Legal Article: Lockdown and release - the key to policing powers

26 May 2020

Written by: Helen Hanley, PNLD Legal Adviser
Not reviewed after the date of publication

The Government is facing one of its biggest challenges to date; to stop the exponential growth in the number of deaths caused by Coronavirus (over 35,000 to date) and curtail its rate of infection.  On the 25th March, the Government introduced the Coronavirus Act 2020 to enable it to respond to this emergency and to manage the effect of the COVID-19 pandemic, and on the 26th March 2020, the Government commenced a ‘lockdown’. 

New Regulations were introduced to create restrictions on movement and gatherings, and provide the police with powers, the likes of which, have never been seen before.  By doing this, to some extent, the Government is achieving its objective; the rate of spread (at the time of writing) is now estimated as less than 1.  As a result, the Government now believe that it is important to commence an easing of the lockdown and seek to balance the need to keep the rate of spread down against the need to get the economy moving.

PNLD Legal Adviser, Helen Hanley, provides an overview of the current legislation, the police’s approach to enforcement, the Government’s 3-step plan and what is to come. 

Current Legislation

The Coronavirus Act 2020 creates powers and restrictions in the following areas:

Schedule 20 provides powers to suspend port operations where necessary, and creates related offences

Schedule 21 relates to people being in public where there are reasonable grounds to suspect they are potentially infectious. Although the police have powers to give directions to people under this Schedule, these powers are more likely to be used in situations where a public health officer is present and has issued a direction, as they are better placed to assess whether a person is infectious.

Schedule 22 prohibits and restricts specified events and gatherings, following a direction by the Secretary of State. However, please note that the powers under the Health Protection Regulations are likely to be more relevant to police officers dealing with gatherings on a day to day basis.

Schedules 25 and 26 relate to the unauthorised recording and transmission of court and tribunal proceedings that are being carried out via live link.

The Health Protection (Coronavirus Restrictions) (England) Regulations 2020 and the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 provide powers that are more relevant to the day to day work of police officers and relate to:

the closure of businesses and restrictions on trading;

restrictions on people’s movement away from the place where they live; and

restrictions on gatherings in a public place.

The Regulations detail how a ‘relevant officer’ (a constable, police community support officer, or a person designated) may enforce a requirement / restriction.

The Regulations create a number of offences (see PNLD for details).  Each offence created under the Regulations carries a power of arrest and section 24 of PACE 1984 has been modified for the purpose of these Regulations to include two new reasons for the necessity of an arrest:

to maintain public health; and

to maintain public order.

Should an officer deem arrest to be necessary, it must comply with section 24 of PACE and be in accordance with PACE, Code of Practice G.  However, it is anticipated that arrest for an offence under these Regulations will be a rarity, as officers are encouraged to first engage with the public to resolve a situation, and in addition, fixed penalties are available as an alternative to arrest. 

Use of powers

The key purpose of these Regulations is to prevent the spread of Coronavirus and the powers that they give are to be used with this purpose in mind.  Therefore, whenever an officer comes across a person whom they consider to be breaching a restriction, they are advised to follow the 4 E’s:

Engage – Talk with the person, understand who they are, what they are doing, and for what reasons. Identify whether the person is breaching any requirement of the Regulations or the Act. 

Explain – Describe the current situation in relation to Coronavirus, how it is killing people daily and spreads rapidly, and note their reaction.

Encourage – Persuade the person to do what they should be doing or not to do what they are doing (as the case may be), and give them support and advice on how to continue on their way.

Enforce - If the person blatantly and determinedly continues to persist with the act that is in breach of the Regulations, look to the options of enforcement as provided above.

Officers should be aware of the differences in powers between England and Wales, and the differing changes that have been made to the two sets of Regulations. A person must respect the rules of the country where they reside. 

Easing of the lockdown

The Government have put forward a strategy for the country to recover from COVID-19.  For the full details of this, see ‘Our plan to rebuild: The UK Government’s COVID-19 recovery strategy’.

Its approach is one of phased recovery and they have described a ‘roadmap’ to this.  Over the coming months, it will introduce a range of adjustments which will happen in ‘steps’ (3 have been set out so far), with strict conditions to safely move from each step to the next.  The Government have stated that each step may involve adding new adjustments to the existing restrictions or taking some adjustments further and that the precise timetable for these adjustments will depend on the infection risk at each point, and the effectiveness of the Government’s mitigation measures like contact tracing.

Step 1 – from 13th May - In England, a person can exercise more than once a day and can travel to do this, and public open spaces have opened up for the purposes of open-air recreation to promote physical or mental health or emotional wellbeing. Both of these activities can also now be carried out with one person from another household. In Wales however, a person can exercise only in their local area, public open spaces have not yet been included in the legislation and there is not yet any provision for meeting with people from other households. The Government has imposed higher fines in England to reflect the increased risk to others of breaking the rules.

Step 2 – from 1st June - This involves the phased return for primary school children and the opening up of non-essential retail premises.

Step 3 – no earlier than July - Places of worship, leisure facilities and the hospitality industry are to open.

Each easement of the lockdown will have an effect on the police and their powers.  It is likely that the Government will do this by further amending the existing Regulations and eventually, revoking them (if all goes to plan).  For this reason, it is important now, more than ever, that each ‘relevant person’ knows their powers under the legislation, before commencing their duties.

The future

As has been the case in past pandemics, such as the Black Death in the Middle Ages, Cholera in the 19th century and Typhoid in New York in the 20th century, the Government are looking into the introduction of contact tracing, with the aim to reduce the spread of the infection.  Although the methods of contact tracing today are more technologically advanced, the process essentially remains the same.  It is a process of identifying persons who may have come into contact with infected persons, collecting information about these contacts, testing people, treating them, and thus reducing future infections in the population.  The Government are seeking to launch the NHS COVID-19 app, a ‘centralised’ model of contact tracing:

The app broadcasts a random ID of the app and collects IDs of other apps that it interacts with, and keeps some data about that interaction e.g. time and distance.

If the user of the app becomes unwell with symptoms of Coronavirus, they can choose to upload their ID and other interaction data to the central database of the Health Authority.

The central database then uses an NHS clinical algorithm to access the uploaded interaction data and identify the risk posed in relation to each interaction.

Users of the app who have had a high interaction with the unwell user are then sent a push notification.

Privacy campaigners have criticised this app for not protecting the privacy rights of the population.  However, how far such criticisms are warranted, is a matter of debate, and how effective these measures and powers will be in curtailing the Coronavirus, remains still to be seen.

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