Sam McBride: The police’s made-up Coronavirus law ought to unsettle anyone who understands democracy
On Thursday morning, a woman called Patricia phoned BBC Radio Ulster, claiming that PSNI officers had ordered her to leave her front garden and stay indoors.
The Castlewellan mother of a child with special needs said that passing police officers had made the intervention on Easter Sunday – even though no one from another household was present.
Recounting something absurd and unsettling, she said that the following day she was again sitting in the garden when two police cars pulled up and police officers told her that a neighbour had reported her for being seated in her garden.
The previous day, a mother of an autistic son had told the same programme, The Nolan Show, that she had been stopped by the police while driving her son – “what keeps him calm” - but was allowed to continue because she had a letter from a doctor. However, she said that another mother was driving her autistic child to a familiar park for exercise when Fermanagh PSNI officers had stopped her and told her that what she was doing was unlawful, forcing her back home and leaving her child in distress.
Both cases are alarming because neither situation involves activity which is unlawful. Northern Ireland’s lockdown was instigated by a relatively straightforward 13-page piece of secondary legislation called The Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020. It is a necessarily draconian law which curtails our liberties in an attempt to prevent the spread of coronavirus.
But nothing in that law allows police to stop someone from sitting with their household in their own garden, or to prevent the mother of an autistic child from driving to a place appropriate for exercise.
Both cases might seem so far-fetched that some people will wonder if they are either invented or embellished. But here any instinctive belief that police officers would act reasonably is undermined by some of its own officers who have from their own keyboards displayed not just staggering ignorance of the law but an disturbing enthusiasm for threatening the public for perfectly lawful activities.
Last Friday night a PSNI officer who operates the PSNI Carrickfergus Facebook page wrote: “We are doing our best to get the message across however some people seem to think it doesn’t apply to them. So lets get the message out there. Exercise begins and ends at your front door. By that I do not mean walking from your front door to your car to drive somewhere for exercise. This will not be tolerated no matter what your excuse, we will ask you to return home immediately. [sic]”.
In response, a citizen pointed out to them that UK Health Secretary Matt Hancock had clarified on Question Time that “to get in your car and drive a short distance to go for a walk on your own or maybe with your dog, that is fine because you’re not coming into contact with another person”. Undeterred, the PSNI officer responded by saying: “look at the date.... 4 days ago a lot has changed since then [sic]”.
Another lady told the officer that she has “a disabled little boy who has ASD and does not understand the social distancing...he also has no road sense and is a runner so I need a safe place to exercise...” which requires a car journey.
Showing no empathy, the PSNI officer simply responded by saying: “As per the Stormont brief yesterday exercise begins and ends at our front doors we should not be travelling in vehicles to go exercise somewhere.”
The same PSNI officer went on to answer a question by saying that cyclists on long journeys had been “caught” and “sent home” – even though there is no legal limit on the extent of exercise.
The post was a revealing insight into the officer’s deep ignorance of the law which he or she was meant to be enforcing. Nowhere do the regulations stipulate that exercise must begin and end at an individual’s front door. And claiming that driving to exercise “will not be tolerated no matter what your excuse” failed to comprehend that not only does nothing in the legislation expressly prohibit car journeys to a place of exercise but the law itself provides a series of what it describes as “reasonable excuses” for leaving home, one of which is “to avoid injury or illness or to escape a risk of harm”, something which for individuals with autism and for others will often involve a car journey to a suitable location for exercise, without which they can suffer destructive behaviour.
That entire post vanished after Jamie Bryson – an outspoken loyalist activist who in recent weeks has instead been urging people to work together to save lives – questioned the legal basis for it. With all due respect to Mr Bryson, it is alarming when he demonstrates a more sophisticated understanding of the law than some PSNI officers.
Last week an officer in the PSNI’s Causeway Coast and Glens Facebook page said that they had issued “pieces of paper” to two people in a car who said they were getting paracetamol for toothache and food – both legitimate reasons for leaving home under the regulations. The post was deleted without explanation. A source insisted that there were other legitimate reasons for issuing community resolution notices.
But the same PSNI account separately claimed that in Ballycastle officers had “taken action under Health Protection Regulations against a motorcyclist out on a scrambler. This is not a form of exercise.” Many of the replies ridiculed the officer, pointing out that anyone who believes that riding a scrambler is not physical exercise has obviously never partaken in such activity.
Of course many reasonable people will say that riding a scrambler at this time is selfish, just as driving to a local park may not be the wisest course of action for someone who could walk the roads near their home. But the police have no authority to impose criminal sanctions on those it believes are acting unwisely or even outrageously – unless their behaviour is prohibited by law.
MLAs are free to legislate for any of these matters, and are democratically accountable for those laws. The police have no such power to make law for the obvious reason that they are not democratically accountable.
On Thursday, Assistant Chief Constable Alan Todd said that because the legislation uses the words “the need” before referring to the “reasonable excuse” to exercise, this means that only exercise which is a “necessity” is permissible and it gives police power to subjectively determine whether or not each citizen’s exercise meets that test.
He said that “the need” phrase “introduces a necessity test and that’s a necessity test to be policed by the officers, and not a judge of what an individual member of the public thinks is reasonable”.
He added: “For those people who can reasonably exercise either from their front door or close to it, and don’t have a need to travel elsewhere to do that, then we believe that puts you in breach of the restrictions”.
Yet if exercise is only permitted when it is a “necessity”, then it logically follows that almost no exercise is a necessity because we could jog on the spot in our living rooms. However, legislators clear intent was to allow people to leave their homes for exercise regardless of whether it was a “necessity”.
Many of these officers – who bravely face a threat which means that they must check under their cars each morning for bombs – are no doubt acting in the belief that their actions are helping to save lives. Perhaps some, even when it has been pointed out to them that they are wrong, believe that the end is so noble that it justifies the means.
Not only is that wrong in principle and in law, but it is also fundamentally mistaken in likely outcome. Far from increasing public compliance with social distancing, these actions are likely to undermine support not just for this legislation, but for the police itself.
Responsible citizens should not be looking for loopholes to evade a law which attempts to protect both us and our loved ones. But neither should the police think that this time of crisis frees them from the constraints of the law.
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