26 March 2020

We are dealing with a public health emergency and require to pull together to assist each other, the government and frontline services to overcome the pandemic.

The passing of the Coronavirus Act is an important step to provide the necessary powers that may be needed in the coming weeks and months. Health Secretary Matt Hancock told MPs that the emergency legislation:

• will allow "extraordinary measures" never seen in peace time in the UK;
• would only be used "when strictly necessary" and would remain in force only for as long as required to respond to the crisis; and
• insisted they would be "relinquished" as soon as the threat to the UK had passed.

The difficulty is knowing when will the pandemic end?  The scientific evidence suggest that it could be someway off and therefore the “extraordinary measures” contained within the legislation could be with us for some time to come.

This update only focuses on the new offences created in Scotland. Those can be found at section 25, 51 (& Schedule 21) & section 52 (& Schedule 22) of the Coronavirus Act 2020 

The Act confirms that declarations may be made by the Scottish Ministers confirming methods to prevent significant transmission of the Coronavirus in Scotland and powers to enforce will apply during the “transmission control period.”

So what are the powers that will apply during the ‘transmission control period?’

SCHEDULE 22 - POWERS TO ISSUE DIRECTIONS RELATING TO EVENTS, GATHERINGS AND PREMISES

Schedule 22, Part 3 covers the provisions relating to Scotland.

Provision 15 confirms that the Scottish Ministers can issue a direction prohibiting, or imposing requirements or restrictions in relation to, the holding of an event or gathering in Scotland. A direction can be relating to a specified gathering or events of a specified description.

The prohibition is imposed on the owner or occupier of the premises for the event or gathering; the organiser of such an event or gathering or any person involved in holding such an event or gathering.

Provision 16 confirms that the Scottish Ministers hold the power to close premises in Scotland and sets out the procedure associated with that.

Provision 19 confirms that enforcement will be by a Constable or other person designated in writing for this purpose by the Scottish Ministers. Constables can enter the premises and if necessary use reasonable force.

The offence committed for breaching the gathering provisions is

21 (1) A person commits an offence if the person fails
without reasonable excuse to comply with a prohibition, requirement or restriction imposed on the person by a direction issued under this Part of this Schedule.
(2) A person guilty of an offence under this paragraph is liable—
(a) on summary conviction, to a fine not exceeding the statutory
maximum, or
(b) on conviction on indictment, to a fine.

The Scottish Ministers may pay compensation in connection with issuing a direction under this provision.

In implementation of the powers from the Coronavirus Act, The Scottish Government has now introduced a direction with the regulations to the Scottish Parliament – The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 

It has confirmed that these powers have been introduced immediately in what is referred to as the Emergency Period and will last for a period of 6 months but will be reviewed at least every 21 days to ensure they are still necessary.

The Regulations set out a number of key provisions and it is part 3 which relates to the – Restriction on movements and gatherings during the emergency period.

Restrictions on movements

Regulation 5(1) provides [except if you have a defence under regulation 8(4)] , no person may leave the place where are living (this is defined as including the premises where they live together with any garden, yard, passage, stair, garage, outhouse or other appurtenance of such premises)

Restrictions on gatherings

Regulation 6 provides no person may participate in a public place of more than two people except:

• where they are members of the same household;
• the gathering is essential for work purposes;
• to attend a funeral or
• where reasonably necessary to facilitate a house move; provide care or assistance to a vulnerable person; provide emergency assistance or to participate in legal proceedings or to fulfil a legal obligation. A vulnerable person is defined at Regulation 10 as any person aged 70 or over; a person under 70 who has a an underlying health condition listed in schedule 2; or any person
• who is pregnant.

