Guidance or Law? A Proposal to Address the Misguided Use of Police Powers and Fixed Penalty Notices Under Emergency Powers in England

This paper examines the mechanisms which elicited ‘spirit of the rules’ policing and erroneous utilisation of Fixed Penalty Notices during the COVID-19 pandemic across England, concluding that pre-emptive guidance should be created to be issued alongside emergency powers to guarantee a consistent approach in future.

Introduction

The arrival of COVID-19 on our shores, and the later acknowledgement by the government of the need for declaring a national state of emergency, brought with it a deep-rooted change in the dynamic between the Police and the public. Between 27 March 2020, when the first lockdown incepted, and 19 July 2021, when all lockdown restrictions were lifted, 106,913 Fixed Penalty Notices (‘FPNs’) were issued in England ¹ . In 2020, one commentator postulated that the challenge of policing the Pandemic required police legitimacy and procedural justice, explaining that the maintenance of both requires four critical ingredients: participation, neutrality, respect and trustworthy motives ² . Whilst these ingredients are clearly valid, one, possibly the most critical, is omitted: consistency in the application of the law, without which, the public may, and indeed did, lose faith in the State, the Police and the law.

This paper considers the application of FPNs in the context of their utilisation under emergency powers during the COVID-19 pandemic (the ‘Pandemic’). The focus of this research is the method by which the Police are enabled, in these circumstances, to apply their temporary powers in a consistent manner. The application of FPNs during the Pandemic is examined, and continuity is found to have been considerably lacking, resulting in the potentially unjust criminalisation of the population. It is apparent that this inconsistency resulted from a lack of standardised instructive material being made available to those enforcing the temporary powers. It is recommended that, to safeguard against circumstances of this nature in possible future scenarios when the use of emergency powers becomes necessary, a change in approach is needed.

Government Communication and the First Lockdown Regulations

At approximately 1 pm on 26 March 2020, former Secretary of State ('SoS’) for Health and Social Care, Matt Hancock, signed a statutory instrument that effectively placed the population of England under house arrest (‘Lockdown’), which, if broken without lawful excuse, criminalised the breacher ³ (the ‘Regulations’). The pertinent provisions of the Regulations were that:

‘no person may leave the place where they are living without reasonable excuse’ ⁴ ;

Included was a non-exhaustive list of what a reasonable excuse may be.

The Regulations bestowed extensive powers on the Police to enforce these regulations, including the issuing of FPNs, which, if left unpaid, could lead to a criminal record and prosecution without the input of the Crown Prosecution Service (‘CPS’), a departure from normality. Further, the Police were entitled to utilise these powers if they ‘reasonably believe[d]’ ¹⁰ that an individual had breached the Regulations. Although this is not a departure from the normal arrest standard of belief, it removed the charging threshold whereby there must be a ‘realistic prospect of conviction’ ¹¹ before charging an individual with a crime that would then need to be proven in court to the familiar criminal standard of ‘beyond all reasonable doubt’. This imparted upon those issuing FPNs a greater responsibility to exercise stringent fairness in the use of these new powers and to have a competent understanding of the law ¹² . Leaving to one side the departure from normal criminal process, this could have been a simple concept for all involved to understand, comply with and enforce, had there been contemporary, concise guidance issued.

However, what followed was a confused and inconsistent message. Three days prior to the Regulations being signed and coming into force, former Prime Minister (the ‘PM’) Boris Johnson had given a televised statement instructing citizens to stay at home and stating that they must adhere to certain rules and specific requirements that, in practice, the Regulations, even when they did come into force, did not provide for ¹³ . Not in the way he suggested in any event. In his address, Mr Johnson said:

″ … From this evening I must give the British people a very simple instruction – you must stay at home.

