In addition to implementing measures like closing pubs, shops, and restauarants in order to safeguard public health, the government has created a number of criminal offences as a means of actually enforcingthese measures.
Scottish Ministers are enabled by to make regulations for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in Scotland. Under this Section, the Scottish Ministers passed , which contains the offences and associated regulations designed to tackle the spread of COVID-19.
Importantly, it is not required that the person enforcing these restrictions is a Police Constable. Paragraph 12 of Regulation 7 provides that local authorities may designate certain people as having the authority to enforce the restrictions. However, although the powers that they are given under the legislation are largely the same (they are both empowered to give prohibition notices and instructions, disobedience whereof constituting an offence), only constables are permitted to use force in exercising these powers.
If someone is lawfully exercising their power under these Regulations, then it is an offence to obstruct them or attempt to obstruct them.
If someone fails to comply with directions, prohibition notices or instructions given under these regulations, then they are committing an offence. This is still the case if the direction, notice, or instruction is given by a civilian who is a designated person.
If you are charged with committing an offence under the Regulations, it is a defence to show that you had a reasonable excuse to be doing what you were doing. In this context, what is considered a ‘reasonable excuse’ is a closed category, which means that all of the possible scenarios are defined in the legislation. ‘Reasonables excuse’ includes the need to:—
Though this is new legislation and there have been little, if no, test cases, the wording strongly suggests that excuses that do not appear in this list, however reasonable they may seem, will not be sufficient to constitute a defence to the charge. Therefore, if you are in doubt, it is recommended that you contact a solicitor who can properly advise you on your position. We are available 24/7 to help, despite the lockdown.