And can I drive to go swimming or do other exercise?
NOW SUPERCEDED, 13 MAY – see Can I swim, drive, with whom? from 13 May
(Applies to period late March/early April. Won’t be updated further).
Or should I do either, in the light of the government’s advice to Stay at Home? I think it is important to look at what the law and guidance says (for England) (updated 6 April 2020, some updates 28 Apr, see end). The gist: govt recognise importance of exercise for mental and physical health, the law and guidance say slightly different things, you might in very limited circumstances be able to justify going swimming (and/or driving to exercise) if you have a ‘reasonable excuse’ to go outside and to remain outside, however there are many circumstances in which it isn’t okay to go swimming. Be aware of the law, guidance, and consider perceptions and what is best to do for the common good. This article is not advocating taking any particular action. It is my personal analysis of available resources. See more up-to-date advice on travel and exercise at the bottom, from CPS, and amendment to the legislation.
This has already been a thorny issue over the last week or so, and is now in sharp focus because this weekend (4 April) and the next few days are going to be warm and sunny. Landowners, authorities and the police are on alert and they and the government have been putting out advice to stay at home. The outdoor swimming community has been debating this, and some swim spots have put up notices or messages warning swimmers to keep away. In some places and forums feelings have been running high, opinions expressed forcefully, people have been jumping to conclusions, misunderstanding each other, finding the views expressed by others very upsetting. In an anxious time, mental health is a crucial consideration, and getting outdoors and into nature is more important than ever. Some people are in circumstances where it is particularly important, and at the same time particularly difficult, to find somewhere to go outside to do exercise and look after their health. I hope that people will debate the issue carefully and not make other people feel guilty without knowing their circumstances.
One article (5 April) addressing some of these points is https://www.spectator.co.uk/article/does-matt-hancock-really-think-banning-all-exercise-is-a-good-idea-
What the law says and what guidance says (England)
The law and the guidance say different things.
The relevant guide part of the law relating to leaving the home and exercise is Regulation 6 http://www.legislation.gov.uk/uksi/2020/350/regulation/6/made
Comprehensive and very useful guidance has been written by solicitors 5 Essex Court, who advise police forces. Their full guidance can be downloaded from the link below quotes from this guidance.
“75. We note that some public statements made soon after the adoption of the Regulations suggested that members of the public could only leave their homes if it is “essential” to do so. However, this is not the test set out in the Regulations and there is no legal basis for a requirement in those terms to be imposed. The applicable threshold is that of “reasonable excuse”. Provided a member of the public has a reasonable excuse to leave their home, there is no violation of regulation 6.
- Likewise, the Prime Minister’s address to the nation on the evening of 23 March 2020 referred to only four “reasons you should leave your home.” However, there is no limit on the number of “reasonable excuses”. Regulation 6(2) provides the [following] non-exhaustive list of potential reasonable excuses”
https://5essexcourt.co.uk/resources/news/view/coronavirus-a-guide-for-police-forces-in-england
On freedom of movement restrictions:
“71. Regulation 6 imposes wide-ranging restrictions on freedom of movement …
“72. Regulation 6(1) provides that:
‘During the emergency period, no person may leave the place where they are living without reasonable excuse.’
…there is no limit on the number of “reasonable excuses”. Regulation 6(2) provides the following non-exhaustive list of potential reasonable excuses:”
– including –
(b) to take exercise either alone or with other members of their household;
…
“77. Specifically in relation to regulation 6(2)(m) (“to avoid injury or illness or to escape a risk of harm”) the College of Policing issued guidance on 26 March 2020 recommending that:
(a) officers should bear in mind that it may not be safe for a person to be at home”
College of Policing guidance:
“It may not be safe for everyone to be at home. Consider whether there are any safeguarding issues at play.
For example, are you dealing with aspects of domestic abuse, child abuse or health?
Be professionally curious, do the checks and ask the questions. Find out what’s really going on and enquire about the environment the person is living in.”
https://www.college.police.uk/News/College-news/Pages/Health-Protection-Guidelines.aspx
Very important examination of the law and guidance https://coronavirus.blackstonechambers.com/coronavirus-and-civil-liberties-uk/
Commonly shared ‘rules’ – are these in the law, guidance or neither?
