Policing the pandemic in a ‘free’ society – a damning report by HM Inspectorate
Police failed to distinguish between No.10 press conference statements and the actual law
© Facts4EU.Org 2021
Postcode lottery – police in Dyfed-Powys issued 19 times more fines than police in Humberside
Facts4EU.Org reviews the report by Her Majesty’s Inspectorate of Constabulary
Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has just released its report on policing the pandemic in 2020. It does not make for comfortable reading.
In any ‘free’ society, policing should be based on the law. Unlike countries such as France, in the United Kingdom policing is a service, not a force, and requires the consent of the public for it to work. Such consent is given when the public has confidence that the law is being applied fairly, consistently, and evenly.
It is abundantly clear from the HM Inspectorate’s report that this was not the case last year
“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.”
- Her Majesty’s Inspectorate of Constabulary, April 2021
Whilst the report contains a great deal of ‘bumf’ designed to show police officers that they are appreciated and that they were working in difficult circumstances, some of the conclusions are simply breathtaking for a police service in a modern, ‘free’ society.
Brexit Facts4EU.Org Summary
The most damning statements in the report
- “The principal lockdown provisions were not made under the Coronavirus Act 2000, but in a statutory instrument”
- “The regulations… came into effect even before they were laid before Parliament”
- “Lockdown restrictions were eased or strengthened, imposed, relaxed and re-imposed, in different parts of the country, for different periods and with differing intensities.… It was hard to keep up with them.”
- “For the first time, even in war time, the public were confined to their homes”
- “Ministers asserting that their guidance – which had no higher status than requests – were in fact ‘instructions to the British people’ … [and some police officers] appeared to believe that ministerial instructions were equivalent to the criminal law.”
- “The two-metre distancing ‘rule’ has only ever been in guidance”
- “The request to ‘stay local’ has never been a legal requirement”
- “The suggested limits on the number of times a person could go out to exercise in a day and for how long were only ever in guidance, not regulations”
- “The exhortation only to take ‘essential journeys’ was no more than guidance; it was not the 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.”
Where not to live if you want to avoid having your collar felt
This report relates to England and Wales only, as the inspection of policing is devolved in Scotland and Northern Ireland.
It seems that the area of England and Wales where you were most likely to receive a “Fixed Penalty Notice” (FPN) under Coronavirus Regulations last year was Dyfed-Powys, whose police service managed to issue an astonishing 3,552 FPNs per million in a nine month period. (All these figures are ‘per million’.)
This compares with Humberside whose comparable figure is just 185. In other words, you were 19 times more likely to be fined for a Coronavirus ‘offence’ in Dyfed-Powys than in Humberside.
© Brexit Facts4EU.Org - click to enlarge
In total, 42,675 FPNs have been recorded as having been issued in England and Wales under Coronavirus Regulations between Friday 27 March  and Sunday 17 January . In England 38,452, were issued, and 4,223 in Wales.
HM Inspectorate’s full wording on “Enforcing coronavirus legislation”
(Emboldening of text below is by Facts4EU.Org.)
At the beginning of the pandemic, Parliament passed the Coronavirus Act 2000, which made emergency provision for a range of temporary measures to deal with the consequences of the pandemic. These included things such as the temporary authorisation of medical personnel, the relaxation of measures for the protection of vulnerable people, and the postponement of elections.
As far as the police were concerned, the Act’s principal provisions concerned the closure of premises or restrictions on their use, and special powers for the police to assist medical personnel dealing with persons suspected of being infected by the virus.
The principal lockdown provisions were not made under the Coronavirus Act 2000, but in a statutory instrument made by the Secretary of State for Health and Social Care under the Public Health (Control of Disease) Act 1984: the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. Welsh Ministers made parallel regulations. The first set of regulations was made on 26 March 2020 and came into effect even before they were laid before Parliament.
In the months which followed, 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.
These instruments created new criminal offences. Penalties were specified, including escalating fines which could be issued by police officers (and challenged in court).
The offences which attracted the greatest public attention were failures to comply with lockdown restrictions. For the first time, even in war time, the public were confined to their homes, and a person was only allowed out if they had a reasonable excuse. The first regulations contained a non-exhaustive list of 13 reasonable excuses, including obtaining basic necessities such as food and medical supplies, taking exercise, travelling to and from work and escaping violence or other harm. The principle was ‘reasonable excuse’, but unfortunately that was not widely understood.
