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By the editor, Jul 1 2020 05:13PM

The current Government doesn't care much for law. That was apparent in its previous incarnation, when it attempted to prorogue Parliament, and responded to its defeat on the issue in the Supreme Court by attacking the judiciary. It has been clear in its dealings with the EU over Brexit, where it has openly canvassed the possibility of breaching the legally binding Withdrawal Agreement. And it has been exposed in its handling of Covid-19: not only in respect of the Cummings incident, but also in its mangling (deliberate or otherwise) of law and guidance, and inaccurate statements about what is and isn't lawful.


Plenty of commentary has criticised the Government for this, for example on human rights grounds.


The Government's private response to this criticism is, no doubt: so what? Liberals have to suck it up. We won the election, we've got an 80 seat majority. The "people" (at least, enough of the electorate who might vote Conservative), unlike the liberal metropolitans, don't much care about abstract legal niceties, provided the Government is looking after their interests, and taking care of the basics, such as locking up criminals.


But I don't think this is the trump card that those at the top of Government think it is, even on their own, purely electoral terms, for the reasons set out below.


FAILING TO CONVICT THE GUILTY


Miscarriages of justices don't just concern the wrongly convicted - they can result in the guilty going free. If the Government doesn't pay sufficient attention to the laws it passes, the wrong people can slip through the net. Consider the confusion created by the Coronavirus Regulations, made without any proper parliamentary scrutiny, followed up by guidance that inaccurately stated what the relevant criminal offences were - which resulted in the police trying to enforce guidance rather than target criminal offences. Many people were wrongly convicted. We don't know how many people who might have been guilty were never charged or whose prosecutions failed. And the confusion could have more serious consequences in the long run.


So, for example, the Prime Minister has publicly stated that street protests are lawful, when they've actually been prohibited by the Regulations. Did the Government mean to ban such protests, or not? Protests are now treated, including by the police, as though they are lawful; but what happens if certain protests become particularly dangerous to public health?


On the flipside, as a result of the confused messaging by the Government, most people mistakenly believe that there is a law prescribing 2 metre social distancing in the UK. If there was public pressure to enforce this "rule", for example after some particularly high profile event that attracted widespread opprobrium, no prosecutions would be possible.


Imagine if the Government got the law confused on more serious crimes as well, such as terrorism offences - and those perceived as guilty went unpunished. Simply sounding "tough" on crime only gets you so far. If you get the law wrong, you end up looking weak. It doesn't look very good for the "party of law and order". The "law" bit isn't an optional extra; in a democracy, at least, if you want order, you need to get the law right first.


LOSS OF AUTHORITY


Much of what a Government does is to make laws itself and draft laws for Parliament to approve. If it demonstrates a disregard for laws, it can weaken its own standing with the public.


The Cummings debacle provided a good example. Having made the Regulations restricting freedom of movement, the Government then supported its chief adviser who appeared to have flouted them. In Mr Cummings' own statements on the matter, he mixed up what was law and what was guidance, and didn't appear very bothered about whether he had in fact committed an offence, appealing instead to to a broader sense of what was justifiable. The Government's defence of him took a similar line, and blithely asserted that he had acted "legally" without explaining why it had reached that conclusion, and before any independent investigation had considered the matter.


The implication here is: the laws the Government makes don't matter that much; don't take them too seriously. It chimes with other statements made by the Government, such as urging people to use their "common sense" and appealing to "civic duty" rather than requiring compliance with the minutiae of the Regulations. The public may start to wonder whether this is a Government that is really governing; what sort of authority does it actually have?


ALIENATING PARLIAMENT


Governments only exist with the support of Parliament. Since Parliament's business is to make laws, it is dangerous for Governments to treat laws flippantly. Conservative backbenchers have already shown themselves capable of defeating the Government and securing U-turns. This could get worse if, for example, the Government is perceived as downplaying the importance of bills that certain MPs are particularly interested in.


The Government's disdain for rules extends to its treatment of parliamentary procedures (indeed, in Mr Cummings' case, for the legislature itself). This has already caused friction with Conservative MPs. such as the row over remote voting.


Ultimately, Conservative MPs can unseat the Prime Minister. And even if he and the Government survive to fight the next election, they're in a perilous position if they've lost the support of many of their own MPs.


