People might have been able to forgive and trade a three-day hiatus from law in exchange for being kept safe from the perils of a virus, but will they mind the government’s next foray into despotism? And will they even notice if it happens one statute at a time?
Once these ‘rules’ were announced on the 23rd, police forces across the country started to enforce them. Derbyshire police tweeted that they would be breaking up groups of people in the streets the next morning, provoking Sumption’s outburst, as he described it, on the BBC’s World at One. He told me, ‘they had no business doing anything in a national crisis except enforcing the law. They are not there to give effect to their own views on what a national crisis might require and they are not there to give effect to what a Prime Minister’s views might require in a national crisis. They are citizens in uniform who should apply the law and nothing else.’
London’s streets were eerily quiet when I visited barrister Kirsty Brimelow’s chambers in the summer. Echoing Sumption, she told me that what troubled her most about lockdown law had been the obfuscation between law and guidance by using the term ‘rules’, and the wrongful convictions that subsequently led to. I asked her if the government deliberately misled the public and the media? Perhaps, but she also blamed a ‘chaotic approach and huge incompetence’.
She pointed out that although citizens must follow the law, we are allowed to decide for ourselves whether to follow guidance and she would like the government to stop using the term ‘rules’. The confusion between guidance and law led people to be ‘wrongfully arrested, wrongfully convicted and that is not only a bad thing for the person concerned, but also for society and the rule of law in general.’ To give one example, in England there was a ‘rule’ we should be two metres apart. There may be stickers on the ground, and it might very well be sensible guidance, but it has never been law. It was and is a request that people may choose to follow, or not.
What compelled Brimelow to speak out were the miscarriages of justice. Times journalist Fariha Karim contacted her about the conviction of Marie Dinou, who had been arrested at Newcastle train station right at the start of lockdown. She was held in cells for two nights (under no powers), ‘treated appallingly’ by the District Magistrate, given a criminal conviction under the wrong legislation and fined £660. Dinou’s case was not exceptional, BAME communities were disproportionately targeted, and every single prosecution (a staggering 246)2 under the Coronavirus Act had been overturned at the time of writing.
‘Criminalisation should be removed from these laws’, said Brimelow. ‘Too many people sitting together having a picnic should never be a criminal offence.’
She hoped that there would be sensible messages from our police chiefs to regulate those police officers who might overreach. Instead ‘we had police stepping beyond their powers, fining people for sitting on park benches and police threatening to inspect people’s shopping trollies.’
Police officers had a difficult task enforcing complex, fast-changing and sometimes, frankly, illogical laws. However, there were some concerning and heavy-handed tactics, from the use of degrading spit hoods, to police dogs when dispersing a party (leading to tragic life-changing injuries),3 to carrying firearms when telling a gym to close. Whether through confusion or over-enthusiasm the police mistakenly fined people for not wearing masks despite being exempt, moved people on erroneously from park benches, and threatened people swimming at the beach with fines, among other examples. People driving cars were stopped and turned around or fined, when they had broken no laws, only breached ‘guidance’. There are many regrettable examples of mistaken and misused laws, documented throughout 2020 by Big Brother Watch, a small NGO which defends civil liberties.
Perhaps some of the confusion arose from the lack of parliamentary scrutiny – the usual checks and balances were not in place in 2020. The first emergency laws were understandably brought in quickly, but remarkably no primary legislation was brought in all year. We are still under emergency law at the time of publication. Brimelow said the fact that primary legislation has not been debated ‘can only mean government control and seeking to bypass the democratic system.’ Her grave concern is that the law will be so emasculated it may not be there for us the next time we need it.
Fines were set at life-destroying levels. Individuals who broke the new coronavirus self-isolation regulations faced fines of £1,000. Worse, if an ‘authorised person’ considered you were ‘reckless’ in coming into contact with someone, the fine was raised to a crushing £4,000. Fines for organising protests or parties were an inconceivable £10,000.
In any year, these fines are enough to break most UK households financially. But it was a year of rising unemployment, salary cuts and businesses running at half-mast. ONS data shows that average disposable income (after tax and benefits) was £30,800 per year before lockdown. For the poorest fifth, this was just £13,100. Even prior to the current recession – the deepest in modern times – disposable income was falling by more than 4% each year.
The police have never before had the power to issue such large fines to individuals, and there are good reasons for this. Normally, fixed-penalty notices are £100 or £200. For example, driving distracted could land you a £100 on-the-spot fine. The fine can only be higher (increasing to up to £5,000) if it is issued by a court. To keep fines within people’s means, some are linked to salary, typically limited to
