Leaving Home: Reasonable Excuses, Vagueness, and the Rule of Law

Oran Doyle, Trinity College Dublin

 

Dominic Cummings attracted considerable attention for allegedly breaching the lockdown regulations in England by driving from London to Durham with his child and sick wife. The issue was whether this constituted a reasonable excuse for leaving his dwelling. Similar questions about the generality of ‘reasonable excuse’ arise under the Irish lockdown regulations.

Regulation 4(1) prevents someone leaving their place of residence ‘without reasonable excuse’. Regulation 4(2) provides:

Without prejudice to the generality of what constitutes a reasonable excuse for the purposes of paragraph (1), such reasonable excuse includes an applicable person leaving his or her place of residence … to ….

There follows a list of reasonable excuses, such as (d)(iii) to ‘obtain money for a vulnerable person’. But the examples in the list are not exhaustive. In other words, you might have a reasonable excuse to leave your house, even if you don’t fall within one of the specified excuses in the list.

Breach of regulation 4(1) is a criminal offence, punishable by a maximum fine of up to €2,500 and/or a sentence of imprisonment for up to six months.

The generality of ‘reasonable excuse’ provides desirable flexibility at the expense of certainty. One example: it would probably be a reasonable excuse to leave your home in order to escape domestic violence, a concern that was raised in the early days of the lockdown. But in other situations, it may be difficult to know what counts as a reasonable excuse. And if you can’t know what’s a reasonable excuse, you can’t know whether you’ll be committing a crime if you step outside your home, other than in those cases listed in regulation 4(2).

Is there any way in which this uncertainty can be reduced? Many of the enumerated reasonable excuses are hedged with conditions. For instance, at the time of writing (although this is about to change) regulation 4(2)(ia) allows you to leave your home to gather for social or recreational purposes, within a 5km radius, with a maximum of three other persons who don’t reside with you. It seems unlikely that the broader category of ‘reasonable excuse’ allows for the relaxation of those conditions, e.g. a radius of 7km, or gathering with four other people who don’t reside with you.

But this only gets us so far. Should you be able to gather together for purposes that are not social or recreational? Suppose, for instance, that you wanted to leave your house to gather with three others for religious purposes. Images have been shared online of outdoor, physically distanced confession. Did the priest and penitents have a reasonable excuse for leaving their dwellings? On the one hand, religious practice is important and confession outdoors with appropriate physical distance poses no more risk than social or recreational meetings. On the other hand, the regulations not only take care to specify recreational or social purposes, but also specifically identify when priests have a reasonable excuse to leave their homes to perform religious functions: leading worship or services remotely, ministering to the sick, or conducting funerals. These specific enumerations perhaps tend against the permissibility of priests and penitents leaving their homes to hold confession outside. But again, it is hard to tell.

Perhaps official guidance might help reduce uncertainty about what counts as a reasonable excuse. But official guidance tends to focus on telling you when you should stay at home, even when legally you have a reasonable excuse to leave your home. Government guidelines still tell the over-70s, for instance, that they should stay at home at all times. Official guidelines don’t seem a reliable guide to what counts as a reasonable excuse.

The uncertainty of ‘reasonable excuse’ raises rule of law concerns. In principle, you should be able to know in advance whether you will be guilty of a criminal offence if you act in a particular way. This is particularly the case in respect of such a common and everyday activity as leaving your home.

In Ireland, this rule of law principle finds expression in the constitutional rule that criminal offences cannot be vague. In Dokie v DPP, the High Court declared unconstitutional s12 of the Immigration Act 2004. This section required a non-national to produce their identification documents on demand ‘unless he or she gives a satisfactory explanation of the circumstances which prevent him or her from so doing.’ Kearns P held that the offence purportedly created by s12 was not sufficiently precise to reasonably enable an individual to foresee the consequences of his or her acts or omissions. It was ambiguous and imprecise and therefore lacked the clarity necessary legitimately to create a criminal offence.

Does it follow from Dokie that the prohibition on leaving your dwelling without a reasonable excuse is unconstitutional? Not necessarily. Kearns P commented that ‘reasonable excuse’ would be a preferable standard to ‘satisfactory explanation.’ But Kearns P, contrasting a similar provision in UK law, also indicated that it would be preferable to provide for ‘reasonable excuse’ as a defence, rather than making it part of the action that constitutes the offence itself. In short, regulation 4(1) is better in one respect than the law struck down in Dokie but as bad as that law in another respect.

The Supreme Court last year rejected a vagueness challenge to a very different criminal offence, but Charleton J summarised the general constitutional principle in a way that is helpful for us here:

What therefore is the test for vagueness? Even after analysis, through the breaking down of an offence into definitional elements, if the result is obscurity of application to fact or impossibility of interpretation so as to find a consistent solution, then a criminal statute may be said to be vague. Where a law may be interpreted one way for those in favour of the police or other authorities and another for those in disfavour, there is impermissible vagueness. Ambiguity which defies definition through interpretation and the application of precedent undermines legal certainty.

Is ‘reasonable excuse’ in regulation 4(2) vague in this way? Quite possibly.

Is there any other way of providing flexibility that would avoid this problem? One possible approach would retain the list of enumerated excuses for leaving your dwelling, while separately providing that a person may leave their home for urgent and compelling reasons. This would provide greater guidance by limiting the flexibility to truly exceptional cases and conceptually separating those cases from the enumerated list of everyday excuses. Such an approach could be more restrictive of freedom in one sense; but it would enhance our autonomy by making it easier for us to know when we are at risk of criminal punishment for leaving our homes.

How might Mr Cummings have fared under the Irish regulations? The Irish regulations, differently from their English counterparts, specifying that it is a reasonable excuse to leave one’s home to ‘move to another residence where, in all the circumstances of the case, such movement is reasonably necessary.’ This would at least have focused discussion on what was surely the core issue in Mr Cummings’ first trip. And in a final twist to this tale, this specific excuse may also have helped to pre-empt a minor political kerfuffle of our own.

Dr Oran Doyle is professor in law at Trinity College Dublin and a visiting faculty member at the University of Pennsylvania Carey Law School. He is the Director of the COVID-19 Law and Human Rights Observatory.

Suggested citation: Oran Doyle, 'Leaving Home: Reasonable Excuses, Vagueness, and the Rule of Law' COVID-19 Law and Human Rights Observatory Blog (5 June 2020)

http://tcdlaw.blogspot.com/2020/06/leaving-home-reasonable-excuses.html

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