Supplementary written evidence submitted by Liberty (MAC0034)

 

ABOUT LIBERTY

Liberty is an independent membership organisation. We challenge injustice, defend freedom, and campaign to make sure everyone in the UK is treated fairly. We are campaigners, lawyers, and policy experts who work together to protect rights and hold the powerful to account.

Liberty provides policy responses to Government consultations on all issues that have implications for human rights and civil liberties. We also submit evidence to Select Committees, inquiries, and other policy fora and undertake independent, funded research.

Liberty’s policy papers are available at libertyhumanrights.org.uk/policy

INTRODUCTION

  1. This submission supplements oral evidence given by Liberty to the Home Affairs Select Committee (HASC) inquiry marking the 21st anniversary of the Macpherson Report, as well as written evidence submitted to its predecessor inquiry.[1]

 

  1. Liberty welcomes HASC’s timely decision to extend this inquiry. The killing of George Floyd in Minneapolis, U.S., sparked a wave of mass mobilisations across the globe – challenging the structural racism that has created the conditions for state violence against Black people, insulated perpetrators from accountability, and entrenched deep inequality. As people took to the streets in cities, towns and communities across the UK, the chant “the UK is not innocent” rang out, along with some of the names of the 183 people of colour who have died at the hands of the police in England and Wales in the last 30 years.[2] While the authorities are quick to rely on the principle of “policing by consent” to distinguish the tradition of policing in Britain from that of other jurisdictions, this obscures the reality that this is not how communities who bear the brunt of policing experience its coercive power.

 

  1. This inquiry comes amid widening ethnic disparities in the use of police powers, increasing numbers of armed frontline officers, and the rolling out of intrusive technology, which is also marred by structural racism endemic in policing. Policy makers, too, are reaching to expand police powers as an apparent “quick fix” for complex social problems with little regard for the long-term consequences.[3] During the coronavirus pandemic, the consequences of heavy-handed and uneven policing have been magnified – eroding trust in the authorities, putting our public health at risk, and leaving communities of colour over-policed and under protected in the biggest public health crisis in a generation.

 

  1. This submission considers a number of areas of law and policy in which urgent action is needed to remedy discriminatory policing. This supplements our 2019 submission, which recommended that the Government should:

 

Stop and search

 

Police use of force

 

Data and algorithms in policing

 

 

Policing the hostile environment

 

  1. This submission further recommends that:

Predictive policing

Body Worn Video

Coronavirus police powers

 

 

 

 

 

 

STOP AND SEARCH

  1. In our previous submission to this inquiry, Liberty noted that while stop and search numbers have dropped significantly since the Macpherson Report, Government reforms have failed to tackle disproportionality in the practice, meaning that stop and search is still concentrated on communities of colour. That central conclusion remains unchanged, and we make three additional points to update that submission.

 

  1. First, ethnic disparities in the use of stop and search have widened further. You are now 9.5 times more likely to be subject to a stop and search by the police if you are black than if you are white.[4] This rate has more than doubled since the Macpherson Report found that institutional racism was apparent in the country-wide disparity in stop and search figures, rendering it the highest rate of disproportionality in over 20 years.[5]

 

  1. Second, in May 2019, the Government relaxed safeguards contained in the Best Use of Stop and Search Scheme (BUSSS) on the use of suspicionless stop and search under Section 60, Criminal Justice and Public Order Act 1994. This was done under a “pilot” programme in seven police force areas. The Government stated the programme would run for one year with a review after six months.[6] Just three months later, it was expanded to all 43 police forces, without the results of the pilot being published.[7] The relaxation of, already limited, safeguards is therefore unevidenced and profoundly concerning given evidence of staggering levels of disproportionality in use of powers that do not require individualised suspicion.[8] The Government’s own Equality Impact Assessment recognised that an increase in use of Section 60 posed the risk of magnifying any residual levels of discrimination in the use of this power and would continue to disproportionately affect them.[9] It also recognised that there is a paucity of evidence on the effectiveness of the power quoting both the College of Policing and the Home Office which suggests that changes in the level of stop and search have, at best, only minimal effects on violent crime, and that the decision could have a negative impact on trust in the authorities in a part of the community  where trust / confidence levels are typically low.

 

  1. Third, Liberty is acutely concerned by reports of aggressive use of existing police powers during the pandemic. Despite a dramatic drop in people being outdoors during lockdown, use of stop and search in London surged to its highest level in over seven years.[10] This is particularly concerning in the midst of a public health crisis, as searches, arrest, and detention may put people at risk of infection. The Chair of the Metropolitan Police Federation, Ken Marsh, reportedly defended this strategy, noting that “it threw crime out the window. Anyone out in the first four weeks was a drug dealer.”[11] These kinds of unfounded statements, relying on racist stereotypes to dismiss concerns about discriminatory policing, perpetuate harmful policing practices and harm communities disproportionately impacted by the pandemic, as well as the Government’s response.[12]  As one member of the House of Lords commented during the most recent debate on the Regulations: Let that sink in. Any black person out in the first four weeks was a drug dealer. Most of us fear catching the virus, but if you are black, you also have the conscious bias of police officers to fear.[13]

 

  1. We reiterate our recommendations that the Government should repeal Section 60 of the Criminal Justice and Public Order Act 1994 and introduce a new mandatory scheme aimed at improving stop and search outcomes. A meaningful consultation exercise should be conducted to determine the scope of a revised scheme. As a minimum it should include sanctions for individuals and forces failing to meet prescribed standards; require recording of traffic stops, including the ethnicity data of the targeted individual and the outcome of the stop;[14] provide for an individual to receive a record of a stop, including the name and badge number of the officer involved; require forces to collate and publicly share data regarding the use of the traffic stop power, and; place a responsibility on police leaders to monitor the use of these powers and involve local communities in that scrutiny.

