“the Act”). It had flown through the Committees and the Houses to receive Royal Assent in only six days. Indeed, on the day that ‘lockdown’ was announced to the nation, the Act was only four days old, but had merely the House of Lords to face before it achieved Royal Assent. This passage was meteoric, compared to the usual trundling steps a Bill takes to achieve Act status.
Its sister Regulations in England – the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the English Regulations”) – came into force one day later, on 26 March 2020. Wales saw the publication of similar Regulations – the Health Protection (Coronavirus, Restrictions)(Wales) Regulations 2020 (“the Welsh Regulations”) on the same day.
Whilst a rapidly implemented and robust legislative framework was arguably necessary for the situation in which the nation found itself, it did mean that lawyers and non-lawyers alike were grappling with a new set of laws, almost literally overnight. Of most importance to anyone working in the criminal justice system was the fact that those laws included a bundle of new criminal offences. A comprehensive grasp of those offences is something that all of us must acquire. Below, therefore, I set out the elements of the Act and the Regulations in England and Wales that are essential for anyone working with, or studying, the criminal law.
KEY DIFFERENCES BETWEEN THE ACT AND THE
Both the Act and the Regulations contain criminal offences within them. Both are targeted at the current coronavirus pandemic. What, then, is the difference between the offences contained in them – and to what extent might there be overlap?
In the broadest terms, the Act creates offences committed by infectious or potentially infectious people who fail to comply with requirements designed to contain and treat the virus. The Regulations, by contrast, create offences committed by any person who fails to comply with the general standards set in place to ensure public safety (colloquially known as ‘lockdown’).
The Act sets out a framework to enable a) the effective containment and treatment of Covid-19; and b) the effective continuation of services and businesses. The criminal offences committed by individuals under the Act are those committed when a person, who is reasonably suspected to be infectious by certain officials, fails to comply with the powers exercised by those officials under that Act (for example, to direct the person to be assessed and screened). It follows that the offences under the Act can only be committed by a person who is reasonably suspected to be infectious. If there is no reasonable suspicion that a person is infectious, then the powers available to certain officials under the Act do not apply, and the person cannot be guilty of an offence for failing to comply with those powers. In other words, a constable cannot direct a person to attend an assessment centre, with no suspicion at all that the person is infectious – nor will that person commit an offence if they refuse to attend.
By contrast, the Regulations set out provisions to maintain general public safety, by (generally speaking) imposing restrictions on the movement of the public. These are rules to which all must abide, notwithstanding that there may be no reason to consider that the particular person is infectious. In that case, it is no defence to an offence under those Regulations to contend that the person was very clearly not infectious.
It is important to ensure that the defendant in a case brought under either the Act or the Regulations is charged under the correct instrument. A clear starting point is to determine whether the person was reasonably suspected of being infectious at the time. Where the person was not, then any prosecution brought under the Act cannot be supported.
The concept of ‘reasonable excuse’ repeats itself throughout both the Act and the two sets of Regulations. What exactly constitutes a ‘reasonable excuse’?
First, the burden of proof will fall upon the Prosecution to disprove reasonable excuse. In R v John  1 WLR 624, the Court – considering the offence of failing to provide a specimen without reasonable excuse – recognised that the burden of proof fell on the Prosecution: whilst it is for the defence to raise the excuse, it is for the Prosecution to negative it.
There is no exhaustive list of ‘reasonable excuses’ in the Act or the Regulations. However, some of the Regulations provide non-exhaustive examples that could be instructive when dealing with other Regulations or the Act. Regulation 6, for example, provides that a reasonable excuse for staying elsewhere than at your own home (or a linked home) might be: a) staying elsewhere to attend a funeral if you fall into one of the given categories of people; b) as an elite athlete, staying elsewhere for the purposes of training or competition; or c) staying elsewhere to provide care or assistance to a vulnerable person.
When considering what a ‘reasonable excuse’ may be in the context of other provisions, then, it may assist to draw upon those non-exhaustive lists to help give an idea of what might be considered ‘reasonable’.
Secondly, we can turn to other uses of ‘reasonable excuse’ in the criminal law. The concept itself is not a new one. Those found in possession of an offensive weapon may absolve themselves if the Prosecution has not proven that their excuse for having it was not reasonable. Those defendants failing to provide a sample may only be convicted if they had no reasonable excuse for the failure.
In Garry v CPS (2019) EWHC 636 (Admin), it was said that whether the defence of reasonable excuse is made out depends on the facts of the case; the fact-finding tribunal enjoys a wide discretion.
Where the defendant has an honest but mistaken belief as to certain facts, which – if true – would amount to lawful authority to commit the act that he did, then that is capable of amounting to a reasonable excuse (R v Terence Jones (1995) 1 Cr App R 262).
What we can take from all of this, then, is that whether the defendant has a reasonable excuse for breaching the relevant provision will be a matter of judgment for the fact-finding tribunal, who enjoys wide discretion in the matter. In advancing an excuse as reasonable, it may assist to refer to other examples given within the Regulations – even where they do not directly apply to the Regulation the defendant is said to have breached. They provide some insight into the sort of exceptions that Parliament had in mind when it wrote in the ‘reasonable excuse’ provisions, though they cannot of themselves be decisive of whether the defendant had a reasonable excuse for breaching other provisions within the Act or the Regulations.