Police and Policing – Page 7 – The Law and Policy Blog

Law is not magic – and lockdown regulations are not spells

19th December 2020

Of course, law is not magic.

Magic is about old men in elaborate robes, in oddly furnished rooms, saying or setting down words in certain special orders that will then have real-world effects on those to whom those words are addressed.

Ahem.

In fact, law has a lot in common with magic – or, at least, magical thinking – and not only in the facetious characterisation above.

If we move from the courtroom to government, and indeed to the public more generally, there is a common view that to make a law against something is to deal with it.

A thing should be banned, and so just putting some words on a piece of paper – or on a computer screen – and then saying some magic words – either

‘Izzy–wizzy, let’s get busy!

‘Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows’

or some other similarly daft formula, the words will leap from the page – or the screen – and will change the world around us.

This is a habit of thought with which we are so familiar that is difficult to dislodge it from our minds.

But just setting out words, and chanting some special phrases, has little direct effect on anything – other than in respect of what meanings, concepts and values we in turn give to those words.

And with prohibitions, more is often needed for a thing to stop than for the words to have been typed ‘this thing is prohibited’.

For some people, a prohibition may be enough: they will know that a thing has been banned and will act – or not act – accordingly.

For others, however, the banned thing can just continue – it is just that there is a risk that further instances of the banned thing may now be attended with certain legal consequences and, ultimately, coercive sanctions.

A person faced with such a risk may chose to eliminate the risk and not do the prohibited thing, or they may instead manage or even disregard the risk.

But unless one is in a totalitarian society, the mere threat of a coercive sanction is not enough – most modern societies rely on government by consent, and the state does not have sufficient resources to police everyone completely.

Put simply: laws and sanctions are usually not sufficient to effect behavioural change.

Instead many prohibitions work not because of words on a page, or because of enforcement, but because the purpose of the ban is aligned with social norms and is accepted (broadly) as legitimate – that the ban makes sense and is for a good purpose and so will be respected.

If a prohibition is not accepted as legitimate – if it does not make sense or seems unfair or disproportionate – then no amount of legal magic or coercive force will give effect to the prohibition.

The prohibition then just breaks down.

And now we come to the lockdown regulations.

The belief appears to be that just by making laws against social activity – either during Christmas or otherwise – is by itself sufficient.

That the government should lock down more firmly – and if the government does not do this, then it will be the government to blame if the pandemic spreads.

But typing banny words are not enough, with or without magic phrases, and there is certainly not enough police to enforce such banny words.

A lockdown will only be effective if people actually regulate their social behaviour in reality.

The government could issue regulations until it is blue in its face, but if there is a disconnect with social behaviour, then it is futile.

(And the sensible response to this is unlikely to be ‘more laws!” and ‘harsher penalties!’ – just as it is rarely a solution to bang one’s head harder against the wall.)

Law and laws are only one aspect of how those who govern us can influence and control our behaviour, to get us to change from what we would otherwise do.

People have to understand the purpose and point of prohibitions, rather than to just be expected to comply with them when they are imposed.

And for this a government needs to be transparent and credible: there needs to be trust more than law, and policy rather than policing.

There needs to be leadership.

Resources need to be in place for testing, tracing, and treatments.

Fair account needs to be taken of other possible priorities, even if those other priorities are less important.

Prohibitions and coercive sanctions still have a role – but they are not sufficient by themselves.

In essence, a government needs to govern, and not just make laws.

That is what govern – ments do.

There should be no magic to this.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

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The coded criticisms of the Attorney-General from both the Lord Chief Justice and the Court of Appeal

17th December 2020

The office of Attorney-General is at the very crossroads of law and politics.

As a lawyer, the Attorney-General is the government’s chief legal adviser and, by convention, is the head of the Bar of England and Wales.

They superintend the Crown Prosecution Service, and they can (and do) initiate contempt of court proceedings against the media.

A further role is that they can act in proceedings where they represent the public interest and/or the government.

They also can decide to refer cases to the court of appeal where it appears a criminal court has been ‘unduly lenient’ in sentencing.

These are all important – crucial -tasks and so it follows that these roles must be taken seriously.

The Attorney-General is, however, also a politician – usually a member of parliament but sometimes a peer – and one who attends the cabinet.