LOSING TRUST AND SUPPORT


One result of the Cummings episode was a dramatic decrease of support for the Government. There may be many reasons for this, but it is fair to assume that increasing numbers of people were distrustful of what the Government was telling them, and many didn't much like the Government defending someone who appeared to have broken the rules which they were trying to stick to.


No doubt the Government has determined from its extensive use of focus groups and behavioural science that people don't always respond well to being told what to do by law, and sometimes respond better to guidance and "nudging". No doubt also its dominant Vote Leave contingent believes that voters aren't bothered about compliance with electoral law and other established norms when it comes to campaigning, and assume voters have the same attitude regarding governing.


But there comes a point where people do like to know where the line is between what is lawful and what isn't. Many people may be happy to follow guidance generally, wouid act contrary to it in certain circumstances, and yet would almost always avoid committing a criminal offence. This isn't just because of fear of the material consequences of conviction: it's also because of social stigma.


A Government that sends out confusing messages on what is and isn't a crime risks losing the support and trust of the public in dealing with something like the Covid-19 crisis. We've all heard people say something like: "I've no idea what the rules are now, but doing so-and-so can't be that risky, can it?" The Government is now trying to relax restrictions nationwide, but impose tighter restrictions locally. It's difficult to do that if people aren't clear what the restrictions actually are, or have been encouraged not to care what they are, and have decided to judge matters for themselves.


Recently the Prime Minister warned against people "taking liberties" after reports of large crowds congregating on beaches. Ironically many of the people involved had good reason to think they had the "liberty" to do what they were doing, because the Government had given out the message that "British common sense" could be relied on to regulate behaviour, and the small print could be ignored.


A Government that doesn't take criminal laws seriously risks losing trust and support more widely. By making such laws, and being partly responsible for their enforcement, a Government is effectively telling the public: "these things are really serious - if you disobey, the State will punish you". Treating the law as frivolous suggests the Government doesn't mean what it says.


When those in Government - such as Dominic Cummings, Robert Jenrick, and Boris Johnson - break the law, or are dismissive of the importance of any laws that may apply to them, voters notice. They may not be concerned with the finer details of these matters. But they don't like the stench of sleaze and corruption, in the same way that people don't like to associate with neighbours who keep getting into trouble with the police.


FINALLY - THE ELITE VS THE PEOPLE


The Government continues to push a narrative that it is on the side of "the people" against a liberal elite. This still seems to have some traction. But it may be a mistake to assume that these voters equate the law with the elite: they may think well-paid liberal lawyers fall into that category, but not necessarily the police and others involved.


One difficulty of treating laws with contempt is that the Government begins rather to resemble the dodgy tycoon who believes the law doesn't apply to him - it's for the smaller people. The voter who's previously assumed the Government is on her side against the elite might start looking from pig to man and back again and wonder whether there's any difference.



By the editor, Jun 10 2020 01:41PM

Brexit is back in the news. Having been ousted by Covid-19 for a while, the two topics have become linked, and the decision on whether the transition period should be extended has become more pressing.


Little progress appears to have been made in negotiations on a potential deal. The UK has repeatedly stated its refusal to extend the transition period. Since there are 3 basic options - a deal, an extension, and no deal - it's logical to conclude from all this that a no deal result is the most likely.


However, each of these options includes variations. For example, just as with a pre-Brexit 'no deal', there are different angles of cliff edge to a no deal outcome this year, depending on what 'mini-deals', if any, might be agreed. Alternatively, an extension of 6 months, with no progress on talks by the end of the year, may be little different from a no deal outcome, and very different to a 2 year extension.


There are also different sorts of deals. The negotiations are apparently aiming at an all-encompassing deal, and it is this that many commentators consider to be unrealistic in the time available, hence the calls for an extension. But there's nothing in the Withdrawal Agreement I can see that requires the UK and EU to reach a deal that covers everything, or most things, or indeed anything in particular. They could reach a very limited deal that left most points to be determined later. So there could be a deal that effectively provides for an extended transition period (whether 1 or 2 years or more), at least for all the contentious matters, while perhaps securing some limited, uncontentious, permanent changes.


Why would the UK Government be interested in such an option? There are a number of reasons.


