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Above the Law? Regulations,’ (London: Oct 15, 2020 15:00 BST) ( www.newlawjournal.co.uk | 23 October 2020 COMMENT LEGAL WORLD 7 Margaret Ferrier is the Independent MP for Rutherglen and Hamilton West © iStockphoto/Rixipix © Robert Perry/EPA-EFE/Shutterstock reported breaches of Health Protection Above the law? Regulations,’ (London: Oct 15, 2020 15:00 BST) (https://bit.ly/3jh7cV7)). The police Is there a crime of wilfully exposing others to potentially obviously cannot apply reg 11(2) of the lethal diseases? Professor Dennis J Baker reflects on the Health Protection Regulations 2020 (SI 2020/129) retroactively. The offences Met Police decision not to prosecute Margaret Ferrier MP in the Health Protection Regulations 2020 are punishable on ‘summary he focus of this comment is on With full knowledge that she was conviction by a fine not exceeding level what charges might be brought COVID-19 positive, Ferrier decided to get 3 on the standard scale’. These offences against those who deliberately a train back to Glasgow. The gravamen of are a toothless tiger as far as an MP is Tand unjustifiably expose other her conduct is that she exposed hundreds concerned, because the fine would not members of the public to contagious if not thousands to the risk of contracting be felt given the salary. Furthermore, a diseases during a pandemic. This is an a life-threatening disease and serious conviction under this provision would be acutely important issue, because not illness. The domino effect of spreading insufficient to have Ferrier removed from only does such conduct expose others to this to a train carriage full of passengers Parliament, which seems called for. the risk of death or serious illness, it has is evidenced by current events. What MPs cannot be sacked for gross the potential to increase pressure on an also makes her conduct a public nuisance misconduct. They can be removed through already overextended NHS. is that it sends a message to the general a cumbersome process, if convicted of an According to reports by the BBC, Ferrier public that it is acceptable to ignore self- offence or if suspended from parliament. tested for coronavirus on Saturday 26 isolation rules. The police will have great Section 1 of the Recall of MPs Act 2015 September 2020. She had COVID-19 difficulty enforcing the law against other would allow Ferrier to be subject to a symptoms and thus had reason to believe members of the public, if Ferrier is not recall petition (meaning she would have she was COVID-19 positive, but attended also charged. to stand in a by-election to try to keep church on Sunday 27 September 2020. her seat in parliament rather than benefit Without waiting for her test results, on Police decision from the MP salary for another four years Monday she travelled from Scotland to The Metropolitan Police in an official until the next general election). London by train. After arriving in London statement said: ‘However, on detailed Recalls normally result in the MP and passing through busy train stations examination of this new legislation, and being voted out. (Fiona Onasanya and she attended parliament where she spoke following legal advice, it was concluded Christopher Davies had to be removed in the Commons without wearing a mask that this regulation is applicable only from Parliament through this process, (see ‘Margaret Ferrier: Met Police to take after the 28 September 2020. In this case because they refused to resign after being no further action against COVID MP,’ the test occurred prior to 29 September convicted of serious crimes which resulted (London: BBC News, 15 October 2020: 2020 and therefore the regulation does in them receiving custodial sentences.) https://bbc.in/3kgq3ky). not apply.’ (‘UPDATE: Investigation into Ferrier can only be recalled, if convicted of 8 LEGAL WORLD COMMENT 23 October 2020 | www.newlawjournal.co.uk an offence or suspended from Parliament. so the defence of insanity would not train carriage as Ferrier. No doubt they Notwithstanding the Health Protection be applicable. Her refusal to resign is suffered mental anguish while waiting Regulations 2020 cannot be applied indicative of her character. for COVID-19 testing. Also all those they retroactively, there are more appropriate All the elements of the offence of public came into contact with would have felt offences to invoke in such a case. This case nuisance are amply satisfied. The conduct the same. The fault element is satisfied by is gravely serious, not only because Ferrier was intentional and not only risked a negligence and thus a fortiori recklessness is an MP who is meant to be providing large section of the public, but also put or intention. It is sufficient to prove that leadership and an example to the