 

TASER

  1. In our previous submission, Liberty raised concerns about the growing use of Tasers in policing in the United Kingdom, including worrying racial disparities in their use and overuse against people experiencing mental health crises. Since then, the Home Office has announced a £10 million Taser “uplift”, which they stated could see Tasers in the hands of up to 10,000 more frontline officers.[15] In the latest year for which statistics are available, recorded use rose 39%.[16] Liberty is deeply concerned that this mass roll-out of Tasers may lead to the increasing normalisation of these dangerous weapons in everyday policing encounters, escalating violence on our streets and raising profound concerns about the way we are policed. A recent study by researchers at the University of Cambridge found that officers carrying Tasers were not only more likely to apply force, but also more likely to be assaulted – a phenomenon termed the weapons effect’, in which the sight of a weapon increases aggressive behaviour.[17]

 

  1. According to the most recent use of force statistics, black people are nearly eight times more likely to be subject to the use of Taser than white people.[18] In May of this year, the Independent Office for Police Conduct (IOPC) called for greater scrutiny on the use of Taser, noting concerns from a broad range of stakeholders about disproportionate use against black people and people experiencing mental health problems.[19] This followed a series of disturbing incidents in the space of this May alone, of one month, including the Tasering of a young man in Haringey, who was paralysed from the waist down, and a man in Manchester who was Tasered outside a petrol station beside his young child. The IOPC noted that these incidents came to their attention via social media or because of the level of injury sustained and that, “given the number of times Tasers are deployed, there may be other incidents which are not being scrutinised.”[20]

 

  1. In Liberty’s view, the Government and the NPCC have failed to take these concerns seriously. Indeed, earlier this year we, along with StopWatch, Open Society Justice Initiative, and Inquest, resigned from a National Taser Stakeholder Advisory Group (NTSAG) on the use of Taser, following inaction by police representatives in response to repeated requests for them to acknowledge and justify the stark race disproportionality in the use of TASER; and in the absence of justification, to develop a clear strategy for addressing that disproportionality. As we noted in our resignation letter, in our view, police representatives “have not valued our expertise, treated the issues we have raised with the level of seriousness they warrant, followed through on commitments made to the NTSAG, or constituted the group to engender meaningful consultation. Accordingly, we can no longer continue as members.”[21] In light of these developments, Liberty recommends that the mass roll out of Tasers be reversed. We reiterate our recommendation that the use of Tasers be restricted to firearms officers, and only deployed in circumstances in which, were it not for the availability of a Taser, a firearm would be needed to avert the threat of serious harm.

FACIAL RECOGNITION

  1. During the oral evidence session on the 17th of June, the Committee asked about the impact of new police technologies, including facial recognition, on the way our communities are policed. Police use of facial recognition gives rise to two distinct discrimination issues: bias inherent in the technology itself and the use of the technology in a discriminatory way.

 

  1. Discriminatory use: Liberty has raised concerns regarding the racial and socio-economic dimensions of police trial deployments thus far. For example, the Met has deployed facial recognition at Notting Hill Carnival for two years running, a festival celebrating Black Caribbean culture in the UK, as well as twice in the London Borough of Newham. Newham is one of the UK's most racially diverse places and the white British population stands at 16.7%, the lowest in the UK. The disproportionate use of this technology in communities against which it underperforms (according to its proponent’s standards) is concerning.

 

  1. Inherent bias: Studies have shown that facial recognition technology disproportionately misidentifies women and people of colour[22] – meaning that people from these groups are more likely to be wrongly stopped and questioned by the police and to have their images retained as the result of a false match. The same conclusion was reached in a study conducted by the FBI.[23] In June 2020, the American Civil Liberties Union (ACLU) filed a complaint following the first known wrongful arrest involving facial recognition in the U.S..[24] In early 2020, Detroit Police arrested Robert Williams — a Black man living in a Detroit suburb — in his front garden in front of his wife and two young daughters. Facial recognition software had incorrectly identified him as another Black man. As the ACLU note, his “only thing in common with the suspect...is that they are both large-framed Black men.”[25] He was held in custody for nearly 30 hours, a DNA sample, mugshot, and fingerprints were taken and remain on file, and his arrest is on the record.