It is a fundamental principle of interpretation of legislation (primary and secondary) that it should be construed in the light of and to give effect to its statutory purpose. The purpose in this case was preventing, protecting against, delaying or otherwise controlling the incidence or transmission of coronavirus. With that purpose in mind, it became much easier to understand the cases where members of the public were legitimately outside their homes and where they were not. Regrettably, in too many cases front-line police officers did not receive these explanations which would have made their jobs much easier.
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.
For example, the two-metre distancing ‘rule’ has only ever been in guidance (aside from some requirements on the hospitality sector such as licensed premises and restaurants). The request to ‘stay local’ has never been a legal requirement. The suggested limits on the number of times a person could go out to exercise in a day and for how long were only ever in guidance, not regulations.
Some forces told us that they sought legal advice on the regulations so that they could produce clear guidance for their workforces. But the speed with which regulations were made and amended (usually by being added to) was great. And to many, the distinction between law and guidance remained uncertain.
In these circumstances, mistakes were made. During the initial lockdown,there was significant media coverage of what was often described as police overreach. High-profile examples included road checks to identify unnecessary journeys, drone surveillance of people in open and almost deserted places, and police action in relation to non-essential shopping and what was thought to be excessive exercise.
The exhortation only to take ‘essential journeys’ was no more than guidance; it was not the law.
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.
And as difficulties arose and some well-publicised mistakes were made, public confidence in, and support for, the police were inevitably put at risk. And yet, despite these extraordinary difficulties and pressures, a very significant proportion of police work to deal with the lockdown was measured, proportionate and sound.
In May 2020, the Crown Prosecution Service (CPS) published a review of initial cases under coronavirus laws. The review found that the vast majority of prosecutions under the regulations – 175 out of 187 – had been charged correctly. Seven cases were discontinued in court on the day of the defendant’s appearance, and five convictions were returned to be re-opened and withdrawn. Errors were most commonly Welsh regulations being applied in England or vice versa. However, the review also found that all 44 cases under the Coronavirus Act 2000 were incorrectly charged. This was because there was no evidence that the cases concerned potentially infectious people.
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.
Forces must always make sure their officers and staff are perfectly clear what is law and what is not, and have the plainest explanation of the limits of their powers and how best they should use them to maintain public confidence and support. The NPCC and the College of Policing should ensure that national standards are set which emphasise and simply explain the proper powers of the police and what they are not required to do.
It should go without saying that the police have faced a difficult task in the last year. However, so have a great many people, in all manner of ways. We have all had to cope as best we can.
When it comes to policing, this is something which must be able to respond to changing circumstances, emergencies, etc. The police service is, after all, considered to be part of ‘the emergency services’.
There are many causes for concern in HM Inspectorate’s report on 2020. Perhaps the three which concern us most deeply are the following:
- The inability of the police to distinguish between politicians' ‘guidance’ and the law of the land,
- The apparent willingness of some police services to apply these press conference statements as ‘the law’, and
- The shocking disparity in the application of Coronavirus Regulations evenly across the country
Many readers will also have concerns about other aspects of policing in recent years. A case in point is the shocking difference in the police’s sympathetic treatment of Black Lives Matter protests – some involving criminal damage - compared to others. Our article today, however, is based purely on the police’s response to Coronavirus, as outlined in the report from Her Majesty’s Inspectorate.
Take out the waffle and the warm words, and there are some very damning conclusions in the report. It’s time for someone in Government to address this with alacrity and drive. Priti Patel, over to you and the Prime Minister.
And finally, in line with our custom of providing music links to readers when we use lines from a song in our headline pictures, here is the incomparable Debbie Harry and Blondie, performing "One Way Or Another".
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Traditional civil liberties and personal freedoms were part of what motivated us in that fight. This is why we researched and published the report above.
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[ Sources: Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services report Apr 2021 | National Police Chief’s Council report 28 Jan 2021 ] Politicians and journalists can contact us for details, as ever.
Brexit Facts4EU.Org, Thurs 22 Apr 2021
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