The Final Report of the Review into the February 2021 coronavirus outbreak and its relation to the Isle of Man Steam Packet Company was published on the 18th of May. There is a lot in the report, but I am going to concentrate on two legal issues.
Liability of Steam Packet crew for failure to self-isolate.
As the controversy unfolded, it was unclear to me whether there was no liability of crew for failing to self-isolate, or that there was a liability but it was decided not to prosecute. The review sees the criminal obligations upon Manx resident crew as now having been clarified and resolved: the current PHR Regs mean that individual Manx crew members who do not comply with the on-vessel risk management will not satisfy the conditions allowing them to avoid self-isolation (para.5.2.18), and Manx crew are aware of the need to satisfy the conditions.
Nonetheless, I think this is worth discussing at more length. Concerns have been expressed that there has been one law, and approach to enforcement, for Manx residents working for a state-owned concern; and another for normal individuals imprisoned for breaches of the coronavirus regulations under the EPA and the PHA. Unpacking the review shows, I think, that this is not the case.
Back in March 2020, the Manx government advised the Steam Packet that Manx resident crew were not required to self-isolate. Understanding of coronavirus, and the legal response to it, evolved rapidly throughout 2020, and one problem was that substantial weight was given to documents produced right at the start of the crisis, which did not necessarily keep pace with either the legal structures, or the advice of the Director of Public Health; and which were not always clear about the position of Manx resident crew (e.g. para. 2.3.3). In particular, a corporate certificate issued to the IOMSPC and applied to both resident and non-resident crew (para 2.5.4), was reissued even when the law changed to exclude Manx residents from the scope of such a certificate (para.2.5.5-2.5.9). A certificate issued in September 2020, listing both Manx-resident and non-Manx-resident crew, was not valid in relation to Manx crew.
The review argues that Manx resident crew needed to receive individual direction notices to impose self-isolation requirements upon them; so finds that until after the February 2021 outbreak “the official documentation issued did not require for Manx resident crew members to self-isolate” (2.3.7). This was the case even after December 2020, when a condition which seemed to require self-isolation by Manx resident crew was created, but not (in the view of the review) effectively (para. 5.3.12-13). It notes that individual direction notices are now being issued which allow Manx resident crew to avoid self-isolation so long as they adhere to on-board measures (para.5.3.15-.17).
Manx resident crew then were not required to self-isolate because they had not been given individual direction notices. This raises a further problem, however. The border control rules are not structured so as to permit entry subject only to the restrictions in any individual direction notice. Rather, they prohibit entry unless an exemption is granted. To quote from the most recent version of the PHR, reg.11: “A person may not enter the Island unless that person is a Category A person or a person referred to in regulation 10(5)” (the latter being a person who remains in an area designated as a secure exempt area for the purposes of transportation, such a pilot in a secure waiting area). Category A persons, specified in Schedule 1, include Manx residents who have been registered as a Manx resident, who may travel freely to and from the Island, subject to various requirements including having a direction notice from the Chief Secretary (PHR, Schedule 1, para.6(10)). A direction notice may specify self-isolation (sch.1, para.6(13)), or exempt an individual from self-isolation (sch.1, para.6(14)): in either case, a direction notice is required.
Direction notices were not given to individual Manx crew until after the February 2021 outbreak. Under both the EPR and the PHR, Manx crew should have been individually registered and issued with DN (5.5.8), but this did not happen until after the February outbreak (5.5.9). The review states that there is thus “the risk that entry onto the Island by Manx crew members over that period was not in accordance with the regulations in force at the time” (para. 5.5.2). I think the risk is very substantial. So we seem to be in a position, for part of the pandemic, where there was either no requirement to self-isolate, or one which lacked legal force, but the same mistakes which led to this meant that the Manx crew had no legal right to return to the Isle of Man at all.
