Policing the Pandemic in Scotland

In March 2020, the Coronavirus Act 2020 provided an extensive range of emergency powers to enable public bodies to respond to the COVID-19 pandemic. Aimed at protecting public health, the 2020 Act is part of a complex suite of emergency legislation across the devolved nations, that taken together, marks the largest expansion of executive power seen in peacetime.

In Scotland, this legislation includes the Health Protection Regulations, which provide police officers with powers to issue Fixed Penalty Notices (FPNs) for non-compliance with various restrictions on movement and gatherings.

The changing landscape of legislation

Since 2020, these regulations have been updated numerous times. The initial regulations covered the first lockdown in March 2020 and the subsequent easing of restrictions during  the summer. In September 2020, new legislation was brought in restricting hospitality and introducing the 'rule of six'. In November 2020, this was replaced with new legislation that brought in a levels-based approach during the winter months. In January 2021, these regulations were amended to re-introduce 'stay at home' measures, similar to that seen in the first lockdown, before being eased in the spring. Scotland moved to Protection Level 0 in July 2021. In August 2021, new legislation was introduced, detailing rules for businesses to collect visitor information and, later in the year, to check the vaccination status of an individual and ensure physical distancing. It was then announced that these regulations would be removed in March 2022.

Given the unprecedented scope and rate of change of the legislation, it was vital to examine in more detail how police officers and the general public responded to, and were impacted by, these regulations and how non-compliance changed through the pandemic.

Our Advisory Group:

The Advisory Group offered guidance and advice to the project team to help maximise the benefits of the research to policy makers, practitioners, and members of the public, especially those most likely to have been affected by the pandemic. The members comprise representatives from law enforcement, public health, community justice, central and local government, third sector organisations, and academia. The group included members from Scotland and the wider UK to ensure the research and findings are of the widest relevance.

Our analysis brought together data from three key sources to provide a robust insight into the use, experiences, and impacts of, the new police enforcement powers.

Police data and linked health data

A unique database of Fixed Penalty Notices (FPNs) issued by Police Scotland was linked at an individual level to a range of health, economic and social administrative data. To identify links between non-compliance with the Regulations, and vulnerabilities, such as economic and health challenges, we compared the profile of FPN recipients to that of a matched sample of the Scottish adult population across a range of measures, including area deprivation, mental health episodes, and drug or alcohol-related health contacts. We also investigated whether Covid-19 infection and death rates amongst FPN recipients differed to those of the population as a whole. This allowed us to determine the extent to which those who were subject to enforcement posed a risk in terms of spreading the disease. 

The data for this part of the project was linked securely in the national Safe Haven environment. This secure method of data linkage means that police never access an individual's health records as part of the project, nor do NHS staff have access to an individual's criminal record. All data held in this linked dataset are anonymised.

This data linkage has been assessed and approved by the NHS Scotland Public Benefit and Privacy Panel for Health and Social Care. 

Police interviews

Alongside the linked data analysis, we explored in detail the experiences and views of police officers involved in front-line duties during the pandemic, and who issued FPNs to those who did not comply with the Coronavirus Regulations. We interviewed a sample of around 30 police officers, on topics such as their perceptions on using FPNs as a mechanism for encouraging compliance and managing enforcement with frequently changing Regulations.

Public interviews

We also explored the experiences and views of people who were issued with one or more FPNs during the pandemic as a result of not complying with the Coronavirus Regulations. We looked to interview a sample of around 100 people on topics including: the impact of the pandemic; attitudes to and understanding of Regulations and guidelines; attitudes to the police; behaviours during lockdown and circumstances surrounding issue of an FPN; attitudes towards and the impact of receiving an FPN; and factors that could have increased likelihood of compliance with the Regulations.

