2 April Update

After a number of days where there have been repeated concerns about the implementation of emergency powers, the police’s own lawyers have advised them that they are wrongly applying the lockdown regulations. A guide produced by barristers at 5 Essex Court chambers pointed out that the rules do not restrict outside exercise to only once a day or prevent driving to a quiet place to exercise.

Interesting as well is the newly drawn up Interview Protocol between National Police Chiefs’ Council, Crown Prosecution Service, The Law Society, Criminal Law Solicitors’ Association and London Criminal Courts Solicitors’ Association. “This guidance is intended to assist investigators and prosecutors in deciding whether
suspects should be interviewed as part of a police investigation during the Covid-19 pandemic.”

As a whole, it’s more concerned with the health and safety of police officers, than with the rights of the individual arrested. It seems the protocol was not heeded in the cases detailed below.

Arrests and fines

Kirsty Brimelow QC, a barrister at Doughty Street Chambers, for The Times questioned whether the arrest and fining yesterday of a woman who refused to tell the police the purpose of her journey was lawful. British Transport Police has subsequently confirmed that the woman “was charged under the incorrect section of the Coronavirus Act 2020.”

The Independent found out the woman was not even in the courtroom when a judge found the offence proven. She was in a cell for refusing to give her name. In fact, she did not speak at all. “Having explored all options, Ms Dinou was arrested on suspicion of breaching the restrictions imposed under the Coronavirus Act 2020,” the British Transport Police said in a press release today. But official guidance issued to officers by the College of Policing and National Police Chiefs’ Council states that “there is no power to ‘stop and account’” under the new laws.

Schedule 21 creates an offence of “failing without reasonable excuse to comply with any direction, reasonable instruction, requirement or restriction” imposed as part of the act, the Independent writes. But the law can only apply to “potentially infectious persons” and is separate to the newer Health Protection Regulations that allow police to enforce the UK lockdown.

A man charged yesterday for causing a public nuisance and contravening movement restrictions after an “unnecessary visit to Stoke Mandeville Hospital” was today jailed for 12 weeks. He was also ordered to pay £300 compensation to the NHS Trust.

“Thames Valley Police received reports that a man had posted on social media that he had visited the hospital for no reason. His actions within the hospital reportedly caused distress and disruption to hospital staff and members of the public.” It is unclear whether it was his social media post that caused distress or the actual visit. Nor does the article explain how the man was found.

He was “charged and remanded in custody yesterday with one count of causing a public nuisance and one count of contravening the requirement as to the restriction of movement during the Coronavirus emergency period following his arrest on Tuesday.” We would like to know which article of the law the last count refers to.

Even more chillingly, Charlotte Sykes and Sash Barton at Hodge Jones and Allan write: “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 by a police officer.

“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 provides for a person who is outside without a 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.”

You may not think a vape shop is an essential shop but there is no reason for the police to act like this. According to the owner, “they turned up and said we had to shut. I asked under what law did I have to close and they didn’t know.” The owner was restrained and taken away after what seems like an unlawful arrest.

owner of vape shop restrained and arrested

He told the Liverpool Echo: “I thought we were doing everything right, I only had one member of staff in and we only let one customer in at a time and then wiped down every time. The Chartered Institute of Environmental Health, whose members work for councils, and are responsible for enforcing the new rules, said: ‘There does seem to some confusion over what should be closed and what shouldn’t. Vaping shops are self-identifying as health care and staying open.”

Legal steps

Human rights firm Bindmans hints it will pursue judicial review action over the government’s limit on outdoor exercise, saying it disproportionately affects families with disabilities.

“Stay home” isn’t always that easy, not when police in Brighton turn a blind eye to another illegal, violent squat eviction.

Respect Human Rights
Resources

1 April Update

POLICING

Public pressure has forced what is, at least, a partial retreat from the enthusiasm of a number of police forces for interpreting government guidance on what a ‘reasonable excuse’ for leaving home as if this was written into law. This led to the setting up of roadblocks, stopping and questioning people and arbitrary decisions about whether exercise or shopping is essential or not that we have seen over the last few days.

