Is this what we want from the police?
Court judgment calls for the police to be mathematicians, health experts and jurisprudential theorists
A little over a year ago, a group calling themselves #Reclaim These Streets sought to hold a vigil on Clapham Common “for Sarah Everard, and for all women who feel unsafe, who go missing from our streets and who face violence every day.”
But Clapham Common (and all of London) was inside a Tier 4 lockdown area because of Covid-19. The regulations in force at the time made it a crime to hold a gathering of more than 30 persons in a public outdoor place without a reasonable excuse. The police were empowered to arrest those in contravention of the regulations and/or impose a fine of £10,000 through the mechanism of a fixed penalty notice.
The Metropolitan Police Service warned the organisers not to go ahead and they didn’t. But the organisers have since sued the police on the grounds that they were wrong to conclude that the vigil was unlawful. Put simply, the organisers claimed they had a “reasonable excuse” to hold the vigil.
The short-term outcome was that, despite the cancellation of the planned vigil, a spontaneous event took place – a combined vigil and protest – culminating in clashes between police and some of those in attendance. Photographs of women being arrested by police officers were widely published, triggering extensive debate about the police’s tactics. Some argued that the arrests had vindicated the police’s earlier decision that the vigil should not have taken place during a pandemic lockdown. Others took the opposite view: with proper organisation by #Reclaim These Streets, they thought a socially-distanced vigil could have gone well.
The long-term outcome, twelve months on from those scenes, is that the High Court has ruled that, in telling the organisers that the vigil would be “unlawful”, it was, in fact, the police’s own decision-making that was wrong in law.
Anyone reading a report of the case from, say, the BBC, Sky News or the Guardian, could be forgiven for thinking that the judges had ruled that the police should have allowed the vigil to go ahead. They did not. The court very deliberately stopped short of saying whether a correct analysis would have resulted in a different decision:
it would be inappropriate for the court to … carry out itself the proportionality exercise which the [Metropolitan Police Service] … failed to do. [paragraph 107]
The judges decided only that the police had not carried out sufficient analysis in arriving at their decision. Assorted officers at varying levels of seniority, from Acting Chief Inspector to Deputy Assistant Commissioner, had messed up in different ways over several days [paragraphs 83-102]. The court even found that Guidance drawn up by the College of Policing was wrong [paragraph 87].
It was, perhaps, a relief for the two judges that they considered it “inappropriate” to carry out the “proportionality exercise” themselves because it would have been extraordinarily difficult to perform an evaluation of the type they said was required. It would almost certainly have necessitated the judges hearing expert evidence from doctors, epidemiologists and mathematical modellers, before applying their own jurisprudential expertise. Far better, they decided, that such matters be left to Scotland Yard on a Thursday afternoon before the Saturday evening vigil!
The judgment lays down two essential ingredients of a proper analysis: (1) an assessment of the health risk posed by the planned vigil [paragraphs 78 and 94]; and (2) an evaluation of the importance of the “cause” giving rise to the vigil [paragraphs 94-102].
I suspect that most people would be astonished at the court’s conclusion that it is for the police to decide which causes are important enough to go ahead and which are not. The police, themselves, thought they should keep well clear of such thinking, which the court acknowledged and then criticised:
[The Deputy Assistant Commissioner] makes clear that in his mind the police could not … be "seen to treat one cause differently from other causes which other people might feel equally strongly about". … any attempt to factor in and weigh up the nature of the claimants' cause would have placed the [police] in “an impossible position when confronted with other organisations wishing to hold their own events in support of other causes.” [paragraph 102]
In the name of equal treatment and “consistency”, the [police] refused to take account of the nature of the claimants’ “cause”, and the attitude of the public to that cause. This was wrong. [paragraph 94]
#Reclaim These Streets have treated the judgement against the police as vindication of women’s lack of trust in the police. One can only speculate as to how much more angry #Reclaim These Streets would have been if the police had assessed the women’s cause as being “not important enough” to risk jeopardising public health. It is easy to envisage how the police’s argument might be put: “Of course, violence against women is important. But so too is preventing death by Covid. It’s a matter of the numbers.”
An appeal to the numbers might well have caused offence (“How many women have to die before it’s worth fighting to defend them?”). But, as noted above, in order to comply with the court’s judgment, the police were required to assess “the health risk” and that is a numbers game.
If the Government had wanted to stop Covid in its tracks, it could have locked everyone down completely. But, without access to food supplies, those who survived Covid would have died of starvation. The fight against the pandemic was only meaningful if food distribution remained open and accessible. And also healthcare. And transport to and from food stores and healthcare providers. And, to keep the general public onside whilst they were stuck inside, there needed to be lockdown exemptions to provide the news, TV, telecoms, internet … The list goes on.
It’s a balance. To fight a pandemic, policymakers have to consider which actions and inactions improve public health in the aggregate. One cannot simply ask: “Will this action (or inaction) give someone Covid?” That’s why a teacher can be in a class with 30 children all day but be prohibited from visiting their own grandchild after school. Exposing teachers to a few extra children is not the issue: it’s all the other millions of grandparents who would want a fair crack of the whip (or a hug of the child).
And this is before one even considers what is needed to have a reasonable chance that the economy will survive well enough to make life sustainable after the pandemic. Fortunately for those faced with doing the analysis, the court doesn’t seem to have considered the economic effect to have been a relevant factor. It was sufficient to consider the health risk flowing from a vigil attended by an unknown number of people, some of them (how many?) perhaps arriving there after crowding onto public transport, and weigh that up alongside the “importance” of the cause to participants and to the public.
The judges were not unsympathetic to the burden they were placing on the police:
[We] do acknowledge … that the Regulations impose obligations on police forces which can make their task of enforcement somewhat onerous ... But any such effect is the consequence of Parliament’s decision to enact the legislation which the court must apply. [paragraph 121]
Really? Is that what Parliament enacted?
It wasn’t Parliament who said that a reasonable excuse is determined by weighing complex health factors. It was the court. Ask most MPs what they thought constituted a reasonable excuse for gathering in a public outdoor area and I think they would have offered up something like “escaping from a building that is on fire and then gathering for a headcount to check whether everyone got out safely.”
It takes a very convoluted way of thinking about the world to leap from “a reasonable excuse” to “health risk assessment” and “importance of the cause”. The convolution introduced by the court revolved around the Human Rights Act. It runs right throughout the lead judgment, from paragraph 6 to the final paragraph.
The manner of Sarah Everard’s death was tragic and shocking in ways that I find impossible to express. But if (as was the case) the regulations in force were so restrictive that no more than 30 people were permitted to attend a funeral, why on earth does a court think that Parliament might have intended a mass-attendance vigil to be OK … or that a pandemic health assessment should be run through a police computer?
Some might say the court gave us judgment without common sense.
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