Freedom to protest

Is protest now lawful in England?

The UK is "locked down" by The Health Protection (Coronavirus, Restrictions) (England) (No.4) Regulations 2020. 

The Regulations restrict almost all aspects of our lives, restrict family life massively, and prevent trading by many businesses. 

All of this is considered to be proportionate by the Secretary of State for Health (Mr Hancock MP) but some MPs disagreed with that view - see, for example, the view expressed in debate by Sir Bob Neill MP.

The restrictions are enforceable either by prosecution or, more usually, "fixed penalties" handed out by "authorised persons". Fixed penalties

can, in some instances, be £10,000 and ability to pay need not be considered by those handing down the "tickets". Shouldn't large penalties only be imposed after due process in a court but, as far as I can see, not a single MP has raised objection to this.

Further, it is reported that the Police have been "told" by the Home Secretary (Priti Patel) to 'strengthen enoforcement' ahead of England's second lockdown. The extent to which the Police are truly independent of the government would make a lengthy study on its own.

Part 3 of the Regulations is headed "Restrictions on Gatherings" and by Regulation 7(2) a "gathering" takes place when two or more persons are present together in the same place in order - (a) to engage in any form of social interaction with each other, or (b to undertake any other activity with each other.

By Regulation 8 - No person may participate in a gathering which - (a) consists of two or more people, and (b) takes place indoors (including indoors within a private dwelling). Exceptions to this are set out in Regulation 11.

Regulation 9 -  No person may participate in a gathering which - (a) takes place in a public outdoor place and consists of more than two people, or (b) takes place in any other outdoor place (including any outdoor part of a private dwelling) and consists of two or more people.(3) Again, exceptions to this are set out in Regulation 11.

Regulation 10 - No person may hold, or be involved in the holding of, a relevant gathering.  The term "relevant gathering" is amplified by Regulation 10(4) to 10(7). This is a complex Regulation but it is notable that the definition of relevant gathering includes a requirement that it consists of more than 30 persons. 

Some gatherings of more than 30 may be organised but this is subject to precautions set out in Regulation 14 being complied with. This requires a risk assessment satisfying the requirements of regulation 3 of the Management of Health and Safety at Work Regulations 1999 and the organiser (or manager) must have taken "all reasonable measures to limit the risk of transmission of the coronavirus, taking into account the risk assessment and any guidance issued by the government which is relevant to the gathering. This places a very heavy burden on anyone organising such an event and it is a burden which may well prove very difficult to discharge sufficiently to avoid legal liability.

Regulation 11 begins - "These are the exceptions referred to in regulations 8, 9 and 10. A list of 14 ezceptions is then set out.  There is no specific exception relating to protest.

At first sight the exceptions listed in Regulation 11 appear to be the only permitted exceptions. For instance, Regulation 9(1) sets out the restriction on outdoor gathering and then 9(3) states - "Paragraph (1) does not apply if any of the exceptions set out in regulation 11 apply." This language is appropriate to an exhaustive list of exceptions.

Turning now to Regulation 20 - "A person commits an offence if, without reasonable excuse, the person - (a) contravenes a restriction or requirement imposed under regulation 5, 8, 9, 10, 15, 16 or 18, .... etc .... and an offence is punishable by a fine (unlimited amount).

The extent (if any) to which the words "without reasonable excuse" are capable of being extended beyond the exceptions set out in Regulation 11 is not clear. 

Interestingly, even the earlier Tier 3 Regulations included an exception for protest - see Schedule 1 Part 1 Paragraph 4 Exception 11.

Freedom to Protest, however egregious the grievance, barely exists as a result of these regulations.

A further concern is the extent to which "Single Justice Procedure" is being used in the Magistrates' Courts as a way to deal with any prosecutions under the coronavirus restrictions regulations - see Evening Standard 16 October.

The introduction of trial by a single justice was a response to a belief, on the part of the government, that the use of two or three justices to deal with high volume, low-level crime was disproportionate, expensive and wasteful. Examples of the sorts of offences that will qualify for trial by a single justice are speeding, driving without insurance, and TV licence evasion.

The coronavirus restrictions regulations are largely untested legally and one wonders whether a procedure held behind closed doors is really appropriate for handling any prosecutions brought for alleged infringement of those regulations.

5 November 2020.