A new briefing by the National Police Chiefs Council and the College of Policing, on the scope of emergency police powers, was published yesterday is available here. This is the slide that provides some clarification on the reasons for needing to leave home while restrictions on movement remain in place:

NPCC CoP Guidance On Movement Restrictions

The Chief Constable of Merseyside Police, Andy Cooke, has insisted that this is “not the time to be criticising the Police for a small number of misinterpretations of the legislation and advice”. In response, Netpol has commented saying that without facing criticism, “there’s every likelihood the police would have allowed the “misinterpretations” to continue. Forcing public institutions to account for their actions is why public scrutiny exists”

As a result of public criticism over the use of emergency powers, Cheshire Police say they are now reviewing the cases of six people summonsed to court over alleged breaches of the legislation in Warrington.

However, police have continued to warn that the crackdown will continue across Lancashire

The Press Association has asked police forces in England and Wales how many fines have been issued and how many arrests made since the new regulations were introduced. Of the 43 forces contacted, around a quarter said they had not issued any fines or made any arrests so far. A similar amount refused to provide details.

Police in Lancashire has so far issued 123 fixed penalty notices to people breaking the government’s new rules, the largest recorded number in the country.

However, a woman arrested by British Transport Police at Newcastle Central station for refusing to explain to officers her reason for essential travel has been fined £660 by magistrates.

Meanwhile, Gracy May Bradley made a crucial point in an opinion piece in the Guardian, asking ‘Can people of colour trust the UK Covid-19 laws with the police’s track record?’ With the long history of police power being deployed as a disciplinary tool against them, she warns that ‘if communities of colour are left to bear the brunt of arbitrary policing, the damage done will last even when this crisis is over.’

SURVEILLANCE

The BBC, meanwhile, has highlighted proposals for a coronavirus app that alerts people if they have recently been in contact with someone testing positive for the virus. This idea creates some huge concerns about privacy and compulsion. One of the ethics specialists involved in a study by University of Oxford has said that “this is a really unusual situation where lives are at risk, so there is a case to be made to make at least some actions compulsory”.

However, there are already questions about the companies involved in using surveillance to track people who may become infected. Open Rights Group and Privacy International reacted to news that US surveillance company Palantir is in discussion with the NHS to “clean” and analyse bulk health data, including tracking of spare beds, ventilators and calls to 111.  Palantir’s past work has involved tracking of migrants and provision of espionage tools.

RESOURCES

31 March Update

‘UK police chiefs urge forces to prioritise persuasion in tackling virus‘, the Financial Times wrote today, quoting Liberty who warned: ‘The broader aim of protecting public health will be undermined by harsh and heavy handed policing.’ JusticeGap had a similar article.

Police warned against ‘overreach’ in use of virus lockdown powers according to The Guardian front page, adding that the National Police Chief Council would try to end the confusion. In response, the NPPC denied this, tweeting: ‘We are not rewriting our guidance to officers. It remains the same as it was. Engage, explain, encourage and finally enforce. This is a fast changing situation and we, along with the public, are adapting as we go forward.’

‘Everyone in policing is acutely aware that how we police this pandemic will be remembered for many years to come’, says the National Police Chiefs Council lead for… counter-terrorism policing.

In a long-read in The Guardian Peter C Baker says: These powers get put in place, and it sounds reasonable enough at the time – “ and then very quickly they’re applied for other purposes that have nothing to do with democracy‘ and nothing to do with public safety This adequately summarises why we set up this blog.

Meanwhile, the confusion has not ended yet.

In the debate on whether Easter Eggs are essential food (BBC: Easter egg crackdown over essential status ‘wrong’), Greater Manchester Police claim success taking enforcement action against “non-essential business trading”. The law says nothing about ‘non-essential business’ and government guidance is clear that it is not only essential businesses that should stay open. Also, in the same post they incorrectly claim there are only three reasons you can leave your home.

