Response to the Independent Commission on UK Public Health Emergency Powers Call for Evidence

Professor Susan McVie, Chair of Quantitative Criminology, submitted written evidence to on enforcing public health restrictions during the COVID-19 pandemic.

Questions for 28th April Evidence Sessions

Session Two: Enforcing public health restrictions

Response from Professor Susan McVie, prepared in collaboration with Dr Kath Murray, Dr Vicky Gorton (University of Edinburgh) and Dr Ben Matthews (University of Stirling)

The observations and commentary below draw on Professor McVie’s experience of being part of an Independent Advisory Group in Scotland which scrutinised policing during the pandemic, as well as a series of reports about Fixed Penalty Notices (FPNs) issued under the Coronavirus Regulations in Scotland, published by the ESRC-funded Policing the Pandemic in Scotland project (Grant Reference: ES/W001845/1), and an equivalent report on Policing the Pandemic in England and Wales commissioned by the National Police Chief’s Council. Additional research evidence has been cited to provide wider contextual data where appropriate. The views expressed in this submission are those of the contributors and do not necessarily reflect the views of the policing organisations we have worked with over the course of our work.

Use of fixed penalty notices (“FPNs”) and the Single Justice Procedure

1. Do you consider FPNs are an appropriate and effective means of enforcing public health restrictions in an emergency situation? What alternatives are there and what are your views on these alternatives?

Relatively low prevalence of enforcement

• Before considering whether FPNs were an appropriate or effective response, it is worthwhile considering some data on the extent to which they were used during the Coronavirus pandemic.
• Between March 2020 and May 2021 (during which most of the police enforcement took place), there were 20,410 FPNs issued under the Regulations in Scotland, which means that (based on 2020 mid-year population estimates for Scotland) less than 0.5% of the adult population in Scotland were fined (Gorton et al. 2022). Over the same period, there were 110,502 FPNs issued for ‘standard list’ offences in England and 12,004 in Wales (McVie et al. 2023). This means that (based on 2021 Census data) fines were issued to less than 0.5% of the adult population in Wales and less than 0.3% of the adult population in England.
• These data suggest that use of FPNs as a method of enforcement impacted on a small proportion of the overall population.

Were FPNS appropriate?

Benefits of the FPN

• There are a number of reasons why the use of FPNs could be described as an appropriate response during the pandemic.
• Police FPNs are commonly used in the UK to deal with low level anti-social behaviour and motoring offences. They are a familiar form of punishment that is typically set at a low cost, and are well understood and accepted by the public. From this perspective, they had an established level of legitimacy.
• They represent a ‘light touch’ disposal which does not result in a criminal record and, in the context of the Coronavirus Regulations (which placed unprecedented restrictions on the public in terms of their day to day routines and behaviours), they were, therefore, preferable to other (more punitive) responses. From this perspective, they minimised the potential for criminalising people who were unable or unwilling to comply.
• FPNs are typically issued by police officers ‘on the spot’ which makes them timeous and responsive. They involve a minimal administrative burden for both the police and the individual, and they are dealt with via routine administrative systems. From this perspective, using FPNs as the main penalty during the pandemic helped to minimise the impact on other parts of the justice system and not increase prison numbers at a time of considerable turmoil.
• Nevertheless, there are some caveats to this assessment which are set out in detail below.

Unclear rationale for FPNs in context of Covid

• To ascertain how appropriate it was to introduce FPNs as a means of enforcing public health restrictions, it is important to consider the rationale for their introduction.
• FPNs were initially introduced in the 1960s for a set of narrowly defined (objective) motoring offences; however, some legislators were concerned about the lack of consideration for a person’s ability to pay and the risk of legislative creep (see the House of Lords: Road Traffic and Roads Improvement Bill. 5 July 1960: col. 1061). In the 2000s, the sanction was extended to cover a range of low-level (and more subjective) criminal offences. The Coronavirus Regulations clearly expanded the scope (and level of subjectivity) of police FPNs much further.
• As regards the specific reason for adopting FPNs as the main mechanism for securing compliance with the Coronavirus Regulations, we have been unable to locate any formal documentation which clearly sets out the respective UK government rationales. In giving evidence to the UK Parliament Justice Committee, the Minister for Crime and Policing, Kit Malthouse, did not provide a clear rationale for their use, but focused on the expediency of the FPN, describing the new penalties as an established, fast and efficient response to offending:
  • “FPNs were, I think, selected because they are a known science. They are a familiar part of the landscape and are proportionate in terms of us dealing with human behaviour. From speeding to dog fouling or littering, an FPN is an easy and quick way to make an enforcement point that we felt would be recognised and understood by the public… in terms of the familiarity of the public with the method, it seemed to be the best way. To be honest with you, other than there being a specific crime committed, which would be that much more of a palaver for the courts, it seemed like a good and efficient way to deal with the problem.” (House of Commons Justice Committee 2021a: Q136; emphasis added).
• In a detailed consideration of the challenges posed by enforcement of offences under the Coronavirus Regulations, a House of Commons Justice Committee report noted that the ‘scheme was designed to deter people from committing offences without criminalising large numbers of people’ (2021b: para. 48; emphasis added). Research evidence on deterrence indicates that certainty of being caught has a far stronger effect on people’s likelihood to offend than the likely severity or swiftness of punishment. While police visibility increased during the early stages of the pandemic, it is unclear whether this was sufficient as an effective deterrent in the long term to act (Scottish Government, 2014: Part 2).
• The expanded use of FPNs as a mechanism for securing public compliance with the law, and the unclear rationale for its introduction, raises an important question as to whether Covid FPNs stretched the sanction beyond its underlying principles and intended use (see below).

