Olivia Bennett writes a three part series on the impact of the coronavirus pandemic on the criminal justice system
Part three discusses whether the legislation passed in response to coronavirus is proportionate and just.
Worldwide, stringent measures to combat the spread of COVID-19 have resembled dystopian fiction. A fatal virus resulting in nationwide “lockdowns”, strict social distancing, and mass funerals unattended by loved ones is reminiscent of Albert Calmus’ 'The Plague’.
Furthermore, the Coronavirus Bill, passed in the House of Commons, has bestowed UK police with ‘emergency powers’. The police now have the authority to control where you travel, who you see, and when. If you fail to comply you can be fined or even detained. If you refuse medical testing or refuse to disclose your travel history when requested, you can also be detained. Additionally, drones have been deployed to enforce the “stay at home” message, and the recorded surveillance footage posted online to shame perpetrators. Such extensive governmental control echoes Orwell’s 1984. Big Brother is watching you.
In the absence of a national emergency, legalisation which infringes our right to liberty, freedom of association, freedom of movement, and privacy, may not have been passed. Certainly not with such swiftness. These measures have been taken in line with the public interest of health. However, are they a proportionate infringement of our rights? Moreover, how might this legalisation impact our future?
Increased police powers
Last fortnight, pictures emerged of the police throwing black dye into a picturesque blue lagoon in Derbyshire, in an attempt to discourage people who disobediently continued to congregate. Perhaps more orthodoxly, the police can also issue fines worth £60, which can double with each repeat offence, if a person fails to leave an area when requested. If an individual repeatedly fails to comply, or refuses to have a health test, they will be acting unlawfully, and could be detained by the police.
It is clear such measures have value in limiting the spread of COVID-19. Simultaneously however, they infringe our right to liberty and freedom of movement. They also present a threat to our democracy. For example, in the future this same power could theoretically be used to disperse groups with an anti-government agenda, break up trade unions, and political protests.
It is no secret that under the tenure of President Xi Jinping, China is becoming a burgeoning authoritarian state. In recent months, there has been controversy over the governments use of biometric surveillance, such as facial recognition, to monitor its citizens. Following the pandemic, these measures have intensified. Recently, The Telegraph published a story of a man in Taiwan, who like many citizens had been obliged to download an app which recorded his body temperature, medical condition and movements. The purported used of this app is to alert users of any potential danger to their health, for example if they have been in close proximity to an infected person. However, it can be argued that the government overstepped, when the police came to this mans house in the middle of the night, and demanded to know why his phone was on ‘airplane mode’ after he dropped off the governments surveillance grid.
This technology infringes the right to privacy recognised by Article 8 of the European Convention of Human Rights. However, the UK government are considering following the Chinese, by using metadata from mobile phones and telecommunication operators to track the virus. Metadata provides information such as the timestamp of an electronic message, the name of the sender, the name of a recipient and the location of the device. The UK’s consideration of this technology continues despite Sir Patrick Vallance, the governments chief scientific adviser, asserting the measure “would have been a good idea in January”, but the optimal window has now passed considering we are now all in isolation.
What happens afterwards?
In his novel 1984, Orwell warned 'no one ever seizes power with the intention of relinquishing it’. History has shown that often ‘emergency powers’ become permanent ones. For example, following the 9/11 terrorist attack, the US government created the Patriot Act to avoid future incidences of terrorism. Section 215 of the Act, known as the “Business Records” provision, enabled the US government to demand telecommunication firms supply them with the phone records of anyone who might be involved in terrorism. Twelve years later, the whistleblower, Edward Snowden, revealed that the government had been using this law to collect the phone records of every single customer. This broad power had been abused by the government, and the privacy of American citizens had unknowingly been breached for over a decade.
This concern has been discussed by historian Yuval Noah Harari in a recent Financial Times article. Imagine, Harari explored, if the government repurposed the use of biometric data such as heart rate and nerve activity taken during a political speech. Anger, fear, excitement, and happiness are all biochemical reactions. If the government had access to such data it could provide vital information about the publics perception of politicians. This could lead to micro targeting of voters in a similar way to the Facebook and Cambridge Analytica scandal surrounding the 2016 US Presidential election and Brexit referendum.
How can we avoid ‘emergency powers’ being abused?
Privacy International, a charity which investigates the intersection between modern technology and human rights, has identified two ways to prevent the abuse of ‘emergency powers’. First, the legalisation must have an expiration date. The Coronavirus Bill has a 2 year sunset clause, and is set to be reviewed every 6 months. This is important as in order to continue there must be valid justification. Second, we must ensure that there are appropriate checks and balances in the form of regulation. While difficult, this must be done as the legalisation develops, as it is much harder to regulate retrospectively.
In unprecedented times, leadership requires decisive and often unpopular decision making. It is important to distinguish between what is justifiably invasive for the purpose of defeating COVID-19 and what is disproportionate in achieving that aim. At this early stage, it can be difficult to separate the two. However, as we begin to reflect on what measures have and have not worked, we must act to ensure such measures are not unnecessarily deployed at the expense of our human rights.