1. The poor alternatives. The Government won't get a comprehensive deal that it wants in the time available, and it won't want a deal that gives the EU everything it wants. It is said that some in the cabinet are bullish about a no deal outcome, but even if that's right, there are others who will be less keen. If those making the key decisions in Government consider that there's a reasonable chance of some signficant problems from a no deal outcome, such as chaos at the ports and food and medicine shortages, they may be keen to avoid this if they can.


2. The hard decisions - on regulatory standards, the borders with Northern Ireland and so on - can be delayed till after the Covid-19 crisis is over, and there's sufficient time to reach both internal and external agreement on them.


3. Popular support. Polls suggest increased support for a transition extension since the Covid-19 crisis, and the fact that a deal was reached (even if it achieved a very similar result) might appease some Leavers who would have opposed an extension. Meanwhile, polls also show that the importance of the EU to voters has decreased significantly. Many voters, of course, were happy to see Brexit 'done', and aren't too bothered about the details.


4. It could be sold as a victory to the hardcore Brexiteers and media. The Government's critics are currently attacking it for refusing to consider an extension, and for failing to make progress on a deal. The Government could claim it had confounded those critics - not backing down on the extension, and getting a deal when the 'liberal elite' said it was impossible. (It would be helpful in this regard to include something in the deal of symbolic importance, even if of little actual consequence, e.g. on fish, which the Government could claim as a massive victory.) They'll say Boris Johnson has proved yet again that he can defy expectations. The elite underestimated him before, when they said he couldn't get a new Withdrawal Agreement - but he did. They underestimated him this time when he said he couldn't get a deal - lo and behold, once again he's pulled it out of the bag! The critics, of course, also pointed out before that his new Withdrawal Agreement was essentially the same proposal that he and other Brexiteers had previously rejected. It didn't matter - or didn't matter enough. Would the Brexiteers buy it again?


That seems to be the crucial point. Boris Johnson is of course not an ideological Brexiteer, and will be most concerned about public support and party unity (both currently heading in the wrong direction). The option above would appeal to him, if he could get away with it. But who else is key to the decision? Dominic Cummings is one, of course, and Brexiteers have mobilised behind him recently, after his Durham escapades, to 'keep Johnson honest' on the extension issue. For Cummings, Brexit is part of a bigger revolutionary project, and we don't know how important he considers a 'clean break' this year. Who else is key? Michael Gove, who seems to flit between ideological certainty and political pragmatism? Rishi Sunak, whose hardboiled Brexitism might or might not have softened from exposure to Treasury orthodoxy and leadership ambitions? And then there are the Conservative backbenches, which control Johnson's fate, now purged of Remainer dissidents: how ideological are the new MPs; to what extent have they been merely mouthing Brexiteer slogans, and to what extent actually believing them? We ought to recall that, once upon a time, Brexiteers were dead against any transition period at all, but ended up fully behind the current Withdrawal Agreement. But for how much longer would they be prepared to stomach 'BRINO'? Might enough of them fear (and this might be behind the Brexiteer support for Cummings) that a failure to achieve a clean break this year will destroy the dream forever?


Even if the UK Government proposed such a deal, there's no guarantee, of course, that the EU would agree. Though given the unpalatable option of no deal, and given a refusal to agree to an extension, it may not seem such a bad result for them either.


We may still be hurtling towards a no deal outcome. I'm still glad I bought my spare freezer last year, and have no intention of selling it. But there does seem to be a realistic alternative, if those in power want to take it.


By the editor, Apr 29 2020 07:09PM

Views on how to handle the crisis are for the experts. But there are a number of assumptions that I think can safely be made at this point based on what has been made public, and a number of misunderstandings that would benefit from being cleared up.


OVERARCHING POINTS


1. We can't rely on a vaccine. We may never get one. Even if we do get one, it could take many years before it can be used, and even then, it might not be 100% effective. A lot of discussion about the end of lockdowns and other restrictions has been based on comments by Government scientists that a vaccine would take at least a year to 18 months, as though this means it's likely the crisis will end in about a year. If the estimate is right, the assumption is wrong - it's far too optimistic. (Though see point 5.)


