Published On: Sat, Mar 28th, 2020

The coronavirus police state: regarding extended “lockdown” powers; part the first

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The UK Government’s Home Office released a notice on Thursday last week stating that police now had powers to related to so-called violations of a so-called lockdown to prevent the spread of a so-called disease that has been called Covid-19.

Naturally, this development has caused a great deal of angst in the general population, and a great deal of anger in the section of it who find the idea of a lockdown in Britain an insulting abhorrence, and a criminal overreach by Government.

As such, FBEL today continues its “surviving and defying the police state” series with an examination of the supposed new police powers, and a discussion regarding what an individual might do if encountering police who claim to be enforcing them. Please note, discussion should in no manner be interpreted by the reader as advice.

The wording of a press release published 26th March reads as follows:

The government has today (26 March 2020) made new public health regulations strengthening police enforcement powers in England, to reduce the spread of coronavirus, protect the NHS and save lives.

To ensure people stay at home and avoid non-essential travel, from today, if members of the public do not comply the police may:

  • instruct them to go home, leave an area or disperse
  • ensure parents are taking necessary steps to stop their children breaking these rules
  • issue a fixed penalty notice of £60, which will be lowered to £30 if paid within 14 days
  • issue a fixed penalty notice of £120 for second time offenders, doubling on each further repeat offence

Individuals who do not pay a fixed penalty notice under the regulations could be taken to court, with magistrates able to impose unlimited fines.

If an individual continues to refuse to comply, they will be acting unlawfully, and the police may arrest them where deemed proportionate and necessary.

The first thing to note is that is not at all clear where the new public health regulations that engender the police powers exist in terms of a statutory instrument‡; certainly no bill was passed by the Parliament. It could be that the UK Government has broadened interpretation of clauses of the 1984 Public Health (Control of Diseases) Act for England and Wales (with the Scottish toy laying some dictate down upon the unfortunate people that it rules)†.

Please also note that the statement describes police powers in relation to people travelling or resting out of doors, and then doing the same in a large number (which is where the dispersal element comes in). We’ll have a closer look at the matter of crowds in the police state in another article.  In this one, we are going to deal with an individual or a couple travelling outdoors (because the UK Government has outrageously deemed three to be a crowd).

The first thing to appreciate is all important: there appears to be no statute law that forbids anyone being outside. This would be why police have to resort to bullying in the first instance. It probably explains the use of the word “may” in relation to police reaction to non compliance. This indicates the police will only attempt to bully those who are willing to be.

Now, the so called new police enforcement powers are supposed to empower police to issue an instruction to people found outdoors to return home. This is why it should be noted that the word “instruction” in the Coronavirus Bill appears in a specific context; as shown in the this extract (paragraph 20 of Part 2 of Schedule 20):

20 (1) A public health officer, constable or immigration officer may give reasonable

instructions to a person in connection with—

(a) a direction given to that person under a power conferred by this Part of this Schedule, or

(b) removing the person to or keeping the person at a place under a power conferred by this Part of this Schedule.

What this is saying is that police can give a reasonable instruction in connection to the individual being directed or removed to a place for assessment and screening. It appears that “instruction” has no other application in the legislation.

Now, a fine, according to the Coronavirus Bill, is the penalty for committing an offence (in England and Wales – jail is an option in Scotland [please refer to the legislation]), and an offence is committed if a person

fails without reasonable excuse to comply with any direction, reasonable instruction, requirement or restriction given to or imposed on the person under this Part of this Schedule [i.e. Part 2]

[but please note, there are a few other specifications as to what constitutes an offence, so please consult the legislation in full. Most of the others are superfluous to our purpose here, except perhaps that it has been called an offence to obstruct a constable in the carrying out the powers in Part 2 of Schedule 20].

Please note, in the Coronavirus Bill, it appears that a “direction” is that type of an order that is issued in Part 2, p20 (1)(a) of Schedule 20, and a “requirement or restriction” is that which a public health official orders. The “reasonable instruction” is an order issued in relation to a “direction” or a “removal” as defined above.

Consequently, it appears that when police approach an individual (or couple) who is travelling or resting outdoors, they do not appear to have any powers under the Coronavirus Bill except to engage with the intent of appraising the individual for direction of removal to a place for screening and assessment.

However, it can be assumed, in the apparent environment where new “public health regulations” apply, if an individual is travelling, the police, upon first contact, may inquire as to the purpose of being abroad (given that the UK Government thinks that it has granted permissions in this respect, and that citizens can only act according to them). Secondly, if an individual is resting outdoors, the police may approach to give an instruction to leave that place in the first instance. An individual so approached in either case should have the police state the legal authority by which they act. The answer “the Coronavirus Bill” would appear to be invalid, and if the police proceed on this basis, then this might be used as a defence at court against the issuing of a fine (or in an appeal to the High Court regarding a magistrates court decision, or in an application for a Judicial Review).

To explain further: it is quite possible in the situation described above that a constable is under the impression that they are fining people for failing to comply with an instruction, as per the process in the Coronavirus Bill. However, the instruction that should have been issued in that context would have been as defined in paragraph 20 of Part 2 of Schedule 20 of the Coronavirus Bill.

