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The Coronavirus Act and Health Protection Regulations: Implications for children

A number of new criminal offences and police powers affecting children have been created by the Coronavirus Act 2020 (‘the Act’) and the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (‘the Regulations’).

The new powers and offences are relevant to both adults and children. Children who fail to comply with directions given under the Act or contravene the requirements of the regulations commit an offence. The Police can enforce compliance with the regulations using reasonable force and there is a risk that children confronted by police will end up arrested for other offences. The police have power to make arrests under s. 24 PACE, which has been expanded to enable arrests necessary to maintain public health and public order 1. The latest Covid 19 Police Brief  states officers may also wish to determine if they feel Breach of the Peace powers apply 2, which adds to the risk of increased numbers of children being arrested for minor offences. Children will be impacted by the fact that the police can use reasonable force in the execution of the newly conferred powers and also that the powers can be used against unaccompanied children (when the adult responsible for them is unaware). The impact of the new powers on children must be carefully monitored, especially in relation to vulnerable children and those who are already disproportionately policed such as Black and Minority Ethnic (BAME) and Looked After children .

We include details of the relevant parts of the legislation below.

Details

The Coronavirus Act 2020

Powers relating to potentially infectious persons

Schedule 21 of the Act confers powers on public health officers, constables and immigration officers in relation to persons who are ‘potentially infectious’ which is given a wide definition to include:

(i) any person who is, or may be, infected with coronavirus where there is a risk they may infect other people, and / or

(ii) any person who has been in an infected area in the previous 14 days 3.

The powers under Schedule 21 allow public health officers, constables and immigration officers to:

a) remove, or request a constable to remove, a potentially infectious person and direct them to a place suitable for screening and assessment 4;

b) require a potentially infectious person to remain at a place for screening and assessment purposes for a period not exceeding:

  • 48 hours, if being directed by a public health officer 5;
  • 24 hours, if being directed by a constable 6; and
  • 3 hours, if being directed by an immigration officer 7.

c) require a potentially infectious person to be screened and assessed and impose other requirements on the person in connection with their screening and assessment 8; and

d) impose restrictions and requirements on a person who has been screened and assessed by a public health officer and the screening has confirmed that the person is infected with coronavirus or the screening was inconclusive 9.

A constable or immigration officer may use reasonable force, if necessary, in the exercise of a power listed above 10.

Individuals responsible for a child must ensure that the child complies with any restrictions placed on them and assist public health officers in the enforcement of restrictions 11. Similarly, a direction in relation to the powers listed above may instead be exercised by giving the direction to an individual who has responsibility for the child on behalf of that child 12.

The powers listed in (c) and (d) above can only be exercised on a child in the presence of an individual who has responsibility for the child or, where the child is unaccompanied, an adult that the person exercising the power considers to be appropriate, having regard to any views of the child 13. There is no objective or defined criteria for determining who is an appropriate adult for these purposes, leaving the decision solely to the person seeking to exercise the power (i.e. public health officers, constables and immigration officers) who may not be best placed to make that decision on behalf of the child.

If a power is exercised on an unaccompanied child, the exercising officer should inform the individual responsible for that child prior to exercising such powers but only if practicable. If not practicable, the officer is required to take reasonable steps to inform the individual responsible for the child 14. This leaves the possibility of there being a gap in time between a child being given a direction under the Schedule 21 powers and a responsible adult being informed that such a direction has been given.

Related offences created under the Act 

Schedule 21 makes it an offence for any person without reasonable excuse to comply with any direction given in relation to any of the powers listed above. A person guilty of an offence under this schedule is liable to a fine 15.

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (‘the Regulations’)

The Regulations confer powers on a Relevant person.

A relevant person for the purpose of enforcement powers is defined as:

  • a constable;
  • a police community support officer;
  • a person designated by the Secretary of State for the purposes of this regulation;
  • in respect of closing/regulating businesses only: a person designated by a local authority for the purposes of the regulation.

The Regulations give a provision for arrest under  Section 24 PACE, sub-section 5 of which has been expanded to include maintaining public health and order.  It appears that the power of arrest only applies to adults with responsibility for a child but lack of clarity about children who are unaccompanied by an adult means there is increased risk of arrest.

See Regulation 9(7) for the expanded grounds for arrest including to maintain public health and public order.

The main impact of the Regulations on children are set out below.

Restrictions on movement and gatherings

Regulation 6 provides restrictions on a person leaving their home without reasonable excuse 16.

The circumstances constituting a reasonable excuse are non-exhaustive, some of which are set out in the Regulations including 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 17; to take exercise either alone or with other members of their household 18; to seek medical assistance, including to access any of the services referred to in paragraph 37 or 38 of Schedule 2 19; the need to access childcare or educational facilities (where these are still available) 20; access social services 21; and 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 (Regulation 6(2)(j), The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020)).

Regulation 7 provides restrictions on gatherings in a public place of more than two people except for a limited number of exceptions 22.

Enforcement of restrictions 

Where a relevant person considers that a person is in contravention of regulation 6 by being outside of their home without reasonable excuse, the relevant person may direct that person to return home 23 or remove that person to their home 24 using reasonable force if necessary 25.

The Regulation provides that where there is a child in contravention of regulation 6 accompanied by an individual who has responsibility for the child, a relevant person may direct that individual to ensure the child returns home 26. Such an individual must, so far as reasonably practicable, ensure that the child complies with this direction 27.

Where a relevant person considers that three or more people are gathered in a public place in contravention of regulation 7 they may direct the gathering to disperse, direct any person in the gathering to return to the place where they are living or remove any person in the gathering to the place where they are living 28.

