Coronavirus (COVID-19): international policing responses - part 1 - during lockdown

England and Wales

Main points

• Policing in England and Wales is based on building public co-operation through trust, shared values, fairness and effectiveness
• The delay between the Prime Minister addressing the nation to stay at home and the regulations coming into force caused uncertainty about how stay at home orders would be enforced and some initial confusion about the rules for the police^.
• Key challenges: Police officers require an understanding of the COVID science and clarity on the legislation, which is complex and evolving. Arresting people brings a significant potential health risk, particularly where officers have insufficient PPE and there have been inconsistencies around the guidance about what PPE to wear in what situations. Regulations do not provide police officers with a 'stop and account' power they can use to require people to answer questions about why they are outside. There are also concerns about the mental health of police officers
• Some police leaders have expressed concerns about how enforcing the restrictions could affect the relationship between the police and public
• Police chiefs have urged the public to stop exploiting the coronavirus pandemic to settle vendettas, after forces reported that many people have been 'lockdown shaming' as part of ongoing domestic disputes
• Forces across England and Wales have drawn up contingency plans for losing significant numbers of staff in the outbreak, which will see them prioritise emergency response, serious crimes and threat to life
• There is a grey area between the policing approach and what is actually written in the legislation and the government's updated advice and guidance which led in some cases to overzealous enforcement. Forces have been urged to continue to correct errors quickly so that public trust is maintained
• Given the confusion around best practice, there are concerns that people should not be unduly or unfairly penalized, especially fines for those facing unexpected financial hardship
• There have also been concerns that this policing activity may come at a cost to assisting other victims of crime, principally victim-survivors of domestic abuse
• There is an increase in (pre-COVID-19) recorded cases being progressed and charged, as police have had a lighter workload and full workforce during this period, and so have been progressing through a backlog of paperwork/cases
• Serious concerns have been shared that the legislation came into force with minimal parliamentary debate and scrutiny and fundamental human rights have been compromised
• Parliament's joint committee on Human Rights stresses that all measures should comply with the UK's obligations under the UN and European conventions on human rights.

Legislation

England and Wales saw the Coronavirus Act 2020 (primary legislation) enacted on 25 March 2020 and the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (secondary legislation) come into force on 26 March 2020. The latter are known as the lockdown restriction laws. The Welsh Government enacted the Wales coronavirus restriction Regulations 2, which are very similar to the England coronavirus restriction Regulations 1 but with some notable differences.^[8] The purpose of the powers under the Coronavirus Act is to support Public Health in testing and treating individuals where needed, to avoid further transmission of the virus. The purpose of the Regulations is to save lives by protecting the public and the NHS.^[9] As with Wales, Northern Ireland and Scotland, these must be reviewed every 21 days (the first review was carried out on 16 April) and in all four countries the regulations must be 'terminated' as soon as the restrictions and requirements set out in the regulations are 'no longer necessary'.^[10]

The lockdown

The Regulations contain powers in relation to business closures with restrictions on movement and powers to disperse gatherings:

• Restrictions on leaving home - The onus is on the citizen to justify 'reasonable excuse' - such as to shop for basic necessities, take exercise etc. The English regulations were amended on 21 April^[11] to expand the restriction and there are now 13 reasons why people can leave home with a 'reasonable excuse'^[12]
• Restrictions on gatherings - the regulations make it an offence to gather in groups of more than two, with four exceptions where larger gatherings are allowed^[13]

Enforcement powers

The regulations provide police officers, police and community support officers (PCSOs), and others if designated with a range of enforcement powers. The police can now:

• Direct people they 'consider' to be outside having left home without a reasonable excuse, to return home. The regulations make it an offence to disobey such a direction
• Use 'reasonable force, if necessary' to take people to their home who they 'consider' are outside having left home without a reasonable excuse
• Direct a prohibited gathering to disperse and use 'reasonable force, if necessary' to take people from a prohibited gathering to their home. It is also an offence to disobey a direction relating to a gathering
• Use 'any action that is necessary' to enforce the prohibition of gatherings
• These regulations do not appear to require those enforcing them to issue a direction before a penalty^[14]

The level of suspicion required to use these enforcement powers is relatively low and police are only required to 'consider' that people are contravening the regulations to direct them to return home and use necessary and reasonable force to take them home if they refuse. Police officers are normally required to demonstrate they had 'reasonable grounds' for suspecting individuals have a prohibited item before conducting a stop and search and so this represents a less stringent test than is typical for police powers. Police in England and Wales also have an expanded power of arrest.^[15]

The police do not have powers to make decisions to quarantine; there is no power to 'stop and account',^[16] to place restrictions or require information (which can only be made by public health officers and are subject to regular review and appeal). Similarly, there are no powers under this legislation to mount roadblocks or to stop vehicles at will.^[17]