 

  1. While the causes of discrimination within algorithms can vary, in this case it is likely to stem from the fact that, when an algorithm is trained to recognise human faces using training data sets, it is exposed to a disproportionate number of white, male faces compared to those from other groups. However, Liberty notes that improving the accuracy of this technology only serves to increase the pervasiveness of the rights infringements associated with facial recognition. As academic Dr Julia Powles points out: Even apparent success in tackling bias can have perverse consequences. Take the example of a facial recognition system that works poorly on women of colour because of the group’s underrepresentation both in the training data and among system designers. Alleviating this problem by seeking to equalise representation merely co-opts designers in perfecting vast instruments of surveillance and classification.”[26]

 

  1. It is vital that Parliament considers the impact of facial recognition on our fundamental rights and freedoms well prior to the consideration of legislation to regulate its use. Should Parliament be afforded this opportunity, it will be evident that legislation to regulate the use of this technology is insufficient – instead, its use by police in public spaces should be prohibited.

PREDICTIVE POLICING

  1. In 2019, Liberty published a detailed report, drawing on Freedom of Information requests issued to every police force in the country, on the use of predictive algorithms in policing.[27] It revealed that 14 police forces across the UK were using, have previously used, or are planning to use predictive policing programs to predict where and when crime will happen (“mapping programs”) and who will commit it (“risk assessment programs”), using historic police data. These computer programs use algorithms to analyse large quantities of data which reflects existing patterns of discrimination in policing, further an approach to policing which relies on discriminatory profiling. These programs will not necessarily follow rules a human set for them – they also “learn” and become more autonomous when making predictions, without having to be programmed.

 

  1. Although predictive policing simply reproduces and magnifies the same biases the police have historically held, filtering this decision-making process through complex software that few people understand lends unwarranted legitimacy to biased policing strategies. As our report noted, their use “provides a front of allegedly impartial statistical evidence, putting a neutral technological veneer on pre-existing discriminatory policing practices.”[28] Use of algorithms can and should be examined for the ways in which they can remove bias – but until the police demand and use fully tested programs that embed this by design, the Government should apply the precautionary principle to police use of algorithms.

 

  1. From deciding if someone is likely to reoffend, through to which areas or neighbourhoods should be most frequently patrolled by police, these decisions are too important to hand over to a machine – and the risks to our civil liberties are too great. Liberty opposes policing driven by big data and “data predictions”, which feeds an opaque decision-making environment and risks putting discriminatory practices further out of view. Liberty recommends that police forces in the UK should end their use of predictive policing programs, which rely on problematic historical data and encourage the over-policing of marginalised communities.

 

BODY WORN VIDEO

  1. The Committee asked witnesses about the viability of Body Worn Video (BWV / BWC) as a tool to mitigate disproportionate policing. In addition to concerns about the efficacy of a tool that officers may themselves switch on and off, Liberty is concerned that there is a gap between public and police perceptions of the effectiveness of body worn cameras as a tool for police accountabilityand actual evidence of effectiveness. Moreover, BWV constitutes a significant interference with the right to privacy, which is likely to vary by race, class, and other characteristics. As it is, people who are already overrepresented in their contacts with the police will find themselves disproportionately subject to the infringement of privacy that BWV represents. This interference would be heightened should BWV be used in conjunction with other forms of police technology, for example if BWV footage is mined to train algorithms to recognise an increased risk that a suspect is about to flee, or that force may need to be used for some reason; those algorithms will replicate the biases of the data used to train them.

 

  1. The evidence on the efficacy of BWV as tool for police accountability is equivocal. One of the largest studies to date involving 2,224 police officers by The Lab @ DC, a research team based in the Government of the District of Columbia, looked at four areas: police use of force, citizen complaints, policing activity, and judicial outcomes. It found that: Across each of the four outcome categories, their analysis consistently pointed to a null result: the average treatment effect on all of the measured outcomes was very small, and no estimate rose to statistical significance at conventional levels.”[29] The authors go on to recommend that we should “recalibrate our expectations of BWCs. […] We should also temper expectations about (and suggest further research into) the evidentiary value of BWCs).”[30]

 

  1. Additionally, a 2015 study by the Metropolitan Police Service involving over 2,000 police officers found no overall impact of BWV on the number or type of stop and searches conducted. It also found that “officers with BWV were less likely than those without BWV to agree they needed stronger justification for their actions.”[31] It notes by way of conclusion that there is “a gap between the high expectations around BWV and the actual impact it has in relation to stop and search and officer behaviour change.”[32]

 

  1. Last year, a comprehensive narrative review of 70 studies found or accepted for publication up to June 2018 on the effects of BWV in multiple jurisdictions concluded that “study findings do not reveal a definitive conclusion that BWCs can reduce officers’ use of force.”[33] They note that BWV does not seem to remedy the disparity in perceptions of police legitimacy between different groups.[34]

 

  1. Liberty therefore takes a cautious position that falls short of endorsing BWV for police accountability and criminal justice purposes in light of the current available evidence of its effectiveness, and its impact on privacy and equality. Police forces should avoid further rollout of BWV and consider rollback pending less equivocal evidence of its impact on police accountability, criminal justice processes, and equality and human rights. We view it as critical that the Government commissions robust scientific research into the impact of BWV on criminal justice processes, the impact of BWV on disparities in the criminal justice system, and the mechanism by which BWV leads to a reduction in complaints against police. Moreover, the Government should consult on and adopt a clear framework for the trial and potential adoption of police technology that applies the precautionary principle and explicitly addresses the potential equality and human rights impact and evidence base for the efficacy of such technology well prior to any rollout.

