As the crisis continues, we need to make sure that our rights are not permanently eroded, argues Elaine Graham-Leigh

The lockdown legislation in the UK, as in other countries, is clearly an unprecedented restriction on our normal liberties, but one which is warranted to slow the spread of coronavirus. As the lockdown progresses it is clear, however, that we are facing threats to our civil liberties; threats which we can’t allow to be hand-waved away with a ‘don’t you know there’s a pandemic on?’

One area of concern is the way in which a number of police forces are choosing to interpret the lockdown rules. The lockdown law says that we can only leave our homes with a reasonable excuse. It then provides a non-exclusive list of reasonable excuses, such as buying necessities like food or household goods, exercise, work if it can’t be done from home and caring for vulnerable people. The police have powers to make people return to quarantine if they have reason to believe they may be infected but their coronavirus powers do not include a general right to stop and search anyone at will.

This is not however the impression you would get from many police Twitter feeds and press briefings. The examples of forces interpreting the law to include all sorts of behaviour they have decided they don’t like are mounting. We have had Derbyshire Police objecting to people driving into the countryside to take a socially-distanced walk (and arguably breaking data protection law in the process by not obscuring faces and number plates in their tweeted drone footage). Cambridge Police praised shoppers in Tesco because ‘the non-essential aisles were empty’. The Chief Constable of Northamptonshire Police told a press conference that ‘We will not at this stage be starting to marshal supermarkets and check-in the items in baskets and trolleys to see whether it is a legitimate necessary item but…if people do not heed the warnings…we will start to do that’. An officer from South Yorkshire Police berated a man in Rotherham for playing with his children in his own front garden.

In the face of public outrage, the police forces concerned have had to dial back on most of these. Cambridge Police deleted their tweet about the non-essential aisles in Tesco, saying that it was posted with good intentions by ‘an over-exuberant officer.’ South Yorkshire Police similarly apologised about the front garden incident, claiming that it was again ‘well-intentioned’ but this time, ‘ill-informed’, while Northants Police’s Chief Constable has denied that he meant that his forces would be starting to root through people’s shopping to judge their purchases. The way in which these incidents keep recurring is however an indication that they are driven by something other than good intentions. There seems to be a widespread view on the part of the police that the coronavirus crisis gives them an opportunity to extend their ability to control what we do outside our homes.

Arguments about shopping and exercise may seem trivial, although they can obviously be intimidating and stressful for those on the receiving end of this sort of police overreach. They can also, and are presumably designed to, have a chilling effect, where those affected are then less likely to exercise their legal right to leave their homes when they have a reasonable excuse. There are also indications of more serious abuses by the police of the powers they would like to think that the coronavirus crisis has given them.

At the end of March, South Yorkshire Police arrested a 13-year old boy under Covid-19 regulations when he refused to give his name. At the station, they discovered that he was wanted for robbery, so he was not prosecuted under coronavirus regulations, but the case nevertheless appears to be, as Bindmans solicitors commented, the use of Covid-19 powers as an excuse for the initial arrest and a demonstration of ‘the alarming potential for the police to use their increased new powers to supplement their more limited pre-existing powers when investigating unrelated offences.’

In a similar case, police in Newcastle arrested Marie Dinou for ‘loitering between platforms’ in Newcastle Central station, using their powers to act against someone they had reason to believe had the virus. She was held in the cells for two days, tried in her absence by a district judge, and fined £660. The case was subsequently overturned when it was pointed out that since she was not suspected of being infected with coronavirus, the section of the regulation under which she was arrested did not apply, but that hardly makes up for the unwarranted ordeal she was put through.

In this case, as in the south Yorkshire case, it appears that the police used coronavirus powers as an easy excuse to arrest someone who they felt was causing trouble. They were apparently called by station staff at Newcastle Central because Dinou was suspected of not having a ticket and appeared to be in some distress. In this way, the coronavirus powers can become effectively stop and search powers, which will, of course be used disproportionately against working-class people and against ethnic minorities. Dinou is black, as is the man whom police in Greater Manchester threatened with pepper spray for the crime of standing outside his elderly relative’s house, delivering groceries. Suggestions that the burden of proof for reasonableness may fall on the individual rather than the police will only make this worse. If you have to prove to the copper who has stopped you that were on your way to the supermarket for your government-approved essential items, that’s much harder than if they have to show reasonable suspicion that you were actually heading to a party.

The danger that the coronavirus crisis will be used as a justification to extend the coercive power of the state is clearly a real one. In this context, we should be wary of the introduction of tech for monitoring and control without very clear and binding conditions for how it will be used during the pandemic, and stop being used afterwards. Contact tracing is likely to be part of our way out of lockdown, but it is less clear that an app is a suitable or reasonable replacement for actual human contact tracers.

It is also reasonable to be concerned about the sort of society we could become if we do not protect our civil liberties even during the pandemic. It is apparent that various police forces want us to become a nation of snitchers and curtain-twitchers, judging by the apps they’ve released to encourage us to report our neighbours for breaching lockdown conditions. We are also apparently a society in which accommodations in the public realm for disabled people are a luxury we can’t afford. The general taping-off of benches in case someone might need to sit on them is presumably justified on the basis that disabled people should all be locked in their houses for 12 weeks anyway. It feels however like a return to the bad old days where nothing had to be accessible because to be disabled was to be unable to participate in society.

Widespread reports of elderly and disabled people being pressured to agree to a Do Not Attempt CPR notice  being placed in their NHS records add to the possibility that the authorities’ response to coronavirus could be taking us to a society in which some lives are worth more than others. While such notices obviously have their place in end of life care planning, reports of their being rolled out to people with learning disabilities and suggestions that patients signing one should not expect to be able to call 999 for help if they had coronavirus symptoms, suggest that this is going beyond normal clinical practice.

A free society is one in which everyone is valued equally, and healthcare even in a pandemic is given according to individual need, not according to whether or not someone belongs to a group deemed less worth saving. The retractions by various police forces of their attempts to extend their powers in response to online protest show that, even in lockdown, we have the power to resist these sorts of threats to our civil liberties. There are increasing calls that we ensure that after the pandemic has passed, we don’t just return to the pre-pandemic world as if nothing had happened. It seems unlikely that we will emerge from this with our societies unchanged. If we want those changes to be for the better rather than for the worse, we will have to start to fight now.