That is why people will only be allowed to leave their home[s] for the following very limited purposes:

shopping for basic necessities, as infrequently as possible[;]

That's all – these are the only reasons you should leave your home … ¹⁴

When this statement was made, there was, in fact, no law that could enforce any of the PM's guidance. A deeper look into the subsequent Regulations demonstrates that the content of this statement was, in part, ambiguous and yet in other areas gave more detail than the Regulations provided. For example, the necessities he mentioned shopping for are included in a non-exhaustive list, ¹⁵ yet there was in fact no restriction on the number of forms of exercise that could be undertaken, nor was there anything that prescribed the frequency with which one could leave their home to exercise. ¹⁶ Furthermore, the list of reasons given by the PM for which people may leave their homes, which he explicitly said was exhaustive, was not. In reality, a non-finite list of 15 possible reasons existed within the Regulations. ¹⁷

This initial conflicting information highlights what may be the cornerstone of the inconsistency examined in this paper: there was guidance, and there was law. What followed was that few people or organisations could decipher where the law ended and the guidance began, least of all Police forces as a whole or individual officers.

Enforcement Inconsistency and Fixed Penalty Notices

The inconsistencies discussed above are just a part of the foundations for an approach to policing the Pandemic that conflated the guidance and the law ¹⁸ . This conflation often led to officers policing, not necessarily through individual fault, beyond the remit of the law ¹⁹ . The justification was that they were ‘enforcing the “spirit” of the lockdown’, ²⁰ which was never legally provided for. Not only were the Police acting beyond their remit, but they were inconsistent across forces: there is evidence that someone in North Yorkshire or Northamptonshire was 10 times more likely to be issued with an FPN than those in Humberside or Warwickshire. Other forces went so far as to dye a lagoon black to make it less appealing and use drones to monitor visits to places of natural beauty. ²¹ The first 3 weeks of the Regulations saw more than 3200 fines issued. Of these, 39 were to children, ²² something that was explicitly not within the remit of the Regulations. ²³ This clear, disparate manner of enforcing the law (as it was believed to be) led to a vast number of FPNs being issued in the period the Regulations (and their later iterations) were in force.

As stated in the outset, 106,913 FPNs were issued in England, excluding any penalty notices issued for international travel, non-use of face coverings, to businesses and for breaching self-isolation regulations, because these were governed by separate legislations. ²⁴ There have been calls for a ‘comprehensive review of all FPNs issued under the coronavirus regulations’ ²⁵ at a central government level. However, the government has thus far remained undeviating, responding that ‘a robust process of review has been put in place by the police’. ²⁶ Therefore, it is not yet possible to quantify how many of these were wrongly issued. Despite this, it is fair to estimate that the majority would be considered valid.

Throughout the Pandemic, there were some notable challenges to both the validity of the Regulations themselves and to the enforceability of the restrictions and resulting possibility of issuing FPNs, as well as to specific FPNs issued or threats thereof.

In Dolan, ²⁷ the Court of Appeal rejected the appellant's application to challenge the legal standing of the Regulations on the grounds that they were outside the remit of the existing law, applied ordinary public law principles and violated guaranteed human rights ²⁸ . The Court found that the restrictions were within the powers of the SoS by virtue of the Public Health (Control of Disease) Act 1984 ²⁹ (or in the alternative, the Civil Contingencies Act 2004 ³⁰ ). There was nothing to suggest that the SoS had failed to account for relevant public law principles, and there was no incompatibility with convention rights. ³¹ The Regulations were held to be valid.

In Hussain, ³² the applicant sought interim relief from the Regulations to enable attendance at Friday prayers at the mosque where he was chairman, conceivably to pre-emptively circumvent the issuing of FPNs to attendees. He cited an incompatibility with Article 9, ³³ suggesting that the Regulations were being relaxed at this time in other respects that were not more essential than being able to attend Friday prayer and presented this conflict. The Court rejected this application on the grounds of its unlikely success at trial, finding that the interference with Article 9 ³⁴ rights was justified in the circumstances, meaning therefore that any gathering at the mosque would leave attendees liable to criminal sanction.