2. It's too early to tell what degree of immunity is given by having had the virus. It's possible (I understand unlikely) that it gives immunity for life. But it may very well give immunity for a much shorter period, such as months. So "herd immunity", in the absence of a vaccine, can't be relied on either at present.


3. Some progress has been made on finding effective treatments to mitigate the effects of the virus. Of particular importance, it seems (in terms of patient recovery and avoiding healthcare resources becoming overwhelmed), is preventing damage to the lungs at an early stage. But there's nothing yet on the horizon providing full treatment. It's possible - and some medical experts think probable - we will find a full treatment before an effective vaccine. But given the uncertainty, we can't base policy on potential treatments either.


4. Until either immunity is established or treatments are found, the only options for minimising harm, in addition to provision of adequate healthcare, are slowing and limiting the spread, and isolating the vulnerable. Such measures will only contain the virus; they won't eliminate it (contrary to what some politicians and journalists, including in the UK and US, occasionally suggest). The effectiveness of different measures for achieving this (hygiene, social distancing, etc) is still being evaluated, as a range of measures are being tried around the world.


5. The whole world is engaged in this struggle, and the number of people and the amount of money being spent on it is unprecedented. That must help speed up processes significantly, for example by "falsifying" scientific theories more quickly, in order to arrive at conclusions that are most likely to be correct. Obviously the more transparent and cooperative countries are, the better. Unfortunately in that respect we're not as well served as we might hope. Nevertheless, better an imperfect group endeavour than one country going it alone. This should help with all steps 1 to 4 above.


GENERAL POINTS


6. Antibody tests aren't 100% effective. And it doesn't take much deviation from 100% accuracy to produce potentially very misleading results. As Tom Chivers has explained, if there was a test that is 95% accurate, and 3% of the population have had the virus, about two-thirds of those who test positive won't actually have had it. (One reason, among many, why "immunity passports" seem a daft idea.) So a great deal of care needs to be exercised in how such tests are used, even though there's widespread agreement that they are needed to move from widespread lockdown to targeted containment.


7. Comparing death rates between countries is of limited, if any, use in comparing how effective their Governments have been at dealing with the crisis. Governments record deaths in different ways (e.g. whether the virus was a primary cause, or one factor, and whether occurring in hospital or anywhere), and even if some consistent measure could be found (e,.g. excess deaths), it's clear that countries were exposed to the virus in markedly different ways, and have very different conditions in which the virus has operated (for example, age of populations, make-up of households). It doesn't follow that for example the UK and Italy have "done worse" than Germany and Greece simply because of the different reported death rates. (They might have done worse for other reasons, of course.)


8. The side-effects of dealing with the virus always need to be considered alongside measures to tackle it directly. These side-effects include other medical conditions, both physicial and mental, that aren't treated properly (including those people not getting treated at all, either because hospitals can't cope, or people won't go). They also include economic and social effects, particularly of lockdowns. There should be no pecking order here - of which lost and damaged lives are more important. There is an unfortunate tendency for views on this to polarise along politically ideological lines (at times in the UK it's felt like the Brexit debate carried on by other means). Any approach that prioritises one type of harm, and seeks to minimise others, should be viewed with suspicion.


9. Containment measures vary in social and economic cost. Assuming equal effectiveness, low cost measures are preferable to high cost measures. An obvious point, perhaps - but it sometimes gets lost in the noise; and fairly simple, minimal cost measures, which may be highly effective (such as encouraging homeworking) hardly get a look in, because the debate is often around high cost measures.


10. Working out which groups (if any) are more or less likely to spread the virus, and which groups are more or less vulnerable to its effects, is clearly important in targeting containment effectively. There needs to be continuous reassessment of assumptions on this. For example, older people appear to be much more vulnerable - but exactly to what extent, and does this vary within age groups according to any particular characteristics? I was surprised that the death rate for over 80s was lower than 20%. It's still awful, of course - but suggests that many elderly people will be okay. So simply isolating all elderly people may go further than is needed. And there's mixed evidence as to whether children are not only less vulnerable, but also less contagious. It is only by continuing to adapt to such evidence as it emerges that containment measures and healthcare resources can be most effective.