On the other hand, a constable issuing a fine may be under the impression that the legal basis is that which can only be determined at this stage to be the wording of a press release issued by the Home Office. This is why it is absolutely vital for an individual to have the police clarify on what basis the instruction has been given [Update, 29th March: please see the footnote].

If the police claim power by another means, the individual may want to challenge the constable and point out that, while he is acting unlawfully in any case, he also might be acting illegally if he is not sure from whence his powers come [Update, 29th March: please see the footnote for evidence that the constable will indeed be acting illegally]. The individual may ask the constable if he is sure that he wishes to proceed.

[Update, 29th March: the following paragraph may be superfluous given the information that has emerged – please see footnote].

On the other hand (or eventually), the individual, presumably not being suitably conversant with legislation, will perhaps give the police the benefit of the doubt (the constable’s claim of powers can always be researched later, and gauged as to whether it has grounds or not with an eye on a defence). That being said, an individual may want to decline to give an excuse for being out of doors, and instruct the constable that if it is required that he return home or leave an area based on the powers that the police are claiming to have, he will do so, but only after declining at first so as to be issued a fine. This would be done with a view to contesting the police’s power in a judicial defence against the fine. Or, if an individual has been resting outdoors, again he may want to decline to leave until a fine has been issued.

Let it be clear, however, that an individual may feel it is in his best interest, and want to cooperate in full with the police. The magistrates court system is corrupt, and there is no guarantee that the individual would be subject to a fair process let alone any hearing; the individual will risk having to pay not only the original fine, but an escalated one if he decides to test the case (and the risk will be all his own) [the ultimate point of requiring a fine is to provide a challenge to the police]. The decision as to how to respond would always be down to the individual regardless of any literature provided by any third party that may or may not appear as advice.

If an individual ever decides to test the resolve of the police to arrest him by not complying after a fine has been issued, let there be no doubt that this would be done entirely at the individuals own initiative and risk. In such a situation, however, the individual could only be arrested if it was a proportionate and necessary act for police to resort. The argument could be made that an unlawful arrest – for that is what it would be – and the committal of common assault is never proportionate or necessary.

Previously: When suspected of infectiousness by police (link)

 

Update; 29 March:

Peter Hitchens has reproduced the opinion of Lord (Jonathan) Sumption, former Supreme Court Justice and Reith Lecturer (here):

The relevant powers of the government are contained in the Public Health (Control of Disease) Act 1984 and the Civil Contingencies Act 2004. But it is doubtful whether either authorise the prime minister’s orders, which is presumably why the Coronavirus Bill has been introduced.

The ordinary rule is that a person may not be detained or deprived of his liberty without specific statutory authority. The 1984 act contains powers to restrict movement, but they are exercised by magistrates and apply only to particular people or groups who have been infected or whom they may have infected. The Civil Contingencies Act confers a temporary power of legislation on ministers that is exercised in a national emergency, but no specific power to detain people at home.

The bottom line, of course, is this concept as expressed by the judge:

There is a difference between law and official instructions. It is the difference between a democracy and a police state.

Most of us here knew that the police would be acting unlawfully in ordering people to go home, but now it becomes clear that a constable is not empowered in legislation to make anyone stop being out of doors. A constable has been empowered to “direct or remove” as per Schedule 20 of the Coronavirus Bill – but then it is not as easy as all that (as covered here). This is what should be made clear to police in the type of encounter described in the body of this piece, and it is what should be explained in the judicial process should the police continue and issue a fine.

‡ In fact, Hitchens also publishes “UK Statutory Instruments 2020, No.350, Regulation 6”, which is based on the Public Health (Control of Disease) Act 1984, with the relevant part being 6 paragraphs under the section, 45C Health protection regulations: domestic. If the reader has a look at this, the first thing that strikes is that the UK Government has weaved a thick jumper out of a lot of weedy yarn. Moreover, the essential part is this:

(4)The restrictions or requirements mentioned in subsection (3)(c) include in particular—

(a)a requirement that a child is to be kept away from school,

(b)a prohibition or restriction relating to the holding of an event or gathering,

(c)a restriction or requirement relating to the handling, transport, burial or cremation of dead bodies or the handling, transport or disposal of human remains, and

(d)a special restriction or requirement.

(5)The power in subsection (1) is subject to section 45D.

(6)For the purposes of this Part—

(a)a “ special restriction or requirement ” means a restriction or requirement which can be imposed by a justice of the peace by virtue of section 45G(2), 45H(2) or 45I(2), but

(b)a restriction or requirement mentioned in subsection (4)(a), (b) or (c) is not to be regarded as a special restriction or requirement.’

This appears to be saying that ordering people to stay at or return home would be “a special restriction or requirement” that is only imposable by a magistrate – as the judge pointed out.

 

Previously: The coronavirus police state: when suspected of infectiousness by police (link).

Next: The coronavirus police state (2): The illusion of police powers under Regulations 6 & 8 of Coronavirus Regulations (link).

 

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