In Francis, ³⁵ the claimant brought judicial review proceedings seeking to quash the regulations requiring self-isolation ³⁶ on the basis that the SoS had acted outside of his powers. Although akin to Dolan, ³⁷ this case challenged the self-Isolation regulations, suggesting that both the requirement to isolate upon receiving a positive COVID-19 test and the enforceability and use of FPNs for non-compliance were outside the SoS’s powers. The claimant interpreted the primary legislation ³⁸ in a way that required the involvement of a clinician in order to be enforceable. However, the Court refused this argument and stated that statutory interpretation inherently looked to the intention of legislation rather than the strict wording, and so these provisions were legal and enforceable.

The above cases, particularly Francis, ³⁹ provide a good barometer of the courts’ overarching interpretation of the law that created and enforced the Lockdown. Although Police enforcement was erratic and misguided, the Courts appear to have worked towards consistency and clarification. The underlying rationale in each of these judgements appears to have been to interpret the statute in a way conducive to its intention, which undeniably was to protect the public and which legitimately required the use of FPNs. It is for this reason that these judgements are considered key in the context of this paper, the cornerstone judgement that looked to the core of the disparity is considered below. It was not until some time later that the Courts found that the Police had erred in a way that could not be considered compatible with, or a justified interference with, guaranteed rights. ⁴⁰ The case of Leigh ⁴¹ exemplifies this.

Of the FPNs issued during the Pandemic, 374 ⁴² were issued for holding gatherings of more than 30 people, and again, it is likely that some, if not the majority, were on reasonable grounds. However, of these FPNs issued for large gatherings, one is examined below in depth as it illustrates well the disparity between the understanding that both the public and the Police had of what was required of them and the legal reality of what was required and enforceable.

In the wake of the murder of Sarah Everard in March 2021, the social justice organisation Reclaim These Streets (‘RTS’) attempted to arrange a structured vigil for people to pay their respects and grieve for a crime that shook the nation. This gave rise to what is the seminal judgement of the Pandemic, Leigh v Commissioner of Police of the Metropolis. ⁴³ RTS sought agreement and assistance from the Metropolitan Police ahead of the planned vigil, with the intent of arranging what was intended to be a structured, COVID-19 compliant and therefore (as far as practicable) safe event, taking into account public health concerns. At a meeting 2 days before the planned vigil, the Police told RTS that any such gathering would be in contravention of the Regulations ⁴⁴ and therefore illegal. This position was further reinforced in response to a pre-action protocol (‘PAP’) letter from RTS to the Police, and again at a second meeting with a senior Police officer. In an expanded response to the PAP letter, RTS was informed that the right to freedom of expression ⁴⁵ and/or freedom of peaceful assembly ⁴⁶ , as a justification for a gathering that otherwise contravened the Regulations, could only be considered at the point of enforcement by criminal sanction. Considering this, at a third meeting, RTS sought assurance that there would be no enforcement action taken if the vigil went ahead as planned, which was refused. Finally, a press release was published which stated that the High Court had confirmed this position and that attendance at the vigil (as a large gathering) would be unlawful.

With the Police's stance remaining unchanged, RTS were left with no choice but to abandon their plans and cancel the vigil, which went ahead without their organisation and safeguarding measures resulting in a troubled and chaotic gathering ⁴⁷ . This demonstrates that the application of discretion and some level of common sense may have maintained order and a higher level of safety for those in attendance.

A year on from the vigil, the High Court found that the Police had acted unlawfully in their decision-making ⁴⁸ . The Police were initially legally misinformed and misunderstood the law, but went on to incorrectly state the legal position and misquote the position of the High Court in both the second response to the PAP letter and the press release. It was commented in the judgement that the Police should have approached the conversations with a mindset that the rights to freedom of expression and assembly might have provided a reasonable excuse for organising a large gathering. They should then have used a rational and informed assessment of whether this could fall under the remit of a reasonable excuse while also considering the steps RTS intended to take to mitigate public health risk. It was further commented that the Police were not acting within the ambit of proportionality, nor were they considering the individual circumstances, as they should have, on a case-by-case basis.