SPECIFIC ISSUES


11. Studies indicate that non-surgical masks are likely to reduce the spread of the virus, though not by much. The virus can be spread by release of droplets by coughing, sneezing, and simply speaking, so anything that inhibits the droplets helps. The objections to encouraging such masks are a) it might encourage complacency, b) it might inhibit the supply of surgical masks. As yet, there is no evidence to back up either objection.


12. The benefits of being outdoors ought to be considered alongside the risks. There are physical benefits (some evidence that the virus doesn't thrive in sunshine, vitamin D helps the immune system, people are likely to exercise more) as well as social and psychological benefits (mental health, reducing scope for abuse). On the face of it, these benefits are significant, and it's not clear that Governments are properly taking them into account.


13. Studies indicate that air conditioning may help spread the virus. If so, offices, restaurants, planes and trains may be more dangerous environments than, for example, parks.


14. The latest research indicates that the peak of infections in the UK might have been around 18 March. (New data might cause a revision of course.) If so, this suggests some of the measures prior to the lockdown were quite effective. (Which isn't to say the lockdown wasn't necessary as well.) And if so, it's worth trying to understand which of those measures were particularly effective in deciding on a long term containment strategy..


!5. I've no idea whether, overall, the Government is making the right decisions. I don't envy such a difficult set of choices, and it seems to me too early to tell. My own expertise is in law, and the one aspect I've looked at in depth is the lockdown regulations. There, despite the drastic nature of the provisions, the Government has deliberately avoided Parliamentary scrutiny, and has issued guidance that conflicts with own laws. That doesn't bode well.



By the editor, Apr 13 2020 07:32PM

News about the Prime Minister's illness has been laced with martial and religious imagery. "The British people do want a fighter," Dan Hodges wrote in the Mail on Sunday, defending the widespread comparisons with the Second World War. The British supported the man who "worked himself into the ground - and then into intensive care". Numerous reports referred to him as a proven "fighter". In the Sun, "He stayed at work for you... so pray at home for him". Tim Montgomerie hailed his recovery as a "miracle" after some people had prayed for him. He had suffered for us, the narrative went, but he had risen again.


All of us are going a little bit mad being cooped up, and it can manifest itself in different ways. But behind the hysteria, there is I think a widely-held assumption underlying all such comments. That is: we expect our leaders to carry on working when they're ill. Ordinary mortals who are told by their doctors to rest might be expected to do so. But not Prime Minsters. They must "battle on". If they end up in intensive care, so be it. It is their selfless duty that led them there. After that, all we can do is pray.


This is perhaps the most damaging manifestation of the "presenteeism" that permeates all organisations, not just the Government. Everyone has come across those in senior positions who revel in flaunting their work ethic. When I started my working life, I assumed this was a private sector thing, especially bad in the most highly paid jobs. A friend working for a "Magic Circle" law firm was once scolded by her boss for leaving work at 6. "But I've finished all the work you've given me." "Well", he told her, "don't feel you have to finish it that fast.". In other words, don't be too efficient - people might think you're slacking. It turns out to be as bad in the public sector. I was told once I had little chance of promotion unless I put in a few "late nighters". Senior managers compete with each other to boast about how much work they take back home at weekends.


Similarly, those in senior positions often struggle into work when they're ill. The subtext is, at least, two-fold: firstly, that they're too important not to be in work; secondly, that they're made of sterner stuff than those on the shop floor, They both need to, and can, "battle through". Sometimes, of course, there is something to all this - some people are very difficult to replace, and some people may genuinely be better at fighting off illness than others, and there may be an element of genuine altruism in putting work ahead of health (even though it may be other people's health that is put at risk as well their own). But to a great extent it is simply vanity, and fear - the fear of being thought of as something other than indispensable and indestructible. It's not only the individuals concerned who are to blame, of course: there's a cultural expectation that people in such positions behave in this way.


The higher up the ladder, the greater the pressure to meet this expectation. So for someone as high up as the Prime Minister, it's almost unthinkable that they would simply rest up after getting ill.


And there's a link to another common trait, particularly manifest in this Prime Minister and this Government - the distrust of experts, the cult of the gentleman amateur, the disdain for "girly swots", and the belief in winging it - what might be called the UK's "James Bond problem". Bond won't listen to doctors about his lifestyle, or civil servants about protocol, or anyone else about anything - he'll save the world regardless. I suspect Mr Johnson sees himself in this heroic mode. Certainly many of his admirers do.


