Reflecting on the current Covid-19 crisis which has engulfed the world – we are for once, literally, ‘all in this together’ – my first thoughts are to wish all readers of this blog well, and to hope that you and your families stay safe during this time of physical, emotional and financial upheaval, which is absolutely unprecedented for the vast majority of us.
The ‘Lockdown’ of the country has given many pause for thought. Obviously the Police, along with the other emergency services, are on the front-line of the fight against the virus, and have a difficult job to do in enforcing the new rules and regulations which have been brought in by the government. But the very difficulty of striking that balance, between freedoms and restrictions, and the voices of criticism which have, quite rightly in my opinion, been raised by some in regards to Police Officers overstepping the mark and being too heavy handed in their enforcement or interpretation of the new rules set out in the Health Protection (Coronarivus Restrictions) Regulations 2020 are actually signs of the robust health of our democracy and civic society. Would people prefer to have all discretion taken away from them, as in a society such as China where political freedoms and opportunity for free speech are severely limited? Draconian steps were taken by the Chinese government to ‘freeze’ the city of Wuhan, at the epicenter of the outbreak, in a strange post-apocalyptic scenario where people were literally forbidden from stepping outside their homes; yet this ‘protection’ goes hand in hand with the local authorities earlier persecution of the whistle-blowing doctor, Li Wenliang, who was one of the first to warn about the spread of the virus, who was forced into a public recantation of his (clearly legitimate) concerns, and who, tragically, subsequently became one of the virus’s victims himself. Surely even in a time of danger we do not want to live in a police state, but rather a state where the police are part of society, the ideal of ‘citizens in uniform’.
In this regard I echo the warnings voiced by the former Supreme Court Judge, Lord Sumption, who lamented the heavy-handedness of Derbyshire Police who had turned themselves, in his opinion, into over-zealous, glorified “school prefects” in their use of tactics such as using a drone to spy upon a Sheffield couple walking their dog in the Peak District, and sought to ‘shame’ them by posting images of them on Twitter. North Yorkshire Police, meanwhile, was reported to have set up check-points to allow them to stop people travelling and question them as to their destination. “Papers please!” might be the next demand; is that a place we want to go to as a society?
Other news reports identified cases in which Forces were telling people they could only exercise for an hour a day, or issuing a summons to a household for shopping for what were deemed to be “non-essential” items, or forbidding shops from selling Easter eggs! Here we see the obvious dangers of over-zealous policing in new and uncertain times. The Police in those cases were racing ahead of the law and behaving in a draconian manner; perhaps out of the best of intentions; but this is the danger of the mindset many officers seem to adopt. Many Officers seem to assume that their daily purpose is to look for opportunities to use their powers to punish and restrict people’s behaviour – even when they may not fully understand what those powers are (a classic example being the misuse of powers to enter a person’s home without a warrant under Ss.17 and 18 of the Police & Criminal Evidence Act, as I have blogged about on several occasions) and when rather they should be operating from a mindset of looking for all avenues of resolving, diffusing or leaving a situation ‘be’ without the use of punitive powers/intervention as a default. There is a real danger of over-eagerness in Police action sometimes; the psychological pull of being given new toys and wanting to play with them.
As Lord Sumption cautioned, the Police must act to enforce only the actual law, and not the personal preferences of senior government ministers; that is the crucial difference between living in a liberal democracy and a ‘police state’. The Police are here to help the law of the land function in a healthy and open and proper manner, as fellow citizens invested with a special, but not exclusive, responsibility; their purpose is not to act as paramilitaries for the executive or the strong-arm of government. Of course, individual freedom brings with it individual responsibility in equal measure and we must all do what we can to sensibly limit the spread of this terrible virus. But just as with the threats posed by terrorism, we should be careful not to react to this threat by going too far in the opposite direction. An Englishman’s home, as has been said before in this blog, in his castle; it should not be his prison!
I was thankful to read the words of the Chief Constable of Avon and Somerset Constabulary who speaking to BBC Newsnight last week, agreed that the consent of the public was key, and that “we’re not going to enforce our way out of this problem.”
The fact, however, that many front line officers were going further than what the new legislation actually allows them to do, was sadly not a surprise to me.
I hope that Officers the length and breadth of the country will take to heart the latest guidance issued by the College of Policing and the National Police Chiefs Council, rather than over-zealously interpreting and implementing both the actual powers given by the emergency legislation, and those phantom powers which some officers assumed that they had, as the above examples suggest. The key principle of British policing is set out in the following words in the new guidance, and it is this type of spirit of the law which should always predominate over the letter of the law, particularly in ‘grey’ areas of interpretation, in my opinion –
“We police by consent. The initial police response should be to encourage voluntary compliance. There is no power to ‘stop and account’. The police will apply the law in a system that is flexible, discretionary and pragmatic. This will enable officers to make sensible decisions and employ their judgment. Enforcement should be a last resort.”
Whenever the Police are given new powers to interfere in people’s lives, it is crucial to ask the question, who will police those powers and prevent their abuse? That is why it is right for lawyers and journalists to highlight and criticize situations when we believe the Police are going too far in seeking to restrict people’s freedoms, even in this time of crisis. Sometimes, freedoms once infringed upon, cannot always or completely be taken back and the thriving of our open, liberal society in the long term depends not only in dealing with the shocking, often scary, but only temporary crisis of Coronavirus, but in also a slower, wider and determined sense, maintaining the correct balance between personal freedom and responsibility, the enforcement of the law, and state supervision over and intervention into our lives, which must be kept to as little as is healthily possible.