Policing the lockdown

Revised professional guidance was issued for police in England and Wales from the National Police Chiefs' Council (NPCC) and the College of Policing^[18] (CoP), on the 31 March, which provides more advice and clarity to officers on how to interpret the lockdown restrictions. The guidance summarises the powers and provides operational best practice following some confusion and misinterpretation of the law (below). The police's approach to all COVID-19 powers, outlined in this guidance, are underpinned by the four 'E's'^[19] - for officers to Engage, Explain, Encourage the public and only Enforce as a last resort.^[20]

The four 'E's are based on evidence that people are more likely to comply after a police encounter if they feel they have been treated fairly, have received an explanation, and have been given the opportunity to give their view. The four 'Es' are based on principles of procedural justice^[21] and the policing by consent^[22] model - building public co-operation through trust, shared values, fairness and effectiveness.

This enforcement model is designed to be flexible, discretionary and pragmatic, and the College of Policing guidance encourages officers to have an 'inquisitive mindset' and consider whether 'it might not be safe for everyone to be at home'. This is different to other models being used to police the lockdown around the world. It has been argued that this model has neither the clarity of the Italian or Spanish model nor the Swedish 'lite' model which is more permissive.^[23]

What does this mean for the public in England and Wales?

There are five main summary offences created by the legislation. These offences are punishable on summary conviction (magistrates' court) by a fine not exceeding £1,000. The police have the power to issue Fixed Penalty Notices (FPNs) to adults they 'reasonably believe' have committed an offence under the regulations.^[24] There is a specific procedure, set out in the regulations, for issuing FPNs associated with the current lockdown.

The Crown Prosecution Service (CPS) announced that people who deliberately cough on emergency workers during the coronavirus outbreak will be jailed for up to two years, as coughing will be charged as an assault on an emergency worker, or common assault if used against other key workers or members of the public.^[25]

By 1 May, Police had received reports of more than 194,300 coronavirus-related incidents.^[26] Between 23 March and 27 April there were 8,877 FPNs in England and 299 in Wales in the month, with 391 reoffenders in England and Wales.^[27]

Officials could not immediately confirm if anyone had been given the maximum £960 fine.^[28] 4,152 fines had been issued in the first two weeks of the powers being in force (not the 3,200 originally announced), with a further 4,725 handed out in the next two weeks, with the majority being given to men under the age of 35.^[29]

Challenges for policing the coronavirus regulations

There are clear challenges around policing the 'Four 'Es' approach where Engagement and Encouragement require police to be at a distance of 2 meters in order not to be breaching guidelines. Explanation requires an understanding of the COVID science and clarity on the legislation, which is complex and evolving and has already been amended.^[30] And enforcement (arresting people) brings a significant potential health risk, particularly in cases where officers have insufficient PPE. The regulations do not provide police officers with a 'stop and account' power they can use to require people to answers questions about why they are outside. Therefore, the police must rely on the cooperation of individuals they question whilst enforcing the regulations.^[31]

Resourcing

Senior police officers expect 'police forces across the UK to 'come under increasing strain' during the coronavirus campaign. There have been calls for 'police specials', to volunteer more time during the pandemic.^[32] Forces across England and Wales have drawn up contingency plans for losing significant numbers of staff in the outbreak, which will see them prioritise emergency response, serious crimes and threat to life.^[33]

Personal protective equipment (PPE)

There have been challenges around consistent and coherent guidance about what PPE to wear in what situations. The Police Federation (which represents rank-and-file officers in England and Wales) said contradictory instructions had been issued based on clashing advice from Public Health England (PHE) and the Health and Safety Executive (HSE). New guidance was issued latterly.^[34] There have also been some reports of officers not having sufficient PPE to do their jobs safely.^[35]

Impact on the mental health of the officers

Police officers have reportedly been 'repeatedly exposed to trauma' as they are increasingly called to homes where people have died during the coronavirus outbreak.^[36] Some police leaders have expressed concern about how enforcing the restrictions could affect the relationship between the police and public and others have gone further to argue that the bond of trust between the public and the police service will come under intolerable strain.^[37],[38]

Misinformation/lockdown shaming

Police chiefs have urged the public to stop exploiting the coronavirus pandemic to settle vendettas, after forces reported that many people have been 'lockdown shaming' as part of ongoing domestic disputes. Police have been inundated with thousands of daily reports of people allegedly breaching coronavirus rules. Deliberate false reporting is often part of neighbour or domestic disputes and long running feuds.^[39]

Critiques of the policing approach in England and Wales

Discrepancies between the regulations and government guidance

There was a gap of two and half days between the Prime Minister addressing the nation to instruct them to stay at home (Monday 23 March 2020) and the relevant regulations coming into force in England, Wales and Scotland (Thursday 26 March 2020). The delay caused uncertainty about how the instruction to stay at home would be enforced.^[40] For example, some of the public statements that were made about restrictions are guidance only and non-enforceable under the law, e.g. only one period of exercise is allowed each day. These inconsistencies led to some initial confusion about the rules for the police.^[41]