– One session of exercise per day
As solicitors 5 Essex Court outline, this is guidance, not law:
“79. The Prime Minister’s address to the nation on the evening of 23 March 2020 also referred to only “one form of exercise a day”. A restriction on taking exercise “no more than once a day” has found its way into the Regulations applicable in Wales (see regulation 8(2)(b) of the Health Protection (Coronavirus, Restrictions) (Wales) Regulations 2020). However, there is no such restriction in the Regulations applicable in England. It follows that police forces in England do not have the power under regulation 6 to restrict people from exercising more than once per day – the only relevant consideration is whether repeated exercise on the same day can be considered a “reasonable excuse” for leaving home.” https://5essexcourt.co.uk/resources/news/view/coronavirus-a-guide-for-police-forces-in-england
“- There is no limitation on how often a person may exercise or for how long.[in Regulation 6]”
https://www.stjohnschambers.co.uk/news/parks-and-recreation-and-covid-19
– Maximum of one hour of exercise per day
This is not in the law, and is not in government guidance on their website. It is a suggestion, and the Minister made it clear that it can vary depending on the individual.
“Michael Gove has offered some clarity on exactly how long people can exercise outside for during the coronavirus lockdown.
The minister appeared on the BBC’s Marr programme on Sunday morning, where he spoke about the sacrifices people are making, as well as offering guidance on how long people should be leaving the house for exercise.
“Obviously it depends on each individual’s fitness,” he said.
“But I would have thought that for most a walk of up to an hour, or a run of 30 minutes, or a cycle ride between that, depending on their level of fitness, is appropriate.”
– From home only
Government guidance does not say this, instead it says:
“stay local and use open spaces near to your home where possible – do not travel unnecessarily”
https://www.gov.uk/government/news/coronavirus-guidance-on-access-to-green-spaces
“80. Moreover, regulation 6 does not impose any express limitation on the distance that an individual can travel away from home. So, for example, there is no requirement that physical exercise must be carried out in the immediate vicinity of the home. Again, the only relevant consideration is whether the person engaged in physical exercise has a “reasonable excuse” for leaving the place where they are living.”
https://5essexcourt.co.uk/resources/news/view/coronavirus-a-guide-for-police-forces-in-england
– You must not drive somewhere to exercise
Government guidance does not say this, instead it says:
“stay local and use open spaces near to your home where possible – do not travel unnecessarily”
https://www.gov.uk/government/news/coronavirus-guidance-on-access-to-green-spaces
Guidance from the College of Policing says:
“Use your judgement and common sense; for example, people will want to exercise locally and may need to travel to do so, we don’t want the public sanctioned for travelling a reasonable distance to exercise.”
https://www.college.police.uk/News/College-news/Pages/Health-Protection-Guidelines.aspx
On where, when, and for how long, lawyers say:
“- There is no restriction as to where exercise might take place. It is unclear from the Regulations whether driving to a place of intended exercise is permitted or not. The exercise need not be ‘reasonable’ in type, quality, duration or location. It does not appear to be required that it be done as close to home as possible.” https://www.stjohnschambers.co.uk/news/parks-and-recreation-and-covid-19
– Alone
Government guidance says:
“you should only go outside alone or with members of your own household”
https://www.gov.uk/government/news/coronavirus-guidance-on-access-to-green-spaces
Members of the household can also include split families, for example where to parents share the care of under 18-year-olds after a divorce.
– The only exercises allowed are walk, jog or cycle
Swim England have said that Public Health England have told them that “open water swimming is an activity that is not currently permitted – the only forms of exercise allowed at this time are walking, running or cycling”
This is not the case in law or in guidance. The guidance says that one of the reasons you can leave your house is to do “… one form of exercise a day, for example a run, walk, or cycle” – so these three activities are examples, not the only activities that are allowed. The guidance also says, under the heading “Looking after your mental wellbeing” , (after a number of ideas): “You can also go for a walk or exercise outdoors if you stay more than 2 metres from others” – exercise outdoors is not specifically defined to only three activities.
