Blog: COVID restrictions and travel for exercise
23 Mar 2021
By Jenny Wiltshire:
When Boris Johnson announced the UK’s first national lockdown one year ago, many people’s first reaction – and perhaps especially lawyers’ – was confusion. We were told that we could leave the house just once a day if it was essential to do so, and that the police would enforce this with penalty notices. Where, many wondered, was their power to do this?
The answers came three days later when the Health Protection (Coronavirus, Restrictions) Regulations emerged by way of statutory instrument (and without parliamentary scrutiny or debate). We could now see, for the first time, the restrictions on movement and gatherings and the criminal offences for failing to comply.
But on examination the regulations proved to be significantly less restrictive than the Prime Minister had initially suggested. Contrary to what Mr Johnson had said, it was possible to leave the place in which you lived many times a day, as long as you had a reasonable excuse to do so.
There was clearly a difference between Government rhetoric and law. By this time, however, the media had reported one as the other and there was no time to train police officers otherwise.
On 30 March 2020, the former Supreme Court justice Lord Sumption warned that excessive Covid measures were in danger of turning Britain into a police state. Concerns were also being voiced about people being wrongly charged, held in custody, prosecuted and even wrongly convicted. We read stories of police officers rummaging through shopping bags in search of non-essential items. Officers moving people on from park benches. Derbyshire police memorably deployed air-borne drone cameras to shame hikers who had dared travel to the countryside for a walk. Clearly, in many cases the police were seeking to enforce the government guidance rather than the law.
By mid-April, the CPS issued guidance which was adopted by the National Police Chiefs Council (NPCC and College of Policing, advising officers that despite politician rhetoric, the emergency legislation did not mean they could ban people from exercising more than once a day or going for a drive.
However, although the guidance stated that driving to countryside and walking is ‘likely to be reasonable’ where ‘far more time is spent walking than driving’ and clarifies that it is lawful to drive for exercise. It is reported that in response to this, Dorset police decided not to change their policy, saying:
‘Our interpretation is that it is not reasonable, for the majority, to drive miles to a specific place such as a beauty spot. It is also not within the spirit of what we are trying to achieve…. regardless of whether that is ‘lawful’ or not’.
In May 2020, it came to light that the Prime Minister’s Chief Adviser Dominic Cummings had travelled from London to Durham and had taken a day trip to Barnard Castle, apparently to test his eyesight. Rejecting calls for him to be prosecuted, Durham Constabulary issued a statement saying that they did not consider that his journey to Durham constituted an offence contrary to regulations and that:
‘We are concerned here with breaches of the regulations, not the general government guidance to ‘stay at home’.
Nothing was said about what driving offences may have been committed, however Durham police did, in my view, at least approach the regulations correctly. He arguably had reasonable excuse for leaving his home and travel was not banned under the regulations. Unfortunately, this had not been done consistently around the country.
On the Cummings story, I should add that under the regulations as they stood at the time, once a person had established a reasonable excuse for leaving home, that was arguably the end of the matter, even if they then went on to do other things that would not have justified them leaving in the first place. This potential drafting error was not spotted until 22 April, when the regulations were amended from ‘no person may leave the place where they live’ to ‘no person may leave OR BE OUTSIDE OF the place where they live’, without reasonable excuse.
In September the Guardian reported nearly 19,000 FPN’s had been issued in England & Wales. Around half had reportedly not been paid.
When new legislation was brought in for the second lockdown came in November 2020, there had been a further attempt at re-drafting. Exercise was now deemed to be reasonable excuse if it is ‘reasonably necessary’. Previously you had to have a ‘need’ to exercise. However still no attempt had been made to clarify the law in England as to travel for exercise.
Fast forward to the third national lockdown, which started in January 2021 and is, at the time of writing, still ongoing. There have beenfurther regulations but still no attempt to clarify the law on travelling for exercise in England. Within the first week of January, East Midlands Police were being criticised for taking lockdown rules too far by fining two women for going for a walk for five miles. In Derbyshire we had the highly published case of two friends who were issued with fixed penalty notices for travelling around five miles to walk around a reservoir with their peppermint tea. Initially, Derbyshire police were unrepentant, arguing that the women could have taken exercise closer to their houses, and describing their actions as “clearly not in the spirit of the national effort” to reduce travel and the possible spread of coronavirus. A few days later however, they issued an apology, although only after Boris Johnson was spotted seven miles from Downing Street cycling around the Olympic Park.
The regulations were drawn up in haste but despite frequent revision, at no stage sought to set out the position on travel in England. A year on and the inconsistent approach of the police and the example set by politicians and their advisors is at serious risk of undermining the rule of law.