Unequal economic impact of Covid FPNs

• FPNs are an inherently inequitable sanction. Due to their fixed value, FPNs do not have an equal punishment effect on every individual: the face value of fines can be trivial and inconsequential to some, but cause financial hardship to others. In addition, the ‘punishment effect’ (i.e. payment) may be passed on, for example to a relative or friend, which means the person who committed the offence is not necessarily the one who pays the price.
• This inequity in terms of impact is usually understood to be offset by the ‘lighter touch’ qualities of FPNs. As noted by the Joint Committee on Human Rights, ‘FPNs are ordinarily capped at a relatively low level’ (2021: para. 13), especially in comparison with court fines. Moreover, contact with the criminal justice system is minimal, thereby avoiding stigmatising effects, the punishment is not physically intrusive, and FPNs do not involve a criminal conviction.
• However, it is difficult to reconcile the amount that some people were fined for breaching the Coronavirus Regulations with ‘lighter touch’ principles. This is most evident in England where the Regulations allowed for FPNs of £10,000 to be issued for organising large gatherings. Around 500 of these were issued, although a quarter were subsequently cancelled by the issuing police force or rejected by ACRO. Fine amounts were much smaller in Scotland and Wales than England (as discussed below).
• In addition, the Coronavirus Regulations built in an additional degree of inequality as they stipulated that an individual could be fined multiple times, with the size of the fine doubling each time. This incremental fining structure differs from other types of FPN (e.g. for anti-social behaviour or motoring offences) where each additional fine incurs the same value penalty. This means that the economic impact of Covid FPNs increased disproportionately for those who committed more than one offence.
• It could reasonably have been foreseen that some individuals in society (e.g. vulnerable people, those experiencing economic hardship, and those with a previous history of offending) would be less able and/or willing to abide by the Coronavirus Regulations. As such, the incremental fining structure built-in a further degree of inequity for certain groups in the population. The rationale for this fining structure is unclear and appears to be unique, insofar as we are not aware of an equivalent mechanism in any other UK legislation.
• Although the majority of Covid FPN recipients in England and Wales were fined only once, just under one in twenty people received two or more fines (McVie et al. 2023: 57-58). In England, the median cost incurred for single FPN recipients was £100; however, this increased to £500 amongst those who received multiple FPNs. The equivalent values in Wales were considerably lower at £30 and £180, respectively. Equivalent data is not available for Scotland.
• Across Scotland, England and Wales, research evidence shows that those who were issued with multiple fines were significantly more likely to be living in the most deprived communities, and were less likely to pay their fines, than those who received only one FPN (Gorton et al. 2022; McVie 2022; McVie et al. 2023). This indicates that, while the overall population prevalence was low, the use of police FPNs under the Coronavirus Regulations impacted disproportionately on those least able to afford them.

Geographical variation in the economic cost of enforcement

• Under the initial Regulations (introduced in March 2020), the size of a first fine was the same across all four UK countries: £60 reduced to £30 if paid within a specified period (either 14 or 28 days, although some leeway was given by the administrative collection services due to the difficult circumstances). Unfortunately, however, subsequent changes to the Public Health Regulations resulted in significant variation across countries in the cost to individuals of breaking the law (McVie et al. 2023).
• In England, the minimum FPN value increased from £60 to £100 and the upper limit increased from £960 to £3,200 in May 2020. This increased again in September 2020, to a minimum value of £200 and a maximum value of £6,400. Additional fines with a value of £10,000 for organising larger gatherings were also introduced in England.
• In Wales, the value of a first fine remained at £60 throughout the pandemic, although the maximum fine value increased from £120 to £1,960.
• In Scotland, the value for a first fine also remained unchanged, while the maximum fine value was actually reduced from £960 to £480 under guidance from the Lord Advocate (as it was considered inappropriate for the police to be issuing fines that were larger than those offered by the Procurator Fiscal).
• This variation in the severity of punishment across countries was confusing and inequitable, insofar as people could be fined very different amounts for committing the same offence. It, therefore, raises questions about the legitimacy and fairness of the subsequent regulatory changes. As noted above, the size of fines in England far exceeded the ‘light-touch’ principle that usually characterises an FPN.
• Taken together, these observations highlight various inbuilt economic inequalities in the implementation of FPNs in the context of the pandemic, many of which were poorly understood by both citizens and police officers. The impact of different fining structures in different parts of the UK may have resulted in ‘uneven’ use of the FPN (based on officer discretion); while the financial impact of incremental fining structures on those individuals who were least able/likely to comply with the Regulations is likely to have been disproportionate. These issues have not been adequately evaluated through research.

Unequal demographic impact of Covid FPNs

• In addition to economic inequalities, research evidence shows that some types of people were more likely to be subject to enforcement than others. To some extent, this reflected established patterns of offending; however, evidence suggests the pandemic may have had a particular impact on demographic inequalities.

Ethnicity

• There is evidence of disparity in the rate of FPNs issued to people from ethnic minority backgrounds, compared to white people, in all police forces across England, Wales and (to a lesser extent) Scotland. A recently published review of all FPNs issued in England and Wales commissioned by the NPCC found that ‘enforcement amongst those who were not normally resident in that area may have disproportionately involved people from ethnic minority backgrounds’ (McVie et al. 2023), suggesting that ethnic disparities may have exacerbated by the policing of illegal travel. This is supported by other research which suggests that people from ethnic minority backgrounds were not necessarily more likely to break the rules but may have been ‘more likely to do so in circumstances that make them visible to the police and thus available for intervention’ (Turner et al. 2022).

Deprivation

• FPNs were significantly more likely to be issued to those living in the most deprived communities than those living in more affluent areas. In Scotland, around one in five (22.2%) FPNs were issued to people living in the 10% most deprived datazones of Scotland, while less than one in ten (8.6%) were issued to those living in the 10% least deprived datazones (Gorton et al. 2022). This represents an overall disparity of 2.6 in the likelihood of receiving an FPN between those living in areas at the top and bottom of the deprivation scale. The equivalent disparity rate for Wales was similar at 3.0, but slightly higher for England at 4.8 (McVie et al. 2023).
• Interestingly, the deprivation disparity rate in Scotland was exceptionally high at 12.6 during the first Scottish lockdown but reduced substantially to 2.5 during the second (Gorton et al. 2022). A similar pattern was observed in England and Wales, although the change was not as dramatic. Over the same time period, the disparity rate reduced from 7.4 to 4.7 in England; and from 4.3 to 3.2 in Wales (McVie et al. 2023). This suggests that there was a strong association between enforcement and deprivation in the early months of the pandemic, but the police were dealing with a much wider cross-section of society as the pandemic wore on.

