Lockdowns, Strict Liability and the rule of law

This is the second half of a two part series on the enforcement of COVID regulations. In my first article I warned against the dangers of picking up on every sob story going where people feel that they have been treated unfairly. I wanted to pick up there on the dangers of listening to stories intentionally told a certain way and rushing to judge the police and the Government when the stories are designed to get us to do that. 

Today, I want to follow up with the other side of things. I don’t want you to make the mistake of thinking that I am all in favour of the police going round handing out fixed penalty notices. To some extent I understand the necessary of it in a modern, complex society but I also would say that this development has in many ways been negative. I am conservative in my approach to the The Law, constitutional matters and jurisprudence.  So, today I want to look at some of the other issues arising.

Fixed penalty notices work best when the sole question is “did you break the rule.” They are not interested in morality in terms of did you intend to break the law, did you have good or bad motives for doing so, even were you aware that you were breaking the law. If I break a law in ignorance and then I’m fined, the fine makes sure I learn a lesson that I don’t forget.  At the ed of the report about the two women who met up at the reservoir one of them says “I’ll exercise closer to home now.”  I suspect that for every person feeling that they were hard done by there will be at least one other person reacting by saying “good, we’re glad you’ve learnt the lesson. Stay home, there’s a pandemic on!”

The problem comes when the law creates room for discretion.  Are the police best placed to handle the discretionary questions? I want to give two examples, one fictional and the other not so. Supposing that we are driving up a 60 mph road at 70 and hear the police sirens. I say to my wife “quick start panting as though in pain and splash this water on your face to look like you are seating.”  The police pull us over and say “do you know how fast you were going?” I say “sorry sir no, I’m in a rush, my wife is in labour.” The cop might give me the benefit of doubt and choose not to put the points on my licence.  However, suppose that I was doing 70 in a 30 zone or 150 in a 60 zone then he is much less likely to overlook it. However, I suspect that at that stage he will be less interested in endorsing my licence and more interested in arresting me for dangerous driving. Part of the reason for that is that I reckon he might just start to suspect my story a little and all will come out (or not) when we step out of the car.

In my second example, a man drives his wife and child from central London up to Durham during lockdown.  He had also been out on a second drive a little more locally whilst in County Durham to a known tourist attraction, Barnard Castle. When this comes to light, he argues that he was worried about his child’s care due to a health emergency.   The second shorter drive was to test his sight and overall health before returning to London. Fascinatingly, Durham Police believed that the second, shorter drive was a breach of COVID rules and the first was not because it relied on a reasonable excuse.  There are two problems with this. First that if there was a breach, they could not do too much after the event. The second is this. The general public reacted quite negatively to Dominic Cummings’ actions and excuse.  Why was that? Was it because they thought he had pushed the excuse too far, that they would not have minded if he’d driven down to Canterbury? To be fair to him, the family child care was up in Durham.  No, the problem was that they simply did not believe him. They thought he was lying. The pushed boundaries of the excuse, the little clues in the story gave people the feeling that things did not add up. At some point in the follow up, he alluded to an another factor. The press and protestors had been camped out on his doorstep.  Now, whilst a lot of people still suspected that the bloke fancied a holiday, I think some will have been sympathetic to this excuse, you can forgive the guy for wanting some peace for him and his family. The problem is that this was not listed as a reasonable excuse. 

The problem  is that we have moved out of the realm of genuine strict liability to an area where not only is discretion needed but also a level of investigation and inquiry that goes beyond the scope and purpose of Fixed Penalty Notices. This where my issue is. The police are now being asked to act as judge and jury as well as enforcer.  That isn’t good for justice.  I think it would have been interesting to see what would have happened in Cumming’s case if the matter had gone to court with evidence presented and witnesses cross examined before a magistrates’ panel. Just as it would have come out in my fictional example that the excuse was false, so too we would have found out if he had been telling the truth. In the same way, we might have found out if I was just being over cynical when I said I wasn’t convinced that two women had picked up coffees and headed from a town in Leicestershire to a bit of scenic Derbyshire countryside because they wanted to comply with the Government’s lockdown rules on exercise.

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