Covid-19 Penalties and Ethnicity

As a result of the coronavirus pandemic the powers of the police to detain those not following the regulations in place have been hugely expanded in a way that has received much criticism. Jonathan Sumption QC, a former Supreme Court judge, has described the powers as creating a police state. A recent report done by Liberty Investigates has revealed a further dynamic in which the powers and enforcement of these new powers are problematic. This found that the fines were given more often to people of colour, than to white people.

This was not a surprise for many people. Indeed, before any data was gathered Katrina Ffrench, the CEO of Stopwatch (a campaign group working to achieve fair and effective policing) predicted that as police interact with BAME people much more than their white counterparts, then people of colour would be fined much more often for breaching lockdown.

The analysis done by Liberty Investigates shows that the warnings given by Ffrench were largely valid. Between the 27th March and 11th May, English Police forces handed out 13,455 fixed penalty notices (fines). Of these, 2,218 of them (22% of the total fines) were given to people of colour. This means that when you adjust for the demographics of the population, then BAME people are 54% more likely to be fined for breaching the coronavirus restrictions.

However, some figures reveal a much more alarming tale. Michael Shiner, Associate Professor of Social Policy at the London School of Economics, argues that the best way to measure disproportionality in enforcement of these regulations is to assume that those who don’t identify their ethnicity should follow the same ethnic makeup as those who do.   The National Police Chief’s Council (NPCC) do not do this in their figures. Here, they wrongly explained that there was no disproportionality by assuming that all non-identifiers were not BAME. Therefore, by using Shiner’s method it is clear that these measures are disproportionately used against people of colour.

Focussing in specifically on Northamptonshire, we can see that the disproportionality is replicated on a local level. Between the 27th March and 27th April, Northamptonshire Police issued 198 fixed penalty notices (FPNs) for lockdown breaches. This ranks Northamptonshire Police as the 2nd highest nationally, in terms of how many of these were conducted when adjusted for population size.

The most significant discrepancy is to those of Bangladeshi descent who are 12.8x more likely to be given an FPN than white people. However, it is worth noting that a large number of those from Bangladeshi origin who have received FPNs have received more than 5. This is indicative of a number of repeat offenders rather than any fault on the side of the Police.

However, there is a notable disproportionality for white people of a non-British background, in particular those from Eastern Europe. Indeed, there were 35 people from Eastern European descent who were given FPNs (17.7% of the total). However, as of yet it is unclear whether this indicates there being more cases of breaking the regulations by people of Eastern European descent; or if there is an unconscious bias to give FPNs rather than advise people of certain ethnicities to go home.

The case of Shazia Zahieer and Tayyaba Arif do seem to be suggest that there is some systematic biases on the part of police forces. Here, 2 sisters from the same household were fined for breaching lockdown measures when they travelled to Preston Docks for a walk. After being stopped by police they both received fines of £60 for breaching the movement restrictions. This fine appears to make extraordinarily little sense, given that section 6(2) of the Health Protection Regulations explicitly details that exercise with other members of one’s household is a “reasonable excuse” for leaving the place they live.

After consulting legal advice Lancashire Police chose to dismiss this fine; but what is unknown is how many cases similar to this have led to an unfair use of the restrictions. To go as far as saying this example reveals that the police have been unfairly using the powers across the country against BAME people due to racism would be exaggerative at this time. Indeed, there are many similar cases of an unfair use of the coronavirus regulations against white people as well, such as that imposed on a family in Rotherham sitting in their front gardens.

Thankfully, the Crown Prosecution Service, the body responsible for all criminal convictions in England and Wales, have begun reviewing all prosecutions done under the Coronavirus regulations. So far the results of this have been remarkably positive with all 44 of those checks (as of the 15th May) being overturned or withdrawn.

The future will only tell whether more of these convictions will be overturned. Based on the current record of the reviews, it is incredibly likely that they will do. There has already been extensive calls for an inquiry into why BAME people have a much higher death rate from the coronavirus. In addition to this, another important question deserving of attention is to why from a legal standpoint people of colour similarly are disproportionately affected by the pandemic.

Tom Spencer

Tom Spencer is a law student studying at City, University of London with a strong interest in public law. In his free time, he enjoys refereeing football games and playing cricket for his university. He also writes for a number of outlets regularly. You can find Tom on LinkedIn by clicking here

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