Our research provided solid evidence that people living in deprived areas of Scotland were more likely to be fined. However, it was thought that those with underlying health vulnerabilities found it particularly difficult to comply with the legal restrictions and were, therefore, more likely to be fined. That raised serious questions about the fairness, proportionality, and equality of the Regulations in dealing with the pandemic and preventing the spread of contagion.

Benefits of the project for public health:

• A robust examination of the effects of the Regulations, particularly the use of enforcement, in preventing the spread of disease.
• Insight into whether vulnerable members of the public were disproportionately penalised under the Regulations for behaving in ways that, under normal circumstances, would have been perfectly law abiding.
• Evidence about the association between health vulnerabilities and police enforcement under the Regulations, and which groups may have experienced additional inequality through repeated police enforcement.

Wider public benefits:

• Strengthening the evidence base around health vulnerabilities and demand for policing, highlighting the need for a cross-sectoral public health approach to improve outcomes and reduce harm for society's most vulnerable individuals.
• Support the joint commitment by Public Health Scotland and Police Scotland to work collaboratively to drive national improvements in public health and wellbeing.
• Demonstrate and reduce the effect of health and social care failure demand on 'public health policing' in Scotland, especially in the context of increasing need for front-line police officers to respond to people in extreme distress or moments of crisis. 

Taken together, the outcomes from this research will contribute to better informed, fairer and more effective policies. These will have benefits both in the event of future public health emergencies, as well as for broader cross-sectoral policy and practice.

Our findings will also contribute to generating more evidence-based strategies aimed at encouraging and enabling public compliance with the law. They will also help raise awareness about the impact of the Regulations, and help challenge the stigma attached to 'non-compliance' during the pandemic.

Articles

Murray, K., McVie, S., Matthews, B. and Gorton, V. (2024) From parking tickets to the pandemic: Fixed Penalty Notices, inequity, and the regulation of everyday behaviours. British Journal of Criminology. https://doi.org/10.1093/bjc/azae016

Blogs

Victoria Gorton, Susan McVie: Covid-19 fines in Scotland: What we know so far (SCADR Blog, 17 August 2022)

Victoria Gorton, Susan McVie, Kath Murray: Partygate raises important questions about rules, guidance and compliance during COVID (LSE COVID-19 Blog, 6 May 2022)

Susan McVie, Kath Murray, Ben Matthews and Victoria Gorton: Policing the pandemic (1919 magazine, January 2022)

Susan McVie, Kath Murray and Ben Matthews: How did Scotland police the pandemic? (Covid-19 Perspectives, 21 July 2021)

Reports

Final Report of the Independent Commission on UK Public Health Emergency Powers (15 May 2024)

The final report of the Independent Commission makes 44 recommendations to enable the four nations in the UK to better protect the rule of law and good governance in future public health emergencies while acting quickly to secure timely and effective public health outcomes. These include several that our research team proposed, including: government should make clear the rationale and justification for a police enforcement approach; government should consult more closely with the police as to whether laws are enforceable; governments should consider whether a formal warning system could be a first stage alternative to use of FPNs; excessively high FPNs should not be issued unless proportionate to level of risk and approved by a senior officer; and contingency planning should involve working with public health officials and police forces to develop training on the enforcement of public health restrictions. The report also acknowledges the positive role of the Independent Advisory Group in Scotland, and recommends that “as part of contingency planning for future public health emergencies, governments and policing bodies should consider establishing an independent advisor or advisory group on human rights and policing at the start of an emergency”.

Evidence submission for the Independent Commission on UK Public Health Emergency Powers (28 April 2023)

This report provides observations and commentary from Susan McVie, as well as the wider project team, on the appropriateness of FPNs as a measure for enforcing public health restrictions in an emergency situation. Drawing on experiences from Susan's work with the Independent Advisory Group in Scotland and the data reports on FPN use in England, Scotland and Wales, it outlines ideas for alternative measures for future public health emergencies. This response argues for the importance of transparent law making with enforcement having a clear rationale and be kept to a minimum. It also calls for lessons from the pandemic to be incorporated into probationary training of officers, future emergency legislation to be drafted in consultation with police forces, and that officers be prioritised for vaccination in any future pandemic.