CORONAVIRUS POLICE POWERS

HEALTH PROTECTION REGULATIONS

  1. On 26 March 2020, the Government passed the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (the Regulations).[35] These Regulations established expansive new criminal offences and afforded the police intrusive, discretionary powers to enforce restrictions on people’s freedom of movement. The police were also authorised to close businesses, places of worship, and community centres and disperse gatherings.

 

  1. The powers conferred by the Regulations are exceptionally broad in nature. When they were first established, police were empowered to issue a FPN – or arrest, charge, and prosecute – anyone who left home, or gathered in groups of more than two people, without a reasonable excuse. These powers were amended by further regulations passed in June 2020, which made it a criminal offence to stay away from home overnight save in specified circumstances, to gather in groups of more than six people outdoors, and to gather indoors with people from a different household except in limited circumstances.[36] As the Government has started to progressively ease these restrictions, the police’s enforcement powers have been ramped up.[37] The maximum level of fines that may be imposed for purported breaches of the Regulations has increased significantly, from £960 to £3,200. As of the 8th of June 2020, 15,715 FPNs have been recorded in England for breaches of the Regulations, while 2,282 FPNs have been recorded in Wales in the same timeframe – nearly triple the number that had been issued until a month earlier.[38]

UNEQUAL IMPACT

  1. When Liberty first briefed on the Regulations, we noted that “as with any new police power, the impact of these Regulations will not be evenly felt” and expressed concern about the risk that “marginalised groups will be disproportionately targeted” by the exercise of powers they established.[39] Two investigations by Liberty’s new, editorially independent journalism unit, Liberty Investigates, and the Guardian have since revealed marked ethnic disparities in how those powers have been used.  An initial analysis of national-level data illustrated that people of colour were 54% more likely to be fined than white people.[40] Further analysis of force-level data from 25 police forces, disclosed following Freedom of Information requests,  revealed that 18 police forces had statistically significant race disproportionality between FPNs issued to people of colour and white people.[41] The most racially disproportionate issuing of fines was by Cumbria Police, where people of colour were 6.8 times more likely to be fined than white people. Other heavily disproportionate forces were Avon and Somerset, Lincolnshire, and Suffolk where people of colour were at least four times more likely to be fined than white people.[42]

 

  1. We note that the NPCC has refused to publish a force-by-force breakdown of the FPNs that have been issued. In fact, the NPCC initially relied on the same data referenced above to claim that the fines that had been issued were “proportionate” – a conclusion they reached by implicitly assuming that anyone who did not declare their ethnicity when issued with a fine was white and without examining the break-down of fines by individual forces.[43] To understand the impact of the fines and the Regulations as a whole, it is critical that robust data disaggregated by race, gender, age, and disability on the use of the powers is collected and published. Liberty recommends the NPCC publishes the disaggregated data on use of the Regulations for each force.

 

  1. In a letter to the Secretary of State for Health and Social Care – signed by Liberty along with 20 other leading human rights, racial equality, community, faith, and public health organisations – we stressed that this pattern was entirely foreseeable. When the Regulations were made, many groups noted that they left broad scope for police discretion, and that this – combined with a considerable amount of miscommunication from both police and Government as regards the scope of the powers – meant that already over-policed communities would be disproportionately targeted for perceived infractions. [44]d Further, this risk has not dissipated as lockdown as been eased. As some police chiefs have acknowledged, the powers have been repeatedly amended and made so ambiguous they are rendered effectively enforceable.[45] At the same time, enforcement powers have been strengthened, with the maximum fines that can be issued increasing by over 300%.[46] This combination – of increasingly vague restrictions and heightened enforcement powers – may pose an even more pernicious combination for people of colour.

 

  1. The relationship between expansive, discretionary police powers and disproportionality is supported by data[47] and academic research.[48] Moreover, it was acknowledged by the European Court of Human Rights, which found that stop and search powers under Section 44 of the Terrorism Act 2000 were unlawful on the basis that they were too broadly drawn and did not have adequate safeguards against abuse. The Court concluded that there is a “clear risk of arbitrariness in the grant of such a broad discretion to the police officer” and “the risks of the discriminatory use of the powers against such persons is a very real consideration”.[49]

 

  1. Liberty has long been concerned by how over-policing drives disproportionality throughout the criminal justice system and the impact this has on people’s ability to live freely and cultivate a sense of identity, security, and belonging. These impacts have a significant bearing on trust in the authorities – indeed, studies show that the majority of people of colour born in England and Wales believe that the criminal justice system discriminates against particular groups and individuals, compared with 35% of the British-born white population.[50] As the Lammy Review noted, this lack of trust starts with policing, “but has ripple effects throughout the system”.[51] It is important to note that this lack of trust is not simply a matter of perception, but is clearly justified by the aforementioned data.

