Policing the Pandemic in the UK Using the Principles of Procedural Justice

This work was supported by the Economic and Social Research Council grant ES/J500112/1. With the advent of COVID-19, the world as we know it has changed dramatically. The onset of the pandemic has affected the everyday lives of people across the globe, with a third of the world’s population, currently in ‘lockdown’ in an attempt to stem the spread of the virus (Kaplan et al., 2020). Countries across the world have deployed their police forces to help enforce this state of lockdown. As of 23 March, the UK has also entered lockdown, with police officers across the country now being required to enforce the new lockdown measures. The task of ensuring public compliance with the new measures has been integrated into the policing role, with officers now being called upon to ensure citizens comply with the social distancing requirements set out for them by the government. The way in which the police are expected to do so during the pandemic inevitably raises questions about where the appropriate boundaries of the policing mandate should lie, and these questions apply both equally to the everyday lived experiences of citizens, as well as the exceptional circumstances in which we currently find ourselves. What is acceptable? Who gets to decide this? Should management of the lockdown be a criminal justice matter? In many ways, ensuring compliance during the pandemic is inextricably a police matter. The police have for many years had the preservation of life as the foremost priority in most if not all their activities, which still remains their primary responsibility as they attempt to police the pandemic (College of Policing, 2019). The involvement of the police in ensuring compliance with lockdown measures has raised questions regarding the legitimate boundaries of police power during what is first and foremost a public health emergency. Although it can be argued that enforcing social distancing laws can be seen as part of the police mandate of ensuring social order, it is unusual for officers to enforce measures for what essentially is a public health issue. Concerns have been raised regarding the ability of the police to effectively police social distancing measures (Express & Star, 2020), and such issues are only likely to increase as the rules change and adapt with the imminent easing of the lockdown period. The decision for the government to put law enforcement officials in the position of enforcing public health regulations is unprecedented, but is widely in step with the approach taken by many other countries around the world. Although this method of ensuring compliance with public health measures has been questioned, it is still possible for it to be highly effective during the ‘emergency period’ of the pandemic. Despite claims to the contrary, the most fundamental function of policing has always been order maintenance. Central to the way in which order maintenance is achieved is the concept of policing by consent, which rests upon the idea that police are effective only because they receive the continual support of the public they serve. The success of this approach is best measured by the public’s willingness to comply with the rules and regulations set out for them, which are subsequently invoked by policing organizations. Whilst challenges to the notion of policing by consent have surfaced regularly since the announcement of the lockdown, with 14,000 fines for breaking the new regulations, having been given out prior to 15 May in England and Wales alone (BBC News, 2020), it is still possible for policing organizations to secure and ensure public compliance during the lockdown period. The term lockdown itself suggests an inherent lack of public consent to restrictions on their daily movements. The gravity of these restrictions is exacerbated by the fact that as of yet, there is no specified time frame for when these measures will end, alongside a lack of concrete information as to how this will be achieved. Continued public support of the measures will be essential for policing the pandemic to be successful, and potential fatigue on behalf of the public may mean that any potential willingness to comply may be eroded over time. This will be a critical challenge for policing organizations to overcome, as it will be at this point that securing public consent will be most crucial. It will, therefore, be of the utmost importance officers continue to secure public compliance by the fairest and most efficient means possible. The police have powers members of the public do not, including the power to detain individuals under certain circumstances. As is the case with many extant police powers, the Coronavirus Act 2020 and the accompanying Health Protection Regulations 2020 state that officers need to possess a reasonable suspicion in order to detain ‘potentially infectious persons’. ‘Reasonable suspicion’ is a notoriously slippery concept, since it relies on an officer’s subjective account of their personal interpretation of a situation. Initially, officers were not provided with information regarding what behaviours would be deemed acceptable whilst the lockdown was in place, leaving officers to rely on their professional judgement regarding the best approach to use. Policing social distancing is another example of high-discretion, low guidance activity that officers are expected to undertake, and is subject to the same issues and uncertainties that any police activities involving reasonable suspicion normally are, but it also has the added complexity of being traditionally in the remit of public health authorities, and as such is new and unusual territory for police officers. To compound the uncertainty around this issue, citizens themselves were also unclear what the rules and expectations for their behaviour were, in particular, what would qualify as a necessary reason to leave the home. What would constitute such a reason has no legal basis in the regulations, which has caused additional confusion for officers and citizens alike. The Health Protection regulations state ‘during the emergency period, no person may leave the place where they are living without reasonable excuse’. The term ‘reasonable suspicion’ has come under fire in the past for being