31st March 2020
There appears to be two things the police are getting wrong about the new Coronavirus regulations.
One of these is a broad point about the purpose of the Regulations, and the other is a legal point about the “reasonable excuses” to the restrictions on movement under Regulation 6.
The Regulations are made under public health legislation, and not public order legislation, and this distinction is important.
The Regulations are for the statutory purpose of “preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination” (section 45C(1) of the Public Health Act 1984).
The Regulations are thereby not rules on public order as ends in themselves, but as means to an end – with that end being dealing with a contagious disease.
The current coronavirus emergency justifies emergency legislation, but the ultimate job of the legislation is to protect public health.
If the conduct of police – or of their social media accounts – discredits the emergency public health legislation, then the statutory purpose of the legislation will be frustrated.
So it is appropriate for some police actions under the Regulations, and some of their public statements, to be challenged, and even derided.
Such excesses need to be firmly checked, so as to ensure that the overall police response remains credible.
To do this is not to place civil liberties above public health – indeed, almost every civil liberty can be qualified and limited at a time of a genuine national emergency.
It is instead to ensure that public health legislation achieves its purpose.
Just as it takes one idiot to pass on the virus, it can take just one idiot police officer (or police social media manager) to discredit the laws necessary to combat the spread of the virus.
There needs to be self-restraint by both those being policed and those policing them.
The other thing the police seem to misapprehending is the scope of the offence created under Regulation 6.
The offence expressly applies when “one leave[s] the place” where they are living, without reasonable excuse.
The offence does not expressly apply if, once you have left that place with a reasonable excuse, the reasonable excuse somehow is no longer in place.
Consider two plausible scenarios:
Person A leaves to obtain basic necessities but the shop is bare of basic necessities, and the person buys a non-essential item instead, or buys nothing at all.
Person B leaves the house to exercise but, having exercised, that person decides to relax alone in an empty field to enjoy sunlight.
On the letter of Regulation 6, neither person is committing an offence under Regulation 6(1), as both left the place where they are living with a reasonable excuse.
But at least that person has an opportunity of escaping criminal liability by either providing a reasonable excuse or (simply) complying with the direction.
What is not the case is that a person outside of where they live without a reasonable excuse is committing an offence, if they left that place with a reasonable excuse.
Some may say that it is somehow implicit in the Regulation 6(1) offence that if a person ceases to have a reasonable excuse whilst out then that person is committing an offence.
To this contention there are two responses.
First, criminal law has to be exact, so that a person potentially affected can regulate their conduct accordingly.
Second, the drafters of the Regulations could have (easily) made it an offence to be outside the home without a reasonable excuse, but they chose not to do so.
The criminal law is what the law says, not what one thinks the law should be.
Overall the police have been placed into the position where they have wide discretion under vague law, and the police in turn are interpreting the law even more widely.
But consent and cooperation is essential, and public health law is not about imposing public order as an end in itself.
And as examples of policing in Northern Ireland and in the inner cities show, policing needs to be credible and fair to be effective.
This is because disrespect for the police and the law, like a virus, can quickly be contagious.
And at a time like this, such a contagion can be deadly.
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