COVID-19: Criminal Law and Homelessness Part 2
28 Apr 2020
In Part 1 of this article we wrote about how some of the restrictions in the Coronavirus Restrictions Regulations do not apply to homeless people. Here we consider other homeless people could be disproportionately affected by the restrictions, and whether they could also create a new power to persecute rough sleepers.
A history of persecution by the state
The police, the Home Office, some local authorities, and some “homelessness charities” (St Mungo’s, Thames Reach, and Change Grow Live) have a history[i] of unlawfully[ii] persecuting[iii] rough sleepers. These organisations have taken an “enforcement” approach to homelessness, seeking to “solve” homelessness by participating in the arrest and even illegal deportation of people found sleeping rough. The approach is widely discredited within the sector, with the charity Crisis describing one aspect of it as “unacceptable”.[iv]
Against this background, there are serious concerns that law enforcement agencies may use the new powers at their disposal to further persecute rough sleepers.
A new power to persecute rough sleepers?
Many rough sleepers bed down together in groups. There are a number of reasons for this, but principally, sleeping in a group together contributes to safety. Rough sleepers are often the victims of attacks when bedded down, and may feel safer from attacks when in a group. Further, rough sleepers will unsurprisingly want to bed down with and stay near their family and friends on the street.
As we have previously written, the crime of leaving or being outside of your home without a reasonable excuse does not apply to people who are homeless. However, the Coronavirus Restrictions Regulations also restrict public gatherings of more than 2 people in public places. Only very limited types of gatherings are allowed.[v] Gatherings are permitted “where all the persons in the gathering are members of the same household”,[vi] but “household” is not defined. Unlike the restriction on leaving or being outside of your home, there is no exception for homeless people to the ban on public gatherings.
The police have been given the power to take action to enforce the restriction on gatherings in public places,[vii] and can order gatherings of 3 or more people to disperse,[viii] and can give any reasonable instructions they consider necessary.[ix]
Against a background of persecution, there is a very real threat of these powers being used against rough sleepers who are bedded down together for safety. Would such persecution be lawful, and how could it be stopped?
Legal defences
The Coronavirus Restrictions Regulations contain no impact assessment.[x] However, the Secretary of State for Health and Social Care has nonetheless stated that they “are compatible with the Convention rights.”[xi] Whereas they may be compatible overall, the compatibility of their implementation will depend on individual circumstances.
As we have previously noted, the Coronavirus Restrictions Regulations contain severe restrictions of fundamental rights. In particular, the limits on leaving home and associating with others restrict the right to a private and family life and the right to assembly and association.
Article 8 of the European Convention on Human Rights protects the right to a private and family life as follows:
“ARTICLE 8
Right to respect for private and family life
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- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”
Further, Article 11 of the European Convention on Human Rights protects the right to freedom of assembly and association as follows:
“ARTICLE 11
Freedom of assembly and association
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- Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
- No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. […]”
The text of each of these rights is clear that there are limits to when rights can be restricted:
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- The restriction must be prescribed by law;
- The restriction must be necessary in a democratic society;
- The restriction must be pursued in the interests, for example, of the protection of health.
The restrictions set out in the Coronavirus Restrictions Regulations are in general prescribed by law, necessary in a democratic society, and pursued in the interests of the protection of health. As such, on their face, the Coronavirus Restrictions Regulations appear lawful. However, the question is whether their implementation in individual cases satisfies these tests.
The effect of using the restrictions on rough sleepers
If the authorities were to use the Coronavirus Restrictions Regulations for the ulterior purpose of persecuting rough sleepers, this would mean that they were not using them for the protection of health.
Additionally, splitting up groups who have gathered together for protection may be considered by a court not to be necessary in a democratic society. This would of course turn entirely on the circumstances of the case.
In any scenario where the use of the restrictions was arguably unlawful, it could be challenged in the Administrative Court.
Further, the decision of any police officer to issue a Fixed Penalty Notice is a matter governed by administrative law. The decision to start a prosecution is equally governed by administrative law. As such, in theory, a judicial review could be brought against any such decision.
In any criminal trial for a breach of the restriction on gatherings it may be considerably more difficult to base a defence on the right to a private life or to freedom of association. In recent years the courts have clamped down on the use of human rights to create freestanding defences in some areas of law.[xii] However, consideration could be given to this line of defence in appropriate circumstances.
What about the definition of household?
Finally, there is the question of whether rough sleepers living together on the streets could constitute a “household”. If they could, then they would not commit an offence by gathering together. The word “household” is not defined in the Coronavirus Restrictions Regulations. As such, the outcome of any court proceedings would depend on the interpretation that the court gave to the term and its application in the particular circumstances of the case.
Stephen Knight
Natalie Csengeri
One Pump Court Chambers
27 April 2020
[i] See for example https://www.theguardian.com/uk-news/2019/nov/05/charity-st-mungos-says-sorry-for-giving-rough-sleepers-details-to-home-office and https://www.bbc.co.uk/news/uk-42354864 [Accessed 24 April 2020].
[ii] R (on the application of Gureckis, Cielecki, and Perlinski) v Secretary of State for the Home Department [2017] EWHC 3298 (Admin) available at https://www.judiciary.uk/wp-content/uploads/2017/12/r-gureckis-v-sshd-ors-20171214.pdf [Accessed 24 April 2020].
[iii] https://www.pilc.org.uk/eea-advice-project/defending-eea-homeless-rights/eea-project/.
[iv] https://www.crisis.org.uk/about-us/the-crisis-blog/the-detention-and-removal-of-migrant-rough-sleepers-from-the-uk-must-stop/.
[v] Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 reg 7.
[vi] Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 reg 7(a).
[vii] Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 reg 8(1).
[viii] Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 reg 8(9)(a).
[ix] Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 reg 8(11).
[x] Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 Explanatory Note.
[xi] Explanatory Memorandum to the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.
[xii] See e.g. Bauer and others v DPP [2013] EWHC 634 (Admin) at para 39.
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