(Over)Policing the Pandemic

Last week Derbyshire Constabulary sparked controversy by Tweeting drone footage it had collected from Cubar Edge, a beauty spot in the Peak District. The footage shows vehicles parked in the car park, and people walking their dogs and taking pictures. On the video, these activities are branded ‘NOT ESSENTIAL’.

My view is that the police collection and publication of drone footage in these circumstances wasn’t just overzealous; it was also unlawful. This is not to say that physical distancing is unimportant, nor that the police do not have a role to play in enforcing the new emergency legislation enacted by Parliament. The police have a difficult job to do as part of our shared efforts to limit the spread of Coronavirus. That said, too robust a response risks undermining and public trust and draining support for the police, precisely at a time when this trust is most needed. Millions of ordinary citizens are making radical alterations to their lives to help stem the spread of Coronavirus. The police should be slow to clamp down on their efforts to make a bad situation more bearable, especially when these efforts stay within the law and pose minimal, if any, risk to public safety.

At the heart of the problem for Derbyshire Constabulary is that the walkers on Cubar Edge were not committing any offence in relation to the new public health provisions. The lockdown regulations can be found in The Health Protection (Coronavirus) (England) Regulations 2020, s.6:

The pertinent provisions for our purpose are 6(1) read in conjunction with 6(2)(b): No person can leave home without a reasonable excuse; leaving home to exercise constitutes a reasonable excuse. Thus, there is plainly no prohibition on travelling to take exercise, even if this involves the use of a car. The focus of the provision is on the overarching purpose for leaving home; it does not prohibit all activities that could be classed as ‘non-essential’ once outside.

In defending the use of the drone on the BBC Radio 4 PM show, Superintendent Steve Pont of the Derbyshire Police stated: ‘There are four reasons why you can leave your home. One of those is one form of exercise a day, alone [or] with members of your household. But, even whilst doing that, minimise time spent outside the home.’ 

This is not a statement of the law. In fact, Superintendent Pont’s comments appear to conflate the law with the advice issued by the Government. Whilst the Government has recommended exercising locally, this is not mandatory as far as the law is concerned, and the distinction between law and guidance is important. When the police treat Government guidance on how to practice physical distancing as though it is legally binding, they abuse their power. Such good practice guides have not been subject to the checks and balances of the law making process; they are imprecise in their scope; they are not designed as enforceable legal rules.

Derbyshire Constabulary’s shaming exercise led retired Supreme Justice, Lord Sumption – hardly a radical anti-establishment figure – to accuse the police of acting like ‘glorified school prefects’. He has a point. The walkers on Cubar Edge were not only abiding by the law, they were seeming to abide by the spirit of the new regulations. The walkers were not congregating; they appeared to maintain physical distance from each other; they were taking exercise.

The police did stop short of prosecuting anyone walking on Cubar Edge for contravening section 6. Some might argue that the police have the same right as anybody else to fly drones and disseminate their footage. The police, on this view, are merely ‘citizens in uniform’; they have the same residual freedom as anybody else to do anything that is not forbidden by law, including flying drones and uploading their footage to social media.

There are at least two issues with this line of reasoning. The first is that it is questionable whether the police constable is merely a ‘citizen in uniform’, free to do anything that is not legally forbidden. The epithet may have accurately described the part-time community constables of the thirteenth century, but it seems wholly inadequate for capturing the constitutional status of the representatives of a powerful state body, with extensive powers and resources at their disposal.

The police have general common law powers to fulfil their basic duties, including powers to do anything necessary to prevent crime, keep the peace and protect property. In R. (Bridges) v Chief Constable of South Wales Police [2019] EWHC 2341 (Admin), the High Court determined that these basic common law powers cover all ‘non-intrusive’ policing measures (i.e. measures that do not occasion a physical intrusion with a person’s rights). If the activity is ‘intrusive’ (e.g. collecting a DNA sample from a person or searching his or her home) then it falls outside the scope of the police constable’s common law powers, and requires a separate legal basis (typically, a statutory power).

There is no broader residual freedom for the police, when acting as the police, to do anything that a citizen is free to do. The police are restricted to acting within the scope of their common law powers whenever they engage in activities that are ‘non-intrusive’. Such a residual freedom would make the common law powers of the constable otiose.[1] It does not exist. Thus, the police must show that they have a positive basis in law for engaging in aerial drone surveillance, even if this activity can be described as ‘non-intrusive’. Given that the walkers on Cubar Edge were not committing any offence, I cannot see how the surveillance was in anyway necessary to prevent crime, thus falling within the remit of police powers at common law.

Even if police officers do have such a residual freedom, the aerial surveillance may still have been prohibited in any event. Section 6 of the Human Rights Act 1998 makes it unlawful for the police to act in a way which is incompatible with an individual’s European Convention on Human Rights (ECHR) rights. Article 8 ECHR provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. 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.

Without engaging in an exhaustive examination of how the jurisprudence of Article 8 would apply to this case (and drawing only on those facts surrounding the drone operation that have been made publicly available), I think there is a reasonable possibility that the activities of Derbyshire Constabulary contravened the Article 8 rights of the walkers. First, the drone surveillance appeared to be covert – the drone was flying at high altitude, far above the walkers who did not appear to notice it. The drone was used to record footage of the walkers, and the footage was disseminated to a wide audience through the use of Derbyshire Constabulary’s social media accounts. The walkers were not committing a crime. These factors point to an interference with the Article 8(1) rights of the walkers (see, for e.g. In re JR38 [2015] UKSC 42).

Given the ground covered in the preceding analysis – particularly, that the walkers were committing no crime and any risk they posed to themselves or general public safety was de minimis – it is inconceivable this interference by the police could be considered lawful, in the pursuit of a legitimate aim, and necessary for the purpose of Article 8(2).

In extraordinary times, the police may need to rely on extraordinary (temporary) powers to protect public health. As the need for excessive coercive powers ratchets up, so too does the need to guard against misuse and arbitrariness. If the police are to inspire public confidence that they are here to protect and not oppress, then now is simply not the time for trying out new surveillance tools on the public, with undue regard for the law.

[1] I am grateful to David Mead for making this point in a private conversation.

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