By Caroline Derry (The Open University), Yolanda Eraso (London Metropolitan University) and Matt Howard (University of Westminster)

When lockdown began in March 2020, the rules about when people could and could not leave home, travel on public transport, and so on seemed relatively clear. The distinction between guidelines and criminal offences was less obvious and changed frequently. Many lockdown rules did have the force of criminal law: the Coronavirus Act 2020 created an offence committed by potentially infectious people who refused to co-operate with police when required to be screened for Covid-19, while offences under the Health Protection (Coronavirus, Restrictions) Regulations covered travel, wearing face coverings, socialising, and self-isolation. However, some rules (eg leaving home or two metres’ social distancing) did not have the force of law, while the complexity of the rules – which changed at least 65 times in the first year – made identifying the correct offence challenging.

It is unsurprising, then, that even the Crown Prosecution Service struggled to use the new offences correctly: over a quarter of cases were wrongly charged including all 270 charges for the Coronavirus Act offence. These errors generally assumed the criminal law applied more widely than was actually the case, suggesting that lawyers and police at least saw it as important in enforcing lockdown. And when Dominic Cummings made an apparently lockdown-breaching outing to Barnard Castle in April 2020, there were immediate calls for the police to become involved. While Cummings went unpunished, over 85,000 Fixed Penalty Notices were issued during the first year (many incorrectly, and disproportionately affecting already disadvantaged groups); depending on the nature of the offence, these could be for up to £10,000.

There is some evidence indicating that those issues may have changed attitudes to the law in general. The latest British Social Attitudes report suggests ‘a more liberal attitude to law and conformity’: the percentage of people who did not agree that the law should be always be obeyed even if it is wrong rose from 23% in 2019 to over 30% during the pandemic. How, though, did the public see the role of the criminal law specifically in managing the pandemic? That is a question which interests Caroline and Matt, law academics with research interests in criminal law and legal socialization respectively. Yolanda is well-placed to help answer it: she has been researching lockdown compliance including the nature of non-adherence behaviours to social distancing, self-isolation and quarantine rules in North London. With her colleague Stephen Hills, she carried out a survey and individual interviews in which participants discussed the reasons and motivations for their behaviour during lockdown.

Caroline and Matt are particularly excited by Yolanda’s work because it is based in health studies, and participants were not being prompted about legal rules specifically. Without that prompting, would the threat of prosecution emerge as a major factor shaping people’s behaviour during lockdown? If not, what was its significance? The answers are intriguing from the point of view of challenging how legal compliance is formulated. They may, perhaps, be more surprising to legal academics, if less so to Yolanda.

Infringement was, unsurprisingly, associated with a range of individual, interpersonal and community factors. These included pressure or support from neighbours and friends, lack of trust in politicians – but not the threat of prosecution. Indeed, no distinction seems to have been made between rules which had legal force and those which did not (perhaps unsurprisingly given the lack of clear information about this). The apparently large number of fixed penalties appears to have had limited impact upon popular consciousness, a situation which is perhaps less surprising when one considers Yolanda’s finding that infractions and non-compliance with guidelines among those surveyed averaged close to three a week. The thousands of penalties thus reflect a vanishingly small percentage of actual infringements of the restrictions.

Was the criminal law irrelevant, then? No, but it had a more nuanced effect than straightforward fear of punishment. Yolanda’s research offers a significant space for considering how compliance is governed at a local and informal level; and what is required for perceptions of legitimacy to be developed. There was a desire for clear rules about what could and could not be done: a role which need not be fulfilled by criminal law but was in part. There was also unhappiness at lack of police enforcement of others’ behaviour. The criminal law’s significance, then, seems to be that it created not only rules to follow but also expectations of enforcement when others flouted them. In other words, it provided a standard against which to judge others, and one which was perhaps ultimately counter-productive. Seeing neighbours congregate in parks without consequence prompted the sort of disillusionment that encouraged individuals to breach the rules themselves.

Other factors contributed to the issue of compliance, too. For instance, the growing complexity and lack of clarity around the rules following the relaxation of first lockdown added to negative feelings about them, which in turn reduced compliance. However, it is notable that these were associated with the government rather than the criminal law. Lack of trust in the government’s competence and good faith were intertwined with, and as significant as, lack of certainty about the content of specific rules.

Yolanda’s work has led to a series of recommendations: among others, that building trust in public health emergency measures is paramount, and a meaningful way of achieving this is through early development of strategies for local community participation to strengthen community engagement and social support. This could provide residents with the tools to comply with the guidelines, whilst increasing acceptability. Government-funded, locally supported packages at different levels (financial, food, and practical needs) must be in place to facilitate compliance with self-isolation and quarantine. For Caroline and Matt, it has also prompted reflection upon the role of criminal law in responding to the pandemic. What does this tell us about how legitimacy is constructed? How far does the symbolic function of criminal law, as a yardstick of minimum acceptable standards, justify criminalisation?  And in this specific context, if the criminal law was not a significant factor in shaping people’s behaviour, should it have been engaged at all?