Dr Sara Grace
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 have given the police the power to issue £60 on-the-spot fines (up to £960 for subsequent offences) to enforce new rules on social distancing. Officers may also use powers of arrest and remove people to their home. Offences under the Regulations are punishable on summary conviction by a fine. The NPCC and College of Policing have called on forces to be consistent and adopt an “inquisitive, questioning mindset”, only using enforcement powers as a last resort. This is underpinned by a four-step approach of: Engage with people and ask them why they are out, explain the risks they are posing to others, encourage them to return home – and, if they don’t leave, enforce the law using on-the-spot fines, arrest and/or prosecution. Drawing on my PhD research, which examined the use and impact of penalty notices for disorder, this blog highlights the limits of on-the-spot fines as a response to policing the lockdown and argues that whilst consistency (and distributive fairness) will be important, procedural fairness, particularly ‘voice’, will be crucial to ensuring that people view the police as legitimate, voluntarily accept their decisions and obey the law.
Comparing new and existing powers
Policing the lockdown is a very particular, and indeed, peculiar, circumstance. There are however some parallels with policing anti-social behaviour through the use of penalty notices for disorder (PNDs) and existing dispersal powers. The new rules bar public gatherings of more than two people except in certain limited circumstances (see section 7(a)-(d)) and impose restrictions on movement “without reasonable excuse” (emphasis added, see section 6(2)). The Regulations do give a list of such exceptions, but it will be necessary for officers to determine whether any given case is a breach of the law. A law which, it must be noted, lacks some of the specificities of the Government advice. Guidance limits people to just one form of exercise a day, the law does not. Just as there may be disagreement over, for example, whether any given behaviour is “likely to cause harassment, alarm or distress” (in breach of s5 of the Public Order Act 1986 and punishable by PND), so too conflict may occur over whether a person has left the house to buy “basic necessities”. Indeed officers in Warrington have already faced criticism for issuing summonses to “multiple people from the same household going to the shops for non-essential items”.
What affects compliance with the police?
There is a wealth of research that demonstrates that perceptions of procedural justice – which regards the process of decision making rather than the decision itself – affects perceptions of police legitimacy which, in turn, encourages voluntary compliance, both with the police in the short-term and long-term compliance with the law (see for example: Tyler 2019; Hough, Jackson and Bradford 2013; Mazerolle, Antrobus, Bennett and Tyler, 2013; Sunshine and Tyler 2003). The procedural justice literature outlines four antecedents to procedural fairness:
- Participation (or ‘voice’): allowing people to give their account of events and have their views considered.
- Neutrality: demonstrating that decisions are unbiased, based on the facts of the case.
- Trustworthiness: demonstrating even-handedness.
- Respect: treating people with dignity and respect.
Emerging research also suggests perceptions of distributive fairness – i.e. assessments of equitability, have they been treated similarly to others and received an outcome they feel they deserve – are related to perceptions of procedural justice and, in turn, legitimacy and compliance.
My research demonstrates the importance of both procedurally and distributively fair treatment on short-term compliance. Observations of policing in the night-time economy and interviews with PND recipients found that people resist the police when they feel ‘wronged’. Non-compliant/resistant behaviour manifested as calls to have their version of events heard, disagreement that their behaviour is sufficiently serious to warrant (that/any) action, rejection of the (implied) label ‘offender’ and, more rarely, complaints that they had been provoked by officers. A document analysis of evidence given on a sample of PND tickets found that non-compliance was highly correlated with suspect demeanour; 47 of the 51 people who were non-compliant were described as being abusive toward officers. Indeed, officers were one of the victims of the offence in 60% of s5 and drunk and disorderly offences and the sole victim in 22% (N=78). Evidence from observations as well as surveys and interviews with PND recipients shines some light on how officers can avoid such ‘conflict spirals’, whereby individuals respond aggressively to police intervention and officers respond with arrest (Tedeschi & Felson, 1994, p.258). People were convinced or cajoled into accepting officers’ decisions (voluntarily desisting, dispersing and/or accepting a PND) or else they were coerced into doing this with the threat or reality of a PND or arrest. The former approach is associated with processes that reflect values of procedural fairness whereas the latter is a constraint-based form of compliance. When people are compelled into accepting decisions they give in to officers’ coercive power, but they continue to question officers’ decisions, their motives and legitimacy which threatens their future compliance with the law and the police.
