Tue, 31 Mar 2020
“Honey, I’m home!”
‘Reasonable excuse’ in a pandemic
Law can save lives.
This can be true of religious laws (relating to food and personal hygiene), Roman law (water and waste), Victorian law (Public Health Act 1848 and the spread of cholera and typus) and now the The Health Protection (Coronavirus, Restrictions)(England) Regulations 2020 (‘the Restrictions Regulations)
Being required to stay at home is very far from the greatest hardship which is being endured by many in the course of this tragic pandemic. It is however a public health measure which has been expressed as part of the criminal law. It is important to know what it means. I also have a look at the flexibility in the restriction, with the apparent ability for Minsters to set the parameters of ‘reasonable excuse’, just by posting guidance on a website.
This note does not give an opinion on the meaning of the Restriction Regulations, nor does it provide advice. Rather, it considers what the competing arguments might be in the particular context of the pandemic.
STAY AT HOME
Regulation 6(1) of the Restrictions Regulations requires that, during the emergency period, no person may leave the place where they are living without reasonable excuse. So, what is a ‘reasonable excuse’? The regulations frame the meaning of that term. They do so by providing an open list of reasonable excuses. It is not a closed list because it provides for what a reasonable excuse ‘includes’ – and then provides a list of 13 such excuses. But even this is not a ‘give-away’ list of ways to get out of the house. On the contrary, the terms of some of the excuses are themselves limiting of what is reasonable within the meaning of the Restrictions Regulations.
So, failure to comply with Regulation 6 is an offence for both individuals and for a body corporate if committed with the consent, connivance or any neglect of an officer of the body corporate (Regulation 9). It is a summary only offence, punishable by a fine.
If an authorised person reasonably believes that a person has committed an offence under the Restrictions Regulations, he may impose a fixed penalty notice.
The key to this component of the Restrictions Regulations is the meaning of ‘reasonable excuse’. The 13 reasonable excuses in the list at Regulation 6(2) is:
(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 vulnerable persons and supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or to obtain money, including from any business listed in Part 3 of Schedule 2;
(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 2;
(d) to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006(1), to a vulnerable person, or 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 a child in relation to whom that person is the parent, or has parental responsibility for, or care of the child);
(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 or illness or to escape a risk of harm.
Some decided cases
In R v Terence Jones  1 Cr App R 262, the Court of Appeal (Criminal Division) had to consider whether the appellant’s mistaken belief that he held a valid firearms certificate could amount to a reasonable excuse. The Court addressed the issue though it had become academic. The Court made these general observations:
“Whether matters believed by a defendant are capable, if true, of amounting to a defence of reasonable excuse, is for the judge to determine. Whether he did have that belief and, if so, whether it amounts in the circumstances of the case to a reasonable excuse are for the jury to decide, the burden of proof being on the defendant on a balance of probabilities.”
“ where there is an honest, but mistaken, belief in facts which, if true, would have constituted lawful authority, it is capable of being a reasonable excuse within the section”
But, if those facts would not constitute lawful authority, then the honest belief could not amount to a reasonable excuse. This would be tantamount holding that ignorance of the law was a defence, which of course it is not.
In Taylor v Mucklow  Crim LR 750 the Court reached an unsurprising conclusion that waving an air pistol at a builder who was demolishing an extension to the defendant’s house. It was not a reasonable excuse to safeguard his house in this manner.
A strict construction of the Restriction Regulations
The following four points might be argued in support of a strict construction, or interpretation, of ‘reasonable excuse’ in the Restriction Regulations:
- The context is stark. The regulation seeks to protect public health. The public health risk is unprecedented in modern times. Not only is life at risk but the scale of the risk is enormous. The economic consequences are severe and breach of the regulations will tend to prolong those severe consequences;
- The Restriction Regulations impose the same requirement on every person. If the scope of reasonable excuses is broad, then the potential number of people in circulation, away from their homes, may be large and therefore contrary to the purpose of the restriction;
- The policy balance of the 13 specified reasonable excuses has been set by Government and approved by Parliament. The court should be wary of extending or amending that policy balance and scope;
- The terms of the specified reasonable excuses are a useful aid in understanding how strict the restriction is. So, obtaining only basic necessities justified; only upkeep and maintenance which is essential justifies obtaining supplies (Regulation 6(2)(a)). Both of these qualifications limit or perhaps minimise what is reasonable within the meaning of the provision.
Nothing in the decided cases provides for a more relaxed construction.
A broader construction of the Restriction Regulations
The following four points might be argued in support of a broader construction, or interpretation of ‘reasonable excuse’ in the Restriction Regulations:
- The term ‘reasonable excuse’ is a simple, ordinary English term which should be given an ordinary meaning. It is the opposite of unreasonable. So, it is convenient to ask whether leaving the house for the particular purpose is unreasonable.
- What is unreasonable will be informed by the risk. It is relevant to consider whether the person leaving the house has done so without creating a risk of transmission of the coronavirus: taking a route which is known to be deserted; the person knows that they do not have the virus and are immune (not something which is knowable yet, but that might change)
- What is unreasonable will be informed by the purpose: it is not unreasonable to leave home to help another member of the community;
- The restriction is a major intrusion on the liberty of the individual and should not be construed any more strictly than the ordinary meaning of the words requires. If the Government had intended a more severe outcome it would have been easy to make that clear by: having a closed list; having a open list but a stricter test such as ‘other than in exceptional circumstances’.
None of the decided cases assist in this context.
Can Ministers, not judges, determine what is a reasonable excuse?
The criminal law should provide certainty. But in the present circumstances is there merit in building in some flexibility and for policy contributions to what is, or is not, a reasonable excuse?
Take this obscure example. Travel to manage a bee-hive is not within Regulation 6(2). The Department of Food Environment and Rural Affairs has made it clear that managing bees and any husbandry of animals should continue. Covid is not a reason not to take care of stock. The Minister has, effectively, produced a further defence; a clear ‘reasonable excuse’. Would a Magistrate go behind Government guidance which invites and expects an activity to take place?
So, we have a legal instrument, which operates on pain of a criminal penalty, which confines the population to its homes save in specified circumstances and such other circumstances as may be reasonable. What is reasonable is capable of being stated in Ministerial Guidance. Presumably the reverse applies: if Ministerial Guidance says that something is unreasonable, then a defendant is in difficulty if he tries to argue otherwise.
Law does save lives. It does so by framing how we conduct our lives. There is much which might be said about what is ‘in’ and what is ‘out’ in the Restriction Regulations which do indeed frame the daily lives of each of us. But it may be that little is ever said – amendment to the Restrictions Regulations may make it all much more strict quite quickly, or ‘the curve’ may be suppressed, as hoped, and the restriction relaxed. In either event, one hopes that there is never a need to argue the points above because compliance makes it unnecessary.