It is a job therefore where the holder has to wear two hats – or horsehair wigs.

And it is not an easy task even for senior politicians and experienced lawyers.

The current Attorney-General is neither a senior politician nor an experienced lawyer.

This, of course, is not their fault – although some in this position if they were offered the office would not take it.

The current holder of the office, however, is going out of their way to politicise and thereby to discredit the legal side of the office.

This blog has previously set out how the current Attorney-General should have resigned when they unapologetically tweeted in respect of a case of a political ally who was then subject to a live police investigation.

That really was not what the superintendent of the Crown Prosecution Service should be doing.

There is now a further example of how the current Attorney-General is undermining their office.

Here there are three texts that are of interest.

First, here is a Daily Express article from 7th November 2020: Attorney General to appear at Andrew Harper’s killers appeal hearing next week.

In the body of that article, under the byline of a political editor, was the following:

‘A friend of Ms Braverman’s told the Sunday Express:

‘“She was met with strong opposition from civil servants to pursue this case but she held firm and has done the right thing.

‘“She made it clear she wants to be there to underline how important this issue is to the ‘government and how seriously it takes this case.

“If the judges uphold the original sentences then she will have still done the right thing and it will be another example of wet, liberal judges being soft on criminals.”’

As is widely known, ‘friend’ is a code in political journalism for either the politician themselves or someone speaking on their behalf, such as a special adviser.

As far as I am aware, this quote has not been disavowed by the Attorney-General.

Second, here is a speech on sentencing by the Lord Chief Justice made on 9th December 2020.

Here are two paragraphs from this informative and accessible speech (asterisk and emphasis added):

‘Were the mythical alien to arrive on earth and, I grant you yet more improbably, take an interest in sentencing in England and Wales by reading the newspapers and dipping into the more noisy parts of on-line media, it would soon gain the impression that sentencing had got softer in recent years. It would read about “wet, liberal judges being soft on criminals” (*) and wonder why criminals convicted of serious offences were getting more lenient sentences than they used to. Then our alien visitor might seek some other sources of information, and if possessed of a brow it might become furrowed.

‘There is a difficulty with this narrative. It is a myth.’

The Lord Chief Justice then proceeds in his speech to demonstrate how sentencing has certainly not got softer.

But who was the judge quoting about “wet, liberal judges being soft on criminals” ?

The quotation is footnoted (where I have inserted the asterisk), and the footnote reads:

‘Sunday Express 8 November 2020, quoting a source.’

The Lord Chief Justice is here publicly dismissing – perhaps even deriding – the ‘friend’ of the Attorney-General who in turn is describing the Attorney-General’s motivation for intervening in a criminal sentencing case.

For the head of the judiciary to be doing this openly to the government’s chief legal adviser and holder of the ancient office of Attorney-General is an extraordinary public intervention.

And now we turn to the Court of Appeal judgment in respect of the sentencing of those who killed the police constable Andrew Harper.

The facts of the case are horrific.

Three were convicted of manslaughter, though a jury acquitted them of murder.

And so the three were sentences in accordance with the guidelines for manslaughter.

The Attorney-General, as the Daily Express article describes, exercised one of their powers and referred the sentences to the court of appeal on the basis of the sentences being ‘unduly lenient’.

The Attorney-General then – oddly for a barrister with no substantial criminal law background – appeared personally at the hearing.

There are three paragraphs of the judgment of interest in respect of the contribution and role of the Attorney-General.

Paragraph 57:

‘In her initial remarks, the Attorney General rehearsed some of the facts and said that the sentences have caused widespread public concern. She outlined four points, about which Mr Little QC then made submissions.’

Here the court are not even deigning to describe the Attorney-General’s contribution as submissions – a ‘submission’ is something one submits to the court for consideration – but merely as remarks.

(The Supreme Court adopted a similar remarks/submission distinction when a former Attorney-General appeared (out of his depth) at the first Miller case: ‘Following opening remarks made by HM Attorney General, Mr Eadie QC in his submissions on behalf of the Secretary of State, did not challenge much if any of the factual basis of these assertions…’ – paragraph 57 here.)

We now turn to the submission that were made, if not personally by the Attorney-General, but by another barrister on their behalf.