However, lawyers spell out, as an example, “‘Exercise’ means just that. Walking, running and cycling are permitted, picnicking is not.” https://www.stjohnschambers.co.uk/news/parks-and-recreation-and-covid-19
When and how might it be okay to go swimming?
- Stay local (no definition of this in law or guidance)
- Ideally, walk, jog or bike to the swim place
- Drive only if you think you can justify this in line with suggestions and guidance below
- Go alone or with members of your household, don’t go with or meet others, even at 2m distance, even if only two of you
- Minimise risks as far as possible, doing shorter times and distances, be acclimatised to cold water, know your limits, and stay well within them. Avoid cuts to feet by wearing some kind of shoes, avoid obstructions, don’t jump or dive unless absolutely sure it is safe, take the usual hygiene measures, avoid swimming after heavy rain or downstream of sewage outfall.
- You might need to justify going swimming rather than doing other exercise. You might be able to explain that it is necessary to exercise for physical and or mental health, and that swimming is the only safe way you can exercise, for example dodgy hips and knees. Many swimmers report that outdoor swimming, especially in cool water, is beneficial or necessary for their mental health. Government guidance on mental health and well-being emphasises the importance of physical exercise and of going outside once a day if possible to do exercise. https://www.gov.uk/government/publications/covid-19-guidance-for-the-public-on-mental-health-and-wellbeing/guidance-for-the-public-on-the-mental-health-and-wellbeing-aspects-of-coronavirus-covid-19. There is no specific legislation or guidance that would prevent that physical exercise outside being swimming, and it is possible to justify travelling to do so, as explained elsewhere, by explaining the reasonable excuse. To give one example, a swimmer has told me that after many decades of ineffective treatments for depression, anxiety and other mental health problems, she discovered that regular cold water swimming worked, and that to stop doing this during this current crisis might be a matter of life and death, or at least might lead her to end up in hospital. Most reasonable people would think that was a reasonable excuse, and the law is based on what is reasonable.
When is it probably not okay to go swimming?
- If it would risk spreading the virus
– because of the number of people at the swim spot meaning physical distancing of the recommended 2m was difficult, either in the water or on the shore/bank, or on the journey there
– if there is a high risk of touching surfaces, gates etc, touching face and not being able to wash hands or use hand sanitiser.
Do not go with or meet others, even at 2m distance, even if only two of you.
- If it would burden on the NHS and emergency services – by taking risks on the journey (including cycling, jogging, walking or driving), in the water, or access in and out of the water, by cuts and accidents, not being acclimatised, not staying within time and capacity limits, etc.
- If new to outdoor swimming now is not the time to start, as there is less chance to benefit from advice from others, fewer people about if there is a problem, and the water is still cold.
- If the risk is increased by swimming alone. Some people are very used to and capable of swimming alone, taking the minimum of risks, knowing their own limits and taking great care. Think carefully if considering swimming alone, for example having another member of your household with you, having a phone or a check-in system. If unfamiliar, be aware that panic is a danger when swimming, and learn how to avoid and cope with it. Consider staying within your depth, going somewhere familiar, or not going alone.
- If a specific request not to go there – consider whether it is worth defying that. For example Forestry England have asked people to stay away from their forests (unless local).
- If it would encourage others who might be less aware of safety or of the need to have a reasonable excuse (and see the point about social media at the end of this section).
- If perceptions of people who see you might lead them to call the emergency services, thus putting more pressure on them.
- Consider perceptions of people doing essential work, such as Rangers, Anglian Water, etc – would you be putting burdens on them?
- Consider the perceptions of the public who see you, who might misunderstand and not realise that you know how to be safe and have a reasonable excuse, and might criticise you or be abusive.
- Consider the balance between the ethos of “we are all in it together” and the strong emphasis on staying at home and your reasons (and reasonable excuse) for going swimming. It is probably best to avoid posting photos of your swims on social media, except within private groups where there is general agreement that it is beneficial or acceptable to do so.