Stop bombarding North Wales Police 999 and 101 lines with queries about dog walking’ NorthWalesLive reported that the force is being overwhelmed with general Corona questions. North Wales Chief Constable states: ‘The most common question is people asking if they can drive somewhere to walk their dog and the answer is no.’

However, the National Police Chiefs’ Council lead for charging and out of court disposals, Deputy Chief Constable Sara Glen, urged people to ‘be sensible’. She said: ‘There isn’t anything definitive in the legislation that talks about ‘can you get in a car to drive to a place to go and do your exercise’.’

Meanwhile, Derbyshire Police, who was criticised for filming Peak District hikers with a drone, has admitted it is powerless to stop people from going walking in the countryside.

With #PoliceState trending today on Twitter, here’s a summary by @BBCDomC of the emergency police powers. The caveat here is officers retain extraordinary discretion to decide how they are implemented. What is normally considered the ‘rule of law’ no longer applies.

@JasonNParkinson tweeted: ‘Last night approx 11pm a vehicle drove along my East London road, a loud speaker repeating, “Stay in your homes”. Has anyone else witnessed any similar activity?’

29/30 March Update

Police need to learn a thing or two about the internet, more specifically about the difference between live-streaming and playing pre-recorded material.

Twelve officers turned up at the Hot Water Comedy Club in Liverpool on Saturday night because of reports that a video posted on Facebook was happening live. Footage of the security camera of the club shows that none of the officers was following social distancing guidelines among themselves.

Similarly, Cheshire Police contacted a hunt sabotage group demanding it to publicly confirm that a video it shared on Facebook was filmed pre-lockdown, because these are ‘unprecedented times’. This too had been the result of a complaint (almost certainly from pro-hunt supporters). There has never been any evidence whatsoever that hunt sabs anywhere are ignoring the lockdown.

On the issue of members of the public denouncing others to the authorities, West Midlands Police reported that a video circulating that appeared to show a group of people leaving a mosque in Small Heath in Birmingham had been recorded before lockdown restrictions were imposed.

The confusion over what is allowed and what is not when people leave their homes continues. The Metropolitan Police reported that while patrolling on Saturday, ‘a male who does not live in the area was stopped and subject to a search resulting in a community resolution’. It is unclear on what base the stop and search was performed, and what the resolution entailed. It is not forbidden in any kind of way to be somewhere you don’t live.

In West Yorkshire, Netpol reported that it had been informed police officers had yesterday stopped two care workers, both in their uniforms,  who were sharing a car on the way to work a 12-hour shift together at an old people’s home. The driver was fined £60. The two-metre social distancing rule cannot apply to them, as many of residents they support require two carers

Police in Lancashire have issued 123 fixed penalty notices to people, again confusing advice and rules, according to their Facebook account: ‘Thank you to the vast majority of people across Lancashire who have been sticking to the government advice to stay at home and only travel when essential. We have been patrolling areas across the county and where we have seen people breaking the rules, we have issued fines.’

Warrington Police fined six people over the weekend, including for being ‘out for a drive due to boredom’ and ‘multiple people from the same household going to the shops for non-essential items’. With the few shops that remain opening offering only essentials like food, it’s unclear what shopping for ‘non-essential items’ means. Neither is it clear at what point family members going out to the shops together (whilst unwise) was criminalised.

A man with a history of mental health problems been ordered to pay a £500 fine, £85 prosecution costs and a £50 victim surcharge after he refused to obey coronavirus lockdown restrictions.

Swindon residents with doorbell cameras or CCTV at their homes are being urged to register them with Wiltshire Police, who are setting up a database of private cameras.  Amazon Ring doorbells, many with motion-activated sensors, can be linked into other smart devices including mobile phones and Amazon’s Alexa. Is this project set up now just to catch thieves, as the police says, or would such a network come in handy to check on people going out, to assist the enforcement of the lockdown – as happens in other countries?

