John Scott QC on scrutinising police powers in a time of crisis

First published by Scottish Legal News on 5 May 2020

Human rights lawyer John Scott QC was an obvious choice when Police Scotland Chief Constable Iain Livingstone was looking for someone to scrutinise the force’s use of emergency coronavirus powers. Having already reviewed how Scottish police dealt with the miners’ strike as well as how they made use of controversial stop and search powers, Mr Scott is not only familiar with how the force in Scotland operates but with what its pressure points are too.

Yet while those previous reviews were designed to help the police identify and learn from past mistakes, the purpose of the current one is to aid the Scottish force as it gets to grips with a piece of legislation that was implemented without any time for preparation and which is unclear on what kind of enforcement powers officers actually have.

“The police have been given a very difficult job and there was no lead-in time – the legislation was introduced on the same day it was passed,” Mr Scott says. “There would normally be at least 18 months of training and thinking time, but instead the cops got memos of several pages saying ‘here’s what we are now doing’.”

The emergency powers were put in place as a means of ensuring the public abides by the terms of the government-imposed lockdown. However, with the rules stating that people must stay at home while also acknowledging that there are instances when they have to be allowed out, they have led to some confusion. Stories have appeared in the press about officers asking those with hidden disabilities to move on while resting in parks, with those at the receiving end of such action accusing the police of heavy-handedness.

Mr Scott, who believes such instances have arisen due to the vagueness of the rules, notes that “what the police can enforce is not clear”. He stresses, though, that leaving room for interpretation may be better in practice than taking too draconian an approach from the outset.

“People with hidden disabilities such as autism have different needs and there are occasions where they have to go out for their health,” Mr Scott says.

“The guidance was revised south of the border to say that has to be taken into account. It’s the same here but fewer things have been said here that have had to be contradicted – north of the border they kept the guidance a bit more general.

“In some ways that has meant the public has had to work out the answers for themselves while in England they’ve had to say ‘that was wrong, we’ve changed it’. The regulations say that if you have a reasonable excuse to be out you are not committing an offence; the more explicit you are about what that means, the more risk you have of excluding people.”

Mr Scott’s review group, which includes representatives from bodies such as the Scottish Human Rights Commission the Scottish Police Authority (SPA), has already identified one potential issue with the way the new powers are being used, with police in some parts of the country apparently employing them far more readily than those in others. Indeed, figures released by Police Scotland show that between 27 March and 23 April a total of 7,892 interventions were made, with close to two-thirds (58%) of those occurring in the west of Scotland. The vast majority – 2,670 – were in Greater Glasgow followed by Argyll and West Dunbartonshire (770), Renfrewshire and Inverclyde (662) and Ayrshire (545).

“There are marked differences across the country,” Mr Scott explains. “It’s such a new thing that there are no baselines and part of this is trying to establish whether baselines can be worked out, but it is possible to see that there are differences in the engagement with the public and differences in enforcement in different parts of the country.

“The west has seen more police activity and more enforcement. That mirrors what happened with stop and search. It causes us to ask questions, but it doesn’t necessarily mean someone is doing it right and someone else is not.”

In his review of stop and search practices, which was published in 2015, Mr Scott found that Police Scotland had made excessive use of informal powers to search people without having any evidence that they had committed a crime. It is clear from the fact that close to 8,000 interventions have led to just 78 arrests that the police in general are exercising caution when using the new coronavirus powers, but the review is nevertheless keen to get to the bottom of why such regional difference is occurring.

“Strathclyde Police made the far greater use of stop and search and there’s a continuing legacy,” Mr Scott says. “A lot of the police officers that were working at Strathclyde are still there. If you have been policing in a particular way it can be difficult to stop that. It’s hard to say if that’s a problem with there not being any baselines, but a phenomenon that we’ve seen before appears to be mirrored in relation to the new powers.”

The areas that have seen the highest level of police interventions are also among the poorest in the country: Inverclyde is home to Greenock Town Centre and East Central; Glasgow includes Carntyne West and Haghill, and North Barlanark and Easterhouse South; and Renfrewshire includes Paisley Ferguslie. They were all listed among Scotland’s 10 most deprived communities in the latest Scottish Index of Multiple Deprivation, released in January.

Mr Scott believes that poverty, which has been shown to have an influence on individuals’ vulnerability to coronavirus, could also be having an influence on their vulnerability to the measures being used to try to stop the illness’s spread.

“There could be a cultural aspect, not just for police officers but also for individuals as it’s obvious that not everyone feels the lockdown in the same way,” he says. “Vulnerable people and people in poverty are experiencing it in a much different way to people like me, who have a garden for the kids to play in and access to the internet. That can have an input on behaviour as well. If your circumstances are such that you think you’ll go out anyway, are you setting up the potential for friction with the police when the relationship with the police may not be great anyway? Poverty is a type of vulnerability that at the moment makes things so much worse.”

All of these issues will be mulled by the review group as well as the police in the coming weeks with the intention being to modify police behaviour in real-time rather than waiting for the crisis to pass before retrospectively picking holes in the way it was handled. That is no small task when public health is at stake but, with speculation mounting that lockdown restrictions could be eased in the coming weeks, the job could be about to get even harder.

“At some point, when it’s safe to do so, the powers will be turned off,” Mr Scott says. “The thinking is that the group will continue after the powers have been switched off to take time to reflect and offer suggestions on lessons learned.

“A lot of reviews are done in hindsight and are designed to see what went wrong – there’s a degree of finger-pointing. The Chief Constable and the SPA were keen, in uncharted territory, when it is known that mistakes will be made by the public and the police, to allow lessons to be learned dynamically. We’re trying to head mistakes off early to show the public that it is a listening exercise, but there’s a risk that the powers will be turned off and on again and dealing with these transitions will be really difficult.”