Where a relevant person has reasonable grounds to believe that a child is repeatedly failing to comply with the restriction in regulation 6(1), the relevant person may direct any individual who has responsibility for the child to secure, so far as reasonably practicable, that the child complies with that restriction. 29

Offences and penalties

A person who is in contravention of any of the restrictions set out in the Regulations commits an offence 30 and is punishable on summary conviction by fine 31.

A person who obstructs, without reasonable excuse, any person carrying out a function under these Regulations also commits an offence 32.

The Regulations give an authorised person the option to issue a fixed penalty notice to anyone over the age of 18 who has committed an offence under the Regulations 33. A fixed penalty notice would give the option to an offending person to discharge any liability to conviction for the offence by payment of a fixed penalty. Even though children cannot be issued with a fixed penalty notice, a authorised person still has the opportunity to issue a fixed penalty notice to an individual responsible for a child to whom a direction has been given under regulation 6 if such an individual does not, as far as practicable, ensure that the child complies with the direction.

Unlike the Act, the Regulations do not give any indication as to the steps that will be taken to notify a responsible adult of any direction made against a child unaccompanied by an adult.

Commentary

Children who contravene the regulations commit an offence. There is no associated power of arrest created, however the potential for arrest under the newly expanded s.24 PACE exists, albeit this appears to conflict with the limited enforcement powers available creating some ambiguity. The inability of an authorised person to issue a fixed penalty notice to children, and allow for the discharge of any liability under the Regulations, has the potential to increase the likelihood of children being arrested following confrontations with the police.

The provisions discussed above relating to the exercise of the Schedule 21 powers on children go some way to safeguarding the interests of children and young people by providing that an adult responsible for the child is made aware of any direction made in relation to the child and ensuring certain powers are only exercised against children in the presence of a responsible adult. However, there are gaps in these safeguards in relation to who will be considered an appropriate adult and any delays that may occur in notifying a responsible adult of a direction given under Schedule 21.

The Covid 19 police brief sets are some of the safeguarding considerations that police must take into account when they interact with people on the street. These will be particularly relevant for vulnerable children.

It is concerning that powers can be exercised against vulnerable children that are not accompanied by a carer.

Vulnerable children and older adolescents may particularly struggle to comply with these requirements, for instance where they do not have a stable home environment or are in care. There is a real concern that these children, may be disproportionately criminalised as a consequence of their personal circumstances or when seeking support from their peers.

Importantly, the restrictions may be broadly interpreted by the police, or other relevant person to whom the powers have been conferred, especially in relation to what is deemed a ‘reasonable excuse’ under Regulation 6. There is a real risk confrontations with police regarding this could lead to vulnerable children being at increased risk of arrest. This in turn will put added pressure on the criminal justice system presenting a further unnecessary risk to public health during the pandemic.

The National Police Chiefs official guidance is for the police to ‘engage, explain and encourage people to go home’ with (https://news.npcc.police.uk/releases/additional-measures-will-help-police-support-covid-19-effort).

This should be followed carefully and cautiously by police in conjunction with the important NPCC guidance in the National Strategy for the Policing of Children and Young People which requires them to treat children differently to adults.

The Act and Regulations give sweeping, broad powers designed to respond to the extraordinary and uncertain problem Covid 19 poses to society and the unintended consequences for children at risk of police intervention may be significant.

 

  1. Regulation 9 (7), The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020  (back)
  2. Covid 19 Policing Brief in response to Coronavirus government legislation, College of Policing, page 14  (back)
  3. Section 2, Part 1, Schedule 21, Coronavirus Act 2020  (back)
  4. Section 6, Part 1, Schedule 21, Coronavirus Act 2020  (back)
  5. Section 9, Part 1, Schedule 21, Coronavirus Act 2020  (back)
  6. Section 9, Part 1, Schedule 21, Coronavirus Act 2020  (back)
  7. Section 13(3)(b), Part 1, Schedule 21, Coronavirus Act 2020  (back)
  8. Section 10, Part 1, Schedule 21, Coronavirus Act 2020  (back)
  9. Section 14, Part 1, Schedule 21, Coronavirus Act 2020  (back)
  10. Section 20(4), Part 1, Schedule 21, Coronavirus Act 2020  (back)
  11. Section 18(1), Part 1, Schedule 21, Coronavirus Act 2020  (back)
  12. Section 18(3), Part 1, Schedule 21, Coronavirus Act 2020  (back)
  13. Section 18(4), Part 1, Schedule 21, Coronavirus Act 2020  (back)
  14. Section 18(5), Part 1, Schedule 21, Coronavirus Act 2020  (back)
  15. Section 23. Part 1, Schedule 21, Coronavirus Act 2020  (back)
  16. Regulation 6(1), The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020  (back)
  17. Regulation 6 (2(a) The Health Protection (Coronavirus, Restrictions). (England) Regulations 2020  (back)
  18. Regulation 6 (2(b) The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020  (back)
  19. Regulation 6 (2(c) The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020  (back)
  20. Regulation 6(2)(i)(i), The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020  (back)
  21. Regulation 6(2)(i)(ii), The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020  (back)
  22. Regulation 7, The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020  (back)
  23. Regulation 8(3)(a), The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020  (back)
  24. Regulation 8(3)(b), The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020  (back)
  25. Regulation 8(4), The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020  (back)
  26. Regulation 8(5), The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020  (back)
  27. Regulation 8(6), The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020  (back)
  28. Regulation 8(7), The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020  (back)
  29. Regulation 8(6), The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020  (back)
  30. Regulation 9(1), The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020  (back)
  31. Regulation 9(4), The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020  (back)
  32. Regulation 9(2), The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020  (back)
  33. Regulation 10(1), The Health Protection (Coronavirus, Restrictions) (England) Regulations 202Health Protection  (back)