impossible to determine when it is being accurately used by officers. Here, the notion of a ‘reasonable excuse’ is as vague as the suspicion required to decide whether the reason offered by the citizen is acceptable. Generally, if a concept is difficult to define, it will be even more difficult to assess whether it is being used in an appropriate manner. New guidance provided to officers by the National Police Chiefs Council (NPCC) attempted to address the issue by providing instances of reasonable excuses to leave the home (College of Policing, 2020), providing much needed clarity for officers and members of the public alike. Closer inspection of the term reasonable reveals it is tightly bound to notions of fairness. For a person to behave in a reasonable manner, that person should be seen as ‘having sound judgement, fair, practical and sensible’ ‘as much as is appropriate or fair’. The concept of fairness itself can best be described as ‘impartial and just treatment or behaviour without favouritism or discrimination’ (Lexico, 2020). It is, therefore, of particular importance officers exercise any reasonable suspicion towards potential infractions of the law in a fair and just manner, in order to retain public compliance. The best way they can demonstrate this is to be fair, consistent, and impartial in their dealings with all those they come into contact with. The concept of fairness is a key component of a procedurally just approach to policing, that should be utilized to ensure public compliance with the new regulations. The procedural justice approach shows people are more likely to accept the outcomes of their interactions with the police when they believe they have been treated in a fair and consistent manner, even if that interaction ultimately leads to an unfavourable result for them (Myhill and Quinton, 2011, p. 6). Myhill and Quinton define procedural justice in relation to policing as the public placing their trust in the police as an institution, which is bolstered by fair treatment and good quality interaction between officers and the citizens they police. This is especially important for policing where officers are having to take on tasks traditionally thought to be in the remit of other government organizations, where they may need to win over public support for their performance in a role traditionally thought to be in the remit of public health. A. Myhill et al. (unpublished data) found that fair and effective treatment increased the perceived legitimacy of police in the eyes of the public, demonstrating that a procedurally just approach, which is primarily based on such principles, may be best suited to these unprecedented times. It is now crucial for policing organizations to safeguard the perception of police legitimacy to ensure continued effective policing of the pandemic. By utilizing a procedurally just approach, police ensure they retain legitimacy; a concept that shines a light on the public view of the appropriateness of the ways in which the police are exercising their authority (Tyler, 2004). This can be most effectively measured by citizens’ willingness to comply with the measures police impose upon them. Myhill and Quinton (2011, p. 6) showed police legitimacy was shaped primarily by the public perceiving the police to listen to their views, and in turn taking the time to explain the reasoning behind the decisions they make—in short, by utilizing a procedurally just approach that ensures all citizens are treated equally and fairly. Legitimacy is subjective and can readily be influenced by the perception that the police are treating citizens in an unjust manner. Policing the pandemic has the strong potential to pose a challenge to the continuing legitimacy of the police; in a liberal democracy, people may struggle to sacrifice their ability to exercise autonomy and freedom in how they go about their daily lives. In order to safeguard the perception of legitimacy, the police can ensure they only deal with the issues that they are legally empowered to do, whilst continuing to take an ‘engage and explain’ approach in their interactions with citizens first and foremost. Police legitimacy can be easy to lose and hard to regain, and as such, it needs to be carefully guarded at all costs. The policing of what is ostensibly a public health issue does pose a significant risk to the secured legitimacy of the police, so it is crucial that the public accept they have the legitimacy to enforce what essentially is a public health problem. If the public do not see this as within the police’s remit, they are less likely to accept and trust the guidance given to them by officers and subsequently will be less likely to comply with the lockdown measures. Another method of ensuring public compliance takes place via the sharing of information with citizens, which indicates a willingness for open and direct communication on the part of policing organizations. A useful way in which such transparency can be supported is via the public acknowledgement of mistakes by police forces. The way organizations respond to failings (Syed, 2015) can have a substantial bearing on organizational reputation. The Chair of the NPCC has been quick to admit some mistakes that had been made (Dodd, 2020a) by some police forces in the early stages of the pandemic. The swift acknowledgement of such errors has the effect of demonstrating to the public that the police can take ownership and responsibility for their shortcomings. This will hopefully encourage understanding on the part of the public. It is important for both the police and the citizens they serve to recognize policing is an inherently challenging and risky operation, and mistakes will happen. By publicly acknowledging fault in such circumstances, this can lead to a quicker resolution process and provides a promise to the public that endeavours will be made to avoid it in future. However, issues continue to be raised with regards to whether the police can effectively enforce compliance with the lockdown. A high number of officers would be required in order to maintain an ever-present police force, with increased resources dedicated primarily to policing the pandemic. This approach itself is highly impractical, as at present, policing organizations lack the ability to do this, in part