Lockdown – What are the new powers for testing and treatment?

The internet and social media are awash with all sorts of stories and statements as to what powers now exist to deal with the Coronavirus. Some of the information is misleading and wrong, for example some social media and tweets have suggested parents can be arrested for their children coughing on somebody or that the police can arrest someone for not being at home isolating.

So here are the facts in relation to the controls that have been introduced in Wales.

New powers have come into effect that allow measures to be taken to detain and test individuals for the Coronavirus in Wales and to require an individual to remain in detention for that to be done.

The powers are introduced by the The Health Protection (Coronavirus) (Wales) Regulations 2020. Similar provisions have been introduced in all parts of the UK.

In summary the regulations allow for the following.

Restrictions

The regulations enable a person to be detained for assessment and screening for the Coronavirus, for the imposition of restrictions or requirements on a person to prevent the spread of the Coronavirus and for the detention and isolation of a person to prevent the spread of Coronavirus.

A person can be detained for screening, assessment and for the imposition of restrictions for a period of up to 48 hours or such time as required to complete the screening and assessment requirements.

The grounds for detention are that there are reasonable grounds to believe that the person is or may be infected or contaminated with the Coronavirus and that there is a risk that a person might infect or contaminate others.

Restrictions or requirements that are considered necessary for the purpose of removing or reducing the risk of infecting or contaminating others can be imposed. Though the restrictions and requirements must be necessary and proportionate.

Requirements and restrictions that can be imposed are any or all the following.

  • Provide contact details to the authorities.
  • Allow biological samples to be taken, including blood.
  • Restrictions on a person’s travel.
  • Restrictions on a person’s activities.
  • Restrictions on a person’s contact with specified people.

The restrictions cannot exceed 14 days starting on the day on which the restrictions were imposed. A person can make representations as to what is necessary and proportionate. A person (parent or guardian of a child) who disagrees with the restrictions or requirements imposed can appeal to a Magistrates Court for the decision to be reviewed.

If the restrictions or requirements relate to a child, the responsible adult (usually parent or guardian) must ensure that the child complies with the requirements, in so far as that person is reasonably able to do so.

The person can be informed of the restrictions or requirements verbally, but written notification must be given as soon as reasonably practicable.

In addition to restrictions mentioned, a person can also be kept in detention or isolation if there are reasonable grounds to believe that the person is or may be infected or contaminated with the Coronavirus and it is necessary and proportionate for the person to be kept in isolation to reduce or remove the risk that a person might infect or contaminate others.

A person can be detained whilst that decision is being made. Notification, as outlined before, must be given to the person (parent/guardian of a child) of the detention or isolation detailing the powers being used and reasons for the decision. Notification must be given of what steps will be taken next and by whom.

The regulations appear to allow for detention/isolation for up to 14 days. There is a duty for the detention and isolation to be reviewed at 24-hour intervals. The order for detention or isolation can be appealed to the Magistrates court.

Penalties

If a person fails to comply with any requirements or restrictions placed upon them, they commit an offence.

If they fail to comply with a requirement for detention or isolation, they commit an offence. If a person absconds from detention or isolation, they commit a offence.

If a child fails to comply with such requirements, the parent/guardian commits an offence if they failed, without a reasonable excuse, to ensure compliance by the child.

If a person provides false or misleading information intentionally or recklessly, they commit an offence.

If a person obstructs any other person carrying out any function under the regulations, they commit an offence.

All offences are punishable with a fine.

A defence of “reasonable excuse” is available to a person (parent/guardian) where there has been a failure to comply.

Police Powers

Police officers have enforcement powers.

Where a requirement has been imposed on a person to be detained or kept in isolation, they can take that person to a suitable place for detention or isolation and keep the person in detention or isolation.

If a person absconds from detention or isolation, they may take that person to custody before the person being returned to the place of detention or isolation.

If a police officer has reasonable grounds to believe that a person is or may be infected or contaminated with the virus they can detain or remove that person for screening and assessment, if they believe the person may infect others and it is necessary in that person’s interests, or for the protection of others and public safety.

They may use reasonable force to exercise their powers under the regulations and can enter any place to exercise those powers. Though they have a duty, where practicable, to consult with a registered public health consultant when exercising these powers.

The regulations are drafted in a way which means the powers it creates remain in force for 2 years from the date the regulations came into force. After 2 years the powers expire.

Guidance and Regulations dealing with each aspect of our lives are being issued daily and the situation is dynamic and changing. Any questions contact us and do not use google search engine for your legal advice!

Tony Williams is a Director and Solicitor at JNP Legal, who specialises in all aspect of criminal law. If you need advice please telephone 01685 350421, or email law@jnplegal.org