When is it okay to drive to exercise?
To drive to a place in order to exercise, whether walking, cycling, jogging or swimming, would need explanation, which should be reasonable, for example:
– to get past a crowded street or local area that is unavoidable if you were to walk, jog or cycle from home
– going to a quieter and more remote place, avoiding busy popular local park etc
– unable to walk, jog or cycle because of health reasons such as dodgy knees or hips.
There is no specific definition of reasonable distance in law or guidance, so it is probably reasonable to drive the minimum distance needed, taking the safest route.
See College of Policing guidance under Common ‘rules’ section above. https://www.college.police.uk/News/College-news/Pages/Health-Protection-Guidelines.aspx
And see What constitutes a reasonable excuse? The Crown Prosecution Service (CPS) guidance, downloaded from this page https://www.college.police.uk/What-we-do/COVID-19/Pages/Understanding-the-Law.aspx under the heading near the bottom, The four ‘E’s approach. (More text and image at bottom of this page.)
Includes: “Likely to be reasonable. Driving to countryside and walking (where far more time is spent walking than driving). Not likely to be reasonable: Driving for a prolonged period with only brief exercise.”
And see: Driving to a walk Matt Hancock makes it crystal clear, 3 April, YouTube https://m.youtube.com/watch?feature=youtu.be&fbclid=IwAR0eoo30RqGwl4BY8bKMKxmSqMXosGIppItu8LyPDtvd_2D1yUD0uTn2ids&v=XsXL9uk19Fk
Enforcement
It is worth being aware of how the law can be enforced, by police, police support officers or other relevant people, and how they are advised to use their judgement in a reasonable way in applying the law. They are not allowed to stop people and ask them to account for themselves, unless they reasonably suspect them of breaking the law, and they are advised that it would be disproportionate to carry out road checks on every vehicle.
“83. Powers of enforcement under the Regulations… …
(b) In relation to the restriction on freedom of movement (regulation 6), provided that the relevant person considers that it is a necessary and proportionate means of ensuring compliance with the requirement:
(i) A relevant person may, if they consider that a person is outside the place where they are living without reasonable excuse, direct (or give reasonable instructions to) that person to return to the place where they are living or remove that person to the place where they are living and, if necessary, use reasonable force to do so.”
https://5essexcourt.co.uk/resources/news/view/coronavirus-a-guide-for-police-forces-in-england
Be aware that police or others can tell you to go home or force you to, even if that is unreasonable:
“…authorised persons may direct people who they consider are contravening the requirements to go home, or may use reasonable force to take them home. The authorised person does not have to hold this belief reasonably; he simply has to hold the belief, however wrong he may be.”
https://www.stjohnschambers.co.uk/news/parks-and-recreation-and-covid-19
See alsothis very important examination of the law and guidance https://coronavirus.blackstonechambers.com/coronavirus-and-civil-liberties-uk/
However, the advice to police officers, while stating the position, also advises acting reasonably and pragmatically:
“Powers in relation to restrictions on movement and gatherings
If you believe someone is outside of the place where they are living without reasonable excuse, you can:
direct that person to return to the place where they are living
give the person concerned any reasonable instructions you consider to be necessary
use reasonable force in the exercise of the power to remove the person to the place where they are living …
Anyone contravening these requirements commits an offence, punishable on summary conviction by a fine.” …
“We police by consent. The initial police response should be to encourage voluntary compliance. …
There is no power to ‘stop and account’.
The police will apply the law in a system that is flexible, discretionary and pragmatic. This will enable officers to make sensible decisions and employ their judgement. Enforcement should be a last resort.” …
“Use your judgement and common sense; for example, people will want to exercise locally and may need to travel to do so, we don’t want the public sanctioned for travelling a reasonable distance to exercise. Road checks on every vehicle is equally disproportionate. We should reserve enforcement only for individuals who have not responded to Engage, Explain, and Encourage, where public health is at risk.”
https://www.college.police.uk/News/College-news/Pages/Health-Protection-Guidelines.aspx
Perceptions
People are expressing their views strongly, understandably in such a worrying situation. Many are emphasising the ethos of “we are all in it together” and the strong emphasis on staying at home. Others are emphasising concern for civil rights, common sense, and the need to balance measures that will fight the virus with those that are more to do with public morale and perceptions.