 

  1. In the context of a nationwide pandemic, these concerns are magnified. Trust is a precious commodity for governments seeking to protect public health – it has long been viewed by public health academics as an important determinant of people’s compliance with policies, restrictions, and guidelines, particularly in times of crisis.[52] A heavy-handed response risks draining trust in the government and other authorities that have a meaningful role to play in addressing the crisis – trust they rely on to sustain compliance. As a letter from 800 public health and legal experts in the United States stated:Voluntary self-isolation measures are more likely to induce cooperation and protect public trust than coercive measures and are more likely to prevent attempts to avoid contact with the healthcare system.”[53] A public health approach to a pandemic must be rooted in public education, clear evidence-based communication to facilitate compliance, and universal access to healthcare.[54] Despite the Regulations being made under legislation that allows the Secretary of State for Health and Social Care to make laws for the purpose of providing a public health response to the spread of disease, both the substance and the application of these Regulations enabled an uneven, enforcement-orientated response, that may have come at the expense of public health.[55]

 

  1. In a welcome move, the NPCC and the College of Policing published guidance, which stipulated that enforcement should only be used as a last resort.[56] However, the evidence indicates that this has not been followed by officers in practice. The discretionary nature of these Regulations have led to inconsistent practices across the country and instances of significant overreach.[57] In one case documented by Liberty Investigates, the Head of Community Support at an organisation dedicated to supporting young people who have experienced violence and / or the criminal justice system was fined under the Regulations when he was supporting a young person during a police stop, despite repeatedly identifying himself as a key worker.[58] This incident is now the subject of legal challenge, with the Pre-Action Letter stating that the police “completely failed to follow the government guidance in relation to Engage, Explain, Encourage and Enforce” with enforcement being a last resort.[59]

CONSTRAINING THE POWERS

  1. Narrowing police discretion by putting the principle that enforcement should be an absolute last resort on a robust legal footing would be an important step towards mitigating the risk of uneven and arbitrary policing. To this end, there are a number of substantive amendments that could be made to the Regulations to constrain their worst excesses.

 

  1. First, contravening the restrictions on movement or gatherings should only constitute a criminal offence where it is sufficiently serious, i.e. when a person causes immediate harm to others. Embedding a seriousness threshold in the Regulations would ensure that police must, as a matter of law, enforce only as a last resort, and reflect the statutory purpose of these Regulations, which is to protect public health not to enforce public order.[60] Liberty recommends the Government to make a breach of the restrictions on movement and gatherings only a criminal offence where it causes another person immediate harm.

 

  1. Secondly, the Regulations empower the police to give “any reasonable instruction they consider necessary” and establish a criminal offence of failing to comply with a reasonable instruction a police officer gives pursuant to their powers.[61] Liberty is concerned that, as currently drafted, these powers are extremely broadly drawn and believes they should be narrowed significantly. Liberty would be acutely concerned if police criminalised a person for failing to provide an answer to a question put by a police officer. This would likely fall foul of the right to remain silent and the privilege against self-incrimination.[62] Moreover, the expansive powers may detrimentally impact disabled people or people with mental health needs, including people of colour. Some disabled people may find it difficult to follow directions. Liberty is concerned the capacious nature of this power may lead to people being fined or criminalised in circumstances where they do not understand the instructions given by a police officer and therefore fail to comply. Liberty recommends that the Government amend the Regulations to explicitly state that the police have no power to stop and account and clarify that it is not a criminal offence to fail to answer a question or fail to follow instructions.

 

  1. In addition to substantive amendments to constrain these powers, it is essential that people have the opportunity to challenge them. This is particularly pressing given the racial disparities in the fines issued under the Regulations, which call into question whether the enforcement powers have been fairly used. A review of charges under the Regulations conducted by the Crown Prosecution Service revealed that a number of cases were wrongly charged.[63] And, as the Chair of the Joint Committee on Human Rights has noted, the incidence of wrongly issuing of fines under the Regulations is likely to be higher, given they have fewer safeguards and do not require the involvement of a prosecutor or a judge.[64] Yet people issued with FPNs have no statutory right of appeal – the only formal route open to them to challenge a fine is to refuse to pay and risk prosecution, including a criminal record and all the attendant, potentially life-altering, consequences that carries. Liberty recommends the Regulations are amended to establish a statutory right of appeal against FPNs issued under the Regulations and urges police forces to institute a wholesale review of all fines issued to date.

 

  1. Finally, during a crisis, robust scrutiny is essential to ensure that measures the Government decides to implement are necessary, proportionate, non-discriminatory, and comply with the rule of law. This is an important element of democratic legitimacy, has a bearing on the quality of the laws on the statute books, and provides Parliament with the opportunity to debate and curb laws that pose a risk of discrimination.

 

  1. However, the Government has consistently relied on the urgent emergency provisions of the Public Health Act (PHA) 1984, which allows the Government to make regulations without any prior Parliamentary scrutiny or approval for reasons of urgency.[65] The Government has repeatedly used this procedure, including when restrictions were being relaxed, which in Liberty’s view, is exceptionally difficult to justify with reference to urgency.[66] Indeed, significant amendments to the Regulations, which establish new criminal offences, have been published on Sunday evenings, coming in to force the following day with limited public communication. This offends rule of law principles, such as legal certainty, and means that people are unable to regulate their own conduct so as to ensure they are not in breach of the criminal law. In addition, the police cannot be clear what the law is that they are charged with enforcing, which has led to significant instances of overreach.[67] Crucially, it is also near impossible for those who the police purport are in breach of the Regulations to have sufficient knowledge to hold the authorities to account.