The negative consequences of this are serious. Firstly, the Government is urging everyone to follow medical advice. But the message from the Prime Minister is that sometimes it's okay to ignore the medical experts: he carried on working regardless (apparently even taking the red boxes to hospital). Some of this might be PR, of course, but it was clear from some video footage that he was up and about while ill,and wasn't taking as much rest as he should have been. And it fits with much of his other personal behaviour, treating Covid 19 in a lighthearted fashion till mid-March - when he would have known for several weeks how dire the situation was going to be. For example, talking about shaking hands with victims in hospital, working cheek by jowl with colleagues and officials, and attending a packed rugby match, when he would have known the potentially fatal consequences of unnecessary social contact.


Secondly, his admission to hospital has caused potentially serious destablisation to his Government. His recuperation is likely to take several weeks, and could have been even worse. If he couldn't help ending up in hospital, of course we shouldn't blame him for this. As it is, since he ignored medical advice to rest knowing the risks, he does bear some of the blame.


Thirdly, by ending up in intensive care, he's used up precious medical resources, at a time when the NHS is under its severest ever strain. This may sound callous, but playing fast and loose with medical advice is irresponsible when those are the consequences. That is especially the case when you are a person in such a position of such responsibility, and know so much more about the disease and the implications for the NHS. If he could have taken precautions to reduce the risk of being hospitalised, he had a duty to others, as well as himself, to do so.


Finally, what light does this shed on the Government's handling of the crisis generally? We are told repeatedly that they are following the medical advice. But the extent to which they are - and were, at the start of the crisis, when they seemed slow to act - remains in doubt. Given that the Prime Minister has ignored some of the medical advice as it applied to himself, it would hardly be surprising if the Government had decided to ignore some of the medical advice applying to the country.




By the editor, Apr 3 2020 06:44PM

The Regulations restricting movement during the coronavirus crisis have understandably received a lot of comment.


I'm going to consider here the particular aspect of "reasonable excuse", which is critical in understanding what the parameters of the offence are.


Under the Regulations for England (Regulations 6 and 9 are copied below), an offence is committed if the following requirement is breached: "During the emergency period, no person may leave the place where they are living without reasonable excuse." (Similar provisions apply for the other parts of the country, though the specified excuses are slightly different.) So it is leaving home without such an excuse that creates the offence. The excuse is clearly key.


BURDEN AND STANDARD OF PROOF


Usually of course the burden of proving whether or not someone commits an offence is on the prosecution, and the standard of proof is being sure (or beyond reasonable doubt).


It's unclear whether the burden of proof is reversed in respect of this defence. If the legislation had intended to reverse the burden, one would expect it to say so explicitly (e.g. "it is a defence... to prove that he has a reasonable excuse...", see for example section 2(4) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004). In some cases the burden can be reversed without the legislation explicitly providing for this - though courts are reluctant to rule accordingly because of the implications for the presumption of innocence (R v Hunt [1987] AC 352). If the burden isn't reversed, it is "for the [defendant] to raise the evidential issue of reasonable excuse, and then for the prosecution to prove lack of reasonable excuse" (R v Evans [2004] EWCA Crim 3102). To put it another way, the defendant has to put forward what their reasonable excuse is, but they won't be convicted unless the prosecution can prove (beyond reasonable doubt) that there was no such reasonable excuse.


My own view is that the burden isn't reversed here, but because of the peculiar nature of this offence (considered below), this is not clear-cut.


SUBJECTIVE OR OBJECTIVE?


Is it a subjective or objective test? As often, it's likely to be a mixture. Someone with particular characteristics or in particular circumstances may have a reasonable excuse, where the same excuse given by a different person or in different circumstances may not be reasonable. But having considered those characteristics and circumstances, the test of reasonableness is to be judged by the standards of the reasonable person, not the person claiming the excuse (Bryan v Mott [1976] Crim LR 64). So for example simple forgetfulness has been found by the courts not to amount to a reasonable excuse for certain offences in any circumstances (R v Jolie [2003] EWCA Crim 1543).


