Breaching Coronavirus Regulations: Parties v Protests
In the wake of party-gate and the Sue Gray report, breaching Coronavirus regulations by gathering is once again headline news. The report found that numerous parties took place at No.10 Downing Street throughout the pandemic, involving senior government ministers, including the Prime Minister (for which he has already accepted a fine).
The report comes less than three months after the last headline story on the topic where it was found that the Metropolitan Police had acted unlawfully in advising the organisers of the #ReclaimTheseStreets movement (formed following the death of Sarah Everard) that their planned vigil and protest for her could not go ahead as it would breach Coronavirus regulations.
Whilst it is clear that holding parties during the Covid-19 pandemic was impermissible, the law relating to protests was often misunderstood. This article explores the law relating to protesting and its development throughout the pandemic.
The Law
The Coronavirus regulations
Coronavirus restrictions were enacted through a series of regulations issued under the Coronavirus Act 2020. The first set of regulations[1] came into force on 26 March 2020 and prevented more than two people gathering in a public place[2] with certain exceptions, not including protesting. Breaching the regulations without a reasonable excuse constituted a criminal offence punishable by a fine[3].
The regulations were amended many times throughout the pandemic. Protesting was not specifically listed as a permitted exception to the gathering rules in any set of the regulations governing a period of ‘lockdown’[4]. It was, however, permitted during periods of lesser restriction, with certain Covid-safe measures in place[5].
Development of the law in relation to protesting during the Coronavirus pandemic
Contrary to public and often law enforcement understanding, the Coronavirus regulations never completely prohibited protesting, even during periods of national lockdown. To impose a total ban on protesting would not have been permissible under UK law since protesting engages human rights protected by articles 10 (right to freedom of expression) and 11 (right to freedom of association / assembly) of the European Convention on Human Rights[6]. These rights are qualified rights and can be interfered with by the State, but only where necessary and proportionate.
The first case to deal with a challenge to the Coronavirus regulations confirmed that protesting was not outlawed under the first set of Coronavirus regulations. In R (on the application of Dolan and others) v the Secretary of State for Health and Social Care [2020] EWCA Civ 1605 the Court of Appeal concluded that the Coronavirus regulations were compatible with article 11 by virtue of the ‘reasonable excuse’ element of the offence.[7] This did not mean that every protest amounted to a reasonable excuse for breaching Coronavirus regulations – it would be a matter for the courts to consider on the facts of the case.
During the pandemic the law on protesting in the context of certain criminal offences was developing. In June 2021 the Supreme Court handed down judgement in the unrelated case of Ziegler [2021] UKSC 23. Ziegler concerned protestors who had obstructed a public highway during a protest[8]. The Supreme Court confirmed that in determining whether the protestors had a ‘lawful excuse’ for obstructing the highway, the court must apply a ‘proportionality’ test of the interference of the State with the accused’s human rights, restating the test to be applied.[9] The test involves answering questions such as whether there are less restrictive measures the State could use to restrict the accused’s rights and whether a fair balance has been struck between the rights of the accused and the general interest of the community.
That this proportionality test also applies to offences involving a ‘reasonable excuse’ (and thus to offences under the Coronavirus regulations) was recently confirmed in DPP v Cuciurean [2022] EWHC 736 (Admin). When defending protestors accused of breaching Coronavirus regulations, the courts must therefore engage in a proportionality assessment of the interference with their human rights.
Uncertainty in the application of the law
Despite the fact that protesting was not completely banned during the Coronavirus pandemic, that was not always understood by the general public nor by law enforcement. This uncertainty was expressly pointed out by the Joint Parliamentary Select Committee on Human Rights as early as March 2021 in its report which recommended that Coronavirus regulations from thereon ought to include an express exemption for protesting, concerned that the regulations themselves were not clear enough on the issue[10].
The uncertainty was highlighted in Leigh & Ors v Commissioner of the Police for the Metropolis and the Secretary of State for Health and Social Care [2022] EWHC 527 (Admin) concerning the #ReclaimTheseStreets (‘RTS’) movement. RTS planned to hold a vigil for Sarah Everard and attempted to secure the agreement of the police for the protest to go ahead without arrests for breaching Coronavirus regulations. The Metropolitan Police refused to make such an agreement (the court staying silent on the issue at the time[11]). The vigil was therefore cancelled by RTS though hundreds still gathered to attend the vigil and protest. Arrests were made at the event which sparked public outcry.
Following the vigil RTS launched a claim against the Metropolitan Police claiming that their decision that holding the vigil would be unlawful was wrong and had disproportionately interfered with their human rights. This claim was successful, the court holding that the police had applied an unlawful blanket ban on protesting at the time and they had failed to conduct a proportionality assessment in line with Ziegler. Despite this, certain individuals who attended the vigil are in the process of being prosecuted for breaching Coronavirus regulations.
The Metropolitan Police are not the only police force to have been found to have enforced the Coronavirus regulations incorrectly in relation to protests. In December 2021 an activist was acquitted at trial of an offence of gathering during lockdown by protesting after the court found that Gloucestershire Constabulary had been applying a blanket ban on protesting and that therefore there had been a disproportionate interference with her human rights[12].
Conclusion
There is certainly no authority that says that protesting should always or even most of the time constitute a reasonable excuse for breaching Coronavirus regulations. However, what is clear is that the Coronavirus regulations were poorly drafted in respect of protests and though there was never a ban on protesting during the pandemic, law enforcement bodies did not always understand this.
Though the restrictions imposed by the pandemic are no longer in force, prosecutions under the regulations are still making their way through the courts. Practitioners must be alive to the legal issues when defending those charged with breaching Coronavirus regulations by protesting – ensuring that the proportionately test is rigorously applied by the courts and where necessary seeking early disclosure of law enforcement understanding of the regulations in force at the time.
[1] The Health Protection (Coronavirus, Restrictions) 2020
[2] Regulation 7
[3] Regulation 9
[4] Either national lockdown or ‘Tier 4’ restrictions
[5] The first being under the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) (Regulations) 2020 in December 2020
[6] Enshrined into domestic law by the Human Rights Act 1998
[7] At [103]
[8] Contrary to the Highways Act 1980
[9] Paragraph 16, confirming the test set out by the Divisional Court
[10] It remains to be seen if this would be done were there to be a further period of national lockdown
[11] [2021] EWHC 661 (Admin)
[12] She was defended by Hannah Thomas, see article here
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