Leigh ⁴⁹ is central in demonstrating the lack of understanding held by the Police in their application of the regulations and use of, or threat of the use of, FPNs throughout the Pandemic. Firstly, it demonstrates inflexibility and a ‘one-size-fits-all’ approach by many, rather than assessing the merit of the circumstances in front of them. Secondly, it magnifies the feeling that the enforcement of the regulations (whatever an individual's understanding of them was) was supreme and no longer had to co-exist in a compatible way with other pre-existing laws. Finally, it highlights an inherent lack of rational thinking: had the Police staff involved from the outset taken a broader view of the circumstances ⁵⁰ , it is difficult not to conclude that they would have seen the bigger picture and found that it was preferable to work with an organisation that wanted to facilitate a safe, compliant and effective vigil. This is truer still at the point that it was clear that the vigil would proceed – sanctioned and organised, or not.

It may be no coincidence then, that just over 2 months after this judgement was handed down, another was settled out of court by Greater Manchester Police, ⁵¹ which had similar features, possibly prompted by this judgement. Conversely, more recently, the Court has demonstrated its willingness to return to its original position when it refused to grant leave for the claimant to seek judicial review against her conviction for breaching the Regulations to attend a protest against Lockdown. ⁵² However, contrasting the features of the original prosecution ⁵³ against the features of Leigh, ⁵⁴ it may be that there was never a deviation from the true principle of statutory interpretation, and throughout the court was striving for legal consistency.

Bearing in mind what appears to be an attempted consistent approach from the courts, and the validity of the law and Regulations demonstrated therein, it is apparent that the problems with inconsistency, application and enforcement really do lie with operational translation and the Police application and understanding that followed, though not principally with individual officers. This stems from the varied messages being publicised from the outset, which raises an undeniable need for some level of change or reform to be processed, thus futureproofing against circumstances of this nature arising again.

A Framework Proposal to Futureproof

Identifying the shortfalls of the process that allowed for:

the public to be confused and have expectations of compliance with laws that they didn’t understand imparted on them and

The key pitfalls in the process that have been identified during the Pandemic can be summarised as follows:

a delayed response,

These pitfalls are considered in turn below, building towards a rounded potential solution which is suggested.

Little about the delay in responding to the Pandemic is difficult to understand in retrospect: the government was slow to recognise, or to accept that large-scale intervention was going to be critical to protect the population. When contingency planning started, England was already outmanoeuvred by the virus and therefore fighting an uphill battle to contain it from a position of relative weakness. Learning from this complacency is a simple but key element to shaping the future. The significance of that delay is not merely political; it helps explain why communication was rushed, why the distinction between law and guidance was not stabilised early and why enforcement bodies were left without a sufficiently clear interpretive framework. In circumstances of any nature that pose a threat to life on such a scale, expedient planning and even pre-emptive action before the fact is vital. Perhaps this would have allowed for a more well-defined, efficient and effective strategy to be implemented.

Relating to the delay discussed in the preceding paragraph, the order of events which contributed to the inconsistent and confused message should be quite an innate warning for future authorities to reflect upon. The timing and content of the televised statement given by the PM on 23 March 2020 ⁵⁶ were misguided at best and dangerous at worst. Conversely to what has been suggested in the paragraph above, this may be the exception to the need for a speedy process. Although the rationale of the timing of this statement is understandable because every day was vital, it is possible to wonder if this address to the nation would have been better delayed until the Regulations were finalised, agreed and in force (a consideration examined in more detail below). This approach would have enabled the PM's statement to better reflect the parameters of the Regulations, or at the very least, for him to have made clear what the law did require of the public and the Police, and what the government were asking the public to do as guidance. This distinction was evidently lacking, if not missing altogether, throughout. This is a pivotal driving force in the way that so many were criminalised in the ways laid out in the preceding parts of this paper, through the misguided application of the Regulations.

