23 April 2020

Coronavirus: a reasonable excuse for overpolicing?

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Arbitrary enforcement behaviour during the lockdown risks eroding our faith in the force

The more laws are made, the more convinced I am that ‘reasonable’ is the worst term in the literature. How can such a well-meaning word lead to such hellish consequences?

Take the police’s enforcement of the new coronavirus lockdown legislation, for instance. Almost from the start, reports surfaced of personnel abusing their expanded powers: harassing journalists legitimately filming arrests; hassling individuals with physical problems resting on park benches; and telling off families playing in their own front gardens.

So the Crown Prosecution Service (CPS) produced a ‘really useful practical guide’ for officers (according to the National Police Chiefs’ Council and the College of Policing), to clear up any misunderstandings.

However, a cursory glance at the guidance raises more questions than answers. The first sentence quotes Regulation 6 of The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 – that ‘no person may leave the place where they live without a reasonable excuse’ – before listing what constitutes a reasonable excuse.

It is wild odd that the police need to be told that it is of no concern to them what people shop for, but then again, that advice is only given because Northamptonshire’s chief constable threatened that his force might start checking for legitimate items by rifling through shoppers’ baskets and trolleys. The document also defines for the police what it means to ‘obtain’ those goods. Purchasing, collecting or sharing items is allowed, ‘provided this is genuine’, although how they determine what is ‘genuine’ is anyone’s guess.

The guide’s definition of exercise is reminiscent of George Orwell; today’s Physical Jerks are officers prodding anyone who indulges in ‘a long period of inactivity’. Again, the so-called clarification on what this really means is anyone’s guess: one could arguably drive an hour’s distance for a two hour walk. But at least Derbyshire police know that it is lawful to drive for exercise now.

The guidance is careful to state that an individual’s reasonable excuses for leaving their home for ‘work’ and ‘other reasons’ do not require proofs, and that ‘police should not ask for ID documents or any other kind of document’. But in the absence of proofs, an officer would have to decide whether or not to trust an individual’s word, something that has not happened on too many occasions already.

Worse still, the document admits its guidance ‘is not exhaustive’ and cautions officers ‘to use “discretion and judgment” in deciding what is and is not reasonable.’ In other words, to continue doing what has already led to countless abuses of power, and surely will lead to further revisions of the guidance.

One fundamental reason why any of this is happening is that the legislation itself is so confusing. For instance, Regulation 6 says nothing about how a police officer might judge whether someone has a reasonable excuse to be outdoors. The College of Policing’s four-step escalation principles state that police officers can engage, explain, and encourage before enforcing the law. They also insist that there is ‘no power to stop and account’. But how would the police know if an individual has a reasonable excuse to be out if they don’t ask? And if they do ask, is that not a de facto stop and account?*

Confronted with dilemmas like this, common sense policing in the name of public safety seems harder than it ought to be. However, the public’s sympathies wane when they read reports of police forces withdrawing dozens of fines wrongly issued to children, or promising to catch people in rural areas by lurking in the shadows, or police officers arresting lone bystanders at train stations under the wrong powers, while the rank and file of the Metropolitan Police allow hundreds of people to congregate on Westminster Bridge in London as if clapping for a good cause was an exemption to the rules on social distancing.

It is possible that the CPS’s guidance would be redundant under tighter rules that left minimal room for interpretation. But the fact that the legislation is ambiguous does not absolve individual officers of arbitrary decision-making, or whole constabularies of blatant double-standards. The vulgar displays of power on show during this lockdown so far betray a mistrust of civilians’ ability and willingness to respect the new rules.

This mistrust can work both ways though. The police must demonstrate their respect for the rules too. That means not threatening to make something up when a member of the public rightfully inquires what their charge is. For the safety of us all, it is equally incumbent on the police to provide a reasonable excuse for how they’ll treat us.

Written by Eugene K, communications volunteer for StopWatch UK coalition.

Photo by LOGAN WEAVER on Unsplash.

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NB: All examples drawn from the superb daily diary of surveillance policing during the lockdown, Policing the Corona State, the work of Netpol and the Undercover Research Group.

* For clear guidance on what your rights as an individual under the new coronavirus legislation, please consult the StopWatch UK page ‘COVID-19 – What you need to know’.