Clandestine Courtship: can you visit your lover in lockdown?

By Tom Parker

On Wednesday 6 May, the UK awoke to a scandal: a senior scientific adviser to the government, Professor Neil Ferguson, resigned from his position on the government advisory body SAGE after the Telegraph revealed that Ms Antonia Staats – his ‘married lover’ – had visited him at home during lockdown. The Metropolitan Police soon announced that they would investigate the incident.

The reason for Professor Ferguson’s resignation seems clear: it would be untenable for a senior adviser to be breaking the very rules he had encouraged the government to implement. But for pedantic lawyers sitting on the sidelines, the question arises:

Did he actually break the rules?

Much has been written about what we can and cannot do during lockdown (including on this blog): the essential point is that you can only leave, and remain outside of, your home if you have a ‘reasonable excuse’.

But Professor Ferguson never left his home. He was visited by Ms Staats, in his home. The regulations say nothing about what you may do, or whom you may see, within your place of residence.

Does this mean he didn’t break any of the rules, after all?

Well, not so fast. There are many ways a person can ‘commit’ an offence, depending on how they participate in the criminal act. A person may ‘conspire’ or ‘attempt’ to commit an offence; they may ‘aid and abet’ another.

It seems safe to assume that Professor Ferguson invited, and thereby encouraged, Ms Staats to visit him. By doing so, he may have committed the offence himself by way of aiding, abetting, counselling or procuring her to commit the offence (see s.44 of the Magistrates’ Courts Act 1980).

Even if she had not visited him, he might have committed the offence of encouraging or assisting an offence by asking her to visit him (see sections 44 and 45 of the Serious Crime Act 2007, replacing the common law offences of incitement); provided, however, that he did not believe she would have a reasonable excuse, or was reckless as to whether she would have such an excuse (see s.47(5) SCA 2007).

I say he may have committed an offence because, for Professor Ferguson to be liable as a secondary party, Ms Staats’ actions must amount to an offence.

Of course she broke the law! you may think. What could be less ‘essential’ than a trip to see your lover? Again, the regulations say nothing about ‘essential’ journeys – the question is whether visiting your lover/partner is a ‘reasonable excuse’.

Surely not! you may think. It is true that nowhere in Regulation 6 does it list ‘visiting a lover’ as a reasonable excuse. But the list is non-exhaustive. And what is ‘reasonable’ will depend on an individual’s circumstances and needs.

Well, does anyone need to visit their lover? I hear you ask. Couples may miss each other, but presumably they can survive a few weeks or month apart?

It does seem a defence that would be unlikely to succeed in the magistrates’ court. But it is not unarguable. Our ‘need’ to see and remain close to the ones we love is, and has been, recognised in law for a long time. Relationships form a core part of our right to private and family life under Article 8 of the ECHR. In fact, the Joint Committee on Human Rights specifically singled out the separation of couples as a potential problem with the restrictions:

A number of unexpected issues are likely to arise as these Regulations are applied. For example, it is not currently clear that two people who do not live together but are in a relationship are able to leave their respective homes to meet. This is an extraordinary interference with the right to private and family life and will become more severe the longer the Regulations or their successors remain in force (para 36).

 Many may read the above and still conclude that enforced separation of couples for 2 or 3 months is a proportionate interference with Article 8. Others may think that, whilst some couples may have particular emotional needs that would make a visit ‘reasonable’ (perhaps due to mental health difficulties), Ms Staats and Professor Ferguson fall well outside the realm of reasonableness.

It is another interesting example of how lockdown laws that appear black and white are, actually, fifty shades of grey.

Tom Parker is the current 36 Crime pupil, now in his ’second six’ and able to accept instructions. Tom’s pupil supervisor during his first six was Nadia Silver, with whom he gained experience in serious and complex crime and regulatory law. Before joining Chambers, Tom worked as a consultant on a criminal justice reform project in Somaliland. He has also interned at the Special Tribunal for Lebanon and worked with human rights NGOs in Kenya.

For further information about the 36 Emergency Powers Group, please click here.

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