Policing the Pandemic in England and Wales: Police use of Fixed Penalty Notices from 27 March 2020 to 31 May 2021 (9 March 2023)

This report examines data on Fixed Penalty Notices (FPNs) issued in England and Wales under the Coronavirus Regulations between 27 March 2020 and 31 May 2021 in relation to illegal travel and movement, social gatherings, and failure to follow instructions. It focuses on who received fines, where and why they were issued, and how patterns of usage varied over time as the restrictions changed. It also examines how policing changed over time, looking at three distinct time-periods defined by patterns of enforcement during the pandemic and related policy and legislative change. Overall, the analysis in this report provides valuable insights into the profile and patterning of police enforcement during one of the most tumultuous periods in recent history. The report was commissioned by the National Police Chiefs’ Council (NPCC) as part of its commitment to openness

Police Use of Covid-19 Fixed Penalty Notices in Scotland: March 2020 to May 2021 (4 August 2022)

This data report examines patterns and trends in the Covid-19 Fixed Penalty Noticed (FPNs) issued in Scotland between March 2020 and May 2021, and provides a detailed description of the characteristics of FPN recipients.  It finds that men, younger people and those living in areas of high deprivation were more likely to be issued with FPNs under the Coronavirus Regulations in Scotland over the course of the pandemic.  However, changes over time mean that the deprivation profile of FPN recipients shifted to include more people from across the Scottish socio-economic spectrum. 

This is the final data report published to support the work of the Independent Advisory Group (IAG) set up to provide scrutiny around Police Scotland’s use of the temporary powers.  It was published to coincide with the Reflections Roundtable organised by the Scottish Police Authority Meeting on 4th August 2022 to consider oversight of policing during the pandemic.  

Payment Outcomes of Police Fixed Penalty Notices registered by the Scottish Courts and Tribunal Service during the Coronavirus Pandemic (4 August 2022)

This report provides a detailed analysis of the payment outcomes of police Fixed Penalty Noticed (FPNs) registered by the Scottish Courts and Tribunal Service.  It examines Quarterly Fines Reports published by the SCTS and finds that fine payment was delayed during the pandemic, mainly due to contingency measures introduced by the SCTS to receive and process payments; however, overall payment levels were consistent with previous years.  It also finds, however, that Covid-19 FPNs were less likely to be paid than those issued for anti-social behaviour.  Analysis of fine recipients shows that non-payment was more common amongst those who received multiple FPNs, those living in areas of high deprivation, and those who were already known to Police Scotland’s Criminal History System.

This report was produced to support the work of the Independent Advisory Group (IAG) set up to provide scrutiny around Police Scotland’s use of the temporary powers, and published to coincide with the Reflections Roundtable organised by the Scottish Police Authority Meeting on 4th August 2022 to consider oversight of policing during the pandemic.  

Data Report on Police Charges Reported to the Crown Office and Procurator Fiscal Service under the Coronavirus Regulations: March 2020 to June 2021 (25 August 2021)

Professor Susan McVie has authored a data report on the number of charges reported by Police Scotland under the Coronavirus Regulations between March 2020 and June 2021 to the Crown Office and Procurator Fiscal Service (COPFS).  The report examines the number of charges reported to COPFS, the prosecutorial decisions that were taken in these cases and the outcomes of disposals.  The data provide assurance that a very small proportion of all pandemic related policing activity resulted in a report to the COPFS and that decisions made in respect of these charges were broadly in line with usual prosecutorial practice.

The report was published to coincide with the Scottish Police Authority Meeting on 25th August 2021 and represents one of a number of papers presented by John Scott QC, Chair of the Independent Advisory Group (IAG) set up to provide scrutiny around Police Scotland’s use of the temporary powers.

