Day twenty two in the corona house is a day that brings a few previous strands together. It’s a day that I find myself writing a piece I would rather not write. However, I do so with the intention of being a critical friend.
In the last week we’ve been in uncharted waters, unknown territory – pick the cliche of your choice. I don’t think we realise the scale of what is likely to hit the UK and the US over the coming fortnight and I’m reluctantly in favour of the quarantine measures being put in place by the government which strike me as proportionate, reasonable and required.
Before we forget why those restrictions are being put in place, take a look at the current cases graphs for a number of countries based on their WHO submissions.
New cases by county USA, Italy, Spain, Germany, France, UK, S.Korea, Canada, Australia, Malaysia [Source: WHO daily reporting figures]
The near classical exponential growth curve in magenta represents the United States and demonstrates pretty well what happens where there are minimal restrictions put in place. The more linear blue line beneath it represents Italy which we all consider to be the European hotspot. I regret to say I fear it is as nothing to what is about to unravel in the States. The increasing inclines beneath that of Italy show a range of responses but all are characterised by varying degreees of control over movement and similar restrictions. While it is too early to tell, this may indicate that such measures do provide some means of slowing the viral spread. Let’s hope that’s not naive optimism but for today I’m going with it.
The Swedish experiment
However, not all countries have moved to restrict their populations. Sweden remains almost uniquely determined to remain open largely as usual. The government there remains reluctant to impose restrictions on personal liberty citing it as not in the cultural DNA of the Swedish to do so. Whether this is sensible is, of course, a different matter. The lack of control over social gatherings, the lack of social distancing and no limits on travel may account for the recent rise in the figures being declared by the country. For me the libertarian arguments, though persuasive have to take a temporary (and I stress temporary) secondary importance to that of the greater public health issue.
However, I am now concerned that the policing in place to handle what we all agree needs to be enforced is at risk of damaging public trust and must change.
The thin blue line is stretched
I must admit to hesitating before writing this post as it feels difficult to be apparently critical of former colleagues. However, events in recent days have led me to believe it would be unhelpful in the longer term not to speak out now. I don’t criticise the overwhelming majority of police officers who do a tought and largely thankless task. However, the approach being taken by some to the corona virus shows a form of policing that I don’t recognise. Were I to take it at face value, it would be more in line (in its worst cases) with totalitarian regimes. I felt the direction of travel sitting less and less comfortably with me over the last 48 hours. Now, I see increasing criticism on social media – but then again that’s only to be expected. It’s harder to ignore similar levels of concern being expressed in the media and print newspapers – but again, mainly in the tabloids so maybe that doesn’t count. Yet still that niggle of doubt persists. Something in the current approach is wrong. In the spirit of critical friend here’s why I feel that, why it may be the case and what we can do about it.
Interestingly, and for my money reassuringly, I’m not alone in my concerns in this space. Many barristers including a former advisor to the government on terrorism doubt the emergency legislation gives much of a steer about population level controls, but focuses more on actions at an individual level.
Former supreme court judge Lord Jonathan Sumption
Then today, I read an article in which no less a figure than former supreme court Justice, Lord Jonanthan Sumption raised similar concerns. He branded the approach taken by Derbyshire constabulary among others as ‘frankly disgraceful’. He didn’t mince his words when saying this was the sort of behaviour that risked plunging Britain into a police state. (click here to read the article) Lord Sumption is something of a polymath being not only a barrister, respected knowledgebase regarding juris prudence, but he’s also a respected and rigorous academic historian. He doesn’t have a history of seeking to undermine either the government or bodies such as the police service. Importantly, he’s powerfully cerebral and will have thought through his comments.
While it’s too strong for me to say we’re approaching a police state, I do share his view that the behaviours to which he refers must be challenged when they are seen. Not to do so risks normalising them and that does in my view lead us to a much darker, less accountable and entirely non-concensual form of policing which I for one don’t wish to see in the UK. So what are the examples I have in mind?
Discretion and common sense?
A handful spring to mind. I don’t seek to claim they are representative. They may be examples of the ‘overzealous civilians in uniform’ referred to by Jonathan Sumption. However, they make it to the press with sufficient regularity that their wider impact cannot be ignored.
The first example reported by the sun (click here for article) shows an MPS police sergeant – not a green and inexperienced officer but a supervisory rank showing no discretion or in my view appropriate judgement. A shop keeper had marked the pavement outside his shop with washable chalk marking 2m waiting marks to allow his customers to maintain social distancing in line with government requirements. The officer concerned initially issued process on the basis of grafitti on the pavement. When the circumstances were explained by the store keeper the video reveals he was told it makes no difference if we all did this it would be anarchy. The process was subsequently withdrawn following press involvement.
