COVID-19 – Homelessness and the Criminal Law

Speaker: Stephen Knight
Chambers: One Pump Court Chambers

Stephen Knight
Barrister
One Pump Court Chambers
• This talk applies to England only.
• Each of the 4 nations has a separate regime.
• This talk deals with the specific issues that criminal defence practitioners will face when dealing with “homeless” clients.

Why Homelessness?
• The specific circumstances of homeless people are mentioned in the law, and “homeless” is a legal term which needs proper attention.
• Even when not set out in the law, the circumstances of a homeless person may give them a defence.
• Policing of COVID-19 restrictions has a disproportionate impact on homeless people.
• The state is likely to use lockdown to attack homeless people.

A Very Recent History of Persecution
• Police, Home Office, and some “homelessness charities” (St Mungo’s, Thames Reach, and Change Grow Live) cooperated to illegally detain and deport migrant rough sleepers.
• Disproportionate policing targets rough sleepers in city centres.
• PSPOs and CPNs are misused to criminalise poverty.
The Restriction on leaving and being outside your home

 

The Law
• The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“The Coronavirus Restrictions Regulations”).
• Regulation 6 (from 22 April 2020):
“(1) During the emergency period, no person may leave or be outside of the place where they are living without reasonable excuse.”
“(4) Paragraph (1) does not apply to any person who is homeless.”

Who is “Homeless”?
• Narrow reading: only a person who does not have somewhere to live.
• Wide reading: any person covered by s 175 Housing Act 1996.

Housing Act 1996 s 175
175.— Homelessness and threatened homelessness.
How Expansive is the Wider Reading?
• A person sofa surfing is homelessness (as they are not covered by s 175(1)).
• A person who is unable to enter accommodation is homelessness (s 175(2)(a)).
• Travellers and boat dwellers without a place to park / moor are homeless (s 175(2)(b)).
• Homeless if unreasonable to live in accommodation (s 175(3)). Examples would be if the accommodation is:
– Unsafe
– Uninhabitable
– Overcrowded
– In disrepair (R (on the application of Aweys) v Birmingham City Council [2009] UKHL 36)
How Expansive is the Wider Reading? 2
• Accommodation unavailable to live in together with family members etc., is homelessness.
• Housing Act s 176:
How Expansive is the Wider Reading? 3
• Unreasonable to continuity to occupy accommodation due to violence, including domestic violence.
• Housing Act 1996 s 177 (taken with s 175(3)):
Why is the Wider Reading Correct?
Restrictions on Gatherings in Public Places
The Law
• Coronavirus Restrictions Regulations reg 7:
“During the emergency period, no person may participate in a gathering in a public place of more than two people except—
(a) where all the persons in the gathering are members of the same household,
(b) where the gathering is essential for work purposes,
(c) to attend a funeral,
(d) where reasonably necessary—
(i) to facilitate a house move,
(ii) to provide care or assistance to a vulnerable person, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006,
(iii) to provide emergency assistance, or
(iv) to participate in legal proceedings or fulfil a legal obligation.”

Dispersal Powers
• Under Regulation 8 of the Coronavirus Restrictions Regulations, the police have been given the power to take action to enforce the restriction on gatherings in public places, and can order gatherings of 3 or more people to disperse, and can give any reasonable instructions they consider necessary.
• Police can use reasonable force (reg 8(10C)).

Household
Article 8 ECHR
• Article 8 of the European Convention on Human Rights protects the right to a private and family life
Article 11 ECHR
• Article 11 of the European Convention on Human Rights protects the right to freedom of assembly and association
Do the Regulations Comply with Human Rights? 1

Judicial Review of
Decisions to Prosecute
• SXH v Crown Prosecution Service [2017] UKSC 30; 11 April 2017 ¶ 34:

Summary 1
• In reg 6, be aware of the wide definition of “homelessness”.
• Note that “homelessness” disapplies reg 6(1), rather than creating a defence to the offence in reg 9.
• In reg 7, consider defences the definition of “household”.

Summary 2
• Consider multi-layered defence:
– Challenge FPNs
– Challenge DTPs
• Bear in mind ECHR Arts 8 & 11.

You can contact Stephen Knight via his clerks
clerks@onepumpcourt.co.uk

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