Saturday, 28 March 2020

Coronavirus - getting home from the airport and other stories

There seems to be some confusion about the interpretation of the new regulations placing restrictions on people living in England as part of the “lockdown” announced this week. Since one of my main aims in this blog is to present a critical view of the law, and since it has personal relevance to me, I thought I would take a break from trying to talk about the GDPR and offer some clarifications.

I have been reading a lot of discussion of these rules on social media recently that assume that the regulations prohibit certain activities outside the home, but that way of thinking will end up in confusion.

The relevant rules are to be found in regulation 6 which makes it an offence to leave the place a person is living without a “reasonable excuse”. There is no fixed list of reasonable excuses, instead the regulation offers a list of “needs” which are included in the concept of “reasonable excuse”. For example, taking exercise or obtaining basic necessities.

The criminal act is the leaving of the place where a person is living, not the doing of something not on the list. If someone leaves their home and their excuse is to take exercise but on the way they decide to spend some time photographing ducks in a nearby river the act of photographing is not criminal or excluded by the regulations. It would almost certainly not be a “reasonable excuse” for leaving the home, but the person had that reasonable excuse.

One argument I have seen blow up is about whether it is OK to drive from one’s home to take exercise. The regulations do not explicitly permit travel (so the argument goes) and so the driving would be criminal even if the exercise at the end were not. But this is getting the logical order of the regulation all the wrong way around. What matters is the purpose for leaving the home, not what is done afterwards.

I am not saying whether or not driving to a place of exercise is a good or bad thing to do, just whether it is criminal.

What is more, anyone found photographing ducks by the police might have to work hard to convince them that they had a reasonable excuse for leaving the home which was not just a pretext for doing something else. But there may be good evidence for what someone’s purpose was. In the end, if they can convince a court that their reason for leaving the home was a reasonable excuse they would be guilty of no offence.

My own circumstances illustrate this. I am about to fly back to the UK from Japan (as instructed to do so by the Foreign Office). I will arrive in Heathrow and have to travel home.

Now, travel home from an airport is probably a “reasonable excuse”, but if I were prosecuted for a regulation 6 offence, the prosecution should not even be able to get that far, because on arrival I will not have left my home in England while the regulations were in force (I left some 6 months ago). Until I do return home, there is nothing to stop me from doing all kinds of entirely unreasonable activities (though of course not gathering in a group of more than 2 people who do not live with me etc).

In order to commit an offence you need to (1) have left a place where you were living (2) that place has to be in England (3) you must not be able to present a reasonable excuse for leaving.

None of this is meant to encourage anyone to avoid social distancing. Good friends of mine have put together convincing mathematical models of the situation in the UK which are very sober reading. Be safe.