Third Data Report on Police Use of Fixed Penalty Notices under the Coronavirus Regulations in Scotland: March to December 2020 (25 August 2021)

Professor Susan McVie and Dr Ben Matthews have authored a third data report scrutinising the police use of Fixed Penalty Noticed (FPNs) under the temporary powers introduced by the Coronavirus Regulations to help stop the spread of the virus. This report examines all FPNs issued between March and December 2020.  It represents the most detailed analysis for any UK police force of how many FPNs were issued, who received them, and where and when FPNs were issued.  Importantly, it also shows how rates and patterns of enforcement changed over time.  

The report was published to coincide with the Scottish Police Authority Meeting on 25th August 2021 and represents one of a number of papers presented by John Scott QC, Chair of the Independent Advisory Group (IAG) set up to provide scrutiny around Police Scotland’s use of the temporary powers.

Second data report on Police Use of Fixed Penalty Notices under the Coronavirus Regulations in Scotland (February 2021)

This data report contains detailed analysis of the profile of those individuals who received a police Fixed Penalty Notice (FPN) under the Coronavirus Regulations in Scotland during the first lockdown wave (from 27th March to 31st May 2020). It is one of a series of data reports produced on behalf of the Independent Advisory Group (IAG) on Police Use of Temporary Powers during the Coronavirus Crisis in Scotland, chaired by John Scott QC.

Data report on Police Use of Fixed Penalty Notices under the Coronavirus Regulations in Scotland (August 2020)

This report provides analysis of the Fixed Penalty Notices (FPNs) issued by Police Scotland under the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 which were approved by the Scottish Parliament on 27th March 2020.

The work of the researchers involved in the Policing the Pandemic in Scotland project has had impact on police operational decision making and scrutiny of policing practice throughout the course of the pandemic. Since legal restrictions in Scotland ceased, our research has continued to have impact by feeding in to various parliamentary debates and public inquiries. A summary of the various contributions the research team has made are provided below. 

Informing policing practice and supporting scrutiny during the pandemic in Scotland

From April 2020 to May 2022, Professor Susan McVie was a member of a specially convened Independent Advisory Group (IAG) created by the Scottish Police Authority to provide scrutiny around Police Scotland’s use of new temporary policing powers. Throughout this period, she supported the IAG by consulting relevant evidence and experts, conducting analysis of police data, producing briefing papers, and publishing a series of data reports on the police use of enforcement in Scotland. Her work generated insights on patterns of policing practice during the pandemic which informed IAG debates and led to changes in guidance given to officers. She was also commissioned by the National Police Chiefs’ Council to produce a data report on police use of enforcement in England & Wales. 

The positive work of the IAG, including the work of Professor McVie, was praised by Scotland’s Chief Constable, Sir Iain Livingston, at SPA Board meetings and acknowledged in an independent evaluation published in November 2021. The value of the IAG was also highlighted by the Independent Commission on UK Public Health Emergency Powers (see below), which stated that it would “recommend that as part of contingency planning for future public health emergencies, governments and policing bodies should consider establishing an independent advisor or advisory group on human rights and policing at the start of an emergency” (page 143-144).

Terms of Reference of the IAG 

Report on police use of enforcement in Scotland

Report on police use of enforcement in England and Wales

Independent evaluation report on the work of the IAG

Contributing to UK and Scottish parliamentary debates during the pandemic

Our research contributed to policy debates that took place during the course of the pandemic.  For example, the UK Parliament Joint Committee on Human Rights which considered whether there had been unlawful discrimination in the use of police Fixed Penalty Notices, citing our evidence from Scotland around potential socio-economic discrimination.  In addition, Professor Susan McVie gave evidence to the Scottish Parliament Justice Sub-Committee on Policing and provided evidence from the data reports produced for the IAG during the pandemic. 

