A recently-published article of mine for UK Column which deals with the balance between bad law and the exercise of bad judgement by police has provoked a fresh look at an experience, dubbed Interview with a Stormtrooper, which was recorded and transcribed by David Scott in March 2021. While sitting in the park outside the Scottish Parliament at Holyrood in Edinburgh, David was engaged in a dialogue of sorts by two Police Liaison Officers.
Of the many troubling issues that the exchange teased out, it should be the utterly matter-of-fact way in which David is told that freedom of assembly is a ‘qualified right’ which jumps to the top of the heap.
It can be explained, by tracking through the legislation, regulations and policy, how it was that police came to be around Holyrood on that day and, indeed, why David was approached and spoken to—but none of this takes into consideration whether these actions were necessary, proportionate, appropriate or beneficial to any of those involved.
Oath
At the individual level, every police constable swears an oath (amended in 2005 for England and Wales, and in 2012 for Scotland) to ‘serve the King in the office of constable, with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people’. The Scots oath omits reference to the monarch but has the same substantive wording on the performance of the constable’s duties as the England and Wales oath. The episode at Holyrood was an exhibition in sending the Constable's Oath up in a puff of smoke.
In the UK, each of the four nations issued different Covid safety guidance and drew up different policy (which articulates, perfectly, the absurd suggestions that there is such a thing as ‘The Science’, or that a ‘virus’ may be kept in abeyance by penalising those that break ‘the rules’). Indeed, police were mobilised, but with no regard for the possibility that this might not help. Powers conferred upon police are shown below, drawn from the House of Commons Library Briefing Paper 9024.
Given that the stated purpose of all legislative and regulatory change which was brought about in the name of Coronavirus was to keep people apart from one another, not one of these powers can be exercised whilst doing that. In fact, exactly the opposite. This may seem like splitting hairs, but it is central to understanding exactly how this dreadful internment was able to come about.
In the very same guidance given by the Briefing Paper, ‘police leaders’ (how could these be defined at law?) were afforded completely unambiguous control over the decisions surrounding the policing of the regulations. The relevant excerpt, with erroneous apostrophe in the title of the NPCC (a private body, formerly known as ACPO, that purports to set policing policy nationally), is below.
With absolutely no evidence to suggest that the ‘policing’ of Coronavirus restrictions would make any difference, all police forces in all four nations of the UK nevertheless embraced the task with great vigour. This is pure speculation, but I would reckon that not one single ‘police leader’ made use of the ubiquitous ‘National Decision Model’ in order to assist the process by which they decided to commit almost all their resources to a completely new and untried activity.
Powers or character?
The National Decision Model is shown below, and it is meant to underpin every decision-making process in policing. On the face of it, police appeared to be as terrified of the ramifications of the ‘do nothing’ or ‘take it on the chin’ approach as the Government, with no thought given to what might be right, proportionate, legitimate or necessary. In the case of both entities, though, there is certainly a darker side to the motivation behind being seen to be doing something.
Just as the spate of apparent terrorist attacks twenty-odd years ago prompted people all over the world to hand over their freedoms most readily, so governments and police forces have watched almost unprecedented amounts of power and control drop into their laps. There is little doubt that the policing of Coronavirus restrictions was conducted with such great gusto by so many police because it was the perfect tool for telling people what to do. As disappointing as this may be to read, an increasing number of younger people join the police to satisfy their desire to be legitimised in bossing the public about.
Think of exchanges that you may have had with the police. Were you, like David, talked over and not really given the chance to discuss the issue at hand? A shrewd comment by a subscriber made on Alex Thomson’s Eastern Approaches Telegram channel made reference to the influx of university-‘educated’ and somewhat cosseted police recruits who had more interest in promotion than proper policing. Recruits who do lack the confidence and composure that life-experience affords are forced to rely on the authority of their ‘powers’, rather than that given by their character. This is exactly why David was denied the chance to have a reasoned debate with the two police liaison officers he was hectored by.
Common law not wanted
In his encounter with the liaison officers, David Scott made repeated references to common law, which dates back to the eleventh century (iūs commune). In the whole of Blackstone’s Handbook for Policing Students, common law is afforded just one paragraph. It is more or less cast aside by the final sentence of the paragraph:
In the UK new common law offences are no longer created, but courts continue to interpret existing laws when setting precedents.
David’s encounter with the police was of course in Scotland, which is often wrongly described as not having common law, merely because some maxims of Roman law have also been incorporated into Scots law. Common law is in fact the bedrock of Scots law to this day, as Lord Cullen, when he was Lord President (Scotland’s top judge), had to point out to the justices of the UK Supreme Court a few years ago in a House of Lords committee session (p. 14) after they had declared that Scotland did not have the common law.
Part of the reason for the lack of engagement on the issue of common law would have been the absence of knowledge—it is simply not learned by police. However, there is a terrific degree of wariness surrounding common law and police are, consciously and unconsciously, biased against those that cite it. The belief is that people interested in common law are troublemakers and that they are concerned with freedom and all sorts of other problematic notions.
