At the start of the third English lockdown in January, I asked when a walk should be considered essential exercise and when it constituted a breach of the Covid-19 laws. Two women had been fined £200 each by Derbyshire Police for driving five miles to go for a walk (the fines were subsequently overturned after a media backlash). A few days later, Boris Johnson was seen cycling in the Olympic Park, seven miles from his Downing Street residence. Unsurprisingly, no police officers attempted to fine the Prime Minister.
This discrepancy epitomised the state of the rule of law under lockdown. As the government scrambled to respond to rising case numbers, legislation was written in haste, rushed through without parliamentary scrutiny and frequently changed with little notice. The guidance for interpreting those laws – itself not legally binding – was revised at an even more dizzying rate. Police, entrusted with “enforcing the law”, were suddenly responsible for determining what the law actually was. And they didn’t always get it right.
This will not come as news to anyone who has been following the approach taken by some police officers during lockdown. What is surprising is that now the police themselves have acknowledged the awkwardness of the position they were placed in by ministers.
A new report by the policing watchdog outlines the impossible challenge faced by police in attempting to enforce ever-changing regulations. In a damning section entitled “Enforcing coronavirus legislation”, the report states that:
“…the regulations were amended and supplemented a considerable number of times, when lockdown restrictions were eased or strengthened, imposed, relaxed and re-imposed, in different parts of the country, for different periods and with differing intensities. The first set of regulations covered 11 pages; the last set extended to 123 pages. It was hard to keep up with them.”
It notes that the principle of what constituted a “reasonable excuse” for leaving home during the first lockdown was “not widely understood”, and that “in too many cases front-line police officers did not receive… explanations which would have made their jobs much easier”. It continues:
“Their difficulty was made worse by a widespread confusion in relation to the status of Government announcements and statements by ministers. Ministers asserting that their guidance – which had no higher status than requests – were in fact ‘instructions to the British people’ inevitably confused people. In some cases, police officers misunderstood the distinction, and appeared to believe that ministerial instructions were equivalent to the criminal law.”
The significance of this revelation cannot be overstated. Tasked with policing everyday life, officers were not even clear what was and was not a criminal offence. The report cites two specific pieces of guidance – the “two-metre” rule and the instruction to “stay local” – that were at times wrongly interpreted by police as law. It notes that “mistakes were made” and references “what was often described as police overreach”, which it suggests may have weakened public confidence in the police.
For a government that associates itself with “law and order”, this should be horrifying. Equally horrifying are figures from the Crown Prosecution Service that show how frequently police are incorrectly charging people for Covid rule-breaking.
[See also: are UK police forces institutionally misogynist?]
Under the Health Protection Regulations (the law that covers the majority of Covid-19 regulations, which has changed at a rate of more than once a week since last March), around 20 to 30 per cent of cases between October and February were incorrectly charged. In the case of the Coronavirus Act (the original emergency legislation at the start of the pandemic), that rises to 100 per cent. The government has so far resisted calls by campaigners to repeal a law that has not resulted in a single correct use, but was misapplied by police more than 230 times last year.
The approach from police across the country has not just been overzealous – it has also been shockingly inconsistent. The policing report includes a table of the number of Fixed Penalty Notices (fines for breaking Covid rules) issued per million people between March 2020 and January 2021. The variation is staggering: Northumbria Police, for example, fined more than ten times more people relative to population than Kent Police. It is frankly implausible that the people of Kent are ten times more law-abiding than their Northumbrian counterparts.
Considering that some forces only learned of changes to the rules through the televised government briefings, it is unsurprising that they were unable to provide consistency. Such geographical disparities, in the context of rules that are poorly understood by police and public alike, undermine the rule of law.
Overall, the report is positive about the conduct of police during the pandemic, concluding that officers faced unprecedented challenges and, for the most part, rose to the occasion. It does, however, have some stern words of warning for ministers who draft poorly considered legislation and expect police to fill in the gaps:
“It is not the function of the police to treat government guidance, however well-intentioned (as it undoubtedly was), as rules of the criminal law. Ministers may create criminal offences only if authorised by parliament to do so; they may not do so by the simple expedient of demanding action from a podium or behind a lectern…
“It is essential that the police are seen to be enforcing the criminal law, and not appearing to act as the coercive agents of ministers. The model of British policing is very different from those found in authoritarian countries, and nothing must be allowed to be done which leads the public to believe ministers can criminalise actions by edict then enforced by the police.”
This government has been warned repeatedly about the dangers of bypassing parliament in the pandemic, resulting in a two-tiered justice system that treats the Prime Minister’s bike ride differently to a walk by a member of the public. But there has been no acknowledgement of the inherent risk of injustice when heavy-handed police interpretation is not only sanctioned but encouraged.
Perhaps now police forces themselves are raising the alarm, the government will be more inclined to listen.
[See also: Stephen Bush on the crackdown at Clapham Common]