Other controversies are outlined in the House of Commons Briefing paper and surround the misuse of self-isolation powers in the Coronavirus Act 2020.^[42] While officers would normally be trained before new legislation came into force, the Police Federation explained to the Home Affairs Select Committee that lockdown powers under the Health Protection (Coronavirus) Regulations and the Coronavirus Act were brought in so quickly that this was not possible.^[43] It has been argued that there is a grey area between the policing approach (police interpreting the law for themselves, applying common sense and discretion), what is actually written in the legislation, equivalents for the rest of the UK, and the government's advice and guidance, which is regularly tweaked and updated at the daily No 10 press conferences, and that this led in some cases to overzealous enforcement and shaming people for their behaviour.^[44] Examples of this include (these are not intended as an exhaustive list of forces deploying such methods):

• Humberside, Greater Manchester, Avon and Somerset and West Midlands police were amongst forces operating online portals for members of the public to report those who appear to be flouting the rules
• Derbyshire was a police force which used drones to spot and then 'shame' people on social media for venturing into countryside for exercise^[45]
• Durham and North Yorkshire police employing checkpoints on roads, to stop people and enquire about their destination^[46]

The former Supreme Court justice Jonathan Sumption has likened these excessive actions to those of a 'police state'.^[47] However, a Commons Home Affairs Committee report on the police response to coronavirus published on 17 April found the overall police response to COVID-19 restriction of movement powers has been 'proportionate and effective'. It has urged forces to continue to address and correct errors quickly 'so that public trust is maintained'. The report said that some early errors were 'not surprising' given the pace at which the new regulations had to be introduced. The committee's report calls for 'regular monitoring' by the NPCC and the College of Policing 'where there is significant divergence in the use of enforcement measures'.

Inconsistencies in enforcement

The FPN figures for the Police Services of England and Wales demonstrate that there is considerable variation in enforcement of these. At one point in March this varied from 81 (London) to 380 (Lancashire).^[48]

There are concerns that given the confusion around best practice during the pandemic, that people are not unduly or unfairly penalized, especially fines for people who are facing unexpected financial hardship as a result of the emergency measures. There have also been concerns that this policing activity may come at a cost to assisting other victims of crime, principally victim-survivors of domestic abuse.

Human Rights concerns

Serious concerns have been shared that this legislation came into force with minimal parliamentary debate and scrutiny, and that in a matter of days: "parliament legislated away fundamental human rights that were hard won over centuries - freedom of movement, freedom of assembly, rights to family life, even the right to refuse consent to medical treatment when of sound mind". Mike Schwarz who specialises in civil liberties argues that the emergency legislation is 'sweeping and drastic' and 'represents a draconian expansion in police and state powers.' Schwarz argues that while it should be measured against its ability to tackle the virus now, it poses a significant long-term threat to: "individuals' human rights, the fabric of the rule of law, the protection of the vulnerable and excluded in society" and questions whether the damage done to these interests can be repaired after the virus is under control.^[49]

Adam Wagner (human rights lawyer appointed as Specialist Advisor to Parliament's COVID-19 Human Rights Inquiry) asserts the need for emergency laws to meet four tests in order to safeguard liberty - Scrutinised, Lawful, Impermanent and Proportionate (SLIP). Whilst recognising the issues with the way the emergency legislation was introduced, he notes that the lockdown regulations must be reviewed every 21 days and be discontinued as soon as any particular restriction is no longer necessary and so future changes to the lockdown regulations should provide the opportunity to improve the emergency laws, through proper scrutiny.^[50]

In a recent SCCJR blog, Dr Aston writes that a fundamental concern with police powers is always the balance with human rights, and securing public safety and individual rights and freedoms.^[51] She notes that this is particularly the case when new legislation opens up the likelihood of a wider spectrum of society to being policed in this way, rather than the policing of 'the other': "Given the implications of lockdown will vary depending on people's situations, and will be layered with inequality, this will impact on the likelihood of being policed". However, Aston points out that compliance has generally been high and public confidence is likely given the four 'E's approach.^[52]

Parliament's joint committee on Human Rights published an interim report into potential civil liberties issues that could arise because of the powers in the legislation. It stresses that all measures should comply with the UK's obligations under both the UN and European conventions on human rights. The committee will scrutinise the measures taken and any proposed legislation.^[53]

Technology

In the UK, the ICO has stated that generalised location data trend analysis is helping to tackle the coronavirus crisis and, when properly anonymised and aggregated, the data gathered does not fall under data protection law because no individual is identified.^[54] A contact-tracing app is being developed and should be available in the near future.^[55]