The second example is of a type cited by Lord Sumption and relates to people travelling by car to a location for exercise, to walk their dogs or to simply regain some sanity. Thanks to a friend in Wiltshire who posted this example of a note left in the county on cars found at local open spaces. This isn’t limited to a Wiltshire practice and is broadly similar to notes issued by forces across the country. I would make two points about this approach.
The first I’m prepared to give them the benefit of the doubt about. If these ‘advisory notes’ (for that’s all they are) are posted in locations where large numbers are likely to congregate then they may serve a purpose in those limited circumstances, though not I would argue in the current form and wording. However, when you extend this to a couple with limited mobility who take their dog 2 miles into the local countryside to allow them to run then that just proves common sense isn’t that common.
The second, I’m not prepared to give the benefit of the doubt. The note is simply wrong. It purports to say that current regulations ban such actions – (the relevant legislation is available by clicking here). It clearly doesn’t prevent such activity. Nor does it limit the means by which you leave your house to take exercise, the proximity of that exercise to your house, the nature or form of that exercise. It most certainly doesn’t prohibit sitting on a bench mid-run or pausing between exercise activity. To say it does, to shame and potentially attempt to enforce against those alleged ‘breaches’ is just wrong. In my view it does nothing to build cohesion, place the police in anything other than the role of officious jobsworth and is in my view, a breach of the office of constable. The police have a proud tradition of upholding law – not ministerial guidance, not departmental or borough commanders fiat or interpretation of governmental guidance, but statute law. They should stick to that.
Linked to this strand are today’s examples in the Met and West Midlands where corner shops have been visited by constables to be told that although their shop may be open for bread, milk and the like, they may not have Easter eggs on display as these do not count as ‘essential goods’. Here we are firmly in Dagenham territory (beyond Barking). Why? Firstly the legislation makes no distinction between goods and essential goods their categorisation is entirely arbitrary. Secondly, I can think of three families with autistic young adults. They know it’s Easter and Easter means eggs. In those households, believe me Easter eggs would be pretty essential. Finally, the contact these officers had with the storekeeper and reportedly some of the customer base were entirely unnecessary at a time when we are all being asked to avoid them.
Finally, how are the police dealing with business as usual in these tricky times. They are keen to enforce against the public but is their own house in order? Some are, Kent police has developed a means of dealing with detained persons and those attending custody (such as solicitors, interpreters and appropriate adults) in a way that protect them, the detained person and maintains appropriate social distancing. I would urge all forces to follow their example.
I have not reposted large portions of text here but would refer you to https://twitter.com/MistressLuce2 who is a legal representative attending police stations in the West Midlands. In summary, multiple sources report detained persons are being held and processed without thought of social diststancing. Solicitors and others are being ‘required’ to attend police stations despite no facility for safe interviews even when either detainee or officers are showing symptoms. This is just unacceptable. Duty solicitors have declined to attend as is their right under pandemic situations. In response one police officer said if you don’t like it here don’t come. If your clients don’t like being in this environment maybe they shouldn’t commit offences. Putting aside the assumed guilt and the blatant disregard to the personal safety of all concerned it shows a one dimensional prosecutorial mentality.
Police officers undertake a variety of roles often in quick succession or at the same time. I’ve seen a detainee fit (epilepsy) more than once. At that point, your role switches from arresting officer to saving life and limb – from prosecution to protection. Officers know that police are of the communities they serve. However at times, stepping back from the immediacy events is required, you find yourself policing those in the bubble you observe without being part of that bubble. If you’re in that headspace, some of these actions can be understood through a different lens.
In my view the police need to switch back the prosecution and step up the protection (public health) approach. Nobody is suggesting those committing serious breaches of the law should not be dealt with. However, for breaches of the law not personal interpretations of a divisional commanders view of a ministers instructions. I am aware of the argument that the cases above are merely poor examples and don’t reflect the approach of an entire force or policing in general. I would suggest if that were the case, we wouldn’t be seeing printed leaflets purporting to outline legislation where no such conditions exist. Even if these are just poor examples, there are too many of them. They undermine confidence in policing and show forces in a very poor and unnecessarily officious light.
Others say at this time I should cut the police some slack, allow behaviours that wouldn’t otherwise be acceptable. I would say to them it is because we are in such times that no such allowance can or should be made. Uphold and enforce the law not ministerial guidance or regulations. Remember the oath you swore at attestation … those last three words aren’t there for decoration.
“I do solemnly and sincerely declare and affirm that I will well and truly serve the Queen in the office of constable, with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people; and that I will, to the best of my power, cause the peace to be kept and preserved and prevent all offences against people and property; and that while I continue to hold the said office I will to the best of my skill and knowledge discharge all the duties thereof faithfully according to law.”