 

  1. In Liberty’s view, it is in the interests of meaningful parliamentary scrutiny and maintaining parliamentary sovereignty that the Regulations be put in primary legislation. Failing that, the Regulations should, at a minimum, be remade under the Civil Contingencies Act 2004 (CCA), which contains a series of mechanisms for regular parliamentary approval to hold the Government to account. Emergency regulations made under the CCA lapse after seven days unless Parliament approves them.[68] Fresh regulations requiring parliamentary approval would have to be laid before both Houses every 30 days.[69] Additional provision is made for scrutiny where Parliament is prorogued or dissolved.[70] This would facilitate more robust Parliamentary oversight and allow the restrictions and enforcement powers to be regularly amended in response to the evolving circumstances. Liberty recommends the Government to put the powers in the Regulations on a clear and explicit statutory basis or, failing that, remake the Regulations under the CCA.

 

CORONAVIRUS ACT 2020

  1. Schedule 21 of the Coronavirus Act confers extraordinary powers on police and immigration officials to detain people they deem “potentially infectious” for testing. Furthermore, these provisions allow public health officers to demand that people provide biological samples – for example a blood or respiratory secretion – and other sensitive personal data relating to their health and personal relationships. Failure to provide this information, or to knowingly provide false or misleading information, is a criminal offence.

 

  1. Liberty does not believe the Government have provided adequate justification to support having these extraordinarily coercive powers on the statute books. Local authorities already have similar powers, which require the authorisation of a magistrate.[71] It is not clear why police officers and immigration officials needed to be vested with these powers, without the oversight of a court. Indeed, the fact that a Crown Prosecution Service (CPS) review found that every single charge under Schedule 21 was unlawful indicates that these powers are not necessary and are open to misuse.[72] Liberty notes that the first person unlawfully charged was a black woman – Marie Dinou. She was arrested and charged after being found ‘loitering’ at a train station and spent two nights in custody before being produced at court. During the hearing, without her having a lawyer present and without any evidence being called, she was convicted and fined £660. Ms Dinou did not say a single word from arrest through to sentence. [73]

 

  1. Given the broad and open-ended nature of the powers, Liberty is concerned that they may be applied in a discriminatory manner. The Bill provides no guidance as regards what reasonable suspicion that someone may be “potentially infectious” amounts to. Given the categories of people who are most at risk, Liberty is concerned that the power could be used to target or discriminate against older people, disabled people, pregnant people, or people on the basis of their nationality or race. Should the Government identify further risk categories of people – such as people who live in highly populated areas, unhoused people, or people detained in prisons or immigration detention centres – there is a real prospect that groups may be targeted on bases that are effectively proxies for characteristics such as income-level or race. This is particularly concerning in light of existing patterns of discrimination in police-public interactions, as outlined above. Liberty recommends the Government repeals Schedule 21 of the Coronavirus Act 2020.

FUTURE POWERS

  1. On the 11th of May, the Government published a roadmap for easing lockdown. The roadmap indicated they are considering further powers that would raise significant human rights concerns.[74] The Government suggested that it is exploring increasing enforcement powers as the lockdown eases. As noted above, the combination of increasingly vague powers and heightened sanctions for purported breaches is a recipe for injustice, and risks significantly undermining public health. The Government also indicated they may impose restrictions only on specific high-risk geographic areas – so called “local lockdowns”. Liberty recommends that the Government subjects any attempt to impose area-based restrictions to a rigorous equality and human rights assessment to ensure that determinants of “risk” are not coded markers of race, class or migration status. 

 

June 2020

 

 


[1] http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/home-affairs-committee/the-macpherson-report-twenty-years-on/written/95904.pdf

[2] https://www.inquest.org.uk/bame-deaths-in-police-custody

[3] https://www.libertyhumanrights.org.uk/issue/quick-fixes-to-knife-crime-would-put-our-rights-at-risk/

[4] Police Powers and Procedures, April 2018-March 2019, available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/841408/police-powers-procedures-mar19-hosb2519.pdf

[5] The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William Macpherson of Cluny, February 1999, paragraph  6.45. Available here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/277111/4262.pdf. (Macpherson report)

[6] https://www.gov.uk/government/news/greater-powers-for-police-to-use-stop-and-search-to-tackle-violent-crime

[7] https://homeofficemedia.blog.gov.uk/2019/08/12/section-60-stop-and-search-pilot-extended/

[8] https://www.theguardian.com/law/2019/may/04/stop-and-search-new-row-racial-bias

[9] https://www.gov.uk/government/publications/stop-and-search-section-60-pilot-equality-impact-assessments

[10] Fiona Hamiton, (15 May 2020) Sharp increase in stop and search as arrest rate falls, Times, https://www.thetimes.co.uk/article/sharp-increase-in-stop-and-search-as-arrest-rate-falls-xj5r6jd0t

[11] https://www.theguardian.com/uk-news/2020/jun/14/former-top-met-police-officers-say-racism-blighted-their-careers-black