Paragraph 83 (emphasis added):

As to the length of the custodial terms, we note a striking feature of the submissions. When applications are made by the Attorney General for leave to refer to this court sentences which are said to be unduly lenient, it is frequently on the basis that the judge fell into error by failing to follow a relevant guideline. In this case, however, the argument advanced by the Attorney is that the sentence of Long, and therefore the sentences on Bowers and Cole, were unduly lenient because the judge erred in failing to depart from the relevant guideline.

Just as political journalists have their codes, so too do judges.

And to describe as position as ‘striking’ is to say that it is barking – and the rest of the paragraph explains why.

In essence: unduly lenient sentences are those which depart from the guidelines and not those made in accordance with them.

This is then followed by paragraph 84 (again emphasis added):

‘That is, to say the least, an unusual submission. It involves the proposition that in the circumstances of this case, a sentence within the guideline offence range was not within the range properly open to the judge, who was instead required to pass a sentence outside that range. We think it regrettable that, in advancing that submission, the structure and ambit of the guideline were not addressed. Nor was any sufficient explanation given why it is contended that the judge was not merely entitled to depart from the guideline but positively required to do so.’

Here ‘unusual’ means, in effect, beyond barking – and again the rest of the paragraph sets out why.

These are obvious points and would have been plain to government lawyers.

But as ‘friend’ of the Attorney General said, ‘[s]he was met with strong opposition from civil servants to pursue this case’.

And paragraphs 83 and 84 set out why.

Taking these three texts together we can see that the judiciary are alert to the motivations of the Attorney-General and are resistant to the attempts to politicise the office, and that the judiciary will be unafraid to reject ‘striking’ and ‘unusual’ submissions made on behalf of the Attorney-General.

The judges are not stupid or unworldly – they know exactly the import of coded criticisms in public speeches and judgments.

The Attorney-General may be sending signals, but so are the judges.

But this Attorney-General will not care.

The political job is done – and one can imagine the claps and cheers of the ‘friend’ quoted in the Daily Express article.

She took on the ‘wet, liberal judges being soft on criminals’.

But this political job has been done at a cost.

Although a politician, the Attorney-General is entrusted with highly important decisions in respect of not only referring ‘unduly lenient’ sentences, but also in respect of many other legal matters, from contempt of court to the operation of the crown prosecution service.

But the conduct of the current Attorney-General is such that their credibility as a decision-maker capable of making such decisions on the appropriate basis is open to doubt.

This quick win for a political ambitious Attorney General is at the cost of the standing of their office.

The Attorney-General is weaponising her legal responsibilities for political purposes.

This is a remarkable, striking and unusual predicament.

And given that the Attorney-General is not only doing this recklessly but with apparent enthusiasm means that there is no reason for anyone watching it happen in real time to be unduly lenient.

*****

This law and policy blog provides a daily post commenting on and contextualising a topical law and policy matter – each post is published at about 9.30am UK time.

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Section 007 – how the government authorises criminal activity by its agents, and a telling recent disclosure

16th December 2020

One theme in recent law and policy has been for the government of the United Kingdom to increasingly place itself and its agents above or beyond the law.

There is, of course, a certain hypocrisy in this given how loudly ministers shout about ‘Law and Order!’.

Sometimes this is done subtly, with limits on the scope judicial review, the law of human rights, and the entitlement to legal aid when one is challenging public bodies.

But sometimes it is done quite openly – indeed brazenly.

One example is the current attempt – which I explain in this video for the Financial Times – to make it effectively impossible to prosecute members of the armed forces for war crimes and torture.

Another attempt – though it has just been dropped – was to enable ministers to issue regulations that would break the Brexit withdrawal agreement.

And another attempt is the current Covert Human Intelligence Sources (Criminal Conduct) Bill before parliament.

The long title of the Bill expressly states that it is to:

‘Make provision for, and in connection with, the authorisation of criminal conduct in the course of, or otherwise in connection with, the conduct of covert human intelligence sources.’

The Bill provides for ‘criminal conduct authorisations’ which are defined as ‘authorisation[s] for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source.’

On the face of the Bill there are no exempt criminal offences – and so, in theory, they would include murder, war crimes and torture.

