Confusion over coronavirus police powers

Last week saw the introduction of a raft of emergency powers for coronavirus social and business restrictions. The enthusiasm with which some forces have adopted these powers has caused concern; most strikingly in the case of Derbyshire police, who leapt to join the nation’s teenagers in vying to create Covid-19’s most viral content. Their efforts led them to film drone footage of people out walking their dogs in rural beauty spots and dying the water of the famous Blue Lagoon black to deter swimmers. These acts were roundly criticised and Supreme Court judge Lord Sumption has warned that we are in danger of becoming a police state if forces continue to act in this manner. What is particularly concerning is that in the case of the drone footage, nothing captured was illegal; those out for a walk whether alone or with their dogs were doing so in accordance with their State-sanctioned exercise ration. The concern that any accident in a remote area would put unacceptable pressure on an already stretched ambulance and NHS service is of course valid but not a sufficient justification. Less reported was the scene in Grodzinski in Edgware, where a police officer attempted to fine a bakery £80 for drawing social distancing lines in chalk outside the business.

More chillingly, a 13 year old Leeds teenager was arrested for failing to comply with the new powers; according to the police officer who later tweeted about the incident, the boy refused to give his details and was subsequently taken into custody. It is worrying that a 13 year old was arrested and detained for failing to go home when ordered to by a police officer. From a logistics perspective, this is the exact opposite of what the powers should be achieving as bringing him to the police station only increased his contact with members of the public. Regulation 8 of The Health Protection (Coronavirus) Regulations 2020 (the ‘Regulations’) provides for a person who is outside without reasonable excuse to be taken to their house. The discretionary decision to arrest and detain someone who does not tell a police officer where they live (in order that they can be taken home) is disproportionate and goes against the grain of these Regulations.

In light of these events, police chiefs are in the process of drawing up new guidance with the purported aim of clarifying the extent of these powers and preventing a continuation of the clearly inappropriate conduct seen thus far. For a review of the powers themselves, David Allen Green’s blog provides a very helpful consideration of the Regulations. The starting point is that ‘no person may leave the place where they are living without reasonable excuse’, to which specific examples are given. The other prohibitions relate to a restriction on gatherings and closure of businesses.

The powers to enforce these prohibitions are as follows:

• First infringement: a fixed penalty notice of £60, £30 if paid within 14 days.
• Second infringement: a fixed penalty notice of £120.
• Ongoing infringements will attract double the previous fine, up to a maximum of £960.
• Arrest for non-compliance if an person refuses to comply (i.e. return home)

A fixed penalty notice is a ‘notice offering the person to whom it is issued the opportunity of discharging any liability to conviction for the offence by payment of a fixed penalty to a local authority specified in the notice.’ It is unclear whether paying the fine is parallel to, for instance, receiving a caution and will stay on your record. If you refuse to pay the fine you can challenge it in the Magistrates court, presumably when they open again. However, according to the Government, if you take the issue to court, the Magistrates would be able to impose ‘unlimited fines’.

The Regulations provide for sweeping new police powers, and given the early examples of their usage, raise serious questions about the extent to which civil liberties will be preserved during the lockdown. It does not inspire confidence that the first actions taken by the police have been so extremely in excess of the powers granted to them; actions that were then plastered all over social media. There are also particular concerns about the potential for discriminatory policing, given the extremely broad nature of these powers, and that those fined may be those who can least afford it, as they may not have a stable place in which to self-isolate.