Reasonable excuses and the regulations restricting freedom of movement
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  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  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  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  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  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.