That this can be the case, in twenty-first century Britain, is an indictment of the quality of police leadership and the wider criminal justice system. I believe police constables should consider themselves in breach of their oath of allegiance when actively seeking to inhibit the very fundamental human rights they are avowed to uphold. At the very least, they should be able to justify, with no ambiguity, their decision to restrict freedoms, just as they have to when removing a person’s liberty via arrest. Simply putting this mode of policing down to being told what to do by government, science and medicine represents a serious failure, at the individual and corporate level.
The difference between rights, rights and rights
Despite ‘fundamental human rights’ supposedly forming the backbone of the 21st-century oath sworn by all British police constables, there is very little attention paid to the exact meaning of this during police training. The construct of rights, in every jurisdiction in the United Kingdom, is dealt with by the legislation contained within three (now endangered) all-UK acts of parliament: the Human Rights Act (HRA) 1998, the Equality Act 2010, and the Police and Criminal Evidence (PACE) Act 1984. Rights are split by these statutes into three categories; and it is this categorisation which tells police whether they may, or may not, interfere with the particular right in a lawful manner.
Absolute rights—such as the rights to life, to freedom from torture, slavery and forced labour and the right to freedom from punishment without law—may not be interfered with by the state under any circumstances. The UK’s commitment to these absolutes, at least in theory, has been reaffirmed multiple times through the jurisdiction of such structures as the Council of Europe (a treaty organisation older than and separate from the European Union).
Limited rights may be restricted in a particular situation: for instance, the right to liberty when a person is detained following arrest.
Qualified rights, which are what was referred to in David Scott’s police encounter at Holyrood, are rights that may be removed from the individual to ‘protect the rights of other individuals or the public interest’, according to the Equality and Human Rights Commission. For a much deeper examination of the constitutional background to rights as we think we know them today, I would encourage you to listen to A Dissident’s Guide to the Constitution, an ongoing podcast series produced by UK Column.
If the nebulous concept of ‘public health’ is taken as the qualifying criterion for restricting the right to the freedom of assembly and association (Article 11 of HRA 1998), then it stands to reason that there must be a cast-iron case underpinning ‘public health’. This, I believe, is what David was driving at. The Government’s own statistics, at that exact time, did not suggest an emergency of the type that would appear to be necessary to justify such measures being taken. If this were the case, how is it in the public interest to restrict this right?
There is a wider issue here, which pertains to the enduring relationship between choice and risk. If, as is the case in Britain now, qualified rights must balance the needs of one individual against another, why should this balancing be done in favour of the individual with a diminished appetite for personal risk? One for another day.
Returning to Blackstone’s and the onus on police to use their judgement in these situations, I will cite the considerations given as regards qualified rights. Before attempting any action which will restrict or qualify the rights of an individual, a police constable should be able to answer ‘yes’ to the four questions below:
- Are my actions lawful? Is there common or statute law to support my interference with his/her rights?
- Are my actions permissible? Am I permitted to interfere with his/her rights because it is in support of a duty, such as preventing crime?
- Are my actions necessary? Do the needs of the many outweigh the needs of the few; in other words, must I take into account the interests of the community and balance one individual ‘s right against another’s?
- Are my actions proportionate? Having considered everything, will my actions be excessive or could I do something less intrusive and more in proportion to the outcome I need to achieve?
At a pinch, the answers to considerations 1 and 2 could in the Holyrood encounter be ‘yes’. Yet, whilst I accept that context is everything, it is extremely hard to see how the answers to considerations 3 and 4 could be anything other than a resounding ‘no’. All police actions should be conducted with necessity and proportionality in mind.
The same could be said of the actions of governments. If the provisions, regulations and guidance which came from the Coronavirus Act 2020 are examined under considerations 3 and 4, how would the governments of the UK respond, honestly? The statistics used to bolster the actions of the state were almost exclusively driven by a non-diagnostic PCR test and a serious amendment to the process by which a death was registered.
I am not aware of any real-world evidence, then or now, of the sort of emergency which would merit discussing the qualification of certain rights. People were not dying in the streets. The average age of a so-called ‘Covid death’ was above the average age of death. The consequences of the response to the suggested threat are a different matter altogether. However, as soon as police became involved, the actions taken to support the new legislation were in the name of duty; a new tasking. The word ‘crackdown’ is usually bandied about at times like these, when there is a great shift in operational focus. And a crackdown it was, with the entire population on the list of potential suspects.
Human rights honoured less the more they are talked about
So, at the individual level, it really is incumbent upon the individual police constable to ensure that what they are doing is with their oath in mind. Regardless of whatever blanket policy may be in place, such as the farcical ‘four-tier’ system referred to by the policeman talking to David (as an acquaintance remarked of this buzzphrase, ‘we’re all in tiers’), each situation must be taken on its own merits. In David’s case, he appears to have been confronted by two Police Liaison Officers whilst on his own in a park. From this scenario, is there any way in which the exercise of his liberty could be infringing on that of another? If not, how may a Police Liaison Officer apply the principles of necessity and proportionality and still consider it right that he go and speak to David? Not just speak, either, but threaten, as David pointed out and as the policeman refused to accept.