The confused order of events considered above lends itself to starting to understand why the varied messages from the authority existed. The haste necessitated by the early delay in preparing for the inevitable is the keystone in this sequence of events. By no means is this article suggesting that there was one single error that led directly to the consequence. Simply that addressing as many of the areas found to be wanting may have provided for a far smoother process at a time when it was vital for people to feel confident that those in power were in control, not floundering. Although these elements are key and this paper does require consideration of elements of public law, its focus remains on the resulting criminal sanctions and how to address them; therefore, they will not be laboured over any further.

As considered above, the timing of the PM's address ⁵⁷ to the nation was problematic. At a time when the whole country was looking to leaders for guidance it was imperative that those leaders were all speaking with a cohesive voice. Whatever the underlying reason, the fact remains that from the point that the first iteration of the Regulations came into force, there was a resonating discrepancy between what had been said and what the legal reality was. It is also true in this respect that very little followed to clarify the position, meaning confusion ensued. It is evident from the earlier part of this paper that it was not just the public that suffered because of the lack of cohesion, but also law enforcement at all levels of seniority. It is not suggested that individual officers can or should be held accountable for the failings in this instance. These may have been unavoidable during this period, and so the need for clear, consistent guidance for both the public and the Police from the outset in future is the focus of this proposal.

It is possible to suggest that the burden of seeking clarity in the confusion remained with those who found themselves confused, and this, in part at least, is a valid contention. Ignorance of the law is not a defence, and by the nature of the profession, it is the responsibility of Police to be clear on the law. This may be a reasonable rebuttal had it been the case that it was a minority of the population that struggled to conceptualise this new way of life, but in fact it was the vast majority, including the Police, that could not pick apart what was law and what was guidance.

The government did not use any opportunity during the Pandemic to take a proactive stance and issue a document retrospectively that clearly interpreted where the Regulations stopped and the guidance began, what the penalty for flaunting the Regulations might be, and stating that the guidance was simply a request of the public ⁵⁸ . Although it is likely that something of this nature would have taken a little more time, the simple knowledge that help was on its way would likely have pacified the country enough for the majority to be as compliant in the interim as they could be within their understanding. This approach would also have given the Police acknowledgement that clarity was needed for them to operate effectively. This may have further prevented a heavy-handed approach to enforcement in the first instance. In fact, it is contended that most of the population may have preferred to have been subjected to a week of complete house arrest to facilitate being properly informed on how to live within the new laws and avoid the undue criminal criminalisation of so many people, some of whom were unaware of the action being taken against them. ⁵⁹

Although this approach would have helped in the COVID-19 pandemic, it is a reactive rather than proactive measure, and this proposal is intended to futureproof in a proactive way. As such this proposal is for the generation of mandated guidance that would be published contemporaneously to any Regulations. And herein lies the question that is the crux of this paper: what could have been done differently to ensure a consistent message was received by the public and the Police so that everyone affected was informed unambiguously of what was required of them?

Of the possible methods to avoid the outcome experienced, one that started long before the Coronavirus Act ⁶⁰ or the Regulations were needed let alone being written, is preferable. Some of the solutions would, however, stray too far into constitutional law and as the focus of this paper remains to address the Police's misguided use of their powers and FPNs under emergency powers, they will not be laboured over. And, quite simply, this paper proposes one very simple concept: accessible and consistent information.

The proposal advanced here is therefore simple in concept but more specific in design: a single accessible interpretive document (the ‘Document’), issued contemporaneously with emergency regulations and given an express legal status analogous to the PACE Codes of Practice. The Document would not displace the Regulations themselves; rather, it would authoritatively explain their practical meaning, distinguish binding obligations from public-health advice, and provide a common interpretive baseline for the public, the police, prosecutors and the courts.

Where the information would come from is possibly the most complex of the considerations above. This paper proposes the need for changes to current legislation, or for new legislation to be enacted, that creates a secondary mechanism that compels the government, the Police and any other agencies as necessary (considered in detail below) to consult. In the same way that the availability of Emergency Powers for use by the SoS was triggered by the declaration of a state of emergency by the government ⁶¹ , the utilisation of Emergency Powers would equally trigger a yet unwritten piece of legislation. This would be enacted outside of an emergency period and would compel interpretative work to be undertaken during or immediately after the writing of regulations that will be binding on the public inside of an emergency period.