Sex and age

• As may have been expected based on existing offender data, men were more likely than women to be fined for breaching the Coronavirus Regulations; and younger people were more likely than older people to receive FPNs. The gap between men and women did close over time in all three countries, however; whereas the gap between younger people and older people increased (Gorton et al. 2022; McVie et al. 2023). The widening age gap in the use of FPNs reflects the known increase in non-compliance amongst younger people, both male and female (ONS 2021).

Public acceptance of Covid FPNs

• During the early stages of the pandemic, population surveys suggested that members of the public were strongly in support of additional policing powers, although there was a lack of awareness as to what these powers actually were (Duffy, 2020). Moreover, a Scottish survey found that the vast majority of people were comfortable with the police issuing fines to those who breached lockdown rules (Scottish Police Authority, 2020). Nevertheless, there is a dearth of research on the attitudes and experiences of those who were actually issued with Covid FPNs, and of how this changed over the course of the pandemic.
• One indicator of public acceptance of Covid FPNs is whether they were rejected by the recipient. Rejecting an FPN could occur if there is disagreement with the interpretation of the law in the given situation (for example, a person believing that they had a reasonable excuse), or disagreement with the lockdown Regulations in principle (i.e., not viewing the rules as legitimate). However, data for Scotland shows that, during the first lockdown, only 1% Covid FPNs were rejected by the recipients (McVie 2022: 21-22). These data suggest that non-acceptance of an FPN was relatively rare. Equivalent data are not available for England and Wales.
• Another indicator of public acceptance is the response of those who were dealt with by the police. Research carried out with officers in Scotland found that some people were not deterred by the smaller fines and treated them essentially as a retrospective licence. For example, amongst some young people (especially students) FPNs were described as being ‘the price of a party’ (Murray et al, forthcoming):
  • “a lot of these people spend more money on a night out than they did to pay off a ticket. For example you’ve got the younger generation, they’d be quite happy to take a £60 ticket, you know, to meet up with their friends.”
    
    “I think the mentality was, particularly among the students… ‘well I’m at risk of getting the equivalent of a parking fine to have a party. I’m quite happy to do take that risk… l what’s the worse that can happen? I’m going to get a £60 fine which will reduce to £30 pounds if I pay it in 28 days. Yeah, worth the risk.”
• The policing inspectorate in Scotland also reported that fines were not necessarily a deterrent to some young people as they were unlikely to bear the cost of the penalty: ‘When officers attended students often indicated they were not bothered about the fixed penalty notices as their parents would pay’ (HM Inspectorate of Constabulary in Scotland, 2021: para. 32).
• Overall, Covid FPNs issued in Scotland between March 2020 and December 2021 were 26% more likely to be paid than those issued for anti-social behaviour during the same period (McVie 2022: 16-17). Payment patterns suggest that (in Scotland at least) Covid FPNs were considered to be just as acceptable, if not more so, than other types of fine; although it is worth noting that the incremental fines were less likely to be paid. Equivalent data are not available for England and Wales.
• Nevertheless, over time there is evidence that Covid FPNs may have lost legitimacy not only amongst those who received them, but amongst law makers themselves. For example, interviews with police officers in Scotland demonstrated that some individuals were being advised not to pay them (Murray et al, forthcoming):
  • “At one point one of the homeowners had the lawyer on the phone and the lawyer was basically saying, just take the ticket and bin it.”
    
    “it did certainly feel just as if the tickets were being dismissed [by the Procurator Fiscal] completely.”

Were FPNs effective?

• The question of effectiveness can be addressed from two perspectives: 1) the extent to which the police powers helped ‘to reduce the spread of coronavirus, protect the NHS and save lives’, as per the stated aims of Home Secretary Priti Patel (Home Office, 26 March 2020); and 2) the effectiveness of the police powers ‘to secure public compliance’, as per the stated aims of HM Inspectorate of Constabulary and Fire & Rescue Services (2021).
• It is worth noting that there is very little empirical evidence about the extent to which the Regulations were successful in achieving either of these ambitions.

Reducing the spread of the Coronavirus

• We are not aware of any published studies on the extent to which the use of the police powers was effective in reducing the spread of the disease or saving lives.
• Unpublished data analysis for Scotland showed that trends in police enforcement followed closely the trend in deaths but there were no lag effects suggesting that more enforcement led to fewer deaths. This suggests that increased political and public health concerns about deaths most likely precipitated an increasingly muscular response by the police, especially during periods of lockdown. After the roll out of the vaccine, when death rates started to diminish, police enforcement remained high for a period (during which there was still elevated concern about non-compliance and restrictions were still in place), but diminished as the restrictions were loosened. There is no way that police officers could know where the disease was spreading in advance of clinical evidence. Moreover, the extent to which those who were breaching the Regulations were more likely to be infected with the Coronavirus has not been demonstrated (although Scottish research on this issue is in progress, using linked police and public health data).
• Few studies have attempted to measure whether robust mechanisms of population control (which include enforcement) are more effective in reducing the spread of the disease than reliance on personal responsibility for following public health guidance. One study found no clear or significant beneficial effect of introducing mandatory restrictions such as those introduced in the UK (Bendavid et al. 2021); however, this sparked considerable debate about the research methodology and whether the findings were sound (see Gelman, 2021).
• It would be virtually impossible to disentangle the deterrent effect of enforcement over and above the effects of public messaging, incentives (such as furlough), personal attitudes and general fear.

