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The The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020, Part 2, Regulation 3 states:

(1) No person may, without reasonable excuse, enter or remain within a relevant place without wearing a face covering.

Regulation 4 states:

(1) For the purposes of regulation 3(1), the circumstances in which a person ("P") has a reasonable excuse include those where—

(a) P cannot put on, wear or remove a face covering—

(i) because of any physical or mental illness or impairment, or disability (within the meaning of section 6 of the Equality Act 2010(1)), or

(ii) without severe distress;

I am particularly interested in how 'severe distress' is defined. Is this a legal definition? How is 'severe' determined, and how would a court decide if a person's distress was 'severe' enough? Is there any legal test to establish a threshold for this?

Have there been any cases in England/Wales/Scotland where this has been tested - if so, how would I go about finding information (as somebody who is interested in law, but has no legal training or background)?

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  • People don't have to prove they have a reasonable excuse. There is no clear-cut definition of 'severe distress' in mask regulations. The term may cover a lot of different experiences. For example, wearing a mask might trigger acute symptoms of a mental health condition. These might include panic attacks, flashbacks or other severe anxiety symptoms, paranoia or hearing voices, dissociating, or switching alters (something that happens to people with dissociative identity disorder) thoughts of self-harm or suicidal feelings. – Michael Harvey Apr 9 at 18:57
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    @MichaelHarvey So those who have been found guilty by magistrates simply needed to say it would cause them 'severe distress', and it would have got them off the hook? See: standard.co.uk/news/crime/…. – amrorara Apr 9 at 19:44
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    The power is used sparingly, and typical cases have involved guilty pleas, often together with charges of assaulting police. They seem to involve people refusing to wear a mask, rather than simply failing to do so. It is pretty hard to get busted for not wearing a mask when the regulations require it. You just have to say you have asthma or a mental health condition, and you won't be arrested, let alone wind up in court. The very few who get busted seem to be crazy or drunk people, crackpots, Covid deniers, etc, often wanting to make a point. – Michael Harvey Apr 9 at 20:17
  • @MichaelHarvey Thanks for the info. – amrorara Apr 9 at 20:22
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It’s for the defendant to prove they have a ‘reasonable excuse’

This means that, if they were relying on (1)(a)(ii) that they suffered ‘severe distress’.

The onus falls on the defendant because this is an affirmative defence - they acknowledge that they committed the act that is prescribed but they have a lawful excuse. The standard of proof is the balance of probabilities, not beyond reasonable doubt, because they are not the government trying to prove the offence.

The magistrate will hear the evidence on the matter on both sides and decide on the basis of that evidence if the defendant would suffer ‘severe distress’. If there is case law on ‘severe distress’ under this or any other law, then that will inform the decision but I suspect that what qualifies as ‘severe distress’, like what qualifies as ‘reasonable doubt’, is a factual matter for the trier of fact, not a matter of law.

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