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Policing the pandemic: How unclear laws and guidance have led to excessive policing

By Charlotte Threipland, a writer, editor and researcher working with Commons.

Not-for-profit law firm, Commons, has created a free tool to help people who have been stopped by the police over alleged breaches of the coronavirus regulations. The Coronavirus Fines + Crimes: Web App aims to help people understand whether there has been a breach and decide on their options.

A new year, a new, colder lockdown and more deaths recorded from coronavirus in the UK since the start of the pandemic. With someone in the UK dying every minute on 13 January 2021, few doubt the necessity of restrictions to curb this devastating second peak.

Nevertheless, niggling questions remain: does the government really hold the trust of the public to keep us safe? Is its approach to enforcement working?

Various high-profile figures have been accused of flouting the rules but, as with anyone else, there are grey areas. For example, when, at the start of the year, the prime minister travelled seven miles from his home for a bike ride, the health secretary was asked whether this was within the rules. He replied: “It is okay, if you went for a long walk and ended up seven miles from home, that is okay, but you should stay local. It is okay to go for a long walk or a cycle ride or to exercise, but stay local.” This response indicates a marked incoherence with the rules.

This murkiness is likely what led two women to decide in January that it was okay to drive in separate cars, five miles from their home, to have a walk in a Derbyshire beauty spot. They did not expect to be surrounded by police (one of them assumed “someone had been murdered”), each issued with a £200 fine and accused of having a picnic as they were carrying takeaway cups of tea. Initially standing by their decision, after a media uproar, the police force eventually apologised and withdrew the fines.

These recent and conflicting stories are just the tip of the iceberg in terms of the arbitrary and excessive way that the police have been enforcing the rules.

An investigation by the Independent during the first lockdown showed stark inconsistencies in the way different police forces were enforcing the regulations. For example, people in North Yorkshire and Northamptonshire were 10 times more likely to be fined than those in Humberside or Warwickshire.

Examples of excessive policing have included dyeing a lagoon black “to make the water look less appealing” and deploying drones to monitor people visiting a beauty spot during the first lockdown. More recently, video footage of what appears to be a man being unlawfully interrogated by West Mercia police officers went viral. Such repressive tactics are disturbingly akin to what you might expect in a police state.

Part of the problem lies in the fact that many – including, it seems, the police – do not understand the difference between the legally binding coronavirus legislation and voluntary guidance. The regulations do not prohibit someone from travelling to exercise but the guidance asks people to remain ‘local’.

Unrelated to the coronavirus regulations, but still illustrative of the confusion that reigns within police forces around coronavirus legislation, is the fact that every prosecution that was made under the Coronavirus Act 2020 from April to November was found by the Crown Prosecution Service’s monthly review of prosecutions to be unlawful. The fact that the CPS is carrying out regular monthly reviews illustrates its own lack of confidence in the system.

As in much of the criminal justice system, discrimination is also a problem. In May 2020, Liberty Investigates and the Guardian found that if you were a person of colour, you were 54 per cent more likely to be issued a fine.

In the face of all of this doubt and unfairness, it is no wonder that, by 22 September 2020, half of the fines issued by police went unpaid, suggesting that many are willing to risk a substantial increase in their fine and to contest it in court.

Fixed penalty notices (FPNs) were chosen as a method of enforcing the regulations in a way that was hoped to relieve additional pressure on the criminal justice system, which was already overwhelmed and suffering under the weight of huge backlogs. A breach of the regulations does not become a criminal matter unless the person issued with the fine refuses to pay within the 28-day time limit. However, the number of people contesting the fines seems to indicate that the system is not achieving what it was designed to do, as many of these cases are in fact becoming criminal matters.

In spite of these many problems, in January 2021 the police promised to crackdown on rule breakers, toughening up their enforcement. This has no doubt emboldened officers. The Home Secretary has stated that more than 45,000 FPNs have been issued during the course of the pandemic. We expect this number will sharply increase.

It was these concerns that led Commons to create the Coronavirus Fines + Crimes: Web App. Please circulate among clients, family and friends.

Criminalisation should be a last resort, not a quick-fire way of enforcing compliance, especially when the government is failing to communicate clearly what the law is.

This piece is based on an article first published in the February 2021 issue of Legal Action.