Securing public compliance

• Studies suggest that compliance during the first lockdown was strong, with uniformly high levels of adherence to the Regulations across the population (Fancourt et al. 2020). Police use of enforcement was high during the initial weeks of lockdown but diminished over time. Analysis of FPN data for Scotland suggests that those who were least likely to comply during the initial phase of the pandemic included those living in more deprived areas, those with underlying vulnerabilities, and those already disposed to break the law (‘the usual suspects’) (McVie and Matthews 2021; HM Inspectorate of Constabulary, 2020).
• During subsequent periods of the pandemic, when the Regulations became more complicated and changed more frequently, compliance levels fell. Research shows that as compliance levels fell the profile of those who were not complying changed, reflecting significantly more young people (especially students), those with higher levels of education, and those living in higher income households (Wright and Fancourt, 2021). These are not populations the police are typically used to dealing with.
• Research also found that the profile of people police officers were dealing with changed over time, such that those who would normally be law abiding were breaching the Regulations (HM Inspectorate of Constabulary in Scotland, 2021). While enforcement remained highest amongst those living in areas of high deprivation, police officers also described incidents involving ‘the unusual suspects’ – typically those “who should have known better” (Murray et al. forthcoming):
  • “we were definitely coming into contact with people that we wouldn’t ordinarily come into contact with, purely because of COVID and the regulations.”
    
    “We were going to housing estates that we would normally go to for somebody reporting a crime, if you know what I mean. Very expensive houses, very nice areas that normally you would only be there because there’s been a crime against the householder…”
• Overall, research suggests that most people tried to comply with most of the restrictions most of the time, but compliance with the Regulations undoubtedly became weaker as time went on.
• The relative increase in non-compliance amongst more affluent populations raises questions about the inherent inequity of FPNs as a fixed value sanction. It suggests that people who could afford to take the risk may have made calculated decisions based on cost-benefit analysis, which was not in keeping with the spirit of the Regulations.
• The increase in non-compliance may have also been influenced/encouraged, to various extents, by: the complex/confusing rules, high profile breaches, and increasing intolerance or fatigue about the restrictions. This raises doubts about the effectiveness of continuing to use an enforcement-based approach that was increasingly lacking understanding, credibility or legitimacy in the eyes of a wider cross-section of the public.
• A review by Mills et al. (2022: 580) suggested, ‘enforcement is less effective when: it is applied inconsistently; rules are ambiguous; and behaviours are unobservable. Providing food and financial support, creating social norms, and increasing trust are more effective in addressing specific barriers and fostering voluntary adherence. Where enforcement forms part of the strategy for policing COVID-19 regulations, rules must be clear and local responders must be given time and opportunity to plan their response as new rules are implemented’.

Potential alternatives to FPNs

• It is unclear whether any potential alternatives to FPNs were considered (because, as noted above, the rationale for using FPNs was not specified). Citizens were placed under unprecedented restrictions and ran the risk of being issued with FPNs for behaviours that would, under normal circumstances, have been perfectly law abiding. Some individuals found it extremely difficult to abide by the stringent laws, while others increasingly made calculated judgements about the risks and rewards of doing so. Factors taken into account (based on interviews with police officer and fine recipients) included the cost of a fine, mental health considerations, the likelihood of being caught, and fear of a criminal record (Murray et al. forthcoming).
• As time went on, the rules and regulations became increasingly difficult to interpret and understand. This makes for a complex legal environment in which it could be argued that the legitimacy of all FPNs issued could/should be challenged. In research interviews, officers spoke about their difficulty in keeping up with the Regulations and uncertainty at using their powers. The move towards quicker enforcement from late 2020/early 2021 onward most likely exacerbated this problem, as officers were less reliant on the 4Es to avoid enforcement. The level of confusion amongst officers in attempting to enforce the law is evident in testimony from police officers in Scotland (Murray et al, forthcoming):
  • “We didn’t know whether we were coming or going, and I’ll be upfront with you, my staff were coming to me for guidance and I was struggling…”
    
    “if anybody’s got a ticket through this whole scenario, I hope they don’t pay it. Because they would never, ever be taken to court on it. Because you’re right, it was so complicated that a good lawyer would be like ‘I can’t understand it, never mind the general public’.” (Murray et al. forthcoming)

Police warnings as an alternative

• Given the specific challenges posed by the pandemic, it was argued at the start of the pandemic that law enforcement agencies should have suspended enforcement measures requiring close contact with the public in all but the most serious cases, and that oral or written warnings should have been used (Brooks and Lopez, 2020). This recommendation was made in respect of US law enforcement, in recognition of the potential hardship that would be posed by fines during a time of economic crisis.
• In Scotland, police FPNs are a ‘direct measure’, or alternative to prosecution. Other direct measures available to the police include Recorded Policing Warnings (RPW),¹ Police Restorative Justice Warnings (PRW), and Early and Effective Intervention (for those aged 17 or under). Both FPNs and police warnings are recorded on the criminal history system for a period of 2 year and may be considered relevant in any enhanced disclosure certificate.
• In Scotland, police warnings are by far the most common measure used by the police to deal with low level offending such as breach of the peace, drug offences, common assault, drunkenness and other disorderly conduct, and shoplifting (Scottish Government, 2022: Table 18a).
• Police Scotland Standard Operating Procedures state: ‘RPWs and ASB FPNs can be issued to persons 16 years of age or older (who are not subject to a Compulsory Supervision Order (CSO)), for a minor offence, in a public or private place’ (Police Scotland, 2020: 6-7). The criteria for issuing a RPW are:
  • the offender is 16 years of age or older and not subject to a CSO;
  • the offence is minor in nature and suitable for being dealt with by an RPW ;
  • there is sufficient evidence to report the offender to the Procurators Fiscal;
  • the offender meets the criteria for issue and able to understand the RPW that is being issued;
  • the identity of the offender can be proved, should this be disputed at a later date (Ibid.)
• In Scotland, the number of anti-social behaviour FPNs issued by police officers fell by 82% between 2015/16 and 2020/21, whereas the number of RPWs increased by nearly 400% (Scottish Government, 2022: Table 17).
• In England and Wales, a range of out of court disposals are available, including: Penalty Notices for Disorder (PND), which are similar to ASB FPNs in Scotland; police cautions (which are similar to RPWs); and community resolution orders, which can involve an apology, an offer of compensation, or a promise to make amends for offending (e.g. by clearing up any graffiti or criminal damage).
• Between 2018 and 2022, the number of PNDs fell by 45%, while the number of police cautions also fell by 34% (although they increasingly accounted for a higher share of police disposals than PNDs). However, the number of community resolution orders increased year on year, and went from representing less than half (44%) to two thirds (67%) of all out of court disposals (Ministry of Justice, 2022).
• Differences in the type out of court disposals available to police officers in England and Wales, and Scotland make direct comparison difficult, however, it is striking that in recent years all three jurisdictions have seen a move away from financial penalties in relation to dealing with low level offending.
• The majority of individuals who received an FPN received only one ticket (96% in England and Wales) (McVie et al. 2023), which suggests that a single experience of formal police ‘enforcement’ was effective in reducing the likelihood of further non-compliance for most people.
• In the context of the pandemic, therefore, an enforcement model based on formal police warnings (for a first offence) would arguably have been more consistent with existing police practice, and acted as a more proportionate and equitable first response (following use of the first 3Es) that would not have discriminated against those who were unable or struggled to pay a fine. FPNs could have been reserved for those who had already been formally warned about their behaviour and had not taken the opportunity to change their behaviour.