Read the UK Parliament Joint Committee report

Read the Scottish Parliament Justice Sub-Committee on Policing minutes

Influencing recommendations of the Independent Commission on UK Public Health Emergency Powers

The Commission, which was established in October 2022 under the chairmanship of the Rt. Hon. Sir Jack Beatson FBA and supported by the Bingham Centre for the Rule of Law, considered written and oral evidence from 82 individuals and organisations across the UK and 10 other jurisdictions. The final report made 44 recommendations aimed at enabling the UK nations to better protect the rule of law and good governance in future public health emergencies while acting quickly to secure timely and effective public health outcomes. Oral and written evidence provided by the Policing the Pandemic in Scotland research team was instrumental in supporting five key recommendations contained in the report:

• government should make clear the rationale and justification for a police enforcement approach; 
• government should consult more closely with the police as to whether laws are enforceable; 
• governments should consider whether a formal warning system could be a first stage alternative to use of FPNs; 
• excessively high FPNs should not be issued unless proportionate to level of risk and approved by a senior officer; 
• and contingency planning should involve working with public health officials and police forces to develop training on the enforcement of public health restrictions.

Read our written evidence to the Commission

Read the report from the Independent Commission on UK Public Health Emergency Powers

Feeding in to the Scottish and UK Covid-19 Inquiries

Our research has been submitted to both the Scottish and UK Covid-19 inquiries. We participated in the public consultation around setting the Terms of Reference for the UK Covid-19 Inquiry and influenced a specific focus on the use of police enforcement during the pandemic, which was not in the draft terms circulated by Baroness Hallett. In December 2023, Professor McVie submitted written evidence to the UK Covid-19 Inquiry (under a Rule 9 Request); and in January 2024, she was one of a small number of selected academics who gave oral evidence to the Inquiry under Module 2a (Core UK decision-making and Political Governance - Scotland). 

Read Professor McVie’s written evidence to the UK Covid-19 Inquiry

Watch Professor McVie’s evidence session at Module 2a

Creating new data linkage opportunities in Scotland

Frontline police officers in Scotland identified compliance issues amongst people with mental health and/or substance use problems during lockdown. Through her work on the IAG, Professor Susan McVie was able to negotiate access to an individual-level dataset containing information on all Fixed Penalty Notices issued in Scotland and link this to Public Health Scotland data on people’s contact with health services for psychiatric, drug or alcohol-related conditions.  This marked the first time that police and health data had been linked together at an individual level in Scotland, and bears testament to the close and trusted working partnership that developed during the pandemic. The findings from this study have been fed back to SPA, Police Scotland and Public Health Scotland, and an academic paper is currently under review in the Journal of Criminology. 

As a result of this data collaboration, Professor McVie was invited to be a member of the Leadership Group for the Scottish Prevention Hub, a partnership between Police Scotland, Public Health Scotland, and the Edinburgh Futures Institute.  Her role in the Hub is to develop further data linkage projects that can help to improve and support the development of policing and public health strategies that will reduce risk and prevent harm amongst vulnerable groups in Scotland. With the support of the Scottish Centre for Administrative Data Research, a new project on the policing of mental health distress is currently in development and plans are in place to develop further projects that support the role of the Scottish Prevention Hub in improving public health policing. 

Read more about the Scottish Prevention Hub

Selected to represent academic research impact at Westminster

The Policing the Pandemic in Scotland has been selected by UK Research and Innovation as one of only six projects across the UK to represent academic research impact at an event in Westminster in November 2024.  The event, which will be attended by MPs from across the House, will involve showcasing research evidence and demonstrating how it has impacted on society, policy and practice.  The research conducted by the study team will be exhibited in a range of innovative ways, including interactive maps, 3D models and printed Covid-19 regulatory images. The event will be attended by Professor Susan McVie along with Assistant Chief Constable Gary Ritchie from Police Scotland. 

Our Research Team:

• Professor Susan McVie
• Dr Kath Murray
• Dr Ben Matthews 
• Dr Victoria Gorton