At this point one can imagine senior security officials with kindly faces and reassuring manners telling us that, of course, no such offences would ever be committed.

But.

It is a matter of public record that the United Kingdom state was complicit in the murder of civil rights lawyer Patrick Finucane in 1989.

The United Kingdom state has also been complicit in the torture of civilians, in Northern Ireland, Kenya and Iraq.

The sheer volume of accumulated historical evidence is that, yes, we really should be worrying our little heads about what the United Kingdom state and its agents are capable of when they think it can get away with it.

And there is now a more up-to-date reason to be concerned about the lack of effective controls and accountability.

Here the relevant provision is the wonderfully numbered section 007 of the Intelligence Services Act 1994.

(Ok, it is section 7 – but it amuses me.)

This provides for ministerial authorisations for people to break the law outside the British and Irish isles and then not have any criminal or civil liability for those acts in the United Kingdom.

It is a remarkable and little-known provision, and is worth a good look.

This is the so-called ‘licence to kill’.

And, of course, senior security officials with kindly faces and reassuring manners will tell us that the power would never be abused, and that those granting the authorisations will only do so on the basis of full information.

But as set out in yesterday’s Guardian, there has been a problem.

This was spotted by the fine organisation Reprieve, hidden away on page 59 of a dense 168 page report, in two paragraphs 9.39 and 9.40 (emphasis added):

‘9.39 We reviewed a section 7 submission relating to a high-risk SIS [Secret Intelligence Service] agent case overseas. SIS identified a risk that the agent may be involved in serious criminality overseas. SIS did not encourage, condone or approve any such criminality on the part of their agent. In their submission, SIS set out that they had secured the agent’s cooperation on terms of full transparency about the activities in which the agent was involved. It included some clear ‘red lines’, setting out conduct that was not authorised and would result in the termination of SIS’s relationship with the agent.

‘9.40 On renewal, six months after the original submission, SIS set out a number of indicators that the agent may have been involved in, or have contemplated, the serious criminality referenced above. We concluded that, on the basis of this new information, SIS’s ‘red lines’ had most likely been breached, but the renewal submission failed to make this clear. Whilst the submission referred to SIS’s ‘red lines’ provided information about criminality that may have occurred and noted an increased risk in the case, it did not make expressly clear that SIS’s ‘red lines’ had probably been crossed. We concluded that the renewal did not provide a comprehensive overview of available information which we believe would have provided the Secretary of State with a fuller and more balanced picture. SIS immediately responded to these concerns by updating the FCO.’

Or, as the Guardian rightly put it:

‘MI6 failed to make clear to the foreign secretary that a “high risk agent” operating overseas had probably engaged in “serious criminality” until it was pointed out by an independent regulator last year.’

This means that there is very recent evidence that the United Kingdom security services do not provide appropriate information to those making authorisations in respect of criminal activity.

If this is happening with section 7 authorisations for foreign law-breaking, there is no reason to believe this will not also happen under the current bill providing for authorisations for domestic law-breaking.

The United Kingdom government has recently put forward legislative proposals for limiting torture and war crimes prosecutions, authorising criminal conduct for agents of the security forces, and even for powers to break the Brexit withdrawal agreement.

There has never been a government that has put so much legislative effort into making it possible to break laws rather than into making laws.

***

Remembering David Cornwell – John le Carré – who would not be surprised at any of this.

*****

This law and policy blog provides a daily post commenting on and contextualising a topical law and policy matter – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

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The significant extension of the Coronavirus restriction on movement – and why it is concerning

23rd April 2020

Yesterday, slipped out without formal announcement, was a significant extension in England of the Coronavirus regulations.

The extension was by way of this statutory instrument.

The substance of the extension is an amendment to regulation 6 of the Coronavirus regulations, which I discuss on this blog here.

Before this amendment, the key criminal offence under regulation 6 would be committed when a person left the place where they were living, without reasonable excuse.

That had the merit of legal certainty, but it also created a gap.

What would happen if a person, having had a reasonable excuse to leave the place where they were living, then ceased to have a reasonable excuse?

Under the initial regulations, that would still give rise to a power for an officer to make a reasonable direction that such a person return to where they live, and it would be a criminal offence to breach that direction.