The enabling legislation should make plain that the Document is interpretive rather than legislative: where a conflict arises, the Regulations prevail. Even so, the legislation should also require that, absent genuinely exceptional circumstances, no emergency criminal enforcement regime is operationalised without a first-issued version of the Document or an express public statement explaining why that is temporarily impossible.

Regardless of the method by which the requirement for an informative Document to be produced is triggered and under what authority, the consequential result will be a consultation. This consultation would produce a generic document or even white paper that could easily be tailored to any set of circumstances and emergency powers in future. The change to legislation would mandate representatives from all organisations that will be involved in producing this Document to be available to undertake said work. This consultation may take a similar form as a COBRA ⁶² meeting, albeit consisting of representatives of a less senior level.

To be produced quickly, the consultation should run in tandem with the drafting of the Regulations rather than waiting until the Regulations are complete. Responsibility for the first version should sit with a small statutory drafting cell composed of government lawyers, representatives of the relevant department, NPCC and College of Policing nominees, CPS input, operational policing leads, subject-matter specialists for the emergency in question, and accessibility and communications specialists. The task of this group would be interpretive and operational: to translate the legal effect of the Regulations into a single authoritative text that can be understood, disseminated and applied immediately.

Once agreed, the Document should be subject to rapid ministerial approval and immediate publication. Each version should carry a clear version number, commencement time and date, and a short change log identifying what has been altered from the previous iteration. Superseded versions should remain publicly archived so that officers, prosecutors, courts and citizens can determine what guidance was operative at any given moment.

Publication and distribution are not minor administrative matters but part of the legality of the scheme itself. The Document should be placed on a dedicated public webpage, distributed through police operational systems, circulated to local authorities and prosecutors, and issued in accessible formats and community languages. If the state wishes to rely on criminal sanction in emergency conditions, it must make the meaning of the relevant rules realistically accessible to those expected to obey them.

In relation to the Police, this Document should hold a similar status to that of the PACE ⁶³ codes of practice. It will be incumbent on every officer to be completely informed about the law, and the production of the Document will ensure that both the Police and the public have received the exact same guidance. A further and specific measure within PACE ⁶⁴ itself may require that, under circumstances of this nature, all Police officers, regardless of rank, are mandated to ensure they fully comprehend the document and seek clarity from the committee if they feel there is any ambiguity. The result for any officer who deviated from the guidance would naturally follow the process for any breach of PACE ⁶⁵ .

To suggest that this approach is a perfect imagination of the solution to the problems experienced during the Pandemic would demonstrate a distinct lack of awareness. This approach is likely to be criticised for its time consumption and cost implications. It is suggested conversely that the cost implications and time wasted during the Pandemic by Police and government simply responding to complaints, queries and wrongly issued FPNs may go a reasonable way to offsetting the costs relating to producing the Document. It is further likely that an argument will be raised in relation to the updates to NPCC guidance throughout the Pandemic, citing them as adequate. In response to this it is suggested that the damage done in the early days by the disparity in advice was so vast that, as evidenced throughout this paper, the subsequent NPCC guidance was ineffective.

Conclusion

The discussion above shows that the central problem was not the mere existence of emergency powers, but the way in which legally binding restrictions were communicated, interpreted and enforced. The Pandemic exposed how easily legality, legitimacy and operational discretion can become disentangled when guidance and law are presented as though they were interchangeable. The case law also demonstrates that, although the courts generally worked toward a coherent interpretation of the Regulations, police enforcement often proceeded without a comparably coherent interpretive framework.

To reduce the risk of repetition, legislators should consider requiring a contemporaneous interpretive document, produced through structured consultation, publicly versioned, and treated as an authoritative operational aid akin to the PACE Codes. Such a mechanism would not eliminate disagreement, but it would materially improve legal certainty, assist consistent police decision-making, and reduce the likelihood of wrongful criminalisation in future emergencies.