Policing by Consent

Amid a UK-wide lockdown, Derbyshire Police Force publicly shamed Peak District hikers, whilst in Cambridgeshire, the police claimed to be patrolling supermarkets.[1] The public and Government have criticised such actions. The law does not prohibit people from buying non-essential items, therefore the police have no authority to do so. Officers are expected to follow a common-sense approach, guided by the Four E’s Principle: Engage, Explain, Encourage, and Enforce (as a last resort).[2]

The concept of Policing by Consent dates back to 1820. It recognises the power of the police to execute their functions and fulfil their duties is wholly reliant on public approval of: [3]

· police officers as law enforcers;

· police conduct and actions; and

· the ability of the police to secure and maintain public respect.

Former Supreme Court Judge, Lord Sumption, told Radio 4 that the police are simply citizens in uniform as opposed to “members of a disciplined hierarchy operating just at the government’s command.” [4]

Securing respect means police officers and forces must inter alia demonstrate impartial service to the law, secure the willing co-operation of the public whilst executing their duty to uphold the law, treat everyone equally, only use compulsion (e.g. physical force) where necessary to achieve police objectives and be ready to offer individual sacrifice to protect and preserve life. The UK is widely recognised as the home of the first modern police force. Trust in policing is what provides its legitimacy.

This duty of impartiality means the police must refrain from playing judge, jury and executioner. Hence, the decision to shame hikers or purport to assert authority over contents of people’s shopping baskets went a step too far.

The worldwide pandemic has brought our attention to other forms of policing across Europe, where some police forces are nationally centralised (e.g. France)[5] or descend from authoritarian organisations whose main function was to impose law and order upon civilians, with force if required. Policing is usually done by consent in most democracies, but other systems include policing by enforcement or by military dictatorship or by divine right (e.g. some Middle Eastern States).

Lockdown measures are more stringently enforced in some of our neighbouring European countries, but this has not made them immune to lockdown breaches. In Spain, people are not allowed out for non-essential journeys; outdoor exercise is considered non-essential. Over 100,000 people have been fined for going on non-essential journeys[6], around 1000 people have been arrested pending prosecution with no fixed court hearing date. The fine for lockdown breaches in France increased from €38 to €135 to a maximum fine of €3,700 for 4 breaches occurring within 30 days and a 6month term of imprisonment.

We are still in the early stages of this pandemic. Heavy-handed policing may simply backfire. Disproportionate, overzealous policing is more likely to end up being unmanageable and indefensible. When law enforcement becomes unsustainable, it reduces public trust in the police. Polls show the overwhelming majority accepts the restrictions on freedom necessary to combat the spread of coronavirus.

All police forces across the world, whatever stage of the contagion in their country, face tough decision-making on how the restrictions on freedom should be applied. In the UK, legislation has been passed to enable police officers to instruct people breaching lockdown measures to go home, leave an area or disperse; ensure parents are taking requisite steps to prevent children from breaking the rules; issue fixed penalty notices of £60 or £120 for a second breach. An individual who refuses to comply, will be acting unlawfully and risks arrest, if the arrest would be deemed proportionate and necessary.

Local police forces use their knowledge of their communities to inform their actions. Maintaining this close relationship with the public is part of the notion of policing by consent and reinforces the principle that the police are members of the public.

We will only know whether our policing has been effective once this pandemic is all over. However, the cherished tradition of policing by consent is one that we should not relinquish, even in these desperate times.

Chamali Fernando is a barrister in civil and commercial law and a SAL Committee Member.

1 The twitter account of @CambridgeCops recorded they were pleased to note: “the non-essential aisles were empty” in Tesco’s.

2 www.college.policing.uk

3 The public as a whole, no individual can withdraw their consent, consent is common to all.

4 World At One, BBC Radio 4, 30 March 2020

5 France has 2 main police units: a National Police and Armed Forces Police. Recently, a Municipal Police Force was introduced.

6 Fines range from €60 to over €600,000 depending on the severity of the breach.

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