But it would not be a criminal offence in itself to be out without a reasonable excuse, as long as a person had one when they left the place where they were living, as criminal offences are interpreted strictly.

(In practice, this made the evidential burden for the offence difficult, as how could the prosecution show that a person already outside did not leave the place where they were living without a reasonable excuse.)

The new amendment deals with this by simply adding “or be outside of” to the offence, which now reads:

“During the emergency period, no person may leave or be outside of the place where they are living without reasonable excuse.”

One response to this amendment is fair enough: a technical gap is filled.

(And no doubt some Reply Guy is already typing a comment to that effect for a comment below.)

But.

There are two concerns with this: one formal, and one constitutional.

The formal problem is that the Home Office officials and lawyers (who are responsible for this part of the regulations, though the Health and Social Care Department are responsible overall for the regulations) have been rather naughty.

This is an extension of the law – but they are pretending it is a “clarification” – and they are doing that for a naughty reason.

It is not a clarification, as it means that a person can now be committing a criminal offence who beforehand would not be committing an offence.

And it is because of the gap such an amendment was necessary.

Yet, in the explanatory note, it is stated:

“Regulation 6 is amended to clarify that under regulation 6(1), the prohibition applies both to leaving the place where a person is living without reasonable excuse, and also to staying outside that place without reasonable excuse.”

This attempt to pass the amendment off as a “clarification” is not just an attempt to save face: the amendment is because there are those who have had penalty notices wrongly imposed, or have even been wrongly arrested, charged and fined, under the previous provision.

And as it is not (normally) lawful to create retrospective offences, the Home Office are passing this off as a clarification and crossing their fingers nobody notices.

An explanatory note, however, is not part of the law, and so it is open to a court to take a different view as to whether previous penalties and so on have been lawfully imposed.

The constitutional problem – which by itself does not affect the legality of the regulations – is that this significant extension again has had no parliamentary approval.

The headnote of the amendments even says “the Secretary of State is of the opinion that, by reason of urgency, it is necessary to make this instrument without a draft having been laid before, and approved by a resolution of, each House of Parliament”.

This is literally incredible: parliament is now back in session, and so there is no good reason whatsoever for the amendments (and the regulations) to avoid having parliamentary approval.

The government – even in an emergency – should not be in the habit of creating or extending criminal offences by ministerial fiat when parliament is sitting.

And what was permissible (perhaps) at the beginning of this health crisis should not become the norm.

None of this is to say that the offences under the regulations are wrong in practice – but democratic approval should be at the heart of such immense restrictions on everyday life, and not an afterthought.

Criminalising otherwise normal social activity should have the greatest possible mandate by parliament before it has effect, not be slipped out with no parliamentary approval at all.

Something worrying is happening here.

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Ultra Virus – the constitutionality and legality of the Coronavirus Regulations

8th April 2020

The Coronavirus Regulations are the law of the land, and as they are the law of the land they must be obeyed, and the reason we have emergency laws is because of emergencies, and this is an emergency.

That sentence is there because there is a sense among some legal commentators that they cannot either comment critically on these regulations or even comment at all, lest some idiot takes the criticism to mean that the laws should not be obeyed.

In my view, however, such quietism and self-censorship may be more irresponsible than any constructive criticism.

At a time of emergency, the scrutiny of emergency laws is vital.

The law still needs to be obeyed when it is in force, even if there are processes for challenging it.

And so it is on this basis that this post sets out the constitutional and legal issues of the Regulations, further to previous posts on this blog (for example here and here).

One way of critically approaching the Regulations is to look carefully at whether they accord with the parent legislation.

This is because the Regulations are secondary legislation – in this case, a statutory instrument – that only have legal effect (“vires”) to the extent that they are within the scope of the primary legislation, in this case, the Public Health Act 1984.

(Note that although the Act itself was passed in 1984, it has been heavily amended since, and so the relevant provisions for this discussion do not necessarily date back to 1984.)

At the august and influential UK Constitutional Law Blog, the outstanding legal scholar Jeff King has in two posts (here and here) setting out why he sees the Regulations as within the scope of the law.

Others looking at the detail of the parent legislation take a different view, and they aver that the Regulations may be outside the scope of the parent Act (see here and here).