Expunging criminal histories

• As noted above, FPNs are held on the criminal history system for two years and may be disclosed in some circumstance. In response to a request about Covid FPNs, a Freedom of Information response from the Metropolitan Police Service stated:
  • A Fixed Penalty Notice (FPN) is not likely to be disclosed on an Enhanced Check as it would not pass the test of relevancy and proportionality, we cannot say for absolute certainty as it would depend on the specifics of request for the check.
    
    If disclosure was to be made then contextual information would be included such as the reason it was issued and the disposal. Confirmation regarding if the fine was paid or not would not be included. (Metropolitan Police, 2020)
• It is arguable that all Covid FPNs should have been expunged once the Regulations were fully revoked, as the behaviour resulting in the disposal was specific to the public health emergency. Such an action could prevent individuals (especially those not otherwise known to the criminal justice system) from being disadvantaged or labelled in future.

2. To what extent were police forces able and prepared to reconsider FPN notices issued?

• The Coronavirus Regulations did not stipulate a specific process for reviewing or appealing FPNs at the request of the recipient. As the Joint Committee on Human Rights noted, ‘for most people, the main way of arguing that an FPN was wrongly issued is to be prosecuted in court for that offence and to mount a defence during that criminal prosecution’ (2021: para. 76). As noted above, data for Scotland during the first lockdown shows that only 1% of individuals rejected their Covid FPN (McVie 2022). No equivalent data are available for England and Wales.
• Procedures are in place to process and review FPNs issued by all UK police forces; however, new processes had to be put in place to deal with Covid FPNs (which caused a significant administrative burden, especially during the early stages of the pandemic). Data are not routinely published so it is unknown how many FPNs are cancelled on an annual basis. It is highly likely that extra attention was being paid to Covid FPNs, reflecting concern that, especially in the context of a rapidly emerging public health crisis, ‘good faith’ mistakes may have been made (by both the public and the police), and that officers may have issued FPNs outwith the legal boundaries of the Regulations.
• Data on Covid FPNs provided by ACRO identified two levels of review: some fines were cancelled by individual police forces; while others were withdrawn by those responsible for processing the tickets (ACRO or SCTS). According to data provided by NPCC, in the majority of cases the cancellation or withdrawal of fines was due to: lack of, or incorrect, information provided on the actual ticket; lack of sufficient evidence that an offence had been committed; or failure of officers to follow the 4Es (McVie et al. 2023).
• In Scotland, 8.0% of FPNs issued between March and May 2020 were withdrawn or cancelled (McVie 2022: 21). No data are available for subsequent periods in Scotland.
• In England and Wales, 5.2% of FPNs were cancelled or withdrawn between March 2020 and May 2021 (5.5% in England and 3.0% in Wales); however, there was considerable variation across police forces. Cancellation rates ranged from 1.1% in Warwickshire to 23.5% in West Midlands (McVie et al. 2023: 62). The extent to which FPNs were cancelled or withdrawn reduced over time in England and Wales, which suggests that police officer practice was increasingly in line with the legislation and policing policy (McVie et al. 2023). Cancellation remained consistently higher in England than Wales, however.
• Patterns of cancellation show that FPNs issued to people from an ethnic minority background, those living in more deprived areas, and multiple FPN recipients were most likely to have FPNs cancelled, suggesting that there may have been a higher degree of unfairness in the issuing of tickets to these groups (McVie et al. 2023).

3. Was the use of the Single Justice Procedure in England and Wales an appropriate and proportionate way of enforcing emergency public health restrictions?

• Our work has not looked at the Single Justice Procedure; however, we recommend taking evidence from the court correspondent for London Evening Standard, Tristan Kirk (@kirkkorner) who has done a considerable amount of work on this issue.
• According to written evidence from the charity Transform Justice, people began to be convicted for Covid offences under the SJP from July 2020. A Parliamentary Question found that there were 1086 breaches of emergency restrictions recorded under SJP in the Criminal Court Statistics between January and September 2020. No plea was entered in 88% of cases. Transform Justice state, ‘Given the numerous legal challenges to Coronavirus Act offences and the existing challenges to the fairness and human rights compliance of the SJP, it is concerning that the SJP should have been used for this purpose’.

Police responsibilities and scope of powers

4. Was it appropriate and effective for the police to have prosecutorial responsibilities rather than the CPS under the coronavirus regulations?