If you go swimming, or post about this on social media, you are likely to meet strong reactions. And many swimmers feel that this is a time to stay at home, do other exercises, and plan for the future when we can swim again.
This from lawyers concluding their analysis of the legislation and rights to exercise outdoors:
” If the nation is going to be kept at home for three months or more, the need for it to exercise, both for our collective physical and mental health becomes all the more important. The public should act sensibly, and follow guidance, directions and advice; local authorities should ensure that sufficient facilities are available for proper recreation to take place, and should publicise those facilities and locations, and any restrictions that apply to them.”
https://www.stjohnschambers.co.uk/news/parks-and-recreation-and-covid-19
Implications
Possible implications for access to swim places and the public perception of swimming in the current crisis and the restrictions on movement.
- Already existing fears about safety when swimming, often exaggerated and inaccurate, might be further exaggerated
- Perceptions of water being dirty might be increased.
- More excuses to stop access, might continue after restrictions lifted
- Where swim spots are not used or less used, access might be lost
- If swimmers continue in the face of public perception which disapproves, will they be seen as antisocial?
- If young people in particular go out to swim will they be further vilified?
- Will people go to more hidden places, which had less safe and further away from help?
- Will people swim in places that are unsuitable, perhaps because they are less safe or have greater impact on wildlife? And this could mean there is more disapproval of swimmers
- Could the restrictions on people’s liberty continue into the future? Some fear the impact on human rights and civil liberties generally.
- Better understanding of the need for hygiene
- Better appreciation of the value of nature and the benefits of nature and of exercise for mental and physical health.
Sources, date, coverage, disclaimer
Note written 4 , updated 6 April 2020, with some updates late April and early May. In a fast moving situation, this could soon be out of date.
This discussion relates only to England. There is slightly different legislation and guidance in the rest of the UK.
This note brings together guidance I have found, and attempts to explain this issue to the best of my understanding at this current point. I am not giving advice on whether or not people should go swimming, but putting together some points to allow them to make their own decision. It is my personal analysis using available resources.
Key sources
Gov.uk, for the latest government guidance
https://www.gov.uk/government/news/coronavirus-guidance-on-access-to-green-spaces
Comprehensive and very useful guidance has been written by solicitors 5 Essex Court, who advise police forces. Their full guidance can be downloaded from https://5essexcourt.co.uk/resources/news/view/coronavirus-a-guide-for-police-forces-in-england
Another invaluable analysis by St John’s Chambers Property team (310320) looks at the ‘right to roam’ and to exercise outside the home in the light of the Covid-19 restrictions and regulations. It examines and clarifies the sort of places that should be available and those that are not. Download from https://www.stjohnschambers.co.uk/news/parks-and-recreation-and-covid-19
Very important examination of the law and guidance https://coronavirus.blackstonechambers.com/coronavirus-and-civil-liberties-uk/
IPROW Institute of Public Rights of Way and Access Management has useful posts, aware of balancing concerns of landowners with legislation preventing illegal blocking of public rights of way https://www.facebook.com/pg/IPROWuk/posts/?ref=page_internal
College of Policing guidance, summarised and link to download: https://www.college.police.uk/News/College-news/Pages/Health-Protection-Guidelines.aspx
The relevant guide part of the law relating to leaving the home and exercise is Regulation 6 http://www.legislation.gov.uk/uksi/2020/350/regulation/6/made
A useful article emphasising that the restrictions affect different people differently, and the mental health cost must be considered (054020) https://www.spectator.co.uk/article/does-matt-hancock-really-think-banning-all-exercise-is-a-good-idea-
Really useful guidance from CPS, NPCC, COP, (police, basically), can be downloaded from this page https://www.college.police.uk/What-we-do/COVID-19/Pages/Understanding-the-Law.aspx, under the heading near the bottom, The four ‘E’s approach. Outlines reasonable travel to exercise with examples.
