The spectacle of police drones chasing dog-walkers around the Peak District was a lockdown low-point for many of us — including former Supreme Court judge Lord Sumption whose trenchant intervention yesterday appears to have been heeded.
But whatever your feeling about police tactics, you might be interested to know what the recently enacted law on staying at home actually says, and where the ambiguities are. As irritating experts like to say on Twitter, “here goes”.
First, the Regulations create a new criminal offence of leaving your home without a reasonable excuse. The maximum sentence is an unlimited fine. The police can offer you a Fixed Penalty Notice instead of prosecuting you, but if they prefer to take you to court – in order to boast about it on Twitter for instance – that’s entirely up to them.
What’s a reasonable excuse? Well, the reasonable excuse defence “includes” 13 listed examples: obtaining basic necessities, taking exercise, helping the vulnerable, and so on. The excuses on the list all begin with “the need to…”, so if you want to rely on a listed reasonable excuse you’ll need to “need to” do that thing as opposed to merely wanting to do it.
And that’s the first ambiguity: “includes”. Is it an exhaustive list or can you go off-menu for your excuses? The answer is that other excuses are capable of being reasonable excuses but my guess is they didn’t want to advertise the fact. “Includes” on its own is not enough to create a exhaustive list in criminal legislation. But can we currently rely on individual police officers and PCSOs to understand it in that way? Of course not. Visiting a parent terminally ill with cancer, to say goodbye? Not on the list.
What about walking the dog? Well, buying food for him is on the list, but there’s nothing about taking him for a walk, so if that’s your only reason for leaving the house you might have to take your chances at court. One way round this of course is to stretch the dog’s legs at the same time as your own. And there’s nothing to stop a very well-trained dog going for a walk by himself.
How much exercise can you do, and where can you do it? The list of reasonable excuses includes “a need to take exercise” but says nothing about where, how often or for how long. This is where the Guidance on social distancing might come in. The Government’s Guidance says “once a day” and “stay local”, but isn’t part of the law. So if you leave home in order to exercise in the Lake District 30 miles away, you haven’t broken the law provided that you had a “need to take exercise” and that was your reason for leaving. But a lockdown-loving Magistrate could easily interpret “need to take exercise” with reference to the Guidance and find that you had no reasonable excuse.
But as you might have already spotted, the offence only relates to leaving home. Once you’ve left home — with, say, a cast-iron reasonable excuse of delivering paracetamol to a sick friend — could you stop at a park bench on your way back and smoke two or three large cigars? Or if you were an MP delivering essentials to your elderly parents and you stopped for a quick at-a-distance chat, would that be an offence?
On any ordinary reading of the Regulations you could smoke and chat yourself silly, but I wouldn’t be at all surprised if, on an egregious set of facts, a Court took a “purposive” approach and interpreted “leaving your home” as a sort of continuing act so that you would need a reasonable excuse for everything you did elsewhere. (There’s precedent for it in how the courts deal with robbery, if you’re interested).
But the real key to all this lies in the unusually wide powers granted to the police and PCSOs. If an officer “considers” — i.e. believes, rightly or wrongly — that you have left home without a reasonable excuse, they can, if they believe it to be necessary, do any of these three things: give you “reasonable instructions”, tell you to go home, or use reasonable force to get you home. And if you ignore or obstruct any of that, you commit an offence — even if you did actually have a reasonable excuse for leaving home and the officer is badly wrong in thinking you didn’t (perhaps because he or she wrongly believes that there can be no off-list reasonable excuses).
Having said all that, there is one good reason to think a bit of flexibility was envisaged: the inclusion of off-licences in the list of businesses permitted to stay open. Few would argue that alcohol is a basic necessity, but it could, in certain circumstances (a big wedding anniversary perhaps, or just that you’ve run clean out yet again) amount to an off-list reasonable excuse. And if not, perhaps a short detour via the wine shop after delivering medicine is legally permissible after all.
But if a cop tells you to go home, home is where you better go — no matter how wrong about the law or facts he may be — unless you want to risk prosecution or an extra-judicial Twitter shaming. The Metropolitan police under Cressida Dick seem to have maintained a healthy sense of proportion so far. Let’s hope other forces behave similarly. If we’re going to allow police and PCSOs to drag you home when they merely “consider” you to have broken a law, they should be given every possible encouragement to “consider” that law accurately.
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SubscribeI’m very sorry to have to say this, but as an organisation the police will always go for the easiest option. So, without any other constraint in law, they will assume you are doing wrong and take you home. This is a hideous situation, and we’re basically taking a sledgehammer to rights and liberties established for centuries. Sorry if this ruffles feathers, but my consent to be governed by the d*******s in charge is now withdrawn.
For most people who don’t generally and habitually break laws the police force is and has been irrelevant for much of the last 30 years at least.
The primary function of the police force is ‘close cases’ .