• Police FPNs are one of a number of ‘direct’ or ‘out of court’ measures which (as noted above) provide a well-established, cost-effective, and legitimate response to low level offending. They were introduced as a ‘light touch’ disposal aimed at reducing the burden on the criminal justice system. In the main, they represent a small financial penalty that does not result in a criminal record (as noted above).
• In reality, the prosecution services in the UK would have found it extremely difficult to deal with the large number of FPNs that were issued during the pandemic. This would have added further pressure to the criminal justice system at a time of increased pressure, and contributed to the ongoing backlog of cases.
• As noted above, FPNs are ordinarily set at relatively low level (Joint Committee on Human Rights, 2021: para. 13). By contrast, the size of some FPNs issued during the pandemic was considerably higher than those routinely issued for anti-social behaviour and motoring offences. In addition, the incremental fining structure meant that, in some cases, police officers were issuing fines that were way above what would normally be expected by members of the public.
• In considering the fairness and legitimacy of the FPNs issued during the pandemic, consideration must be given to the very high-value FPNs issued which, as noted above, were not consistent with light touch principle of direct measures. It is concerning that a fine as high as £10,000 could be issued wholly on the basis of police officer discretion (which perhaps explains why a quarter of these fines were subsequently withdrawn).

5. Was the scope of powers conferred on the police and other bodies appropriate and effective? Could and should powers have been restricted over time (e.g. powers to remove people to their homes)?

• In the absence of a pharmaceutical solution, the provision of additional powers to the police has, historically, been a generic response to public health emergencies; however, the impact or effectiveness of this has never been properly researched or evaluated.
• There is little published data on the extent to which specific legal powers (e.g. removing people to their home) was used, so it is difficult to identify which powers should have been restricted and when.
• Police use of low level financial penalties was in keeping with their role of responding to ‘anti-social behaviour’ and largely proportionate and legitimate during the first lockdown when the Regulations were clear and consistent for everyone (albeit, they resulted in inequalities, as discussed above). However, it is questionable how proportionate and legitimate the exercise of these police powers was as time went on, in the context of confusing and poorly defined laws, increasing regulatory inconsistency across time and place, and waning public tolerance.
• Whilst the four Es provided officers with discretion, it is clear that thresholds for enforcement differed between officers. To be in keeping with a human rights approach, police powers should have been limited to clear breaches of very tightly defined Regulations, with much greater clarity on the distinction between the law and non-statutory guidance.
• It has been argued that the role of the police during a pandemic should be more focused on public education and connecting citizens to essential services (Brooks and Lopez, 2020); however, it would have been difficult for officers to do this in the context of disappearing services. More efforts should have been made by local authorities to support essential services (especially for more vulnerable citizens who were likely to fall foul of the Regulations); and others within local authorities (for example community wardens) could have played a greater role in encouraging compliance.

6. To what extent were policing responses influenced by briefings from the Home Office or Department of Health? To what extent were they influenced by televised addresses or other government communications? Were any such influences sufficiently transparent?

• In Scotland, policing responses were coordinated with government responses, with regular appearances by the Chief Constable alongside the First Minister. Public messaging was largely consistent. The single police force structure may have helped to provide a more consistent response in Scotland, although there is also clear evidence of regional variation in the use of powers.
• Nevertheless, problems arose due to the speed and frequency of legislative change, often with little/no consultation with the police. This led (in some instances) to Regulations being introduced which could/would not be enforced by the police. Examples include cross-border travel and quarantine checks. In such cases, senior police officers had to issue contradictory statements to the government, which had the potential to diminish the legitimacy of the law in the eyes of the public.

7. Many regulations required police to undertake a proportionality assessment or consider whether people had a “reasonable excuse”. Is this an appropriate way to enforce public health restrictions? Were the police able effectively to make judgments about what was proportionate and reasonable in the context of risks to public health?

• Much greater clarity should have been provided as to what constituted ‘reasonable’. While the Regulations set out a range of ‘reasonable excuses’ (taking exercise, attending a funeral etc.) this was not exhaustive, leaving officers to interpret what was or was not ‘reasonable’ in many situations.
• Police officers relied on the media for information (along with everybody else) as there was little or no advance or bespoke advice from public health organisations. Supervisory officers struggled to give their staff advice in specific contexts due to the lack of clarity around what did and did not pose a public health risk, so individual officers were afforded wide discretion (Murray et al. forthcoming).
• It is clear that there was inconsistent messaging around what was ‘reasonable’ during the early weeks of the pandemic, and police officers were found to be overzealous on some occasions (e.g. fining dog walkers in the countryside, people sitting on park benches, etc.). Data show higher rates of FPN rescinding during the very early weeks of the pandemic, compared to other times.
• Police officers found it easiest to apply the Regulations when these were at were at their strictest, and most likely interpreted a ‘reasonable excuse’ narrowly. As time went on, and the restrictions eased and often became more complex, it became much more difficult for officers to operate a consistent approach. This difficulty was most likely exacerbated by public behaviour, with a greater cross-section of the public ‘interpreting the rules to suit their own ends’ (HM Inspectorate of Constabulary, 2021: 3).
• The 4Es approach encouraged officers to use their discretion and make a considered judgement as to their reasons for (potentially) being in breach of the Regulations. The overall effectiveness or otherwise of officer judgements in the context of the pandemic is not well understood. It is highly likely that the threshold of what was or was not considered to be a reasonable excuse varied between officers, and between police forces, especially during periods when the rules were unclear.
• Looking ahead, a distinction should be drawn between what would be considered a ‘reasonable excuse’ and a ‘reasonable risk’ in the context of a public health emergency. There is considerable scope for learning and policy development in this area, so as to ensure a more proportionate legislative and policing response in the case of future pandemics.
• If what constitutes a ‘reasonable excuse’ cannot be clearly defined in law in the context of a pandemic, there is a case argument for making greater use of non-statutory guidance to encourage compliance.

Compliance and the use of law/guidance

8. Are you able to comment on levels of compliance with restrictions during Covid-19? Are there any steps that could be taken in future public health emergencies to improve compliance?

