The Cost of Going Out

THE COST OF GOING OUT

Consideration of the penalties for breaching ‘lockdown’ in England

INTRODUCTION

As of one minute past midnight on Thursday 5 November, people in England are now prohibited from leaving their homes without a reasonable excuse[1].

This restriction, together with various other measures banning gatherings of two or more people[2], as well as mandating the closure of certain businesses[3], is included in the captivatingly-titled ‘The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020’ which reflects the current, consolidated ‘lockdown law’ for England.

The context of these Regulations requires no explanation here, given the well-known background to their introduction in the midst of a public health crisis. They are only valid for 28 days and it is right to observe that the scope for having a reasonable excuse is potentially broad. It includes at least thirteen detailed exceptions specified within the legislation[4]– allowing people to visit supermarkets, take exercise and co-parent across separate households, amongst other things.

But what exactly is the position of those who fail to comply with these new legal obligations and do not have a reasonable excuse? What can be expected if they are caught?

PENALTIES – Warnings and directions

The Enforcement provisions are contained in Regulation 19, which grants police officers, PCSOs and other individuals in designated positions, powers to issue a range of directions and instructions to those thought to be in breach, where it is deemed necessary and proportionate to do so. These powers permit those authorised individuals to give directions for people to return home[5], to disperse if in a gathering[6] and even for people to take action to ensure the compliance of any children in their custody[7].

Beyond mere verbal warnings or directions, authorised individuals are also permitted to use reasonable force to remove people from unlawful gatherings[8]. They can also issue businesses with prohibition notices[9].

Inevitably, these powers will be used in appropriate circumstances to resolve minor matter conveniently and will not lead to any further immediate penalty action. That said, where unsuccessful or inappropriate, the Regulations also contain more robust enforcement measures of the provisions, including criminal prosecution.

PENALTIES – Prosecution and fixed penalties

Regulation 18(1) creates four criminal offences;

  1. contravening a restriction or requirement imposed under regulation 589101516 or 18,
  2. contravening a requirement imposed, or a direction given, under regulation 19
  3. failing to comply with a reasonable instruction or a prohibition notice given by a relevant person under regulation 19, or
  4. obstructing any person carrying out a function under these Regulations (including any person who is a relevant person for the purposes of regulation 19).

In essence, these offences cover the initial failures to comply with the restrictions (i.e. leaving home without a reasonable excuse, participating/organising an unlawful gathering or failing to close a business where required), as well as failures to comply with the subsequent warnings and directions that are mentioned above and obstruction of those enforcing them.

Offenders can be fined and convicted in a magistrates’ court, although the offences are not imprisonable[10]. That said, the Regulations do extend the police’s ordinary powers of arrest, which would usually only be available in very limited circumstances for a summary offence of this kind, so that the police can arrest suspected offenders if they consider it is necessary to maintain public order or public health[11].

Finally, as an alternative to criminal prosecution, those in breach of the Regulations aged over 18 can be issued with fixed penalty notices (FPNs). These allow people to avoid criminal conviction of an offence, and the consequences that flow from it, in exchange for paying a sum of money. The sums prescribed by Regulation 21 are specified in the below table.  

The amounts increase depending upon the number of previous Notices received, which takes into account FPNs of the same type received under the previous Coronavirus-related Regulations.

[1] Regulation 21(12) defines a business restriction offence as an offence under regulation 20(1)(a) of contravening a restriction or requirement imposed by regulation 15, 16 or 18 or an offence under regulation 20(1)(c) of failing to comply with a prohibition notice given under regulation 19(2).

OffenceNumber of issueSum payable
Any offence under the Regulations – except organisation of a relevant gathering or a business restriction offence.First (if paid within 14 days)£100
First (after 14 days)£200
Second£400
Third£800
Fourth£1,600
Fifth£3,200
Sixth and subsequent£6,400
Organising/facilitating a relevant gathering.First and subsequent£10,000
Business restriction offence. [12]First£1,000
Second£2,000
Third£4,000
Fourth and subsequent£10,000

An afterthought… FPN or prosecution?

The hefty cost of some FPNs created by the Regulations, particularly for those concerning the organisation of large gatherings, must prompt the question of whether they really are preferable to prosecution.

Even after paying additional Prosecution costs and the victim surcharge, it seems inconceivable that the financial implication of a conviction in the magistrates’ court would reach anything like the enormous amount prescribed by the Regulations for organising a large gathering.

This seems especially so, when one considers the statutory requirement that a court takes the financial circumstances of the offender into account when determining the level of fine[13], as well as the Sentencing Council’s guidance on the “approach to the assessment of fines[14]” and the credit due for pleading guilty early.

Most of the reported incidents of organising large gatherings have involved students holding house parties. The effect of these young people, who are often largely reliant upon student loans or parental generosity, being saddled with a £10,000 bill must be catastrophic. It certainly seems that, if dealt with through the magistrates’ court, this cost could be very greatly reduced.

It is right to observe that a court would almost certainly aggravate any fine imposed to reflect Parliament’s clear desire to punish such behaviour firmly and I am not aware of any reported cases where this issue has been tested. Therefore this approach is a novel one.

Furthermore, FPNs have the benefit of allowing the recipient to avoid criminal liability for the offence and the consequences that follow, which some may well consider is worth the additional cost.

Nevertheless, it is inevitable that some people will be blinded by the apparent convenience of resolving a matter by paying a FPN, when they would be well-advised to consider the other possibilities. In the face of a crippling fixed penalty fine, it could well make all the difference.

LUC CHIGNELL

1 HIGH PAVEMENT CHAMBERS

5 NOVEMBER 2020


[1] Regulation 5, The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020

[2] Regulations 8 & 9

[3] Regulations 15, 16 & 18

[4] Regulation 6

[5] Regulation 19(3)

[6] Regulation 19(5)

[7] Regulation 19(7)

[8] Regulation 19(6)

[9] Regulation 19(2)

[10] Regulation 20(2)

[11] Regulation 20(5)

[12] Regulation 21(12) defines a business restriction offence as an offence under regulation 20(1)(a) of contravening a restriction or requirement imposed by regulation 15, 16 or 18 or an offence under regulation 20(1)(c) of failing to comply with a prohibition notice given under regulation 19(2).

[13] Criminal Justice Act 2003, s. 164(2)

[14] https://www.sentencingcouncil.org.uk/explanatory-material/magistrates-court/item/fines-and-financial-orders/approach-to-the-assessment-of-fines-2/1-approach-to-the-assessment-of-fines-introduction/#