Enforcement

Regulation 7 sets out how the requirements will be enforced by a “relevant person”. A relevant person is defined at reg 7 (12) to be a Constable or a person designated as such by a local authority. The enforcement powers include:

• Under Reg 7(1) that a relevant person may take “such action as is necessary to enforce any requirement imposed by the regulations” ;
• Under Reg 7(2) that a relevant person may provide the contravening party with a prohibition notice if a person is contravening the requirement and it is necessary and proportionate to issue a notice to prevent the contravention.
• That a relevant person may direct a person to return to where they are living or remove that person to the place where they are living. If a Constable is exercising top power to remove, they may use reasonable force.
• Those with responsibility for children can be directed by the relevant person to ensure the child is returned to the place where they are living and ensure that the child complies with the request (insofar as reasonably practicable)
• If there is a gathering of 3 or more people the relevant person may direct the gathering to disperse; direct any person to return to the place where they are living or remove any person to the place where they are living

Regulation 8 sets out the offences, the defence and penalties

The offences are contravening a requirement of the regulations; obstructing any person carrying out a function under these regulations or contravening a direction under regulation 7, or fails to comply with a reasonable instruction or a prohibition notice given by a relevant person under regulation 7.

The defence available is under Regulation 8(4) such that a person can show, in the circumstances, that they had a reasonable excuse.

At Regulation 8(5), examples of a reasonable excuse are set out and includes the need—

“(a)to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for a vulnerable person and supplies for the essential upkeep, maintenance and functioning of the household or the household of a vulnerable person, or to obtain money,
(b)to take exercise, either alone or with other members of their household,
(c)to seek medical assistance, including to access any of the services referred to in paragraph 37 or 38 of schedule 1,
(d)to provide care or assistance to a vulnerable person, including to provide emergency assistance,
(e)to donate blood,
(f)to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living,
(g)to attend a funeral of—
(i)a member of the person’s household,
(ii)a close family member, or
(iii)if no-one within sub-paragraphs (i) or (ii) are attending, a friend,
(h)to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings,
(i)to access critical public services, including—
(i)childcare or educational facilities (where these are still available to the child in relation to whom that person is the parent of, or has parental responsibility for or care of, the child),
(ii)social services,
(iii)services provided by the Department of Work and Pensions,
(iv)services provided to victims (such as victims of crime),
(j)in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children, and for the purposes of this paragraph, “parent” includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child,
(k)in the case of a minister of religion or worship leader, to go to their place of worship,
(l)to move house where reasonably necessary,
(m)to avoid injury, illness or to escape a risk of harm.”

Regulation 8(7) sets out the provisions in relation to a body corporate.

Penalties

A person who commits an offence under the regulations is liable, on summary conviction, to a fine not exceeding the statutory maximum.

Fixed penalty notices

Regulation 9 provides that a Constable may issue a fixed penalty notices of £60 [if paid within 28 days, it will only be £30] to a person that the Constable reasonably believes has committed an offence under these regulations and is 16 years and over. Multiple notices can be issued thereafter with the next one at £120 with subsequent notices doubling the amount up to a maximum of £960.

SCHEDULE 21 - POWERS RELATING TO POTENTIALLY INFECTIOUS PERSONS

Again it confirms that if at any time the Scottish Ministers are of the view that the incidence or transmission of Coronavirus constitutes a serious and imminent threat to public health Scotland, and the following powers will be an effective means of delaying or preventing significant further transmission, then the Scottish Ministers may make a declaration to that effect.  Such a declaration creates the transmission control period and the following provisions can then be brought into force. 

Part 3 of Schedule 21 at provision 25 is where the offences relating in Scotland can be found. The offences are contained at provision 45:

45 (1) A person commits an offence if the person
(a) fails without reasonable excuse to comply with any direction,
reasonable instruction, requirement or restriction given to or
imposed on the person under this Part of this Schedule,
(b) fails without reasonable excuse to comply with a duty under
paragraph 40(1) or (2) (duties of individuals who have responsibility
for a child),
(c) absconds or attempts to abscond while being removed to or kept at a place under this Part of this Schedule,
(d) knowingly provides false or misleading information in response to a requirement to provide information under this Part of this Scheduled or otherwise in connection with the exercise of any power under this Part of this Schedule, or
(e) obstructs a person who is exercising or attempting to exercise a
power conferred by this Part of this Schedule.
(2) A person guilty of an offence under this paragraph is liable on summary conviction to imprisonment for a term not exceeding 12 months or to a fine not exceeding level 5 on the standard scale (or to both).