public the lives of other MPs at risk. MPs that Ferrier ‘knew or ought to have known in a national emergency, but because she we are all relying on during a national (in the sense that she had the means of intentionally exposed many members of emergency. At the very least it was gross knowledge available to her)’ that as a the public to a potentially lethal disease negligence for her to travel to London and lawmaker and politician with a duty to and/or serious illness. attend parliament before getting her test set a public example that by travelling The police should revisit this case result. The leading authority supporting on a busy train for five hours with other and ask the CPS to consider bringing a the invocation of the offence of public passengers in a closed carriage, while charge for the offence of ‘public nuisance’ nuisance is R v Vantandillo (1815) 4 M & carrying a potentially lethal and highly or alternatively for ‘outraging public S 73, 105 ER 762. It is a leading authority, contagious disease, her travel ‘carried a decency’. It is in the public interest because it has been endorsed by the House real risk of causing a public nuisance’ (R v that this case be taken seriously and of Lords. In R v Rimmington [2006] 1 AC Shorrock [1994] QB 279, [1993] 3 All ER members of parliament be held to the 459, [2006] 2 All ER 257 at [471], Lord 917 at [284]). highest standards during a pandemic. Bingham said: ‘R v Henson (1852) 1 Dears Alternatively, a private prosecution could 24 involved a mare which, like the child Comment be brought to put pressure on the CPS to in R v Vantandillo, was infected with a An alternative offence might be outraging take action. “contagious, infectious and dangerous public decency, but the offence of public disease”. The defendant, having brought nuisance is a much clearer fit. The offence The offence of public nuisance the mare on to the highway with of public nuisance would cause the jury The available offences that could be knowledge of its condition, was convicted fewer problems and would have a better applied are (1) the offence of causing a of causing a common nuisance.’ There is chance of being taken seriously by the public nuisance; or (2) outraging public no question it is still good law. (See also CPS, because it is such a clear fit. There is decency. It is submitted the appropriate R v Thornton [1991] OJ No 25, where a no reason why the CPS should not bring a offence here is public nuisance as person who knew he was HIV positive charge of public nuisance and it is clearly the conduct fits squarely within the continued to donate blood and was in the public interest that it does so. authorities. There is a risk that invoking convicted of public nuisance). Similarly, Sections 20 and 47 of the Offences against outraging public decency could be in R v Burnett (1815) 4 M & S 272, 105 the Person Act 1861 are irrelevant, because rebuffed by the CPS as a bad fit (as gap ER 835 at [273] a conviction was upheld there is no evidence of her infecting an filling law), whereas the offence of public because D inoculated many infants and identifiable individual. The appropriate nuisance has been applied to contagious transported them along a public street offence is the offence of causing a public disease spreaders many times. These old thereby spreading small pox. nuisance. Ferrier endangered ‘the health offences are often criticised but they still James Fitzjames Stephen in his A Digest and life… of the public’ and had full play an important role when the facts of the Criminal Law, (London: Macmillan knowledge of the risk she was taking. are clear, and the facts are very clear in and Co 1904) said: ‘Every person commits She knew she was COVID-19 positive and Ferrier’s case. a nuisance who does anything which understood how contagious her condition For centuries the offence of public endangers the health, life, or property was and that anyone testing positive was nuisance has been applied to activities of the public or any part of it.’ The fuller required to self-isolate with immediate that endanger the health of sections of explanation of Stephen’s account that has effect. Because this offence only requires the public (see R v Sutton (1767) 4 Burr been upheld by the courts is: negligence it would reach back to her 2116, 98 ER 104 where D was indicted for conduct in Glasgow before she set off for spreading small-pox); R v Lister (1857) ‘A person is guilty of a public nuisance London. Would a reasonable person take Dears & B. 209.) This is a common law (also known as common nuisance), who a train ride to London from Glasgow while offence with teeth, because it is triable (a) does an act not warranted by law, waiting for the results of a COVID-19 test either way.
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