due to the 14% decrease in police numbers that have occurred since March 2010 (Full Fact, 2019). Additionally, officers have themselves raised concerns about their ability to police the pandemic. Despite being front-line workers in the fight against the virus, police personnel are not regularly tested for COVID-19 (Express & Star, 2020). There have also been claims of a ‘patchwork’ approach to providing personal protective equipment (PPE), which has left officers feeling increasingly unsafe and unprepared as they continue to deal with members of the public who may be potentially infected by the virus. Officers may subsequently be hesitant to confront an individual they suspect of being infectious with COVID-19, especially if adequate protection and guidance are not at hand. An additional concern is that officers are law enforcement specialists by design; they are not healthcare professionals and lack the requisite training to make professional decisions that relate to a large-scale public health crisis. Such concerns are only compounded by the recent revelation (Dodd, 2020b) that police action in relation to the pandemic has led to a high number of wrongful convictions. The Crown Prosecution Service have stated that all charges brought in relation to the new legislation have been unlawful because there was no evidence the person concerned was infected with the virus at the time of their arrest. This highlights an additional problem for officers in that the legislation only allows them to deal with people infected by the virus, and does not extend to those that are breaking regulations, but do not appear to be infected themselves. Officers are still having repeated and regular exposure to the public as part of their role, a substantial part of which is ensuring members of the public comply with social distancing laws. It would be understandable if officers themselves were feeling reluctant to enforce these laws. To support officers going forward, policing organizations should take an organizationally just approach themselves, reflecting the procedurally fair principles of honesty, openness, and transparency in order to support the police’s approach to the public. When applied to the internal workings of police organizations, the term procedural justice identifies to what extent employees feel decision-making is carried out in a fair and transparent manner, and the extent to which these decisions are the product of reasoned, unbiased, and consistent judgements by their superiors (Quinton et al., 2015, p. 11). Fair and consistent treatment by senior officers, demonstrated by the sharing of key information required to effectively police, the pandemic would create the expectation of openness and transparency between officers and their superiors, which in turn would provide reassurance to officers regarding the need to undertake these activities. This is important for officers as the experience of procedural fairness demonstrates to members of the policing organization that they are trusted to make the decisions required of them (Bradford et al., 2014, p. 113). In order to achieve this, police senior management teams could signal their support to officers by offering reassurances they can use their problem-solving abilities to effectively make any necessary decisions whilst policing the pandemic. Going forward, it will now be of particular importance that officers feel information is communicated in a transparent and open manner to them by policing organizations (Quinton et al., 2015, p. 11). If officers are to fulfil their role fairly and effectively, they need to be fully informed as to why they are carrying out activities, therefore the timely and factual sharing of information, combined with the support of senior management, will be required to encourage democratic policing that is fair and effective for members of the public (Bradford and Quinton, 2014, p. 1042). Such practices will boost officers’ own feelings of legitimacy, which will in turn provide them with the confidence they are doing the right thing. Possessing high levels of self-legitimacy would more adequately prepare officers to tackle difficult situations in a more constructive manner, ensuring that they are less ready to use force as a problem-solving method, and more willing to allow members of the public to express their viewpoints during interactions with them (Bradford and Quinton, 2014, p. 1039). The provision of adequate PPE would also signal to officers that they matter, that their forces take their concerns seriously and are prepared to protect them as they attempt to fulfil their newly expanded mandate. The importance of public cooperation with police action during the lockdown will only continue to increase, as it is unlikely there will be any clear exit from many aspects of social distancing for some time to come, and people will naturally gravitate towards spending more time in public spaces as the warmer summer months approach. The ‘conversation and explanation’ approach has always been key to successful interactions between the public and the police, and this is of increased importance during these uncertain and extraordinary times. Whilst ensuring citizens comply with sudden restrictions on their everyday movements is of paramount importance, the way in which this activity is carried out is also meaningful, and how the police set about achieving this will strongly influence how they are valued and viewed by the population they serve. Procedural justice ideals should always be of significant importance in policing, but it is now particularly pressing that officers continue to operate by principles of fair, open, and equal treatment as they attempt to expand their remit into effectively policing a public health crisis. Policing organizations themselves should support officers by providing them with the effective tools to do so, including adequate provision of PPE, honest and open communication, and fair and transparent treatment of officers and staff. Police officers should now ensure that they are cognizant of the importance of their daily interactions with the public, both in present times and for the future—the COVID-19 pandemic will hopefully end in the course of time, but the steps they take now will be remembered by society for many years to come.