Fixed penalty is a gloriously great way of doing this as it is easy..AND brings in revenue!
Most people will just pay up as it is the path of least resistance and the unfamiliarity with the legal system is unsettling and, if you are not a legal aid recipient, prohibitively expensive..
However, like a body responding to a disease , the non criminal population is developing antibodys to this lazy policing approach and is increasingly calling them out (see ‘crimebodge’ and the recent Harry Miller court case.)
My last though is ..Where were all these bloody drones when the 300,000 trafficked rape victims needed them?
If the police are not reasonable now, fewer people will cooperate with them when this is over. This law, though temporary, sets a bad precedent. National emergencies always bring in police states, think 1933 and the Reichstag fire.
I think most people gave up on our police some years ago. And those that didn’t will probably have done so after this. The fact is that the best thing that people can do is to get out into the open air for exercise and vitamin D. (YouTube is full of videos telling us that vitamin D helps to build resistance against respiratory viruses). Personally I’m walking six or seven miles each day and getting a lot of vitamin D in this (mostly) sunny weather.
To be fair to the police, enforcement of the law is only as good as the clarity in which the laws and guidelines have been framed. Unfortunately, as was pointed out here, the Government and lawmakers have not helped their case with fuzzy, inconsistent and often frankly contradictory, policies. Whilst this does not excuse heavy-handed policing, the Government could have helped everyone out by making laws that were clear to follow, and even clearer to enforce.
The problem is that the Government has to frame messages in a simpler way than the law. Example – the list is almost certainly not exhaustive, because there will inevitably be good reasons that weren’t foreseen, such as leaving the house to stop a crime. But if the government had said “don’t leave home other than for the following thirteen reasons or another reasonable excuse” they would rightly be criticised for a lack of clarity.
I’m not sure I understand you here. If the Government had provided clear reasons for leaving the house, then clearly there wouldn’t have been a problem. Instead, they came out with ‘exercise for an hour once a day’, initially with very little clarification about where, how long, and if it were permissible to drive to said place. They then came out with further clarification, which arguably they should have provided initially. The list wouldn’t need to be exhaustive, just clear enough that people could use common sense to apply them. The trouble is, the police and public have interpreted their guidelines in widely divergent ways. This suggests there was a failure in communication somewhere down the line (and not just one police force).
This isn’t about using common sense to interpret their guidelines, this is a basic lack of clarity, significantly open to interpretation. Isn’t that the problem here? That they weren’t communicating in a simpler way, but a too-vague way?
All the legislation, rushed through the other day is unlawful, since it is in contravention of the basic freedoms guaranteed by the written parts of our Constitution which Her Majesty vowed to uphold at Her Coronation.
England is not a police state and the Common law Constitution trumps legislation enacted by ignorant fools and policed by ignorant authoritarians.
I think the focus in future needs to be about quality …so much of the imported food is cheap but questionable in terms of origin and grade. Animal welfare would be a good example of how to promote home grown…
I have read this article, for which I thank you.
Then I compare it to the words of Liz Dearden, home affairs correspondent of the Independent.
https://twitter.com/lizzied…
Confused.
Just one disagreement. The “walking the dog” is in the government guidelines.
But otherwise, yes it has gone mad with people deciding what “law” is versus “guidance”
and “recommended” and there is some nastiness coming into things where some think that their “common sense” overrides other people’s common sense. And a huge amount of “what if” is going on.
Wanna get some plumbing cos your toilet has failed? Yeah of course you can because DIY shops are listed as “essential retailers”. But others say, “You can only go out for food and essential medicine and once day exercise”, and stick with that, never mind if a DIY shop or an off licence or a launderette are deemed “essential”.
Quite a mess for people’s thinking.
But ! After not being out for seven days, I was really wobbly about going out yesterday. What on earth was happening out there? What I ended up seeing was “quieter normality with tougher queuing rules at shops” and that was that. I was quite heartened (NW London).
I think the law specifically allows for essential house maintenance. Whether the police officer stopping you at a roadblock knows that is another matter.
The police hereabouts (in Kent) have been wonderful, as reported in the local press and from my rather limited contact with them as a local councillor. Letting your views be moulded by an article about one incident elsewhere is one of the curses of the modern media. PLEASE go by your own experience ..
The Times said: “On average, English farms made a £39,000 profit last year from their farming business. Only £2,100 of this came from agriculture, which is what springs to many people’s mind when they think of farming.”
If that is the case, how could anyone possibly claim we don’t value farmers? We seem to be almost their only source of income.
I know perfectly well that the matter is not so simple. Overall, agriculture is a complex issue with a number of strands. It deserves a more reasoned approach than such simplistic generalisations as “Britain doesn’t value its farmers.”
An interesting Photograph in today’s Telegraph suggesting Cressida d**k needs to focus on the health of her officers.
Also why not have officers with Park Run expertise organizing the flow of people in the London Parks?