More discussion:
When and how might we get back to outdoor swimming? https://outdoorswimmer.com/blogs/when-and-how-might-we-get-back-to-outdoor-swimming
Coronavirus: Closing parks and open spaces in lockdown should be ‘last resort’ – BBC News https://www.bbc.co.uk/news/uk-52181808
Stop shaming: This crisis calls for generosity, not denunciation https://www.politics.co.uk/comment-analysis/2020/04/15/stop-shaming-this-crisis-calls-for-generosity-not-denunciati
What is an acceptable distance and duration to ride during the Covid-19 crisis? | Cyclist https://www.cyclist.co.uk/in-depth/8035/what-is-an-acceptable-distance-and-duration-to-ride-during-the-covid-19-crisis
Will we use this crisis to rediscover the value of community – or for more suspicion and othering? https://nation.cymru/opinion/will-we-use-this-crisis-to-rediscover-the-value-of-community-or-for-more-suspicion-and-othering
The fear of coronavirus is changing our psychology – BBC Future 21 Apr https://www.bbc.com/future/article/20200401-covid-19-how-fear-of-coronavirus-is-changing-our-psychology?ocid=ww.social.link.facebook
https://www.transport-network.co.uk/Tensions-mount-between-walkers-and-landowners/16612
How do we protect open spaces closer to home? – Open Spaces Society https://www.oss.org.uk/how-can-we-ensure-that-the-provision-of-open-space-near-to-where-people-live-is-protected/
https://www.theguardian.com/commentisfree/2020/apr/22/lockdown-coronavirus-crisis-right-to-roam
UK lockdown: ‘Untold anxiety’ over police rural exercise advice https://www.bbc.co.uk/news/uk-52368538?fbclid=IwAR2j64P-I-giJn2EZSwGt_YfXbUxitldCIbI2j8jtXJgHR-IMUAyGEQcfwM
Important guidance:
“Exercise
Likely to be reasonable
Including: going for a run or cycle or practicing yoga. Walking in the countryside or in cities. Attending an allotment.
Driving to countryside and walking (where far more time is spent walking than driving).
Stopping to rest or to eat lunch while on a long walk.
Exercising more than once per day – the only relevant consideration is whether repeated exercise on the same day can be considered a ‘reasonable excuse’ for leaving home.
Not likely to be reasonable
Driving for a prolonged period with only brief exercise.
A short walk to a park bench, when the person remains seated for a much longer period.
Comments
Exercise can come in many forms, including walks. Exercise must involve some movement, but it is acceptable for a person to stop for a break in exercise. However, a very short period of ‘exercise’ to excuse a long period of inactivity may mean that the person is not engaged in ‘exercise’ but in fact something else. It is lawful to drive for exercise.”
What constitutes a reasonable excuse? The Crown Prosecution Service (CPS) guidance, downloaded from this page https://www.college.police.uk/What-we-do/COVID-19/Pages/Understanding-the-Law.aspx under the heading near the bottom, The four ‘E’s approach.
This guidance was picked up on by the media with some supportive and some critical articles. It was then clarified that this was internal guidance to ensure policing was consistent. However it is still online.
Important update: amendment to regulation 6, 22 April.
Emma Dixon (@EmmaDixon_EU) tweeted at 2:05 PM on Wed, Apr 22, 2020: “This is a big change to the Coronavirus Regs and not merely clarificatory as Govt suggest. It’s now an offence to *remain* outside the home without reasonable excuse having left *with* a reasonable excuse.” https://t.co/EEt3yxmMJI
Analysis: https://coronavirus.blackstonechambers.com/new-lockdown-restrictions-clarification-or-confusion/
Adam Wagner (@AdamWagner1), 22 Apr, PowerPoint presentation summarising the Regulations which has been updated to include today’s changes (in red). https://t.co/PWCxHpblyO (tweet https://t.co/rU6RH5DFy2)
“6. – Restrictions on movement
(1) During the emergency period, no person may leave or be outside of the place where they are living without reasonable excuse…”
Legislation: http://www.legislation.gov.uk/uksi/2020/447/made