There were no prosecutions for crew entry contrary to PHR reg.11. The review explains this in unfortunate terms. According to the review, the Steam Packet and crew “acted in good faith, effectively on the advice of the Isle of Man government, in relation to the documentation required and being issued by the Cabinet Office, and as a result it is unlikely that any action would be enforceable against the company or individual crew members” (para. 2.5.11; repeated at para. 5.5.3).
There are some big issues underpinning this paragraph. The reference to good faith is particularly unfortunate – normally an honest mistake as to your criminal liability will not help with liability (as opposed to the decision to prosecute you or the sentence you receive) – and I can imagine at least some of those imprisoned for breaching self-isolation rules wishing to argue that they too acted in good faith. There are numerous authorities that ignorance of the law is no defence, for instance this 2018 Manx decision, and the rule is found in a wide variety of legal systems. More significant is the reference to the advice of the Manx government – although I do not think the prosecutorial authorities – as to what the obligations of the Steam Packet and crew were. Reference to enforceability is, again, not very helpful here. The impact of the executive appearing to authorise people to commit acts contrary to laws laid down by the legislature, which would be tried before the judiciary, is a very complex one: even leaving aside the current twist of that authorisation being by mistake rather than intent.
Much simpler, I think, would be to root the position of the Steam Packet crew in the Manx Prosecution Code. The decision to prosecute consists of two steps. Firstly, is there sufficient evidence to provide a realistic prospect of conviction against each defendant on each charge (the evidential test)? The review suggests that this test might be met in some cases. There is, however, a second stage. Is it in the public interest to bring a prosecution (the public interest test)? Common factors suggestive of a prosecution are listed in paragraph 17, factors suggestive of a prosecution not being needed are listed in paragraph 18.
Some factors suggestive of prosecution may be present here (for instance, “There is evidence that the offence was carried out by a group”), but the most important feature to me is one arguing against prosecution: “The offence was committed as a result of genuine mistake or misunderstanding (these factors must be balanced against the seriousness of the offence)” (para.18(b)). The weight we give to paragraph 18(b) should be greater where the mistake has been produced as a result of executive government guidance, and required an independent inquiry to nail down, than where a visitor has not read their direction notice properly, or has assumed it is a mere formality.
On the basis of the facts reported by the Review, I think there is a very strong argument that it is not in the public interest to prosecute Manx resident crew: strongest for crew before December 2020, perhaps less strong for any crew who were informed of a putative self-isolation requirement in that month and chose to ignore it. This does not indicate that other prosecutions brought for breaches of border control were, or would be, similarly not in the public interest.
Borders and maritime issues.
One of the points made by the report in section 6 is that the border of the Isle of Man, for entry purposes, is defined differently in different legal regimes, with the EPRs definition replaced with the PHRs (para.6.4-6.5). My feeling is that the pandemic has substantially increased policy and public focus on borders, and ideas similar to “Manx citizenship”. The debates over what entry controls are appropriate to apply to Manx residents, former residents, and those with a family connection to the Isle of Man, show that this is more than just a technical discussion about where Manx laws should be applied. One lasting impact of the pandemic, and one which chimes with the Brexit and post-Brexit period in the UK, may be a tighter focus on what the Manx borders are, and how they are controlled. It will be interesting to see if this comes up during the General Election to the Keys.
Another issue raised is the complexity of maritime issues for the Isle of Man. The focus on the report is on the Steam Packet, but a substantial number of vessels are now Manx registered. Last year, for instance, a Manx registered vessel made the news after it was assisted by HMS Montrose in making way in the Persian Gulf. There is a suggestion that the work of the Registry needs to be better understood within government (para. 5.6.9); but also that the report is not going to explore the complexities of jurisdiction over vessels (para.1.6.3). The Registry is a distinct entity within the Red Ensign Group, and at the moment the UK is the flag state in international law. Given the direction of travel in UK/Manx relations, however, the obligations upon Flag States for vessels on their register may be something to watch for the future.
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