What do the expressions “mingle” and “rule of six” actually mean?
Author: Rudi Fortson QC, Barrister-at-Law, 25 Bedford Row, London and Visiting Professor of Law, Queen Mary University of London
Criminal lawyers are very familiar with the expressions “conspiracy”, [i] “assessorial liability”,[ii] “joint enterprise”, [iii] and an “organised crime group”. [iv] But, on September 14, 2020, a word that is rarely seen in English legislation - “mingle” – was inserted into the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (SI 2020/684) by SI 2020 No.988. The latter revised the rules relating to “gatherings” [v] that now seek to give legislative effect to the so-called “rule of six”. But what do the expressions “mingle” and “rule of six” actually mean?
According to the Home Secretary, speaking to the BBC on 15 September 2020, two families of four stopping for a chat on the way to the park was "absolutely mingling". She said that she would report her neighbours if they broke the rules: "You have got to put this in the context of coronavirus and keeping distance, wearing masks". "The rule of six is about making sure that people are being conscientious and not putting other people's health at risk." She added: "Mingling is people coming together. That is my definition of mingling." [vi]
Of course, context is important, but it may not be determinative of an issue. For example, Jack, whilst in his garden, approaches a chicken-wire fence and (over a distance of 18 inches) talks to Jill and her 5 children who are in their garden. Nobody would say that those circumstances constitute an illegal “gathering” of seven persons. But if the fence was not there or fell over, would it then be an illegal “gathering”? Even with the fence in place, has Jack “mingled” with the others? Surely not (it is submitted). If Jack, in a park, walked past Jill and her five children, stopped and chatted for five minutes, would that be “mingling”? If not, would the answer be different if they had remained there for one hour chatting to each other? Would the issue of whether or not Jack wore a face covering make any difference to the answer? It is difficult to see why it should. The use of a face covering may mitigate the risk of infection but it could not determine the question of whether there had been a “gathering” or not.
But for the fact that financial penalties attach to a breach of the 2020 regulations, such questions might amuse a class of law students for a long time. Alas, the reality is rather more serious.
The Concise Oxford English Dictionary defines “mingle” as “1. mix or cause to mix together; 2 move around and engage with others at a social function”. It is submitted that the crucial element is that of mixing. There are fragments of secondary legislation that use the expression “co-mingled” [vii] and the word “mingled” appears in the schedule to the Railways Pension Scheme Order (SI 1994/1433) in the context of “mingled assets”. The Spirits Act 1860 (as originally enacted) referred to liquor “mixed or mingled [with spirits]”.
There is hardly a buffet, office party, wedding, political campaign, or a networking function that does not entail movement and communication between individuals at the function.
The Home Secretary’s definition of “mingling”, as "people coming together”, is not unreasonable if it includes the additional element of movement and interaction between persons. Accordingly, four persons stopping for a chat on the way to the park could be “mingling" if one (or more) of the four were socially interacting with each other. However, the position would be otherwise if two groups, distinctly discrete, separated by a distance of two-metres, engaged in conversation with each other.
Would the position be different if, at a restaurant, persons seated at two tables (socially distanced) engaged in conversation with each other? Again, much may depend on the nature of the activity and the circumstances in which it took place.
Unlike the criminal law, where the definitions of ‘conspiracy’, ‘joint enterprise’ and ‘organised crime group’ are heavily dependent on the intention and knowledge of the participants, the definitions of “gathering”, “qualified group” and “mingle” (which are contextualised below) involve no mental element: in each case, the state of affairs either exists or it does not.
It is submitted that the aim of the ‘gathering’ provisions is to prohibit the mixing of persons and groups beyond the number associated with a “qualifying group”, and to prevent the spectacle of persons wandering and socialising between tables/groups in a pub or restaurant, or at an organised outdoor event.
Were four persons to stop for a chat with four other persons, the real question is likely to be whether they are in a “qualifying group” and not whether they are “mingling”.
We are unlikely to see the word “mingle” being defined by the courts. They will doubtless say that, in the context of the 2020 regulations, “mingle” is not a legal term but an ordinary English word that has to be construed and applied as such.
This “simple” [viii] rule is deceptively complex. For a start, it is plain that the rule is not of general application.
The regulations are structured on the premise that it will be permissible for many people to gather in specified situations – subject to health and safety, and certain covid risk-management measures, being implemented. [ix] Thus, the “rule of six” does not apply to:
Beyond those situations, the general rule is that no person may participate in a “gathering” consisting of more than six people (reg.5(1)), each of whom may be from a different household. But, even here, there exists a wider exemption where “all the people in the gathering are from the same household, or are members of two households which are linked households in relation to each other” [xxi] (explained below). Thus a group, in a park or on a beach, should not consist of more than six persons unless the wider exemption applies to it.
In situations other than those mentioned above, there is no expressly stated limit on the number of persons who may pass through premises (or part of premises) operated by a business (e.g. a restaurant or pub), a charitable, benevolent or philanthropic institution or a public body. [xxii] Such an entity (and a political body) may organise or manage a gathering in a “public outdoor space”. [xxiii] The “gathering organiser” must comply with health and safety and covid risk management requirements (reg. 5(5G)). [xxiv] In each case, persons are not entitled to gather and participate as they please but must participate either alone (i.e., not as part of a group) or as a member of a “qualifying group”. [xxv] However, there are two ‘qualifying’ situations - one of which departs from the “rule of six”:
What a person cannot do is:
Two types of gatherings, consisting of more than 30 people, are not permitted. The first is an indoor ‘rave’ (a “section 63 type gathering”). [xxxii] The second is a non-excepted “relevant gathering” (reg. 5B) that takes place on premises, on certain vessels, or at a “public outdoor place”, that is not operated by a business. There are three exceptions, of which one encompasses the situations mentioned above (i.e., work, ceremonies, sports, etc). The two remaining exceptions (reg. 5B(3A)) are (i) “members of the same household, or who are members of two households which are linked households in relation to each other” (explained below), and (ii) gatherings on premises operated by certain entities (reg.5(2)) or gatherings organised by any of those entities or by a political body (reg. 5(12A)).
The 2020 regulations have been amended multiple times. One had hoped that the amending regulations (i.e., SI 2020/988) would be free-standing and comprehensive. Instead, tracking the changes to the 2020 regulations is a protracted and exacting process.
Whilst one appreciates that the covid pandemic presents a rapidly changing picture, the “rule of six” is not as simple as it sounds. The public appear to remain confused, and those tasked with enforcing the regulations are asking for guidance and clarification. Who can blame them?