I mentioned the National Decision Model above, at the centre of which should be the ten police standards of professional behaviour which are written into the Code of Ethics. For England and Wales, the College of Policing sets out the pitfalls of miscalculation by police by explaining that:
If the public don't have the confidence to trust the police to be fair, acting ethically and in their best interests, they are less likely to assist the police in upholding the law.
Given the context of an epidemic of sensational video arrests and interventions related to so-called public order offences causing anxiety, it might not be long before police realise how reaping what they sow actually works in practice.
The central problem with the sorry episode at Holyrood is that it does not appear that police—their heads full of what was impressed on them in training about limited and qualified rights—are giving any sort of active consideration to the anterior and superior fundamental human rights. From the moment the idea of ‘lockdown’ was touted, it was simply accepted in the mainstream that this was, beyond question, the right thing to do.
It helped, of course, that otherwise rational people were absolutely terrified of a supposed illness that had precisely no unique symptoms. A fit, strong and adventurous thirty-year-old police constable whom I served with admitted to me that he was very scared of ‘Covid’, despite not knowing anybody that had been seriously ill because of it. Like the majority of his generation, he hid behind his ‘face covering’ and slathered himself in hand sanitiser after every single interaction with the public, regardless of whether he had touched anything or not. This hysteria was whipped up from within, with each force and constabulary having a dedicated ‘Covid’ information and policy unit. There really was no getting away from it.
With this as a backdrop, is it any wonder that nobody at Police Scotland stopped for five minutes on the day of the David Scott encounter to consider the wording of their oath? The policing of the Coronavirus regulations was, for the vast majority of police, seen as an extension of keeping anti-social behaviour in check. Police do not deserve to be exonerated because of this, but it needs to be remembered that a huge volume of ‘Covid breaches’ were, in fact, reports coming in from members of the public—and, most commonly, from neighbours. Perversely, this became the sort of policing that swathes of the community did, in fact, consent to.
Blue vest = intelligence officer
The Scottish Government states on its Police Powers webpage that it is ‘strengthening the powers available to police to help keep our communities safe, whilst protecting the rights of those suspected or accused of crime’. The ever-present reference to safety should set the alarm bells ringing. A more likely translation is that police will have even more tools at their disposal to be able to justify doing the things that they want to do. This would be the moment to consider the specific presence of Police Liaison Officers (PLOs) at Holyrood on that day in March last year.
It can be no coincidence that the increasing regularity with which PLOs are deployed correlates with the fading into the background of the controversial Forward Intelligence Teams (FITs). In 2009, Her Majesty’s Chief Inspector of Constabulary (HMIC) reported concern about the activities of these FITs, especially the potential for acting ‘outside their lawful powers’.
A large part of the role of the PLO is to gather and process intelligence on the crowds which they interact with. This is not explicitly stated, but phrases such as this one, from the College of Policing website, leave little doubt as to their purpose:
Identify and differentiate individuals and groups who may become involved in or encourage disorder or violence or increase levels of tension and provide commanders with ‘fast time’ updates to enable informed and proportionate decision making.
It is but a short leap from this sort of ‘liaison’ activity—a means towards the end of suppressing the rights to free speech, free movement and assembly—to investigating someone for online content which may be ‘legal but harmful’. Just as it is likely that no thought was given to the lawful option of not policing the Coronavirus restrictions, there is absolutely no consideration for any kind of nuance in the interpretation of them. This is exemplified perfectly by the theatrical opening to David Scott’s conversation with the first PLO.
David tells the man that he is hard of hearing. This statement gifts the PLO an opportunity to demonstrate his humanity to David by removing his mask, but instead prompts the removal of one mask and its replacement by a more scary one. They are both outside, and most certainly not surrounded by other people! Is it credible that this man believes he could kill David, or be killed by him, by speaking to him? No, of course not. He does it to demonstrate that he will not, under any circumstances, cede any ground to this extremely difficult member of the public. This act, alone, gives grounds for a complaint against police. The manner in which David is treated shows a profound absence of respect, as well as a seemingly undue degree of suspicion.
The reason I consider this to be the case is that the very regulations concerning the use of face masks was explicit in its provision for those hard of hearing and for police in their dealings with the public. The guidance from the Westminster Government (not identical to that issued by the Scottish Government) is shown below.
Why were the PLOs even wearing masks in the first place? They were outdoors, for which there was never a face mask requirement, and they were not even in a crowded area. The reason is that it was just easier for police to make blanket rules. Everyone is to wear a mask, all the time. Never mind why. It really is that simple.
That all the so-called experts had been wheeled out in the spring of 2020 to tell the public that masks were pointless and were likely to do more harm than good was neither here nor there. The wearing of the mask was, for police, a symbol of discipline, and it could be passed off as a gesture of caring for the public.
It was nothing of the sort. It enabled men and women in all British police forces to behave with impunity as they rendered themselves anonymous in the shameful pursuit of denying the freedoms of the public they are supposed to be a part of. For many of them, it was even exciting. For the first time, the slice of society that could be talked down to, bullied, threatened, fined and even arrested was increased dramatically. This proved too tempting for too many, and still does. To question the whys and wherefores is neither expected nor encouraged.
