Police Powers under the Coronavirus Act 2020

1. The Coronavirus Act 2020 received royal assent on 25 March. Sections 51 and 52, and schedules 21 and 22 (in force from 25 March) – which are the key provisions in terms of police powers – could have a substantial impact upon the rights of individuals, particularly those in economically or politically marginalised communities. Leaving aside the question of whether the Act was needed in the first place,[1] this post seeks to summarise the effect of those provisions, and to highlight a limited number of issues. Although not addressed here, readers’ attention is also drawn to the Health Protection (Coronavirus) Regulations 2020 (SI 2020/129), which restrict movement and gatherings, and which can be enforced by police officers – including through prosecution and fine.

2. The principal police powers for which the Act provides are in two broad categories: (i) powers concerning “potentially infections persons” (section 51; schedule 21); and (ii) powers concerning “events, gatherings and premises” (section 52; schedule 22).[2] This post looks only at the former, which can be further divided into the following:

• a. Power to remove a potentially infectious person for screening/assessment (with an ancillary power to detain)
• b. Power to detain for screening and assessment
• c. Powers of forced screening/assessment and of disclosure
• d. Powers over persons who are have been “assessed” (even if results are inconclusive)

3. These new powers become applicable upon declaration by the Secretary of State of a “transmission control period” and such a declaration has been made (sched. 21, para. 4,5). They are conferred upon ‘public health officers’, police officers, and immigration officers, albeit with some subtle differences between those applicable to public health officers and those applicable to police officers (and immigration officers). Each comes with ancillary powers to use reasonable force, and to enter property (sched. 21, para. 20(4), (5)), and criminal sanctions (a fine up to £1000[4]) are available for non-compliance (sched. 21, para. 23(1), (2)). Even where the provisions directly applicable to a particular power do not mention the police (e.g., the powers of forced screening/assessment and of disclosure), the Act envisages a role for police officers in ensuring compliance.

Who decides?

4. The prerequisites to exercise of the new powers are:

• a. reasonable grounds for suspicion that the person is potentially infectious; and
• b. necessity and proportionality either in the interests of the person, or for the protection of other people, or for the maintenance of public health.

5. In some respects, the Act is ambiguous as to whether a police officer must exercise her/his own judgement as to suspicion, necessity, and proportionality, or whether he/she may rely upon the instruction of a public health officer (and the latter’s asserted view that those requirements are fulfilled). In O’Hara (addressing powers of arrest based on reasonable suspicion) Lord Steyn noted that suspicion had to be formed on the basis of factual matters known to the arresting officer because, “in framing such statutory provisions Parliament has proceeded on the longstanding constitutional theory of the independence and accountability of the individual constable”. There is no reason why this constitutional principle should be lost now.

Proportionality and the ECHR

6. All of the factors mentioned in the Act as regards proportionality and necessity (“protection of other people”, “maintenance of public health” etc.) are likely to be understood by officers to militate in favour of the exercise of these powers. Plainly, the ECHR remains applicable. Articles 5 and 8 are particularly apposite, and they require that detention be used only as a last resort. Indeed, article 5(1)(e) applies specifically to “detention of persons for the prevention of the spreading of infectious diseases”. The import of article 8 goes beyond detention. The Act has the potential to be particularly invasive in terms of access to and use of private data (on health, personal relationships, and otherwise). Any assessment of whether it is proportionate to punish a person for a refusal to disclose (or indeed whether it is proportionate to seek disclosure in the first place) must surely take into account the ways in which the data concerned might be used by the state, including the possibility that other public bodies may have access to it. There has been no indication that the usual practices of information-sharing between state agencies will not apply to private data obtained through the Act.

7. Each of the provisions on specific powers over potentially infected persons (of detention, or otherwise) include requirements as to information that must be communicated to the affected person. Among the matters that must be communicated is “the reason for imposing the requirement” (see, for example, sched. 21, para. 9(2)). Long-standing principles of statutory interpretation suggest PACE 1984 (and related case law) as an aid to interpretation. With this in mind, it is suggested that…

• a. what is required is communication of not only the legal basis for use of a power or requirement, but also the factual basis for doing so; and
• b. the affected person’s response to being informed of the reason for exercising the power must feed into the officer ‘s assessment of whether (under the ECHR or otherwise) use of the power remains truly necessary and proportionate.

8. It might well be argued that criminal sanctions are disproportionate per se – as Liberty as argued, they mischaracterise the pandemic as an issue of criminal justice, rather than one of public health. But quite apart from any challenge to the compatibility of the primary legislation itself with the ECHR, it must be emphasised that decisions to use the available sanctions are discretionary and must be proportionate in ECHR terms.

Discrimination and the Equality Act 2010

9. Areas of dense population and overcrowded housing might be cited as risk factors, but they are also features of marginalised communities. The dearth of guidance as to legitimate bases for suspicion that a person is “potentially infectious” gives rise to a real risk that the above powers (including detention) could be invoked on discriminatory bases. The Equality Act’s prohibitions upon direct and indirect discrimination (as well as the Public Sector Equality Duty) will be essential bulwarks against prejudice.

[1] It is noted here that pre-existing legislation sought to address the same underlying concerns as does the Act: see, for example, Public Health (Control of Disease) Act 1984; Civil Contingencies Act 2004.

[2] Other provisions that are of relevance to police practice are not addressed herein (including those pertaining to removal to a ‘place of safety’ under section 135 of the Mental Health Act 1983: see Schedule 8 of the Act;, and those pertaining to ‘Investigatory Powers’: see sections 22 and 23 of the Act).

[3] “The declaration made by the Secretary of State on 10 February 2020 under regulation 3 of the 2020 Regulations is to be regarded as a declaration made by the Secretary of State under paragraph 4 of this Schedule”.

[4] Level 3 on the standard scale.