Social media posts have become viral in recent weeks as certain business owners have attempted to defy lockdown regulations. 

Some posts have claimed that Magna Carta absolves businesses from having to close, with others boldly asserting that they will charge a fee to the police if they visit their premises. 

Given the huge strain the pandemic has placed on small business in particular, it is understandable that owners are looking for reasons to continue trading. However, the recent claims on social media are very much incorrect - this post explains why. 

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Jargon Buster

Let’s first clarify some of the key terms flying around social media:

• Magna Carta: Magna Carta (meaning the ‘great charter’) was originally issued by King John of England in 1215, following an uprising of rebel barons. It established the principle that everybody is subject to the law (even the King). The original Magna Carta of 1215 had 63 clauses but it was reissued and altered several times in the years that followed. The contents of Magna Carta were placed in English statute books in 1297, but much of this has since been repealed (i.e. officially withdrawn), with only three clauses remaining in English statute.  
  

• Common law: This is one source of law in the English legal system, originating from reforms in the 12th Century. It was named ‘common law’ because it applies equally to all. Common law is essentially unwritten law derived from ‘legal precedents’ i.e. the decisions made by judges in previous cases.  Murder is one example of a ‘common law’ offence - it was defined by Edward Coke in 1797 and the same definition is still used today (albeit adapted for modern times).   
  

• Statute: This is another source of English law created by Parliament in the form of legislation e.g. the current lockdown regulations known as ‘The Health Protection (Coronavirus, Restrictions)(England)(No.4) Regulations 2020’. It is important to note that Parliament can decide to enact legislation which can supersede, replace or modify common law. 
  

• Prohibition notice: This is a common method of enforcing health and safety laws. Under the current lockdown regulations, prohibition notices can be issued by a ‘relevant person’ (usually the police or local authorities). They can instruct a person to discontinue an activity contravening lockdown rules, for example requesting gyms or spas to close if owners have failed to do so. 

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False claims explained:

Claim 1: If you own a business and display clause 61 of Magna Carta in your windows you can’t be fined or forced to close your business. 

Our Verdict:  False. 

Certain business owners have tried to rely on clause 61 of Magna Carta as justification for keeping their business open in breach of lockdown rules. Some even claim that this specific provision permits them to ‘dissent or rebel’ lawfully if they believe they have been governed unjustly. This is incorrect in several respects. 

Firstly, the wording of clause 61 of Magna Carta does not confer rights to the whole population, only to a group of 25 barons who were given a type of security power in 1215. Clause 61 also makes no reference to any right to ‘dissent or rebel’. 

What’s more, further to the original Magna Carta of 1215, clause 61 was removed in short order from subsequent versions and never made it into English statutes. 

Finally, and unsurprisingly, clause 61 (or any other provision in Magna Carta) makes no reference to a right to display a notice in order to avoid closure or fine during a coronavirus lockdown...

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Claim 2: I live in a common law country...as a living man I can choose not to consent to a prohibition notice so my business can stay open 

Our Verdict: False. 

Common law does not provide anyone with a right to defy prohibition notices (or any other legal requirement). In fact, common law can be superseded or replaced by legislation. Business owners therefore must comply with the current legislation underpinning the lockdown (i.e. The Health Protection (Coronavirus, Restrictions)(England)(No.4) Regulations 2020). This includes compliance with any prohibition notices requesting closure of premises - business owners do not have the option not to consent.  

It is also important to highlight that it is a criminal offence for a business to deliberately defy lockdown regulations (including prohibition notices). Business owners can be arrested for non-compliance and could face multiple fines of up to £10,000 for persistent offences (irrespective of their ‘consent’). 

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Claim 3: The authorities are trespassing by fining and extorting money from me

Our Verdict: False. 

Under English law, fines or requests for money are not a form of trespass.  

Trespass in English law can broadly be divided into trespass to the person (assault, battery or false imprisonment), trespass to goods (deliberate interference with goods in the possession of another) and trespass to land (intentionally entering a person’s land without permission). A fine or demand for money (particularly when contained in a lawful fixed penalty notice) does not constitute ‘a trespass’ under English law. 

In any event, police are given specific powers to issue fines to anyone who they reasonably believe has committed an offence under lockdown regulations (see Part 5 of the The Health Protection (Coronavirus, Restrictions)(England)(No.4) Regulations 2020). 

Claim 4: I served ‘notice’ on the police...so I can charge them a fee for future visits to my premises. 

Our Verdict: False. 

There is absolutely no legal basis for a business owner to charge the police (or the council) a fee for visiting their business premises when attempting to enforce the law.

Top tips for business owners

• The lockdown restrictions are underpinned by law and should be followed. The requirement for certain businesses to close is not simply guidance - failure to comply may be a criminal offence. 
• Prohibition notices should be taken seriously. If ignored they may be followed by large fines or even arrest. 
• Recipients of a fixed penalty notice (i.e. a fine) should review the contents of the notice carefully and pay the sum requested promptly. Notices from authorities should include key information such as why the authorities believe an offence has been committed, the amount of the penalty and details of payment. 

• Always check sources of information. Viral social media posts frequently contain errors, which, if believed could result in business owners inadvertently breaking the law and facing large fines. Review official sources such as the government website if in any doubt.

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