[12] A recent study found that from the beginning of February to the end of April, black people in England were 71% more likely than white people to die from coronavirus, while Asian people were 62% more likely. See OpenSAFELY, (2020) Factors associated with COVID-19-related hospital death in the linked electronic health records of 17 million adult NHS patients, available at https://www.medrxiv.org/content/10.1101/2020.05.06.20092999v1.full.pdf

[13] HL Deb (15 June 2020) vol. 803, col. 2023 available at https://hansard.parliament.uk/Lords/2020-06-15/debates/852C6EE6-D006-4059-905B-8BAEE20975FB/HealthProtection(CoronavirusRestrictions)(England)(Amendment)(No2)Regulations2020

[14] E.g. a search, an arrest, a complaint. Stops of individuals should be covered as opposed to roadblocks which may see numerous drivers stopped, for example at the scene of an accident.

[15] https://www.gov.uk/government/news/home-office-announces-10-million-for-taser-uplift

[16] Police Use of Force Statistics, April 2018-March 2019, available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/853204/police-use-of-force-apr2018-mar2019-hosb3319.pdf

[17] https://www.cam.ac.uk/research/news/carrying-tasers-increases-police-use-of-force-study-finds

[18] Police Use of Force Statistics, April 2018-March 2019, Data Tables available at https://www.gov.uk/government/statistics/police-use-of-force-statistics-england-and-wales-april-2018-to-march-2019

[19] https://www.policeconduct.gov.uk/news/iopc-calls-greater-scrutiny-taser-use-following-increasing-concerns

[20] https://www.policeconduct.gov.uk/news/iopc-calls-greater-scrutiny-taser-use-following-increasing-concerns

[21] https://www.theguardian.com/uk-news/2020/apr/17/rights-groups-quit-uk-police-body-stun-gun-use-bame-people#:~:text=In%20a%20joint%20resignation%20letter,guns%20on%20minority%20ethnic%20people

[22] Buolamwini et al (2018), Gender Shades: Intersectional Accuracy Disparities in Commercial Gender Classification, Proceedings of Machine Learning Research, 2018 Conference on Fairness, Accountability, and Transparency

[23] Klare et al (2012), Face Recognition Performance: Role of Demographic Information, IEEE Transactions on Information Forensics and Security, Available at: https://ieeexplore.ieee.org/document/6327355.

[24] https://edition.cnn.com/2020/06/24/tech/aclu-mistaken-facial-recognition/index.html

[25] https://www.aclu.org/news/privacy-technology/wrongfully-arrested-because-face-recognition-cant-tell-black-people-apart/

[26] Powles (2018), The Seductive Diversion of ‘Solving’ Bias in Artificial Intelligence, Medium, 7 December 2018, Available at: https://medium.com/s/story/the-seductive-diversion-of-solving-bias-in-artificial-intelligence-890df5e5ef53

[27] https://www.libertyhumanrights.org.uk/issue/policing-by-machine/

[28] Ibid p.15

[29] Evaluating the Effects of Police Body-Worn Cameras: A Randomized Controlled Trial, David Yokum et al, p11. Also discussed in the New York Times here https://www.nytimes.com/2017/10/20/upshot/a-big-test-of-police-body-cameras-defies-expectations.html

[30] The Lab @ DC, Evaluating the Effects of Police Body-Worn Cameras: A Randomized Controlled Trial, 2017 http://bwc.thelab.dc.gov/TheLabDC_MPD_BWC_Working_Paper_10.20.17.pdf p22

[31] College of Policing, MOPAC, Metropolitan Police, Police, Camera, Evidence: London’s cluster randomised controlled trial of Body Worn Video, 2015 http://whatworks.college.police.uk/Research/Documents/Police_Camera_Evidence.pdf p2

[32] COP/MOPAC/MPS, ibid., p27

[33] Lum, C., Stoltz, M., Koper C. S., Schere, J. A. (2019). Research on body-worn cameras: What we know, what we need to know. Criminology and Public Policy p101

[34] Lum et. al., ibid.,  p107 2019

[35] Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, available at http://www.legislation.gov.uk/uksi/2020/350/made

[36] The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020 available at http://www.legislation.gov.uk/uksi/2020/558/made

[37] Section 2 (4) The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 2) Regulations 2020 available at http://www.legislation.gov.uk/uksi/2020/500/made

[38] https://news.npcc.police.uk/releases/statistical-update-on-lockdown-fines-given-by-police-in-england-and-wales

[39] https://www.libertyhumanrights.org.uk/wp-content/uploads/2020/05/Libertys-Briefing-on-the-Health-Protection-Coronavirus-Restrictions-Regulations-2020.pdf

[40]              https://www.theguardian.com/world/2020/may/26/bame-people-fined-more-than-white-population-under-coronavirus-laws

[41] https://libertyinvestigates.org.uk/articles/police-forces-in-england-and-wales-up-to-seven-times-more-likely-to-fine-bame-people-in-lockdown/

[42] Ibid

[43] NPCC, (15 April 2020), Covid-19 FPN data, and chiefs urge public to keep reporting crime, https://news.npcc.police.uk/releases/police-chiefs-keep-reporting-crime-to-us-during-coronavirus-outbreak-we-are-still-here-for-you

[44] Liberty’s view on the impact of inconsistent Government communications is detailed in our earlier briefing on the Regulations, available here: https://www.libertyhumanrights.org.uk/wp-content/uploads/2020/05/Libertys-Briefing-on-the-Health-Protection-Coronavirus-Restrictions-Regulations-2020.pdf

[45] https://www.thetimes.co.uk/article/we-cant-enforce-relaxed-lockdown-say-police-chiefs-zlw3qhn72

[46] As detailed in para 27 above.

