It has become a worrying feature on both social media and in the press that we are seeing more and more police officers failing to understand their powers and acting in unlawfully and in conflict with human rights legislation.
There are videos of police officers attempting to disperse people traveling together in a vehicle because they are not more than two meters apart, arresting a woman sat alone on a park bench for refusing to move, and threatening to pepper spray an man delivering food to a vulnerable relative.
Not only are these interventions unnecessary, they are also likely to be unlawful. With over 1000 fixed penalty notices issued already. It is not acceptable to arrest people for not following the directions of a police officer if those directions are unlawful. It is essential to look at how the coronavirus provisions will be impacted by human rights law.
Regulation 6(1) Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 states “no person may leave the place where they are living without reasonable excuse”. It then goes on to deal with a non-exhaustive list of things that may be a reasonable excuse. That is not the end of the story; it is essential to consider how human rights law impacts on the “reasonable excuse” defence.
Section 3 of the Human Rights Act 1998 states “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”. When a law provides a defence of reasonable excuse, case law suggests that the exercise of one’s convention rights will amount to a reasonable excuse. It is then for the State to justify its interference with that convention right.
The convention rights that are likely to be engaged are Article 5 (the right to liberty and security), Article 8 (the right to respect for private and family life), and Article 11 (the freedom of assembly and association). As article 5 concerns detention, this article will specifically focus on articles 8 and 11.
Both articles 8 and 11 are qualified rights. This means that under certain circumstances the State can restrict those rights. These are known as “legitimate aims”. Article 8(2) states, “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The same legitimate aims apply to article 11. It is clear that the aims of public safety, prevention of disorder or crime and protection of health are engaged by the pandemic.
Having a legitimate aim which is engaged is not enough alone to justify interference with someone’s convention rights. The interference must be necessary and proportionate in a democratic society. It will always be for the State to prove that the interference is indeed necessary. The court will decide this by asking the following questions:
If the answer to any of these questions is no then interference with a person’s convention rights is unlawful. Every case will be fact specific and consider the conduct of the defendant, the police and how that goes towards the legitimate aim.
It is likely that while the pandemic is ongoing, the answer to the first question will be, “yes”. Issues begin to arise when police conduct is assessed using the other questions. Using an example given above, it is difficult to see a rational connection between the protection of health and arresting a lone person for sitting on a bench, even if that person refuses to leave when asked.
Each case will turn on its facts. It is, however, unlikely that the arrest of any person following the government guidance on social distancing while out in public would be lawful under the regulation.
The question in relation to less restrictive means will have a huge impact on the lawfulness of fixed penalty notices handed out. If a person is willing to comply with a direction to disperse, to return home or is not given such an opportunity, then a fixed penalty notice will not be the least restrictive means available to achieve the aim and will therefore be unlawful.
The final question is one that needs to be at the forefront of how we police the lockdown. A fair balance must always be struck between individual freedom and the rights of others. Where people are creating a clear public health risk, such as holding large gatherings, it is right for the police to intervene to protect the public. Where such a risk is not apparent, police intervention is inappropriate and criminal sanctions unlawful.
The police are doing a vital job keeping everyone safe during this troubling time, however draconian enforcement and a lack of common sense in how this crisis is policed is likely reduce faith in our vital public services and have a chilling impact on the liberty of the nation. Unnecessary arrests place police, custody staff, court staff and lawyers at greater risk of infection.
It will be beneficial for lawyers to identify human rights issues in relation to any “reasonable excuse” cases from the outset.
Mark Pritchard is able to give advice and representation in relation to all human rights cases arising from the Covid-19 pandemic.
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T. 0161 236 1133
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