By Jamie Bryson
In a lengthy statement, the majority of which is devoted to trying to offer some explanation for the latest PSNI gaffe, ACC Alan Todd actually compounds the PSNI’s error.
He states that “the current regulations, as drafted, do not appear to provide a specific exemption to enable taxi companies and drivers to operate after 8pm…”
This is, of course, entirely wrong. The starting point is that ‘taxi services’ are deemed essential pursuant to Schedule 1 of the Regulations (amended by paragraph 25 of The Health Protection (Coronavirus, Restrictions) (No. 2) (Amendment No. 24) Regulations (Northern Ireland) 2020 -(hereafter referred to as ‘Amendment 24’).
The next step is to then explore the restrictions between 8pm and 6am on essential services/retail.
Regulation 4C (1), inserted by Amendment 24, is as follows:
“4C.—(1) A person responsible for carrying on a retail business, which is wholly or mainly a retail business listed in paragraph (2) of schedule 1, of offering goods for sale or for hire or providing a service must, in the period ending at 12.01am on 2 January 2021, cease to carry on that business or provide that service between the hours of 8.00p.m and 6.00a.m except by making deliveries of groceries only, or providing of groceries only for collection, by appointment in response to requests received by on-line communication, by telephone, by text message or by posts” (emphasis added).
As is plain by a cursory glance at Regulation 4C (1) there is an exception for those who are providing services “by appointment in response to requests received by on-line communication, by text message or by posts”.
Taxi Services full under this exemption, given that their services are provided by appointment, therefore are entitled to continue to trade.
To alleviate one other bizarre confusion, some appear to be reading 4C (1) and wrongly concluding the part about appointment etc. is to be read conjunctively to the rest of the paragraph and thus means only appointments for delivery of groceries etc. This is entirely incorrect, the insertion of a comma between the words ‘collection’ and ‘by’ means that as a matter of statutory interpretation the two conditions are to be read disjunctively.
As if this isn’t clear enough, there is actually an explicit exemption in 4C (2) (c) which states, inter-alia, that those exempt from the restrictions at paragraph (1) of 4C includes “transport services”. Plainly a taxi business is a transport service.
As such, there are two routes by which Taxis are exempt. ACC Todd’s efforts to cloud matters by pretending there is no exemption is little more than the PSNI seeking to find some justification for their latest error. In truth, there is no possible justification; there is a clear exemption- indeed there are two.
However, as always with ACC Todd, he does not apologise for this latest error. Instead, he compounds it further. In his statement he goes on to say police will not take action where taxi drivers are “clearly operating in an essential manner”. In this, the PSNI repeat the error they made in creating a test of necessity in travelling to exercise during the first lockdown.
There is no test of necessity or ‘operating in an essential manner’ in law. The PSNI have literally invented this. They aren’t applying the law, they are trying to make it. The test is whether the business is operating by appointment (4C (1)) or whether it is a transport service (4C (2) (c)), that is it.
Indeed, in his self-generated confusion, ACC Todd has bizarrely now created a situation whereby he has invented a test (which has no basis in law) which is plainly unenforceable. How would the PSNI go about stopping and demanding answers of a person as to whether they were ‘operating in an essential manner’? What documentation or records would be required? What is the objective standard?
It is plain to see that ACC Todd’s statement has the potential to cause chaos, and without a scintilla of a basis in law.
The PSNI would clearly have to deploy stop and search powers in order to ‘police’ the 8pm-6am restrictions. What is their lawful basis for doing so?
Article 3 of Police and Criminal Evidence Act 1989 (‘PACE’) does not confer such powers. The only power to stop and search under Article 3 (2) (a) is to search for stolen or prohibited articles.
Article 23B of the Public Order (NI) Order 1987 confers powers of stop and search which are only exercisable where the constable exercising the power has “a reasonable belief that incidents involving serious violence may take place or that people are carrying dangerous instruments or offensive weapons within any locality in the police area (see 2.1 PACE Code A). Again, this plainly doesn’t apply to seeking to ascertain if a taxi is operating in an ‘essential manner’.
It appears rather a waste of time to further go on and point out that neither the Terrorism Act, Misuse of Drugs Act 1971 nor Justice and Security (NI) Act 2007 confer powers which could be exercised in relation to Covid Regulations.
The PSNI do have Road Traffic powers to stop a vehicle, but they may only require the production of a driving licence, MOT certificate or insurance. The powers under the Road Traffic legislation certainly do not extend to ‘questioning’ persons as to their journey.
The operation of all stop and search powers may engage a range of Human Rights including, but not limited to, Article 5 and Article 8. As set out by Lord Sumption at paragraph 20 of Bank Mellat v Her Majesty’s Treasury  UKSC, an ‘exacting analysis” is required, applying the test of proportionality, of any measure which interferes with a fundamental right.
It is very difficult to see how the PSNI deciding (notwithstanding they actually have no statutory stop and search powers for this purpose) to stop taxi drivers and question them as to whether they are operating in an “essential manner” (again notwithstanding the reality there is no such legal requirement in the regulations) would be deemed proportionate.
In short, the PSNI have no power to stop and question a taxi driver as to whether they are operating in an ‘essential manner’. This invention by ACC Todd, as some kind of diversion from his latest gaffe, is going to cause chaos and confusion and should clearly be corrected as a matter of urgency.