And Lord Anderson QC, the former independent reviewer of terrorism legislation and an authority on emergency legislation, has also set out his doubts, and concludes (with elegant and careful wording):

“In summary, the impact on personal liberty in Regulation 6 goes right up to the limit of what is permitted under its parent statute, and arguably beyond. An ultra vires challenge would attract strong arguments in both directions. Ultimately, however, a court which is minded to uphold it as valid has, as it seems to me, a plausible legal argument for doing so.”

In other words: there are plausible grounds that a court may quash parts of the Regulations.

As the head of this post sets out, the Regulations are the law of the land and must be obeyed.

The Regulations (or any part of them) would, however, cease to be the law of the land if a court of competent jurisdiction quashed the Regulations (or any part of them).

The possibility of this does not mean that, in the meantime, the laws cease to have effect – it means that there is a possibility that a court may one day take a different view.

And this is the case with any secondary legislation (and with any government action or inaction).

So if there is scope for questioning the legality of the Regulations, what can be usefully said about the constitutionality of the Regulations?

In a sense this is a difficult area, as there is no codified constitution in the United Kingdom and to say something is “unconstitutional” is often not to say anything meaningful at all.

But there is a worrying constitutional feature about the Regulations which the approaches set out above, which focus on statutory construction and interpretation, to an extent overlook.

The Regulations have not had any parliamentary scrutiny or sanction.

They were given effect after Parliament was in recess.

The Regulations restrict or remove fundamental rights, including freedom of movement and freedom of association.

The Regulations create wide-ranging criminal offences.

In the two Miller cases, the Supreme Court ruled against two attempts by the United Kingdom government to do drastic things by ministerial fiat – to take the United Kingdom out of the European Union and to close down parliament for five weeks without any reasonable basis.

In both cases the Supreme Court, rightly, decided that something that fundamental should be decided and endorsed by parliament.

In the case of the Regulations, the government could have included the provisions in the Coronavirus Act, but chose not to do so.

And the government could (and, in my view, should) have used the Civil Contingencies Act, which has several built in safeguards and a supervision regime, but again chose not to do so.

Instead, the government chose to use the Public Health Act which even commentators who say that the Regulations are lawful accept is a bit of a shoehorn.

My view is that they very decision to use the Public Health Act, rather than primary legislation (which parliament would vote on) or the Civil Contingencies Act (which gives parliament a defined supervisory role) is a decision which can be questioned both in terms of its constitutional propriety and indeed its accordance with public law principles.

The Regulations are to be reviewed shortly, and this blog yesterday put forward some modest proposals for taking the illiberal edge off from the provisions.

But there is a more fundamental question of ensuring that legislation that removes or restricts fundamental freedoms has parliamentary (and thereby democratic) approval.

Law not only should have authority – but ultimately also legitimacy.

The Regulations convert almost all normal social behaviour into anti-social behaviour, punishable as criminal offences.

Such upheavals should have democratic sanction, just as any other upheaval like leaving the European Union or closing down parliament.

And it is not “irresponsible” to point this out – indeed, it seems to me irresponsible to pretend this is not of any urgent concern.

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How to improve the Coronavirus Regulations – some practical suggestions

6th April 2020

These are strange times, and one indication of the strangeness of these times is that a liberal and independent blog like this is posting something about how to make illiberal laws more workable.

The illiberal laws are, of course, the Coronavirus Regulations (which this blog has discussed here, here and here).

These laws, made without any parliamentary approval or debate, restrict fundamental freedoms and create wide-ranging criminal offences.

There are grounds for serious concern about the legality and constitutional validity of such legislation being made and used in this way – but, as it stands, these Regulations are the laws of the land and they should be complied with.

Putting general concerns aside, and given one should try and improve things when one can, below are some practical suggestions for improving the laws.

And this is the right moment to be making improvement suggestions, as under regulation 3(2), the government will be reviewing the regulations on 16th April 2020.

The first suggestion is to cast regulation 6(1) as a general prohibition (and not as a direct criminal offence under regulation 9(1)(b)).

This would mean that a simple or bare breach of regulation 6(1) would not itself be a criminal offence.

There should be a seriousness requirement.

Breaching the prohibition in circumstances where one causes unreasonable risk to others (that is by breaching social distancing guidance) should be the relevant offence.