[47]For example, Disproportionality increases dramatically when police officers are not required to have individualised suspicion to subject people to stop and search. See: https://www.theguardian.com/law/2019/may/04/stop-and-search-new-row-racial-bias

[48] B. Bowling and C. Phillips, 2007, ‘Disproportionate and Discriminatory: Reviewing the Evidence on Stop and Search’, Modern Law Review 70 (6), pp 936-961

[49] Gillan and Quinton v UK, [2010] ECHR 28, 4158/05, para. 85

[50]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/643001/lammy-review-final-report.pdf

[51]Ibid

[52]  Blair, R. A., Morse, B. S., Tsai, L. L. (2017). Public health and public trust: Survey evidence from the Ebola Virus Disease epidemic in Liberia, Social Science & Medicine, 172, 89-97

[53] Gregg S. Gonsalves et al., Achieving A Fair and Effective COVID-19 Response: An Open Letter to Vice-President Mike Pence, and Other Federal, State and Local Leaders from Public Health and Legal Experts in the United States, 2nd March 2020, https://law.yale.edu/sites/default/files/area/center/ghjp/documents/final_covid19_letter_from_public_health_and_legal_experts.pdf.

[54] Ibid.

[55] Section 45C Public Health (Control of Disease) Act 1984.

[56]. Government Legislation, 31 March 2020, https://www.college.police.uk/Documents/COVID-19-Police-brief-in-response-to-Coronavirus-Government-Legislation.pdf

[57] Joint Committee on Human Rights Chair’s Briefing Paper, The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 & the lockdown restrictions, 8 April 2020, https://publications.parliament.uk/pa/jt5801/jtselect/jtrights/correspondence/Chairs-briefing-paper-regarding-Health-Protection-Coronavirus-Restrictions-England-Regulation-2020.pdf

[58] https://libertyinvestigates.org.uk/articles/police-forces-in-england-and-wales-up-to-seven-times-more-likely-to-fine-bame-people-in-lockdown/

[59] https://15f5957d-0343-4107-b3ff-da50c1883854.filesusr.com/ugd/cb4798_21965acb68e74318a9b7704680e5e674.pdf

[60] David Allen Green, How to improve the Coronavirus Regulations – some practical suggestions, Law and Policy Blog, 6 April 2020, https://davidallengreen.com/2020/04/how-to-improve-the-coronavirus-regulations-some-practical-suggestions/

[61] Regulation 9, Health Protection (Coronavirus Restrictions) Regulations 2020.

[62] Saunders v United Kingdom Application No. 43/1994/490/572.

[63]The review concluded that 6% of charges under the Health Protection Regulations (the Regulations) and every single charge under the Coronavirus Act 2020, were unlawful. See https://www.cps.gov.uk/cps/news/cps-announces-review-findings-first-200-cases-under-coronavirus-laws

[64] Joint Committee on Human Rights (2020), Chair’s Briefing on Health Protection (Coronavirus Restrictions) 2020, https://committees.parliament.uk/writtenevidence/5454/default/

[65] Section 45R, Public Health (Control of Disease) Act 1984.

[66] Tom Hickman QC, A very English lockdown relaxation, 14 May 2020, https://ukconstitutionallaw.org/2020/05/14/tom-hickman-a-very-english-lockdown-relaxation/

[67] This are detailed in Liberty’s earlier briefing on the Regulations, see here: https://www.libertyhumanrights.org.uk/wp-content/uploads/2020/05/Libertys-Briefing-on-the-Health-Protection-Coronavirus-Restrictions-Regulations-2020.pdf

[68] Section 27 (1) (b), Civil Contingencies Act 2004.

[69] Section 26, Civil Contingencies Act 2004.

[70] Section 28, Civil Contingencies Act 2004.

[71] Section 45G, Public Health (Control of Disease) Act 1984. http://www.legislation.gov.uk/ukpga/1984/22/section/45G

[72] https://www.cps.gov.uk/cps/news/cps-announces-review-findings-first-200-cases-under-coronavirus-laws

[73] https://www.thetimes.co.uk/article/woman-wrongly-convicted-under-new-coronavirus-law-did-not-speak-a-single-word-to-police-or-in-court-0kjq9zrhj?wgu=270525_54264_15931657939642_7efc4ce409&wgexpiry=1600941793&utm_source=planit&utm_medium=affiliate&utm_content=22278

[74] HM Government (11 May 2020) Our Plan to Rebuild, at p.22 available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/884760/Our_plan_to_rebuild_The_UK_Government_s_COVID-19_recovery_strategy.pdf