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Joe Hudson considers the Updated Guidance on what constitutes a ‘reasonable excuse’ to leave the home during the pandemic

Introduction

In her article of 27 March 2020, a day after the Coronavirus Regulations came into force, Holly Clegg of PSQB examined the potential impact of the Regulations. She appositely commented that “it’s fair to say that there has been some confusion on social media and in the news about what amounts to a ‘reasonable excuse’.” I doubt I’m the only one who has been foolish enough to browse Twitter in search either of distraction from the crisis or enlightenment on its legal implications, the objective oscillating depending on whether the number of gins drunk so far that evening is odd or even.

However, the confusion has persisted – on social media, around the Scrabble table and in the awkward pauses during Zoom quizzes. Four days after Ms Clegg’s article, Tom Jackson of PSQB highlighted that “there is still discrepancy in the interpretation of [the] Regulations”, expressing concern that the actions of some regional police services could be characterised as “Nanny Policing”. Until….

There is a new document which provides some welcome clarity on the view of the National Police Chiefs’ Council (“NPCC”), following advice from the Crown Prosecution Service (“CPS”), on what constitutes a ‘reasonable excuse’ for leaving the home as stated in Regulation 6 of the Coronavirus Regulations. This article deals only with the position in England; the Regulations applicable in the rest of the UK differ.

Guidance

The NPCC considers the following as likely to be a reasonable excuse to leave the home:

  • Buying several days’ worth of food, including luxury items and alcohol;
  • Buying a small amount of a staple item (newspaper, loaf of bread, pint of milk);
  • Buying items needed for reparation and maintenance of property;
  • Anyone travelling to work where it is not reasonably possible to work from home (whether a key-worker or not) (written proof of this is not required and police should not ask for ID or any other document);
  • Providing support to vulnerable people;
  • Moving to another’s address for several days to allow a cooling-off period following arguments at home (if the move lasts days, not hours).

The NPCC considers the following as unlikely to be a reasonable excuse:

  • Social visits to a friend’s address or in public to socialise (save for in exceptional circumstances);
  • Knocking on doors, offering to do cash-in-hand work;
  • Working in a local park when it is possible to work from home;
  • Buying items for redecoration or renovation (as opposed to maintenance and repair).

Exercise

The subject of fiery debate at the various tableaux of lockdown has been what is permitted with regard to exercise. The Guidance offers very welcome clarity on what the approach of regional police services can be expected to be.

The following should not be met with police interference:

  • Going for a run, cycle or walk;
  • Practising yoga;
  • Attending an allotment;
  • Driving to rural areas to walk (where far more time is spent walking than driving);
  • Stopping to rest or eat lunch on a long walk;
  • Exercising more than once a day.

The following are likely to be met with police interference:

  • Driving for a prolonged period with only brief exercise;
  • A short walk to a park bench, where the person remains seated for a much longer period;
  • Very short periods of exercise to excuse long periods of inactivity;

The headlines for exercise are therefore that it is the NPCC’s view that: (i) the lawfulness of driving for exercise depends on the ratio of time driving to time exercising, (ii) the lawfulness of remaining in one place depends on the ratio of time exercising to time resting, and (iii) it is likely to be a reasonable excuse to leave the home to exercise more than once per day.

Comment

Crucially, this Guidance represents only the view of the NPCC (following CPS advice) as to what constitutes a reasonable excuse to breach Regulation 6. The determination of that question is ultimately one for the courts, but I do not anticipate the judiciary or magistracy will be full of members sympathetic to those who push boundaries during this public health crisis. If the police only take action against those their own Guidance says they should take action, then establishing a reasonable excuse on the balance of probabilities will be an uphill task.

Albeit not of great legal significance, the view of the NPCC and CPS now seems reasonably clear in most situations; achieving this end point was a difficult task considering the absence of precedent without which common lawyers know and the wider public is learning we Britons struggle. However, it may be appropriate to criticise the length of time it has taken to get to this point.

The baton is now handed to regional police services and then onto individual officers to adhere to this guidance. Inevitably, the greater the number of agents in the line, the greater the likelihood of the baton being dropped; we can only hope there is sufficient individual awareness and systemic oversight to ensure the baton is caught before it hits the floor.

It is down to each individual whether her ethics and good sense permit her to push the boundaries of this guidance and whether she fancies her chances of establishing a reasonable excuse in a criminal court.

What is my view on whether or not behaviour which will not be interfered with by the police ought nonetheless to be the object of disapprobation? Well, that depends whether I’ve had an odd or even number of gins….

Joe Hudson

Joe is a CPS Grade 2 Prosecutor and conducts all manner of cases in the Crown Court on behalf of both the Defence and Prosecution. If you would like to book Joe, please contact his clerks:

Andrew Thornton on 0113 213 5202

Gina Hawkins on 0113 213 5205

Rebecca Wilson on 0113 213 5203

20th April 2020