Test, trace and detain

Fiction:

You must test positive for Covid-19 in order to be asked to isolate, but track and trace doesn’t yet have force of law.

Law:

The Coronavirus Act 2020 gives powers of detention for screening and assessment for 48 hours, for isolation for up to 14 days at a time and to demand information in order to trace others, and all with no need for anything more than a suspicion of infection. The Act also empowers police officers to detain people suspected of having Covid-19. The point at which these powers will begin to be used will be when the Secretary of State of Health, Matt Hancock, decides the public are not exercising what he referred to as their ‘civic duty’ and he issues guidance as a trigger for wielding those powers.

The Act, comprised of 102 sections and 29 schedules, was passed into law 25 March 2020 as emergency legislation. At that time, when there was cause for concern that Covid-19 might otherwise kill half a million UK citizens within a short period, these powers might have been thought reasonable and in line with the government’s declared objective for the Act of ‘containing and slowing down’ the virus. However, if the evidence is that serious illness and fatalities from Covid-19 may in reality be comparable to seasonable flu, one must question whether these draconian powers, as further explained below, need to remain on the statute books.

‘Potentially infectious persons’,

By virtue of Schedule 21, public health officers, police and immigration officers are given wide and sweeping powers.

“potentially infectious” is itself an extremely broad term, including anyone who:

  • may be infected or contaminated with coronavirus; or
  • within the last 14 days has been in any other country identified as an ‘infected area’
Powers of detention

A public health officer need only have ‘reasonable grounds to suspect’ that you are potentially infectious, at which point they can:

(a) direct use to go immediately to a screening and assessment location, and

(b) request the police to use reasonable force to make you do so.

Given the particular public health officer only has to consider this necessary and proportionate for the catch-all criterion of ‘maintenance of public health’, there is in practice no bar within the Act to the most officious wielding of these powers. (schedule 21, paragraph 6(3))

That said, in exercising these powers, the public health officer must have regard to any relevant guidance issued by the Secretary of State. This is, therefore, an example of law arising through guidance and also of considerable power being exercisable at the whim of a government Minister.

Screening (testing)

You may be detained at the place for screening and assessment purposes for up to 48 hours, where you may be required:

  • to provide, or allow a healthcare professional, to take a biological sample (which includes a sample of blood or by a swab of the nose and throat)
  • to provide health or other relevant information (such as travel history and as to other individuals with whom you may have had contact).

For the sample, a ‘healthcare professional ‘ will be a registered medical practitioner or nurse, or other designated healthcare professional.

As for the information, documents may be demanded as well as current and future contact details. (Schedule 2, para. 10(3))

You may then also be directed to another place for more screening or testing where you may again be detained for another 48 hours afresh. (Schedule 2, para. 12)

Following screening (testing)

Severe restrictions may be imposed following the assessment or screening simply if: 

  • the screening confirms you are ‘infected or contaminated’ with coronavirus, or
  • screening was inconclusive, or
  • on assessment, even without screening, a public health officer has reasonable grounds to suspect that you are potentially infectious

At that point, the officer can impose such requirements and restrictions as they consider necessary and proportionate, for example

  • requiring you to remain at a ‘specified place’ for up to 14 days
  • restricting movements or travel (within or outside the United Kingdom);
  • restricting activities (including work or business activities);
  • restricting contact with others. (Sched 2, para 14(4))

Only in respect of detaining you is there a requirement to have regard to your well-being and personal circumstances. Otherwise, it would appear, such matters are to be treated as unimportant.

If you do not go where you are told, or abscond, a police officer may take you into custody and return you to wherever the public health officer specifies. Indeed, a police officer can enter your home or any premises at will in order to exercise these various powers relating to screening, assessment and detention.

Appeals

Appeal can be made to a Magistrates Court, where the magistrate has power to confirm, modify or quash the restrictions or requirements otherwise imposed.

Children

If you are responsible for a child (under 18 years old), you are required so far as is reasonably practical to secure that the child complies with directions given.

If you aren’t present when the powers under the act are being exercised against a child, you must, if practical, be contacted before they are exercised. You may also be directed to take the child to such place as is being required.

So, when you get the phone call from school to say your child has been in class with someone who has had a bit of a cough, you should expect to be required to collect your child for testing and for isolation.  And if your child is going to isolate, you should, perhaps, be surprised by a further instruction to the whole household to be tested and to isolate. 

Enforcement measures

Failure to comply with directions given may result on summary conviction to a fine up to £1,000 (level 3 on the standard scale).

 

Warning: Law and circumstances can change very quickly.  Please note the date of publication of any blog post and check for any updates on the issues addressed. In any event, we do not condone or encourage breaching the law and neither the above nor any information posted on this website constitutes legal advice. It must not be relied upon as such and specialist legal advice should be taken in relation to specific circumstances. Please read our disclaimer.

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12 thoughts on “Test, trace and detain”

  1. Hi there
    Thank you for the information you provide.
    Could I just ask please which us the best way to oppose these draconian measures particularly around the testing and holding of children?
    Surely they gave rights in all this?
    Thank you in advance. I am a Mum of two with one child on the spectrum.

    Kind regards

    Jae

  2. Hello,
    So if my child is at school with someone who has a cough, then school they will contact me and tell me to take my child for testing? Is that actually true? If yes, they will be testing kids at least every week. This is radiculous….

    “So, when you get the phone call from school to say your child has been in class with someone who has had a bit of a cough, you should expect to be required to collect your child for testing and for isolation.”

    Thanks
    Anna

  3. This is an Act not a Law. Is an Act enforceable in the same way as a Law? Does it not require your consent to be enforceable?

  4. Hi there
    Could you please kindly explain to me how we go about protecting our children and ourselves from these draconian measures re the Corona Act?
    Is standing under common law on an option as in the Magna Carter 61?

    Thank you kindly

    Jay

  5. They haven’t even isolated a virus, how can they hey be legitimately testing for it. COVID 19 represents “certificate of vaccination identification “ patent applied for in 2019 by no other than Bill Gates. This nonsense has to be stopped, it’s wrecking lives.

  6. I don’t see what they can do if you agree to isolate but refuse a test? Why would you even need a test – when all it will say if ‘positive’ is to isolate for 14 days?

  7. Please may I ask if the procedure to apply to a Magistrates Court can be clarified?

    Would one have to issue a writ of Habeas Corpus (as I understand it) to the nearest court and, if so, is there a template for this procedure?

    I can imagine that being locked in a detention centre, one will find it difficult to access writing implements, paper, a mobile phone charger, the internet… so having knowledge of a viable method of challenge via the courts ‘just in case’ could be most useful.

    Thank you very much.

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