Police powers under Welsh COVID Regulations

18 January 2022 by crashwigley

The pandemic has had a knock-on effect of increasing awareness of devolution. The governments of Northern Ireland, Scotland and Wales have been responsible for navigating the pandemic in their own countries, and the approaches taken have sometimes significantly diverged. With the COVID Regulations affecting the essentials of our daily lives, public attention across the UK has been drawn to the powers of devolved governments to govern differently from Westminster.

One surprising difference between the Welsh and UK Governments – and one that has evaded much public scrutiny – is that the Welsh Regulations created a new power of entry which allows police officers to enter people’s homes in certain circumstances to investigate breaches of the COVID Regulations. No such power has ever been included in the English Regulations, and the power of English police officers to enter people’s homes is more restricted, governed by the provisions of the Police and Criminal Evidence Act 1984 (‘PACE’) and the common law rules for dealing with breaches of the peace.

The practical issues around the Welsh police power of entry to people’s homes have fallen into the background in recent months, because it mainly arises when there is or has been a suspected unlawful gathering in someone’s home. (Although on 26 December 2021, a new restriction was introduced banning gatherings of more than 30 in homes.) With restrictions hopefully easing again, reflecting on this regulation raises broader questions about human rights and legal scrutiny in Wales.

What does Regulation 34 say?

The police power of entry is contained within regulation 34(1) of the Health Protection (Coronavirus Restrictions) (No. 5) (Wales) Regulations 2020, which permits an enforcement officer to enter premises if there are reasonable grounds for suspecting that a requirement under the Regulations has been, is being or is about to be contravened on the premises and it is considered necessary to enter the premises for the purpose of ascertaining this. Regulation 34(4) states that if the premises is wholly or mainly used as a private dwelling, the power can only be exercised by a constable (i.e. a police officer), and regulation 36(3)(f) provides that a police officer may use reasonable force when exercising the power in regulation 34(1). Regulation 37(4) provides that an enforcement officer may only exercise the power under regulation 34(1) if the officer ‘considers that it is necessary and proportionate to do so’. In summary, therefore, the Regulations give a power to police officers to enter a person’s home to investigate any suspected breaches of the COVID regulations on the premises. The obvious ones would be any breach of the restrictions on gatherings.

Analysis of the Welsh police power of entry

On its face, the power of entry contained in regulation 34 is broad. Some features are worth highlighting:

First, it relates to cases where police officers have a reasonable suspicion that a breach of the COVID Regulations ‘is being, has been or is about to be contravened on the premises’. In theory, the power permits entry for the investigation of past breaches of the COVID Regulations, providing this is necessary and proportionate, and not just to deal with breaches that are ongoing or imminent.

Secondly, the power relates to any breaches of the COVID rules on the premises. At some points of the pandemic, inviting one friend over amounted to a breach of the rules on gatherings. The power makes no distinction between significant and minor breaches of the COVID Regulations.

Thirdly, the provision in regulation 36(3)(f) permitting reasonable force in the use of the power means that police officers could in theory force entry into someone’s home under the Regulations. Of course, in assessing whether any particular use of force was reasonable, a court would consider all the circumstances including the nature and degree of force used, the seriousness of the potential breach and whether alternative means were available.

Finally, in connection with the power of entry under regulation 34(1), there is a provision in regulation 34(2) which is particularly alarming. It allows a police officer to bring onto the premises ‘such other persons … as appears to the officer to be appropriate’. It is not easy to imagine what an appropriate use of this power in a domestic (as opposed to e.g. a commercial) context would be, and there is no equivalent provision under PACE. There is a risk in how police officers could interpret this power, potentially considering it appropriate to bring in professionals like social workers and housing officers, or even concerned relatives, into a person’s home against their wishes.

The right to privacy and proportionality

The risks above have to be considered in the context of the human rights framework. The power of entry under the Welsh COVID Regulations clearly engages people’s right to a private life, and as noted by Collins J in Syed v DPP [2010] EWHC 81 (Admin) [12], ‘it is a serious matter for a citizen to have his house entered against his will and by force by police officers’. Article 8 of the European Convention of Human Rights provides that states can only restrict individuals’ right to a private life if the restriction is lawful, necessary and proportionate in pursuit of a legitimate aim. Police officers must use their discretion compatibly with Convention rights (see Human Rights Act 1998, section 6; McLeod v UK (1999) EHRR 493). This requirement is echoed in the Regulations themselves: regulation 37(4) states that enforcement officers may only use their powers if they consider it necessary and proportionate.

So not all occasions where police could enter someone’s home because they have reasonable suspicion that a breach of the Regulations has been, is being, or is about to be committed will be lawful. It will only be lawful if the officer’s actions are both necessary and proportionate. In assessing this, a court would consider among other factors the circumstances of the case, what alternative means were open to an officer to achieve their purposes, and the seriousness of the intrusion compared with the seriousness of the breach of the Regulations – bearing in mind that having your house entered against your wishes is likely to be a serious matter.

However, one issue with granting the police a broad power, limited by a general safeguard of proportionality, is that it transfers the burden of ensuring that police officers do not exceed their powers onto people who have had their homes entered potentially unlawfully to make complaints or bring claims against the police (e.g. for trespass and breach of Article 8 rights). Human rights case law is clear that to be lawful, restrictions on the right to private life must be foreseeable and accessible.

Guidance to the police on how to exercise the power proportionately could make a difference, but the College of Policing guidance has been disappointing in this respect. While the latest guidance issued to Welsh police forces does refer to the power of entry, it doesn’t mention the requirement of proportionality. However, it does tell officers that they can bring persons they consider appropriate in with them and they can use reasonable force to gain entry. In a later section, the guidance does state that ‘we police by consent’ and that officers should apply the ‘Four E’s’ approach (‘Engage, Explain, Encourage, and only Enforce as a last resort)’.

Conclusion

Behind these concerns, there is an overarching question: what was the need for a new power of entry? The power appears to have first emerged in the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020, (see regulations 10(11) and 11), passed right at the start of the pandemic in March 2020. Despite this, there has been little public attention on the provision at all, which makes it hard to understand why such an intrusive power was needed. This is a concerning state of affairs. Credit should be given to the Law Society in Wales, which raised the issue in their manifesto for the 2021 Senedd elections.

English police forces have operated using their existing powers of entry throughout the pandemic (which include a power of entry to prevent or deal with breaches of the peace and to make arrests for certain public order offences). The obvious question is why have Welsh police forces needed a new power? Without a clear answer to that question, it is hard to have confidence that the balance has been struck in the right place.

Recent events including Black Lives Matter protests, the murder of Sarah Everard and the behaviour of officers in the Nicole Smallman and Bibaa Henry case have opened more people’s eyes to the extent of problems in police forces. This year in Wales we’ve recently seen a controversial attempt to fine a Black Lives Matter protest organiser, and Gwent Police have apologised publicly for failing to handle abuse allegations made against one of their officers appropriately. For those who have experienced or fear violence, harassment or abuse from police officers, the right to control who enters your home has particular significance.

The Welsh COVID Regulations deserved more scrutiny than they received. When a right as fundamental as the right to control who enters our homes is at stake, legislation requires very close attention. The Welsh Government should review regulation 34.

Crash Wigley is a pupil barrister at Civitas Law in Cardiff.