(And a breach of a reasonable direction by a police officer to return to where one lives would remain a criminal offence.)

These changes would reflect best police practice and so should not be operationally disruptive.

And the changes would reflect also that the statutory purpose of the regulations is not public order or social control, but the protection of public health.

As well as a seriousness requirement, the Regulations should be amended so that the fixed penalty scheme under regulation 10 (which does not mean a criminal record or conviction) is not merely an option (“may’) but is instead the presumption, unless there is a compelling reason for a criminal prosecution.

And the decision to prosecute should, as these are emergency regulations, be made by the Director of Public Prosecutions, as this would ensure proper consideration of the public interest.

Criminal liability – convictions and records – can destroy peoples lives, and these further changes will ensure that criminal liability is not imposed (or threatened) lightly and casually during this emergency.

And again, the statutory purpose of the Regulations is public health, and so there should not be any criminalisation more than that is strictly necessary.

Further highly useful changes should also be made to the “to avoid injury or illness or to escape a risk of harm” exception under regulation 6(2)(m).

It is implicit that this exception includes mental illness (and not just physical illness) and that “escape a risk of harm” would include harm from domestic violence.

But these crucial protections should be made explicit, so that vulnerable people can see that the letter of the law protects them and gives them the comfort and security that they can leave the house when required – as long as they comply with social distancing guidance.

If there has to be emergency law (and this is an emergency) then it is important that it is as good as it can be.

Please make any further constructive suggestions below, as I understand they may be seen by those who are reviewing the law.

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What is the Bindmans challenge to the Coronavirus government guidance about?

3rd April 2020

The law firm Bindmans are bringing a challenge to the government guidance that a person can only leave where they live once a day for exercise and that exercise should be local.

If just reading of such a challenge means you have already formed A Strong Opinion that you now want to type, then this really is not the blogpost for you: other websites are available, and your comment below the line here will not be published.

This post instead sets out the problem and the applicable law, so that you can form a view based on the available information and the applicable law.

As a preliminary point, please note that this is a legal challenge to government guidance – and not to the Coronavirus Regulations themselves.

Formal government guidance – in effect, policy – can be challenged (in general terms) at the High Court if it is contrary to the law, or is unfair, or is disproportionate in its impact.

According to Bindmans, the relevant facts are as follows:

“[There are] two families with children with autistic spectrum disorder whose conditions necessitate them leaving the house more than once day for their own well-being.

“One child in particular is deliberately taken to a quiet location that is not local to them, because of their particular needs and where there is a far more limited risk of infection than if he were to remain in an urban environment.”

Bindmans then explain the problem:

“The requirement that everyone is now only able to leave once a day (and can only travel locally) makes it very difficult for these families to be able to manage their children’s high needs and promote their well-being, during a time when lots of disabled people are simultaneously struggling with reduced support from external agencies.

“Keeping them in urban environments also increases the risk of infection of them and others given they are unable to understand social distancing rules.”

Any sensible person reading this would accept that this is a practical problem and, in such circumstances, the parents should be able to take their child to a quiet location.

There would be no direct public health problems in doing so, and the families would comply with the guidance on social distancing – indeed the child is less likely to infect or be infected.

But a sensible view is one thing, what is the legal case?

Again, the legal challenge is to the guidance not the Regulations.

The guidance is being challenged because, if interpreted and applied by the police to the Regulations, it could lead to the parents facing criminal liability under the Coronavirus Regulations.

What the parents seek to do is, on the face of it, permitted under the letter of the Coronavirus Regulations – but if the police construe the Regulations in accordance with the government guidance then fixed penalty notices, prosecutions, fines, criminal convictions and criminal records could follow.

The solicitors aver that the guidance disproportionately affect fundamental rights :

“The social distancing measures being put in place by Government are clearly important, but they cannot be used to disproportionately interfere in the rights of those with protected characteristics, particularly those with mental illness, autism or similar conditions that necessitate leaving the house more than once per day.

“Such rights can clearly co-exist with the health measures being put in place and Parliament clearly did not think it necessary to impose the once per day restriction arbitrarily introduced by the Government.

“It is essential the Government needs to rethink this restrictive policy and allow appropriate flexibility where it is necessary and justified.”