What does this mean for policing coronavirus?
The purpose of these new powers is the promotion of public health. That fact should be at the forefront of any/all attempts to formally enforce new rules on social distancing. My research broadly supports the four-step – engage, explain, encourage, enforce – approach set out by the NPCC, however it raises questions about officers’ ability to issue fines on-the-spot to (non-compliant) pedestrians who fail to follow informal warnings, suggesting such people are more likely to be arrested. Officers will have the discretion to decide who to fine and/or arrest. Whilst there is a notable gap between the law and the, more comprehensive (and far more widely publicised), Government guidance, “even the most precisely worded rule of law needs interpreting in concrete situations” (Reiner 2010, p.207). Officers will, understandably, rely on their existing ‘working rules’ and cultural values to navigate this vacuum; despite calls for consistency, enforcement action may therefore fall more heavily on some groups/locations than others.
What would a procedurally fair approach to policing the lockdown look like in practice?
Cajoling – from a safe distance – rather than coercing compliance is a prudent, less-resource intensive and, fundamentally, safer approach than resort to coercive powers. Procedurally and distributively fair treatment would encourage voluntary compliance, in both the short- and long-term. ‘Voice’ will be key – indeed, my research suggests, this is the means by which other aspects of both procedural and distributive fairness are operationalised. This means, yes, asking people why they are out but, crucially, listening to their reasons, empathising, and directing to relevant guidance and services as appropriate. Whilst explaining the risks will be important, officers should recognise that people may well believe they have a legitimate reason to gather/travel. My research found that resistance was expressed by those who felt they had been wrongly ascribed as an ‘offender’. Compliance will be more likely if officers appeal to people as ‘good citizens’. Explaining the reason for police intervention will help operationalise neutrality and trustworthiness as well as the distributive fairness (perceived deservedness) of receiving police attention. Wherever possible, officers should abide by the regulations themselves – i.e. keeping a safe distance (2 metres), not gathering in groups etc. This is not only necessary for officers’ safety but also operationalises respect – by minimising the risk to citizens– and emphasises the importance of the rules they are seeking to enforce, further demonstrating neutrality and trustworthiness. Where people are responsive to police intervention, a ‘sales pitch’, whereby officers explain their ability to use on-the-spot fines but their choice not to, will likely increase perceptions of fairness and legitimacy and, in turn compliance with the police and the law in the longer term. Certainly, issuing tickets to those who are willing to voluntarily comply is likely to erode trust.
What about those who refuse to comply?
Whilst procedurally and distributively fair policing may encourage voluntary compliance, for those who refuse to heed officers’ informal directions, my research suggests they are unlikely to become compliant if/when officers decide to issue an on-the-spot fine. In those cases, arrest remains an option but a decision needs to be taken about the relative risks/rewards of enforcing the rules via arrest given this risk this poses to officers’ health and the health of any citizens they subsequently come into contact with. Where enforcement action is deemed necessary, it would be better, if possible, to take that action remotely, perhaps using mobile CCTV as well as the existing extensive network of CCTV in the UK to assist in enforcement. Such an approach was adopted successfully when prosecuting those who participated in the 2011 riots. This protects officers, allowing them to maintain social distance and protects the public, reducing the risk that the police inadvertently become super-spreaders.
Forces should however heed the suggestion of the NPCC, that enforcement action be a last resort. As Platts-Fowler (2013, p.24-25) notes with regards to riots “arrests in the imminent or early stages of unrest, of people deemed to be doing little wrong by their peers, become symbolic”. We have already seen headlines referring to officers’ use of fines as dystopian. The police have been given an incredibly difficult job. There is no blueprint for policing the lockdown. The dynamics will be different to policing the night-time economy or civil unrest or indeed other circumstances with which they are familiar, but we can learn lessons from when police forces have successfully maintained legitimacy and gained compliance. Heavy-handed enforcement risks triggering resistance in individual police-citizen encounters, but also more broadly within communities. It is vital that the police get this right; the research suggests procedural and distributive justice will be key to policing the lockdown with legitimacy and by consent.
Dr Sara Grace is a Lecturer in Criminology at the University of Salford. Email: firstname.lastname@example.org