• Studies of public compliance suggest that compliance during the first lockdown was exceptionally high (Wright et al. 2022). However, there is clear evidence that tolerance/acceptance of the rules diminished as the restrictions across the UK started to tighten again in the late autumn/winter of 2020.
• Lower self-reported compliance was related to young age, high risk-taking behaviour, low confidence in government and low empathy, among other factors. Looking at individual behaviours, mask wearing had the highest level of compliance while compliance with social distancing was relatively low (Wright et al. 2022). Research also suggests that individuals choose to comply with all guidelines, rather than some but not others. It has been recommended that strategies to increase compliance should focus on increasing general motivations to comply alongside specifically encouraging social distancing.
• A study of behaviour during the first lockdown showed that people’s perceived legitimacy of the law in general, specifically the legitimacy of the lockdown laws, and fear of peer disapproval were amongst a number of factors that predicted compliance with the law; however, procedural justice was not significantly associated with the legitimacy of lockdown law (Halliday et al. 2022). This suggests that motivations towards compliance were dominated by normative concerns more than personal health concerns. People obeyed the lockdown law because they felt obliged to do so. However, this sense of obligation was also driven by people’s concerns about their own health and was contingent on believing that the law was fit for purpose. Nonetheless, many people felt that lockdown was an extreme curtailment on people’s rights – rights consciousness may have undermined the legitimacy of the lockdown rules.
• Adherence to the rules changed over time and across different sectors of the population. Using data from the Covid-19 Social Study, Wright and Fancourt (2021) showed that age was the strongest predictor of non-compliance, such that younger people (especially students) were consistently (and increasingly) like to breach the regulations. This has also been shown using police enforcement data (Gorton et al. 2022, McVie et al. 2023).
• Wright and Fancourt (2021) also found many other factors were associated with increasing non-compliance, such as: having ‘risky attitudes’; ‘low openness’ or ‘low conscientiousness’; low emotional empathy; higher educational level; higher household income; living alone (especially with a child); and overcrowding. These findings show that people from a wide range of social backgrounds were making different judgements about their behaviour, and suggests that non-compliance was associated with both ‘challenge and choice’.
• Interviews with police officers in Scotland identified four types of offender: accidental/minor law breakers (who were dealt with using the first 3Es); the vulnerable (those with addiction issues, homeless, mental health issues, etc.); the ‘usual suspects’ (those who would not comply under any circumstances); and the ‘unusual suspects’ (the middle classes, students, affluent individuals). In other words, non-compliance was complicated and being driven by different factors for different types of people.
• Wright and Fancourt (2021) conclude that (1) policy makers need to use multiple messages to target different groups, given that capabilities and motivations to comply vary; and (2) that messages need to evolve across pandemics as individual behaviour changes.

9. It appears that some of the measures imposed by the Government were not imposed by law – for example school closures, self-isolation requirements for infected persons, and initial restrictions on business practices pre-lockdown. Are you able to give other examples of the use of guidance rather than law and how effective was this at achieving compliance?

• The distinction between guidance and the law was often blurred, including in Ministerial statements. For example, in his first statement to the nation, the Prime Minister referred to people only being “allowed” to leave their home for exercise once a day (PM Speech, 23 March 2020); however, this was only ever guidance rather a legal requirement.
• Similarly, an announcement by Scotland’s First Minister in May 2020 around the guidance on exercise was widely reported in the press as a change in the law (e.g. ‘First Minister lifts exercise rule in Scotland’s lockdown’ and ‘Scots will now be allowed to go out more than once a day’, emphasis added). However, the First Minister’s statement was clear that this was change to guidance only:
  • “The only change we’ve made, here in Scotland is to the guidance on exercise. As of today, we have removed the once-a-day limit on exercise. It means that – if you want to go for a walk more often – or to go for a run and also a walk – then you can now do so… you will still need to stay relatively close to your own home. And at all times, you need to stay at least 2 metres away from people from other households… It’s just one very minor change to the existing rules. But all of the restrictions in Scotland for now remain in place.” (First Minister, 11 May 2020, emphasis added)
• In research interviews, police officers acknowledged that there had been considerable confusion during certain periods about the distinction between guidance and the law. The blurring of the boundaries between rules and recommendations makes it difficult, if not impossible, to assess the extent to which non-statutory guidance was effective in encouraging compliance.
• Much greater clarity on what was law and what was guidance would have been extremely valuable. Potentially, these two different messages should have been issued by distinct groups of people (e.g. government for law and public health officials for guidance).

10. Do you have a view on when legislation vs guidance should be used to impose public health restrictions? Could the Governments of the UK have addressed the pandemic solely through guidance without the use of criminal sanctions?

• A lack of impact assessment of the legislation, coupled with the blurring of boundaries between guidance and the law, makes it difficult to assess whether a guidance only approach would have been effective in the UK context. The most high-profile international comparator taking a largely guidance-based approach is Sweden. It is, however, problematic to directly compare outcomes given differences between the UK and Sweden in terms of cultural normal and standards of health, welfare systems, etc.
• One study compared the additional value of ‘mandatory’ restrictions (i.e. stay at home and business closures) across different countries during the Covid-19 pandemic (Bendavid et al. 2021). It found that implementing any kind of non-pharmaceutical intervention was associated with significant reductions in the spread of the disease across most countries; however, there was no clear significant benefit of having mandatory restrictions. In other words, social distancing guidelines, discouraging travel, and banning large gatherings was just as effective. Nevertheless, there is considerable debate about how easy it is to disentangle the differential effects of mandatory and non-mandatory restrictions (see Gelman, 2021).
• From a policing perspective, it is clear that enforcement was easiest to manage during periods when the restrictions were most tightly specified (i.e. during the first lockdown). Once restrictions started to ease, and there was greater inconsistency, lack of clarity, and more blurring of the lines between rules and guidance, policing became much more difficult and it is likely that criminal sanctions were less effective.

11. Throughout the pandemic there were reports of police forces taking positions that reflected guidance but not law or that did not reflect the law (e.g. restricting shoppers to essential items or preventing people from travelling to outdoor spaces). How much of a problem was this? Was it effectively addressed?