28 March Update

Police time is being wasted with calls reporting neighbours who’ve had “two runs”. Humberside has become the first police force to create a dedicated online “portal” where people can submit written tip-offs if they spot gatherings of more than two people. Other forces including West Midlands, Greater Manchester and Avon and Somerset are following suit. N.B. The legislation doesn’t actually limit you to going out once for exercise, so people having two runs are not breaking the law (just the guidance).

In Greater Manchester, police have interpreted lockdown instructions on regular exercise to say you cannot drive anywhere to do so. You can only walk, cycle or run to and from your home, they’re handing out leaflets reading ‘Why are you here today?’ And here is Northumberland’s stated policy: if you refuse to go home, you’ll be fined.

Devon and Cornwall police were stopping people at road blocks in Exeter yesterday, forcing people to wind down their windows and then leaning in to ask them what they are doing. No masks, a foot or less away.

London’s former police counter-terrorism chief Richard Walton, who authored a paranoid Policy Exchange report on @XRebellionUK, now claims that though most people not wanting to gather together, “this will not stop a minority of groups from potentially exploiting the crisis for their own ends“.

Police should be allowed to fire baton rounds and use tasers against people who defy the Government’s coronavirus lockdown according to a former senior officer. Kevin Hurley, who served in both the Metropolitan and City of London police forces, made the controversial suggestion on Iain Dale’s LBC radio show.

In the midst of demands to stay home, police assist private security to evict people squatting one of Brighton’s 665 empty commercial buildings. “One of the police officers knocked our disabled friend to the floor.

For some context, read ‘From stop and search to coronavirus – increased police powers will always harm people of colour‘ (includes comments from @netpol)

27 March Update

After initial confusion yesterday, some clarification from @PoliceChiefs, rules on what you can do outdoors, and how you could be fined, summarised by BBC correspondent Dominic Casciani. Still waiting for the full guidance to police forces on all coronavirus powers, not just on social – or rather: physical – distancing.

Police have already issued fines to people breaching coronavirus lockdown rules, less than 24 hours after new laws came into force, the National Police Chiefs’ Council (NPCC) confirmed to reporters – without further details yet.

Extraordinary scene at Grodzinski in Edgware sees police officer attempt to fine bakery £80 for drawing social distancing lines in chalk to help keep customers safe from coronavirus.

The Derbyshire police and other uncertainty over the rights to enforce what made the front page of The Times today, while new reports of police drones maintaining public order come in. Again in north Wales, patrolling parks and open spaces in the more rural areas of Wrexham.

Neath Port Talbot Council aired a flying surveillance camera is barking orders at ‘people not following government measures on social distancing’. @BigBrotherWatch quoted a local resident saying: “This upset a lot of people today at Neath Boots. People were waiting for prescriptions and people were very orderly and staying two metres apart’.

The lawyer David Allen Green has produced a detailed guide on his Law and Policy Blog explaining the restrictions on freedom of movement introduced under the emergency coronavirus legislation.

Dijen Basu QC and Elliot Gold have produced a similar guide on the UK Police Law Blog.

Louise Hooper of Garden Court Chambers has produced a briefing on the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020

26 March Update

Derbyshire Police sent out their drone unit to and ‘beauty spots’ in the Peak district, and tweeted footage captured at Curbar Edge the night before. The camera zoomed in to isolated people questioning why they were out there, and blaming them for walking their dog and not staying at home. The police tweeted: ‘Daily exercise should be taken locally to your home. Under government guidance all travel is limited to essential travel only.’ While many on Twitter thought that it was the police going too far, and did they not have better things to do, Derbyshire Police continued to defend their action, saying they had done it to get the message through. (The Global Times suggested, the police was inspired by the sharp-tongued drones used in China, berating people for not wearing masks.)