CONTEXT OF THE PROVISION


What amounts to "reasonable excuse" - and the extent to which it will be up to the defendant to demonstrate this to the court - will depend on the particular context of the offence. So for example in the case of possession of a bladed article, if someone is carrying a Swiss Army knife, it won't be enough simply to claim that they might be thinking of using the corkscrew (R v Giles [2003] EWCA Crim 1287) - the legislative provision concerned was introduced to stop bladed articles being carried about generally, so having what might otherwise constitute a good reason for carrying something like that wasn't good enough.


Usually, a "reasonable excuse" defence exists in respect of a specified offence. So X is a prohibited act, and Y is the reasonable excuse which exempts a person from criminal liability for X. The Regulation 6 offence looks unusual in that leaving the home is not itself a prohibited act - it's not a "legal wrong" in itself. It only becomes wrong when there is no reasonable excuse.


So there's an implicit presumption in the Regulations that leaving your home is wrong - you have to rebut the presumption with a good enough reason. Even if this doesn't reverse the burden of proof as a matter of law, it does place a significant factual burden on anyone accused to show that they weren't committing an offence.


The overall purpose of the provisions is clear - to enforce social distancing. To some extent, what is considered a reasonable excuse will be informed by social norms that have developed over the last few weeks as to what is acceptable and isn't. The Government's guidance forms a part of that picture, and to this extent, dovetails with the law governing the offence. But the distinction between guidance and criminal offences obviously remains very important. Some police forces have got it badly wrong in claiming that certain specific actions, such as driving to beauty spots or buying certain goods, are in themselves offences under these provisions, when they clearly aren't. In fact the messages sent by the police are likely to be counter-productive, in weakening these social norms.


EXCUSES NOT ON THE LIST


There is a list of examples of what a reasonable excuse may include in Regulation 6(2). But this is non-exhaustive - so there may be other reasonable excuses not listed here. There has already been speculation about whether people with certain medical conditions and special needs, or those wishing to engage in religious worship, will or should be guilty of this offence. It's clear that such reasons may amount to a reasonable excuse, even though they're not on the list in Regulation 6(2), but this will depend on the particular facts. And it may be more of a struggle to persuade a court that such excuses are reasonable, because they aren't specifically listed.


EXCUSES THAT ARE ON THE LIST


The excuses covered under 6(2) should always provide a defence, because of the way the provision has been drafted. But note that each is subject to there being a "need". How is that to be determined? It will depend on the facts, and the court. And the nature of what is considered reasonable in respect of each excuse listed will also depend on the facts. And there may of course be dispute about the nature of each excuse, such as what amounts to "basic necessities".


OTHER REASONS FOR LEAVING HOME


Providing there is (at least) one reasonable excuse for leaving, it doesn't seem to me to make any difference for this offence what happens afterwards. So for example, leaving to buy food, and then meeting up with people, and going to someone's house for a party - that would clearly contravene guidance, and may involve another offence, but wouldn't be an offence in respect of Regulation 6. The legislation was clearly drafted to make leaving home without reasonable excuse an offence, rather than being outside without reasonable excuse, and I'd be very surprised if a court ruled differently.


However, a court is likely to consider the whole factual context in assessing whether there was a reasonable excuse. It shouldn't simply accept what a defendant says at face value. If someone goes out shopping and then ends up at a party, and claims they only left home for the shopping, a court might (depending on the facts) consider that the real reason the person left home was to go to the party, there was in fact no "need... to obtain basic necessities", and it would be open to the court to find no reasonable excuse.


_____________________________


The Regulations - Reg 6 and 9 of SI 2020/350


Restrictions on movement


6.—(1) During the emergency period, no person may leave the place where they are living without reasonable excuse.


(2) For the purposes of paragraph (1), a reasonable excuse 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 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(3), 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);

(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 or illness or to escape a risk of harm.


(3) For the purposes of paragraph (1), the place where a person is living includes the premises where they live together with any garden, yard, passage, stair, garage, outhouse or other appurtenance of such premises.


(4) Paragraph (1) does not apply to any person who is homeless.



Offences and penalties


9.—(1) A person who—


(a) without reasonable excuse contravenes a requirement in regulation 4, 5, 7 or 8, or


(b) contravenes a requirement in regulation 6,


commits an offence.



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