• It is difficult to assess the extent to which police made decisions based on guidance rather than law as detailed information on the context of policing encounters was not recorded. Based on the work of the Independent Advisory Group in Scotland, it was clear that efforts were made to keep within the law. Pressure was placed on the police to attend supermarkets and enforce mask wearing, but this was considered outwith the scope of the policing role. That said, in research interviews with fine recipients in Scotland, several mentioned being warned or fined by the police for not wearing a mask.
• The geographical pattern of policing across the UK demonstrates that a significant amount of enforcement occurred in more remote and rural divisions, where rates of crime are generally much smaller. Reports from officers make it clear that the policing of outdoor spaces (including scenic beauty spots, beaches and parks) was a primary focus during the first lockdown. This continued, despite the fact that it was clear fairly early on that being outside was a low risk activity.
• There are some high profile cases in which decisions were taken that were subsequently overturned, although (as noted above) less than 5% of all Covid FPNs issued in England and Wales were withdrawn. Misunderstandings most likely fell over time, as officers became more familiar with the Regulations. Nevertheless, frequent changes to the Regulations and confusion between rules and guidance would have created opportunities for error in policing decisions.

12. What was your experience of public understanding and acceptance of legislation and guidance imposing public health restrictions?

• Population surveys provided strong evidence of high levels of public acceptance of the legislation at the start of the pandemic, and public understanding was good while the rules were clear and simple to follow (Wright et al., 2022). However, diminishing trust in the UK government as the pandemic progressed had an impact on public opinion about the legislation, even though many people continued to appreciate the need to obey government rules (Allington et al., 2021).
• In research interviews, police officers felt that most people had broadly understood and accepted the legislation, particularly during periods when restrictions were at their tightest (Murray et al. forthcoming). But as the rules changed, officers struggled to follow the Regulations, making it likely that the public were experiencing the same difficulties:
  • “The rules changed so much and varied from place to place, region to region… we struggled to know week to week, ‘Right, how many people are actually allowed in the house?”
    
    “If you’ve been off for a couple of days, or your annual leave for a week and you came back, you could almost guarantee the rules would have changed in that interim period.”
    
    “They would change on a day to day basis, the rules and regulations, it was struggle for us even to keep up with the law, and what was guidance, what was law, with what we could enforce and what we couldn’t.”

Concluding Thoughts

13. Do additional safeguards need to be put in place to ensure that the creation of new offences during a public health emergency and the legal framework for enforcing these offences are compliant with human rights law?

• There is much to be learned from Covid-19 about how we could do things better next time. The policing response to this pandemic was more or less the same as that to the Spanish Flu epidemic 100 years ago, and there is no evidence of learning from that time. Collecting more and better data – from both health and policing organisations – is critical to ensuring we learn as much as we can about developing a more effective and equitable response to future public health emergencies.
• There is a need for equalities assessment to be conducted in relation to all regulations to determine the likely impact of creating new ‘offences’ in terms of policing response to specific groups – especially those likely to be impacted the most. That work should be undertaken as soon as possible and modelled for different types and levels of restrictions.
• There is greater need for greater transparency of law making and scrutiny of regulations as they emerge. It is not good enough to pass the laws and see how things play out. Both parliamentary scrutiny and independent advisory groups could prove valuable to ensuring that any new laws are effective, fair, and in keeping with human rights principles.
• Regulations should be clear and consistent – and distinct from guidance. Enforcement should have a clear rationale, be evidence based and kept to a minimum. It is important to note that the legitimacy of the rules impacted on the legitimacy of the policing response.
• There needs to be ongoing review and evaluation of the regulations to determine whether they are fit for purpose at different stages of a pandemic. In particular, the necessity for enforcement pre- and post- vaccine should be considered.
• Development of a regulatory response needs to be based on human rights law and to take account of potential tensions with existing domestic laws (e.g. rights to protest, assembly, etc.).

14. Are there any ways in which policing a public health emergency could be better managed in the future?

• Better training would have prepared police officers – frontline and supervisory – for what they might expect to encounter. Learning from the pandemic should be incorporated into probationary training so that there is a framework in place that can be adopted whenever necessary in the future.
• If enforcement is considered a necessity, it would be best to maintain existing structures and procedures and ensure these remain consistent across the UK. Creating new fining structures and fine amounts created a significant (and, arguably, unnecessary) administrative burden for police forces across the UK.
• There should be better consultation with police forces by law makers in the development of regulations to ensure that they are feasible and enforceable. Legitimacy of the laws relies on them being fit for purpose.
• Efforts should be made to clarify what are ‘reasonable excuses’ and clearer public messaging should focus on what people ‘can do’ rather than what they can’t do.
• Ongoing research evaluation of the impact of the regulations on public behaviour, and the nature of the policing response, would allow for public health legislation to adapt quickly. Whilst the reduced likelihood of transmitting Covid outside became clear fairly quickly, this was not reflected in the regulations.
• Finally, it is important to highlight that police officers shouldered an exceedingly difficult job during the pandemic and stepped up when most other services stepped back. They were on the frontline dealing with an invisible disease, which impacted on the mental and physical health of many officers. Officers were deeply disappointed not to be prioritised for the vaccination, so this should be an absolute priority for any future pandemic. Indeed, it is difficult to overestimate the degree of anger felt by officers in respect of the decision not to prioritise officers in the vaccine roll-out. Officers continued to police higher-risk situations, including a huge number of house parties, mostly without protection. This anger came across strongly in research interviews and most likely contributed to an increased willingness to move to enforcement quickly in the second lockdown (Murray et al. forthcoming):
  • “We were front-facing and we were just left to it. We ended up getting leftover doses of the vaccine. And this makes officers cross… It was a real kick in the teeth.”

References

¹ Recorded Police Warnings were introduced as a new direct measure on 11th January 2016, at the same time as police formal adult warnings were discontinued.

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