With such potentially severe penalties for non compliance, what are the ‘requirements of the schedule’ being imposed upon us?

Suspected of being infected?

If a public health officer has reasonable grounds to suspect that a person in Scotland is potentially infectious:

• they can direct or remove someone to a place for screening and assessment (or request assistance of a constable to do so)
• In exercising the powers they must do so only if necessary and proportionate in balancing the interests of the person; protection of other people and for the maintenance of public health; and
• they must inform the person of the reason for directing/removing and that failure to comply without a reasonable excuse is an offence

Assessing for being infected?

At the screening and assessment place, a public health officer may:

• require the person to remain at the place for a period not exceeding 48 hours;
• require the person to be screened and assessed including requiring to provide a biological sample to a health care professional;
• require the person to provide and documents which will assist in the assessment;
• direct that the person is removed to another place

If a Constable has reasonable grounds to believe a person is infectious, they may (with the permission of a superintendent) keep a person for 24 hours at a suitable place to allow the health care professional to complete assessment. This can be extended by a further 24 hours if it has not been reasonably practicable to have a public health officer assess or test.

In exercising these powers they may do so only if necessary and proportionate balancing the interests of the person; protection of other people and for the maintenance of public health.

Post assessment requirements for infected

After assessment, if a public health officer has confirmation that the person is infected or contaminated with Coronavirus; or screening was inconclusive; or that they still have reasonable grounds to suspect potentially infectious, they may impose the following “requirements” or “restrictions”

• Requirements - provide information; contact details; go for further screening; remain in a place (for up to 14 days); remain in isolation in that place
• Restrictions - on movement or travel; activities (work or business) ; or contact with others (all for up to 14 days)

If after imposing such restrictions/requirements - re-assess after 48 hours and consider if they are still necessary and proportionate and can revoke or substitute a different period.

A person can appeal any requirement/restriction to a Sheriff or Summary Sheriff

The Scottish Ministers may compensate someone upon whom a requirement/restriction being made.

Children

Person with responsibility for a child must, so far as reasonably practicable, secure that the child complies with any direction, instruction, requirement or restriction given to or imposed on the child. As noted above, failure to ensure a child’s compliance could leave a parent or guardian liable for an offence.

SECTION 25 - POWER TO REQUIRE INFORMATION RELATING TO FOOD SUPPLY CHAINS

This section requires that a person involved in or closely connected with a food supply chain requires to provide information as requested to the appropriate authority. The authorities include the Scottish Ministers. The information sought has to information relating to an activity connected with the food supply chain provided that the information is necessary for the purpose of establishing if the chain is being or is going to be or at risk of being disrupted and the nature of the disruption. The request must be in writing.

If a request has been made and the authority is satisfied, on the balance of probabilities, that a person has, without reasonable excuse, failed to provide or provided false or misleading information, they may impose a fine with reference to Schedule 15. The maximum amount of a financial penalty given to a person who is carrying on a business consisting of the provision of goods and services is 1% of the qualifying turnover of the person. Schedule 15 provides for payment timing, late payment penalties and appeals.

To minimise the risk to health and to support those within healthcare fight this pandemic and its wider societal consequences, we must obey the directions issued by the Government. The powers to ensure compliance are indeed “extraordinary” and seek to have caveats to seek to ensure that they are properly exercised.

In so far as the powers, the First Minister has been reported as confirming that the new powers were "last resort" measures, but that "ultimately this is about saving lives". However, as we have seen the situation is evolving quickly and the powers are there to escalate matters with the sanction of significant fines or imprisonment if necessary.  This blog will be updated following the issuing of any further directions. 

It is important that you seek specialist advice if unsure about the provisions, or if you become the subject of enforcement under the Act.

We are here to help and advise you during these unprecedented times.

Alasdair Gillies, Partner and Criminal Solicitor Advocate

T: 0141 225 5314 / E: adg@bto.co.uk

Vikki Watt, Partner and Solicitor Advocate

T: 0141 225 5317 / E: vwa@bto.co.uk