The main legal basis of the challenge seems to be that the guidance contradicts the protections of the Equality Act 2010 (as well as under the Human Rights Act 1998).

Relevant here is that the mental health is a protected characteristic under the Equality Act.

A person protected characteristic has legal protection against direct and indirect discrimination (and the discrimination here would be indirect).

Any such discrimination then is subject to the four stage test under section 19(2) of the Equality Act.

In particular, are those who are disabled (the term in the statute) placed at a disadvantage?

There can be no doubt of this.

And so does the guidance go further than is necessary to protect the relevant public policy goal, that here would be the protection of public health in the current coronavirus emergency?

In my view, the guidance is disproportionate in two ways.

First, as long as the affected families comply with social distancing measures, then the public policy goal is unaffected.

And second, there does not need a complete change to the guidance to address this problem, just a further exception for those with relevant physical and mental health issues so they are able to take more exercise and to be travel further than their locality, when necessary.

Such a modified approach would still comply with the Coronavirus Regulations, and it would not affect the position of the greater number of people.

The government is expected to respond today or tomorrow, and it may be that the government modifies its guidance to address these concerns.

But if the government does not shift its position then the next step would be a formal legal challenge.

The current emergency does not mean that the law of the land has been jettisoned – the EqualityAct and other laws are still in force – and there is certainly nothing wrong with the government being held to account by the courts at this time.

And if those protected by the Equality Act are facing practical discrimination that goes further than the goal of dealing with the current public health emergency, then it is right that their legal rights be protected and enforced.

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Coronavirus laws and anxious scrutiny

1st April 2020

The Coronavirus Regulations are extraordinary in at least four ways.

First, the Regulations remove from everyone in England the fundamental rights of freedom of movement, freedom of assembly and freedom of worship, as well as severely limiting their right to conduct any business.

Second, the Regulations create under Regulation 6 a criminal offence for anyone to leave where they live without a “reasonable excuse”, and exposes anyone who breaches this prohibition to criminal liability – a criminal conviction and criminal record – as well as to the use by the police of coercive force.

The “reasonable excuses” are, in turn, so vague and ill-drafted that it is impossible for any person (or any police officer) to be certain as to whether the offence is being committed or not.

And fourth, and most remarkably, the Regulations have not yet been approved by any parliamentary vote, and nor did they have any parliamentary scrutiny.

In essence, the most illiberal laws since at least the second world war were imposed without any formal democratic sanction.

The Regulations are in place under the Public Health Act and are for the express 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).

As such they are emergency laws and, as there is an emergency, it is appropriate that emergency laws should be used – and nothing should gainsay that.

Yet what the laws actually say is one thing, and what police (and police social media accounts) and ministers are saying the laws say can sometimes another.

Police and ministers, of course, can and should provide guidance to people during this emergency.

The guidance and the law are, however, becoming confused – and this has the unhappy consequence that people are fearing that there will be legal sanctions for what would be lawful activity.

Every sensible person wants public health guidance to be followed.

But the suggestion has been made that it is somehow unhelpful to point out that law does not actually say what ministers and police say it says.

That we should “know what the laws are meant to mean” and give effect to the supposed “purpose”.

That we should see deficiencies in the applicable law and look the other way and not say anything critical.

(This is not caricature or exaggeration – these things have been said.)

The correct response to such suggestions is to say “no”.

Indeed, at a time of national emergency there is a greater public interest in emergency laws being subjected to anxious scrutiny.

The discussion of the difficulties of the law is not some professional parlour game of interest only for lawyers.

To discuss law in this context is as far away from being “academic” as it can be.

If the emergency laws are deficient, or come to lack credibility, people will die.

If the emergency laws are misapplied and wrongly prosecuted, people will spend the rest of their lives blighted by a criminal conviction and a criminal record.

Lawyers and legal commentators should not thereby shy away from public discussion of emergency laws but, if they can, contribute constructively to that discussion.

And the remarkable fact that these laws have not yet had any formal democratic or parliamentary approval makes such discussions more important, not less.

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What the police are getting wrong about the coronavirus regulations

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.

It may well be that, in the event a police officer directs them to go home then non-compliance with that direction would become an offence under under Regulation 8(3) and 9(3).

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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