Adam Wagner, human rights barrister at Doughty Street, tried to figure out how this was lawful, and concluded there is a confusing difference between the government’s directions and what is in the Coronavirus law. In a long thread, detailing his concerns, Wagner says: ‘Importantly, there’s no general “essential trip” requirement for police to enforce. For a trip to be lawful a person must have “reasonable excuse” and there are a number of those including to “take exercise” – no requirement for that to be “essential”. So I see no reason why it is unlawful for people to take exercise wherever they want, including in parks and local ‘beauty spots’, as long as not gathering in groups of more than 3 not part of their household (though that isn’t very clear to be fair)’.

Meanwhile, police Humberside police creates online report portal for people not social distancing. The force says the portal has been made in response to an increase in the number of calls to its non-emergency 101 number following the government’s announcement earlier this week around new police powers to disperse groups. Northamptonshire Police said the force control room has had “dozens and dozens” of calls about people ignoring the order, including reports from people whose neighbours are gathering in their back gardens. A spokes person for the police said “We won’t have police officers crashing through garden fences to check the ID of everyone… We wouldn’t want to discourage people from making us aware, but we have to set expectations.” Adding however: “But be under no illusion, we will be using these powers if necessary.”

Devon & Cornwall Police has issued an update to parents saying “potentially, failure to adhere to… instructions could be deemed as a failure to safeguard your children… Partner agencies will be informed where we have concerns about people’s abilities to parent their children.”

25 March Update

In London, a taskforce of 500 officers questioned passengers about their journey in a bid to cut the number of people on public transport. Some commuters were told: ‘we don’t want to see you tomorrow’ as police began a series of checks at rail and tube stations in centra London and the suburbs, ITV reported. The move came as Transport for London announced a third of its workers were off sick or self-isolating. Staff shortages led to further cuts in the number of tube trains and a warning from mayor Sadiq Khan of even fewer in the days ahead.

‘Police confused over enforcement of coronavirus lockdown rules on the British public’, the Telegraph reported. Derbyshire Police launched “proactive” patrols that included cars equipped with loudhailers ordering people indoors. The force said it would not flinch from breaking up builders working too close together, failing to add that most builders are forced to continue showing up – without proper health instructions.

But other forces contacted by The Telegraph are pursuing a more “softly softly” approach, unwilling to fine people caught breaching the coronavirus lockdown.

Durham and North Yorkshire Police launched spot checks on those venturing outside, the local Darlington and Stockton Times reported, to tackle a minority of people who are ignoring stark government warnings to avoid non-essential journeys. In an unprecedented action on key routes and town and city centres, they questioned people about their reasons for not being at home, as senior officers tried to press home the importance of social distancing and isolation due to the Coronavirus crisis.

The move comes ahead of emergency legislation that is expected to give police enforcement powers to issue fines over is expected to become law the same day.

24 March Update

Police officers in Foleshill, Coventry tried to enforce the UK lockdown before their emergency powers came into force by disrupting a barbecue. Police said they tipped over the barbecue and insisted the group, which included a small child and people in their 60s, disperse.

Less than a day before, the prime minister has demanded the closure of all but essential shops, instructing police to deter people from leaving their homes. Gathering in groups larger than two is no longer allowed in order to enforce physical distancing, which is considered vital to stopping Covid-19. Parliament had yet to vote on the Coronavirus Bill, on 25th March.

Police in Crewe have stopped motorists to ask them for the purpose of their journeys as part of the lockdown across the UK in response to the coronavirus pandemic.

At the same time, Sir Peter Fahy, a former chief constable of Greater Manchester police, said enforcing the lockdown would be impossible if it was solely down to stretched officers and that community and social pressure was key. “They can’t really enforce it,” he said.

23 March Update

The Police Federation of England and Wales (PFEW) calls for ‘urgent’ legislation to protect officers from the public. The Federation has called on Home Secretary Priti Patel to introduce urgent legislation to enforce social distancing to protect officers from members of the public who may be infected with the coronavirus.

Exactly what the Police Federation’s demands are unclear from this Police Professional article, but seem to include criminalising failure to physical distance and making coughing at officers an assault. Incidentally any testimony about misuse of spit hoods is one issue we’d like to hear in the coming months.