The continuing reach of the Coronavirus Regulations

The continuing reach of the Coronavirus Regulations

Richard House and Marcus Blackett’s arrest on the 9th January 2021 was sandwiched somewhere between Rishi Sunak and Boris Johnson partying in breach of Coronavirus Regulations and the then Health Secretary, Matt Hancock cheating on his wife, in breach of his own health guidance.

Mr Blackett and Mr House are both trained psychological therapists. Dismayed at the failings of the state to address the tsunami of mental-health and emotional problems being unleashed nationally as a result of draconian covid restrictions and lockdowns, they set off that morning towards their local High Street in Stroud wearing sandwich boards bearing the words “Citizens’ Conversation”.

Their aim was to offer their expertise to the people of their town – those who wished to engage them – who were struggling mentally under the weight of the soul-crushing restrictions. They also ventured into Stroud to legitimately protest and demonstrate against the continued imposition of the Coronavirus Regulations and to highlight that the “cure” was potentially causing more harm than the disease.

Ironically, while in conversation with a healthcare worker who had approached them, clearly in distress and who wanted someone to talk to, Police arrived. They were not there to clap for carers, but to interrogate and arrest the pair for “breaching Coronavirus Regulations by being in a ‘gathering’ in an outdoor place of two or more people whilst in a Tier 4 area”.

Messrs House and Blackett were taken into custody and told they would receive a Fixed Penalty Notice and later a Summary Justice Procedure Notice. They decided to take a stand and they challenged the notices. Following months of correspondence, they discovered, having not been notified of any trial date, that they had been convicted in absentia and saddled with criminal records and considerable fines. Their treatment would not have been out of place in Stalinist Russia.

The pair were able to fundraise in an effort to have those convictions overturned and instructed Andy Rootsey of Murray Hughman. At Cheltenham Magistrates Court on October 26th 2022, instructed Counsel Hannah Thomas of 2 Hare Court succeeded in persuading the Court that it was in the interests of justice to set aside their original convictions and fines and reopen the case under section 142 of the Magistrates’ Court Act 1980. ?In so doing, the Court commented that the important and novel issues raised with regards to the interference with their human rights might well be worthy, ultimately of examination by the Supreme Court.

In light of the Court’s directions, Police explained that they wished to review the case to decide whether it remained in the public interest to pursue it. It was hoped that in all the circumstances a sensible decision would be reached by Police, given what is now widely accepted as the disastrous impact of the lockdown policy, particularly in terms of its consequences upon the most vulnerable in society. However, that was not to be and on November 9th 2022 the Court was informed that the Prosecution would still go ahead and a trial date of February 28th 2023 at Cheltenham Magistrates Court was fixed.

Despite the decision to continue with the prosecution, Both Mr House and Mr Blackett remain determined to obtain justice, this time at a trial that they can actually participate in.

The Coronavirus Regulations and the law relating to protests during the pandemic was often misunderstood. The legislation was rushed through Parliament, poorly drafted and ill thought out. The regulations in place at the time of Mr House and Mr Blackett’s arrest were completely inaccessible and opaque, and many, including the Police and the Courts, failed to understand or fully grasp them, leaving well-meaning people vulnerable to arbitrary and discriminatory decisions. 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, and were concerned that the regulations themselves were not clear enough on the issue.

Contrary to the public and often law enforcement understanding, the Coronavirus regulations never completely prohibited protest, 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. These rights are qualified rights and can be interfered with by the State, but only where necessary and proportionate to do so.

The case law has developed since the enactment of the Coronavirus Act 2020 and the frequently amended regulations issued under it. ?In 2020 The Court of Appeal in the case of Dolan[1] ruled that the Regulations were compatible with Article 11 as a result of the ‘reasonable excuse’ element to the offence but that protest would not always provide a reasonable excuse, the Courts would have to determine the facts on a case by case basis.

In 2021 The Supreme Court in the case of Ziegler[2], handed down its Judgement setting out the ‘proportionality’ test to be applied, including the balancing act between the rights of the accused and those of the general public. The importance of engaging in a proportionality assessment of the interference with an individual’s human rights was further confirmed in the case Cuciurean[3] in 2022.?In Leigh & Ors[4] 2022, a case revolving around the Vigil held for Sarah Everard on Clapham Common, the Court found that Police had been applying a complete blanket ban on protest and had failed to carry out a proper proportionality assessment as set out in Ziegler.

Andy Rootsey and Hannah Thomas of 2 Hare Court have twice obtained acquittals in similar circumstances for Human Rights Campaigner Debbie Hicks before the Courts at Cheltenham in December 2021 and at Wimbledon in June 2022. ?We have successfully argued on her behalf that Police had been applying a blanket ban on protesting and had not performed adequate proportionality assessments when interfering with her human rights .

Whilst the Coronavirus Regulations are no longer in force, prosecutions continue, we hope to obtain a favourable outcome for Mr House and Mr Blackett at their forthcoming trial.

Andy Rootsey Murray Hughman

[1] R (on the application of Dolan and others) v the Secretary of State for Health and Social Care?[2020] EWCA Civ 1605?

[2] Ziegler?[2021] UKSC 23

[3] DPP v Cuciurean?[2022] EWHC 736 (Admin)

[4] Leigh & Ors v Commissioner of the Police for the Metropolis and the Secretary of State for Health and Social Care?[2022] EWHC 527 (Admin)?